Opinion
CV176073273S
12-31-2018
Gordon MACALLA et al. v. AMERICAN MEDICAL RESPONSE OF CONNECTICUT, INC.
UNPUBLISHED OPINION
OPINION
James W. Abrams, Judge
The plaintiffs brought this matter by Complaint dated August 15, 2017 against the defendant, American Medical Response of Connecticut, Inc. On August 11, 2018, the defendant filed a Motion for Summary Judgment on the ground that the present case is barred by the prior pending action doctrine. The plaintiffs filed an Objection to the Motion for Summary Judgment dated September 17, 2018, along with a supporting memorandum of law The matter was heard before the court at short calendar on September 24, 2018.
I
FACTS
On September 5, 2017, the plaintiffs, Gordon MacCalla, Alexis Tomarelli, Tyler Grailich, John Cronin, Timothy Yurksaitis, and Cate Sadlier, filed the present complaint against the defendant, American Medical Response of Connecticut, Inc., alleging the following facts. The defendant made a clear and unambiguous promise to the plaintiffs that if they came to work for the defendant as emergency medical responders, the plaintiffs could retain simultaneous employment in the same basic capacity with Valley Emergency Service, Inc. and/or Danbury Ambulance Service, Inc. The defendant should have reasonably expected the plaintiffs to work for the defendant in reliance on said promise and the plaintiffs did come to work for the defendant in reliance on said promise. Enforcement of the defendant’s promise is essential to avoid injustice and detriment to the plaintiffs. The complaint sounds in six counts of promissory estoppel, brought by each of the plaintiffs. The plaintiffs request money damages and such other relief as the court deems fair and equitable.
Previously, on December 17, 2012, the same plaintiffs filed a 30-count complaint in this court against the defendant, alleging breach of contract, promissory estoppel, tortious interference with contractual relations, tortious interference with business expectancies, and CUTPA. See MacCalla v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV-13-6035009-S (2013 case). After a number of substitutions and withdrawals, the only remaining counts in the 2013 case sounded in promissory estoppel (see # 125 and # 128). On September 6, 2016, the same plaintiffs filed another complaint in this court against the defendant, alleging that the defendant’s conduct violated the Connecticut Antitrust Act, General Statutes § 35-24 et seq. (CATA). See MacCalla v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV-16-6064679-S (2016 case). The defendant filed a motion to consolidate the two cases, and the motion was granted by this court, Abrams, J., on April 19, 2017.
On August 2, 2017, the defendant filed a motion for entry of a nonsuit or default in the 2013 case, requesting a judgment of dismissal against the plaintiffs for failure to comply with discovery. The plaintiffs objected to this motion; however, on August 11, 2017, this court, Abrams, J., overruled the objection and dismissed the 2013 case. The plaintiffs have since filed an appeal from this court’s decision overruling their objection to motion for nonsuit and judgment of dismissal.
II
DISCUSSION
A. Summary Judgment Standards
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
"The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant’s affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016).
B. Prior Pending Action Doctrine
"[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 395-96, 973 A.2d 1229 (2009).
"The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state’s already crowded court dockets ... The rule, however, is not one of unbending rigor, nor of universal application, nor a principle of absolute law ... Accordingly, the existence of claims that are virtually alike does not, in every case, require dismissal of a complaint ... We recognize that this statement of the scope of the doctrine’s application, on the one hand, provides that the existence of claims that are virtually alike does not require dismissal in every case ... while also suggesting that the doctrine is always applicable where the two actions are virtually alike, and in the same jurisdiction." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bayer, supra, 292 Conn. 396-97.
To determine whether the doctrine applies, "the trial court must determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine’s application. In order to determine whether the actions are virtually alike, we must examine the pleadings ... to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties ... If the two actions are exactly alike or lacking in sufficient similarities, the trial court has no discretion. In the former case, the court must dismiss the second action, and in the latter instance, the court must allow both cases to proceed unabated. Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action." (Citations omitted; emphasis in original; internal quotation marks omitted.) Bayer, supra, 381 Conn. 397-98. 1) The defendant’s Motion raises two issues: 1) Are claims seeking to invoke the prior pending action doctrine properly raised in motions to dismiss rather than motions for summary judgment and; 2) Even if properly raised, does the prior action sited in this case meet the test for the invocations of the prior pending action doctrine?
1. Must the Prior Pending Action Doctrine be raised by a Motion to Dismiss?
In their objection to the motion for summary judgment, the plaintiffs argue that the defendant impermissibly raised the prior pending action doctrine in a motion for summary judgment rather than a motion to dismiss. At short calendar, the defendant argued that the prior pending action doctrine does not necessarily have to be raised in a motion to dismiss.
"Any claim that the pendency of a prior suit between the same parties, for the same thing, will abate a latter suit ... formerly could be raised by a plea in abatement ... The plea in abatement; Practice Book, 1963, § 93; has, however, since been replaced by the motion to dismiss." (Citations omitted; internal quotation marks omitted.) Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985). Accordingly, our appellate authority is clear that "a motion to dismiss is the proper vehicle to raise the issue of a prior pending action, [although] the doctrine does not truly implicate subject matter jurisdiction." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., supra, 292 Conn. 403; see also Kleinman v. Chapnick, 140 Conn.App. 500, 503 n.5, 59 A.3d 373 (2013) ("[t]he prior pending action doctrine is properly raised via a motion to dismiss" [internal quotation marks omitted]); In re Jessica M., 71 Conn.App. 417, 427, 802 A.2d 197 (2002) ("[t]he prior pending action doctrine is properly raised via a motion to dismiss before the trial court"). Because the doctrine does not implicate the court’s subject matter jurisdiction, the court "does not have the right to raise, sua sponte, the prior pending action rule when the moving party has not done so." (Internal quotation marks omitted.) Conti v. Murphy, 23 Conn.App. 174, 178, 579 A.2d 576 (1990). The doctrine "may not, therefore, as is true in the case of classic subject matter jurisdiction, always be raised at any time." (Internal quotation marks omitted.) Luongo Construction & Development, LLC v. MacFarlane, 176 Conn.App. 272, 284, 170 A.3d 57, cert. denied, 327 Conn. 988, 175 A.3d 562 (2017).
Although the defendant argues that the prior pending action doctrine need not be raised exclusively in a motion to dismiss, our appellate case law suggests otherwise. In addition to the oft-quoted language that a motion to dismiss is the proper vehicle by which to raise the issue of a prior pending action, the Appellate Court has suggested that a motion to dismiss is the only method of raising this argument. See Pecan v. Madigan, 97 Conn.App. 617, 622, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007). In Pecan, the defendants "raised the prior pending action doctrine by way of a motion to strike. As we have indicated, the function of the motion to dismiss is different from that of the motion to strike. [The motion to dismiss] essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court ... [S]ee Practice Book § 10-31. By contrast, the motion to strike attacks the sufficiency of the pleadings. Practice Book § 10-39 ... There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) Id., 621. Although the Appellate Court agreed with the trial court’s analysis and concluded that the prior pending action doctrine applied to certain counts, the Appellate Court held that "[r]ather than striking those counts ... the court should have dismissed them." Id., 622. The Appellate Court thus remanded the case with direction to dismiss the relevant counts. Id.
In the present case, the defendant has not cited any appellate authority explicitly supporting the proposition that this court should treat the present motion for summary judgment as a motion to dismiss. Although a trial court may properly treat a motion for summary judgment as a motion to dismiss when subject matter jurisdiction is at issue; see Litvack v. Artusio, 137 Conn.App. 397, 401 n.3, 49 A.3d 762 (2012); as noted above, the prior pending action doctrine plainly does not implicate subject matter jurisdiction. Moreover, although the defendant relied on two Superior Court cases in support of its argument that a motion for summary judgment is an appropriate means of raising the prior pending action doctrine, those cases are distinguishable. In Federal Ins. Co. v. Ford & Paulekas, LLP, Superior Court, judicial district of Hartford, Docket No. CV-13-6037955-S (February 4, 2014, Peck, J.), the court noted that "the prior pending action doctrine does not implicate the court’s jurisdiction at all," and that the doctrine "may be considered by the court at any time." The’ controlling case law, however, states only that the doctrine does not implicate subject matter jurisdiction, and holds unequivocally that the doctrine may not be raised at any time. See Luongo Construction & Development, LLC, supra, 176 Conn.App. 284. Further, notwithstanding the court’s conclusion in Federal Ins. Co. that the doctrine does not implicate the court’s jurisdiction at all, the court recognized that at the time the motions to dismiss were filed, the applicable claims in the prior action had been withdrawn. See Federal Ins. Co., supra, Superior Court, Docket No. CV-13-6037955-S. Accordingly, the court denied the motions to dismiss on the ground that, "at the time the motions to dismiss in the present case were filed, there was no prior pending action." Id.
The defendant also relies on Strickland v. St. Francis Hospital & Medical Center, Superior Court, judicial district of Hartford, Docket No. CV-00-0599550-S (June 14, 2001, Schuman, J.). In Strickland, the trial court granted the defendants’ motion for summary judgment on the ground that the prior pending action doctrine barred the plaintiff’s second case. Id. Importantly, the court granted the motion after noting that "[t]he deadline for filing a motion to dismiss in Strickland II was thirty days after the return day, or August 18, 2000 ... The defendants could not have filed a motion to dismiss alleging a prior pending action by this date because they did not receive notice that the court had revived Strickland I until after December 18, 2000. A summary judgment motion was the only reasonable means of preventing two trials of the same matter at that point. The court accordingly holds that the defendants in this case can raise the prior pending action doctrine by way of a summary judgment motion." (Citations omitted; footnote omitted.) Id.
In the present case, there is no similar timing issue that would have prevented the defendant from filing a motion to dismiss. The plaintiffs filed a notice of intention to appeal the 2013 case on August 14, 2017, and filed the present complaint on September 5, 2017. The defendant filed an appearance on September 26, 2017, but did not file the present motion for summary judgment until nearly one year later on July 11, 2018, and after filing an answer and special defense on October 13, 2017. Accordingly, the defendant has not demonstrated that a motion for summary judgment was the appropriate or necessary mechanism for raising the prior pending action doctrine in this case.
2. Does the Prior Pending Action Doctrine Apply in this Case?
The plaintiffs’ second argument is that the prior pending action doctrine should not apply because the present case has not been brought for an oppressive or vexatious purpose. The plaintiffs also argue that the 2013 case was dismissed due to events that occurred during the discovery process, and not on the merits or legal sufficiency of the counts; thus, the pending appeal involves the penalty imposed on the basis of counsel’s conduct, not the underlying substantive issues.
In determining whether the prior pending action doctrine applies, the court should consider, inter alia, whether "the present case and the prior pending action both (1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives." Modzelewski v. William Raveis Real Estate, Inc., 65 Conn.App. 708, 714, 783 A.2d 1074, cert. denied, 258 Conn. 948, 788 A.2d 96 (2001). As noted above, the trial court must determine whether the cases are "(1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine’s application." Bayer, supra, 252 Conn. 397. "[T]he applicability of the doctrine does not turn on the issue of whether the two actions seek the same remedy ... The key question is whether the two actions are brought to adjudicate the same underlying rights." (Citation omitted.) Kleinman v. Chapnick, supra, 140 Conn.App. 506.
In the present case, there can be no real dispute that the operative complaint in the 2013 case and the present complaint are substantively identical. See Def.’s Exs. 1, 3. The operative complaint in the 2013 case similarly alleges that the defendant made a clear and unambiguous promise to the plaintiffs that if they came to work for the defendant, they could retain simultaneous employment with Valley Emergency Medical Service, Inc. and/or Danbury Ambulance Service, Inc.; that the defendant should have reasonably expected the plaintiffs to work for the defendant in reliance on said promise; that the plaintiffs did rely on said promise and worked for the defendant; and that enforcement of the defendant’s promise is essential to avoid injustice and detriment to the plaintiffs. See Def.’s Ex. 1, Count 2, 5-9. Further, recent case law suggests that there is no good faith exception to the prior pending action doctrine. See Modzelewski, supra, 65 Conn.App. 714 ("The defendant further argues that this court should not apply the prior pending action doctrine because it had ‘good reason’ to bring the counterclaim in this controversy. There is no such exception to the prior pending action doctrine ..."); but see Quinebaug Bank v. Tarbox, 20 Conn. 510, 515, 1850 (holding that doctrine, does not apply when second suit is "not vexatious, but brought for good cause"); Bayer, supra, 292 Conn. 396.
The plaintiffs do, however, raise a valid argument regarding the fact that they have taken an appeal from this court’s decision overruling the plaintiffs’ objection to nonsuit in the 2013 case. Although no appellate authority has directly addressed this issue, at least one Superior Court case held explicitly that an appeal from a "judgment of nonsuit does not invoke the prior pending action doctrine." Biro v. Sidley & Austin, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-93-0132616-S (July 6, 1994, Dean, J.) (12 Conn.L.Rptr. 130, 130), citing Chomko v. Patmon, 20 Conn.App. 159, 161, 565 A.2d 250 (1989) ("a pending appeal is not a prior pending action within the meaning of the prior pending action doctrine"); see also 710 Long Ridge Operating Co. II, LLC v. Stebbins, 153 Conn.App. 288, 293 n.7, 101 A.3d 292 (2014) ("In Salem Park, Inc. v. Salem, 149 Conn. 141, 176 A.2d 571 [1961], our Supreme Court overruled a plea in abatement made on the ground that a prior action involved the same land and the same issues on the basis that the judgment in the prior action had been rendered and had not been set aside. Salem Park, Inc., espouses the principle that if a judgment in a prior action has been rendered and has not been set aside on appeal, there is no action ‘pending’ within the meaning of the prior pending action doctrine").
Although the defendant cites to Beaudoin v. Town Oil Co., 207 Conn. 575, 542 A.2d 1124 (1988), in support of its argument that the prior pending action doctrine is properly raised when the prior action is on appeal, Beaudoin is distinguishable for the reason that the plaintiff in Beaudoin had "conceded at oral argument that there were no issues presented on this appeal that could not be raised in an appeal of [the prior action] ... The plaintiff had the opportunity, of which she availed herself, to protect her rights by a timely filing of her notice of intent to appeal the striking by the trial court of her earlier motion to implead ..." Id., 589-90.
In the present case, although the ultimate relief sought by the plaintiffs is the reopening of the 2013 case, the issue presented on appeal involves the defendant’s motion for nonsuit, not a decision on the merits or sufficiency of the promissory estoppel claims. Accordingly, to the extent that the plaintiffs’ appeal even qualifies as a "pending" action, the issues to be decided on appeal arise from a different factual background (namely, the conduct of plaintiffs’ counsel during discovery proceedings) than the underlying promissory estoppel claims and, as a result, the prior pending action doctrine does not apply in this case.
III
CONCLUSION
The court finds that the defendant has not sustained its burden of showing that it is entitled to summary judgment as a matter of law on two grounds: 1) Claims seeking to invoke the prior pending action doctrine are properly raised in motions to dismiss rather than motions for summary judgment; and 2) Even if properly raised, the prior action cited in this case does not meet the test for the invocation of the prior pending action doctrine. As a result, the defendant’s Motion for Summary Judgment is hereby denied.