Opinion
No. CV 04-0525115 S
May 19, 2004
MEMORANDUM OF DECISION
This is the plaintiff, Laura Laperuta's second action against the defendant, State of Connecticut, Tunxis Community-Technical College. The plaintiff originally brought this action against the defendant, through a complaint filed with the Superior Court on May 12, 2000. The case was assigned Docket Number CV 00 0501912. An amended complaint was filed on September 22, 2000. The plaintiff alleges that she was exposed to hazardous working conditions since September 1996 and that in March 1999 she requested that the defendant provide her with a work environment that was safe to her health. She alleges that, as a result of her requests, she suffered from employment discrimination and retaliation in violation of the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq. and Title VII 42 U.S.C. § 2000e et seq. on the basis of sex, marital status and disability, wilful and wanton misconduct by supervisors and fellow employees, as well as failure to make a reasonable accommodation under the Americans with Disabilities Act, 42 U.S.C. § 12112(b)(5)(A).
The following is the procedural history underlying the first action. On May 15, 2002, the defendant served interrogatories and production requests on the plaintiff. On July 19, 2002, the plaintiff filed objections to the defendant's interrogatories. On that same date, the plaintiff filed a motion for extension of time requesting more time to provide answers to the defendant's interrogatories and requests for production. The court, Gaffney, J.T.R., granted this request on August 5, 2002. On November 21, 2002, the defendant moved to compel responses to its interrogatories and production requests that had been served on the plaintiff on May 15, 2002. The court, Bryant, J., granted the motion to compel with a hand-written notation that nonsuit would enter if no response had been made by January 15, 2003.
On January 9, 2003, the defendant moved for an extension of time to take the deposition of the plaintiff citing the plaintiff's delay in providing discovery as the reason for the need for an extension. The court, Byant, J., granted this request on February 7, 2003. The defendant also filed a motion for nonsuit on January 23, 2003. The defendant further filed a motion for judgment of nonsuit on March 7, 2003. On April 14, 2003, the court, Gaffney, J., granted the motion for nonsuit and the judgment of nonsuit.
On August 13, 2003, the plaintiff moved to vacate the nonsuit arguing that she had in fact complied with the interrogatories and requests for production on September 9, 2002, and that the only outstanding interrogatories and requests for production were some of the ones that she objected to on July 19, 2002, on which the court had not yet ruled. The defendant objected to the motion to vacate. On August 25, 2003, the court, Dunnell, J., denied the motion to vacate. The court cited the date of nonsuit as January 15, 2003 based on Judge Bryant's hand-written notation on the motion to compel and denied the motion to vacate because it had not been filed within four months.
On September 3, 2003, the plaintiff moved to reargue the motion to vacate nonsuit asserting that nonsuit actually entered on April 14, 2003, and therefore, the plaintiff argued, the motion to vacate was filed in a timely manner. The defendant objected to the motion. On October 9, 2003, the court, Dunnell, J., denied the motion to reargue citing Segretario v. Stewart-Warner Corp., 9 Conn. App. 355, 519 A.2d 76 (1986).
On January 9, 2004, the plaintiff brought a similar action on the same set of facts and legal claims under General Statutes § 52-592, the accidental failure of suit statute. On February 13, 2004, the defendant filed a timely motion to dismiss on the grounds of lack of subject matter jurisdiction and failure to file within the statute of limitations.
The defendant argues that the prior dismissal of the plaintiff's claims in a judgment of nonsuit does not bring the action within the provisions of § 52-592(a) because of the nature of the plaintiff's counsel's egregious conduct and that consequently, the action is barred by the statute of limitations. In the alternative, the defendant also argues that the judgment of nonsuit entered in the plaintiff's prior action is a final judgment whose issues are res judicata between the parties. The plaintiff filed a memorandum in opposition arguing that she is entitled to avail herself of the saving provisions of § 52-592 because the failure of the first action was due to plaintiff's counsel's mistake, inadvertence or excusable neglect. The plaintiff also submits an affidavit of Seymour A. Rothenberg, Esq. regarding the motion to vacate nonsuit and other documentary evidence.
On March 29, 2004, the court heard the parties' arguments in regards to the motion to dismiss at short calendar. During oral argument, the defendant's counsel represented to the court that the plaintiff had objected to each and every one of the defendant's interrogatories. Defendant's counsel later submitted to the court a letter, dated March 29, 2004, and attached the pleading to which she had been referring entitled "Notice of Filing Objections" filed with the court on July 19, 2002. The letter further outlined her argument that the plaintiff's counsel's conduct had been egregious. On April 2, 2004, the plaintiff's counsel submitted a letter to the court in which he takes exception to defense counsel's communication with the court and the arguments made in the letter. The plaintiff's counsel also notes the only set of objections he is aware of are those dated June 13, 2002. This is in fact the same set of objections, the date on the caption is June 13, 2002 but it is time/date stamped July 19, 2002. The July 19, 2002 date will be used to refer to the notice of filing objections throughout this memorandum. Further, the plaintiff did not object to every one of the defendant's interrogatories. Objections were submitted for approximately 17 out of 53 interrogatories. The plaintiff provided answers to all but 17 questions.
"[A]lthough a motion to dismiss may not be the proper procedural vehicle for asserting that an action is not saved by General Statutes § 52-592, our Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss." Henriquez v. Allegre, 68 Conn. App. 238, 241 n. 6, 789 A.2d 1142 (2002), citing Capers v. Lee, 239 Conn. 265, 269-70 n. 9, 684 A.2d 696 (1996). "The savings statute is essentially an extension of, and by implication a response to, a statute of limitations defense . . . The presence of a statute of limitations defense does not deprive a court of subject matter jurisdiction, therefore [s]uch a defense ordinarily is raised either by a motion to strike or by a motion for summary judgment." (Internal quotation marks omitted.) Peterken v. Ivovino, Superior Court, judicial district of Fairfield, Docket No. CV 03 0402502 (January 9, 2004, Wolven, J.). In the present case, the plaintiff has not objected to the use of a motion to dismiss to determine whether this action is saved by § 52-592 and, therefore, this court will address the merits of the motion.
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "[I]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 504, 815 A.2d 1188 (2003). "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action . . . Motions to dismiss are granted solely on jurisdictional grounds." (Internal quotation marks omitted.) Pitruzello v. Muro, 70 Conn. App. 309, 312, 798 A.2d 469 (2002).
The defendant points to the plaintiff's failure to respond to defendant's written correspondence or four voice mail messages left over a two-month period in an attempt to resolve the discovery dispute, plaintiff's allowing the judgment of nonsuit to enter unopposed, and the untimely motion to vacate nonsuit, among other reasons, as egregious conduct on the part of plaintiff's counsel. The defendant further argues that it is prejudiced in gathering evidence because the case is still in preliminary stages almost eight years after the events underlying the action.
The plaintiff asserts that the nonsuit should never have entered because she had complied with the non-objected to interrogatories in a timely fashion, and was waiting for a court ruling on the objections before addressing the others. The plaintiff further argues that she learned that the nonsuit entered on April 15, 2003, and that the motion to reopen was filed within four months of that date. The plaintiff asserts that it was only through mistake that the plaintiff did not realize that the effective date of the nonsuit was January 15, 2003, making the August 13, 2003 motion to open untimely. The plaintiff asserts that the facts of this case do not rise to the level of egregious conduct.
Section 52-592(a), the accidental failure of suit statute provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
"Deemed a `saving statute,' § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations . . . Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed `so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions.'" (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn. App. 601, 607, 806 A.2d 567 (2002).
"Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the [plaintiff] fail[s] to get a proper day in court due to the various enumerated procedural problems . . . Its purpose is to aid the diligent suitor." (Citations omitted; internal quotation marks omitted.) Henriquez v. Allegre, supra, 68 Conn. App. 243-44. "Where . . . the hallmark of counsel's representation is a pattern of repeated delay, occasioning the utilization of judicial resources to enforce proper prosecution of cases brought before the court and necessitating several dismissals, our strong policy favoring a trial on the merits loses its applicability." Gillum v. Yale University, 62 Conn. App. 775, 787, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).
"Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592 . . . Whether the statute applies cannot be decided in a factual vacuum." (Citation omitted.) Ruddock v. Burrowes, 243 Conn. 569, 576, 706 A.2d 967 (1998). "To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a `matter of form' in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect." Id., 576-77. "A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved." Stevenson v. Peerless Industries, Inc., supra, 72 Conn. App. 607.
In Stevenson, the trial court granted the defendant's motion to dismiss and the appellate court reversed, holding that the plaintiff was entitled to avail himself of the accidental failure of suit statute. Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App 606. In that case, the plaintiff filed the original action against defendants, Barr, Inc., (Barr) and Peerless Industries, Inc., and Peerless Sales Company (Peerless) in 1998. Id., 602-03. In November 1998, Peerless then filed a request to revise the complaint. Id., 603. The plaintiff failed to respond to it. Id. In December 1998, Peerless sent discovery requests to the plaintiff, which the plaintiff failed to answer. Id. Peerless subsequently filed a motion for a judgment of nonsuit for failure to comply with the discovery requests, which the court granted July 8, 1999. Id. The plaintiff did not respond to the motion for nonsuit and did not attempt to open the judgment. Id. Barr also pursued a similar action and obtained a judgment for nonsuit. Id., 603-04. The plaintiff brought a second action on the same claims on July 6, 2000 invoking § 52-592. Id., 604. The defendant, Peerless, filed a motion to dismiss arguing that the plaintiff's failure to prosecute the case diligently was not due to mere mistake, inadvertence or excusable neglect. Id. In opposition to the motion to dismiss, the plaintiff contended that he had failed to respond to discovery requests because of miscommunication with one of his attorneys, who practiced in Pennsylvania. Id. He also gave other explanations for various mistakes that had been made, for example that counsel's secretary failed to prepare a motion to open the judgment as instructed. Id., 605.
The court held that the plaintiff's actions constituted excusable neglect and did not rise to the level of egregious conduct. Id., 607. The court stated, "This is not a situation beset by years of unnecessary litigation and `cumulative transgressions.' . . . Rather, as the plaintiff explained, after filing his action in 1998, he failed to respond timely to the request to revise and to discovery demands, due, in part, to miscommunication with counsel in Pennsylvania." (Citation omitted.) Id., 607-08. The court further explained that the facts presented in Stevenson were very different from the set of facts present in previous cases where egregious conduct had been found. Id., 608. For example, in Skibeck v. Avon, 24 Conn. App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991), the Appellate Court affirmed the trial court's decision to grant summary judgment in an action that had been filed pursuant to § 52-592. In that case, the trial court dismissed the case three times for failure to appear and failure to prosecute over the course of many years of litigation. Id., 240-41. The court stated, "[t]o allow this action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process." Id., 243.
The actions of plaintiff's counsel do not amount to egregious conduct so as to prevent the plaintiff from availing herself of the provisions of § 52-592. Like Stevenson, a judgment for nonsuit entered in the present action because of a failure to comply with discovery requests. A review of the file shows that on September 9, 2002, the plaintiff filed a notice of compliance answering the defendant's interrogatories and requests for production. The response included references to several pending objections. The defendant attempted to resolve the discovery dispute through a letter dated October 7, 2002 and through phone calls. The plaintiff did not respond to these attempts. Like Stevenson, the plaintiff in this case also allowed the judgment of nonsuit to enter unopposed, however, in this case the plaintiff made an attempt to vacate. While the motion to vacate in this case was untimely, taking the facts in the light most favorable to the plaintiff, the motion was late due to a mistake rather than egregious conduct.
Although the facts underlying this action occurred eight years ago, this case has not seen years of "unnecessary litigation" and "cumulative transgressions" as in cases such as Skibeck. The conduct in this case does not seem to arise to the level of egregious conduct as occurred in Skibeck where the court dismissed the case three times. Further, although the defendant argues that it is a burden to defend this case because employees of the defendant have been laid off, retired or possibly moved within the state or out of state, allowing this suit to continue would not compromise public policy concerns that underlie statutes of limitations.
In Biro v. Sidley Austin, Superior Court, judicial district of Stamford, Docket No. CV 95 0149415 (October 1, 1996, Tobin, J.) ( 17 Conn. L. Rptr. 629), the court stated, "a failure to comply with three deadlines for requests for disclosure [was] not necessarily egregious and dilatory conduct." The court allowed the action, brought pursuant to § 52-592, to go forward despite the fact that the case arose from events that occurred almost 14 years prior in the Middle East and that litigation had been pending for almost eight years with three suits going to the Connecticut Supreme Court twice. Id. The court held that much of the delays had been within the purview of the law. Id. Allowing the case presently before the court to go forward is appropriate because the hardship imposed on the defendant is not so extreme as to undermine public policy. The events underlying the action occurred here in Connecticut and the litigation has only been pending for four years.
The Superior Court addressed the issue of egregious conduct in Boland v. Perez, Superior Court, judicial district of Fairfield, Docket No. CV 02 0394427 (September 5, 2003, Levin, J.). In Boland, the plaintiff brought a second action pursuant to § 52-592 and the defendant moved for summary judgment asserting that the statute could not be used to save the plaintiff's action because the omissions of the plaintiff went beyond simple accident or mere negligence. Id. The defendants argued that the plaintiff failed to: file responsive pleadings to the defendants' special defenses; respond to the defendants' standard written interrogatories and production requests; or respond to the court's order of compliance. Id. The court held that the plaintiff's conduct did not rise to the level of egregious conduct and denied the defendant's motion for summary judgment because there was an issue of fact as to when notice of the nonsuit was received by the plaintiff. Id. The case presently before the court is factually similar to Boland where the plaintiff failed to respond to discovery requests or the court's order of compliance. In this case, the plaintiff did respond in some fashion. The court concludes that the conduct of plaintiff's counsel in the first action was due to mere mistake, inadvertence or excusable neglect and did not rise to the level of egregious conduct.
This decision is in keeping with the general philosophy of the Connecticut Supreme Court regarding use of the accidental failure of suit statutes. The court has recently reiterated this philosophy stating: "The accepted policy is to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 558 (2004). The defendant's motion to dismiss is therefore denied.
The defendant asserts as an alternative argument that the doctrine of res judicata bars this action because the judgment of nonsuit entered in the plaintiff's prior action is a final judgment. The court will not address the merits of this claim because a motion to dismiss is the improper procedural vehicle with which to raise the defense of res judicata. "Res judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed." Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994). Accordingly, "[r]es judicata is not included among the permissible grounds on which to base a motion to dismiss. Res judicata with respect to a jurisdictional issue does not itself raise a jurisdictional question. It merely alleges that the court has previously decided a jurisdictional question and therefore must be asserted as a special defense . . . It may not be raised by a motion to dismiss." (Citation omitted.) Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
Henry S. Cohn, J.