Opinion
HHDCV186092937S
07-30-2019
Icolene Robinson et al. v. Jose Del Castillo
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sheridan, David M., J.
MEMORANDUM OF DECISION RE PLAINTIFFS’ MOTION TO STRIKE MOTION TO IMPLEAD THIRD-PARTY DEFENDANT (#176)
Sheridan, J.
The defendant in this matter has moved for permission as a third-party plaintiff to serve a writ, summons and complaint upon a non-party, Kevin Murray, based on a claim that he may be liable for all or part of the plaintiff’s claim. In response, the plaintiff has filed a "Motion to Strike" the Motion to Implead "pursuant to Practice Book § 10-39." (Docket Entry #176.)
At the outset, the court is not persuaded that a Section 10-39 motion is the proper vehicle to oppose a Motion to Implead. While a Section 10-39 Motion to Strike may be filed after the third-party complaint has been served and returned to court in order to contest the legal sufficiency of the allegations of the third-party complaint, it is premature at this juncture because the court has not yet granted permission to commence the third-party action and the writ, summons and complaint have not been served on the third-party defendant and returned to court. The proper pleading in the present procedural context would be an objection to the motion to implead, or a memorandum in opposition to the motion to implead. Accordingly, pursuant to Practice Book Section 1-8, the court will treat the present pleading as an objection to the motion to implead. Any substantive challenges to the causes of action alleged in the third-party complaint itself will have to be made in subsequent motions.
The authority cited by the plaintiffs, Johnson v. D’Appollonio, No. CV156024314, 2016 WL 3536514 , does not stand for the proposition that a motion to strike may be filed to oppose a motion to implead. In fact, D’Appolionio is a decision on an objection to a motion to implead where the court correctly notes that "[t]he proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Id., *3 (emphasis added). The other cases cited by the plaintiffs on this question, Paul v. McPhee Elec. Contractors, 46 Conn.App. 18, 19 (1997), and Gulack v. Gulack, 30 Conn.App. 305, 305 (1993), are inapposite, if not spurious.
The plaintiffs’ memorandum makes it clear that it deems the causes of action in the third-party complaint to be time-barred and legally insufficient.
The factors to be considered in deciding a motion to implead are well defined. Practice Book § 10-11 provides, in relevant part that: "(a) A defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff’s claim against him or her. Such a motion may be filed at any time before trial and such permission may be granted by the judicial authority if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action or work an injustice upon the plaintiff or the party sought to be impleaded."
In the present case, trial of this matter is scheduled eleven months in the future, so it is unlikely that the third-party complaint will unduly delay the trial. As to whether granting of the motion will "work an injustice" upon the plaintiffs or the party sought to be impleaded, the plaintiffs contend that the third-party complaint will invariable lead to an "additional round of motion practice" which will be costly to the plaintiff. While there may be some merit to this claim, it is obviously not good cause for denying permission to file a third-party claim for, if it were, no defendant would ever receive permission to file a third-party complaint. Every third-party complaint, to some extent, leads to "additional motion practice." Standing alone, the possibility of further motion practice is hardly an injustice that merits denial of permission to bring a third-party action.
For these reasons, the plaintiffs’ opposition to the motion to implead is overruled and the motion is granted.