Opinion
No. X01 CV 04 4001892 S
January 26, 2006
MEMORMNDUM OF DECISION RE SIMSBURY'S MOTION TO DISMISS (#125), LYNCH/BOYLE'S MOTION TO DISMISS (# 116), METACON'S AMENDED MOTION TO STRIKE
This motion is dated 8/17/05 and was filed on the same date. No Request for Adjudication was filed until 11/30/05. While its status is assured, it (for reasons unknown to the court) remains uncoded.
Factual Background
The governing complaint is the Revised Complaint dated April 4 (filed April 6), 2005. (This suit is the sole remaining case as of January 10,2006, when the earlier brought suit was withdrawn.) That complaint asserts four (4) counts: Count One seeks an order of mandamus as against the Town of Simsbury; Count Two asserts a negligence action against the town; Count Three alleges a violation of C.G.S. § 22a-16 — (a section of this state's EPA, which section specifically provides for declaratory and equitable relief against unreasonable pollution); Count Four asserts a private nuisance as against Metacon. The allegations directed to Metacon are more specifically discussed in this court's Memorandum of Decision dated 9/16/05 and are not here repeated. The essence of the claim as against the Town is that it, through its employees, agents and servants, had and continue to have a duty to: (1) enforce federal, state and municipal laws and not to allow town residents (specifically Metacon) to violate those laws (¶ 3); and (2) promote and protect the public health, safety, welfare and rights of its residents to include the plaintiff (¶ 4).
The court file does not show any later complaint in this case — or the naming of individual plaintiffs — was ever granted. See Ruling of 1/3/06.
A. Simsbury's Motion to Dismiss
The Town has moved to dismiss the First Count (for mandamus) on the grounds it fails to state sufficient facts to invoke the jurisdiction of the court because: a) the plaintiff has not alleged, nor could it allege facts establishing an exhaustion of administrative remedies; b) the plaintiff lacks a completed and perfected right to relief and therefore lacks standing; and c) the plaintiff cannot demonstrate the absence of an adequate remedy at law and the action is therefore unripe. The plaintiff has objected; both parties have filed a memorandum of law with numerous attachments; both have waived oral argument and consented to adjudication on the merits.
Applicable Law
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624 (1983). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Shay v. Rossi, 253 Conn. 134, 139-40 (2000). "When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." (Citations omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54 (1983).
"[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.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11 (1999).
"The plaintiff bears the burden of proving subject matter jurisdiction . . ." Fink v. Golenbock, 238 Conn. 183, 199 n. 13 (1996). Subject matter jurisdiction is the power of the court to hear and determine cases of the general class to which the proceedings in question belong. Federal Deposit Ins. Corp. v. Crystal, 251 Conn. 748, 763 (1999).
A motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action and should not be granted on other than jurisdictional grounds. Egri v. Foisie, 83 Conn.App. 243, 248 (2004).
Adjudication B. Apportionment Defendants' Motion to Dismiss (# 116)
The failure to exhaust an administrative remedy is grounds for denying relief in the nature of mandamus. Juliano v. Farrell, 196 Conn. 283, 286 (1985). The failure to exhaust administrative remedies implicates subject matter jurisdiction and is properly raised by a motion to dismiss. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556 (1987); Caltabiano v. Phillips, 23 Conn.App. 258, 262 (1990). The affidavit of William Voelker, the Town's Director of Community Planning and Development, asserts this complaint's various allegations regarding Metacon were made by various individuals in the past and were "fully investigated" by the Town's Zoning Enforcement Officer and that she, on August 1, 2003 (Appendix A), issued an opinion letter summarizing her investigation and stating her conclusion that Metacon "is operating well within the parameters that were set forth with the approvals granted" many years earlier. ¶¶ 4, 5. A resident of the area filed an appeal of that decision but withdrew the appeal before any action was taken. No other appeal was taken by any other citizen or resident. In response, the plaintiff argues the failure to exhaust is excused "if recourse to the administrative remedy would be futile or inadequate . . . or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm." (Citation omitted.) Smith v. D'Eramo, 273 Conn. 610, 616 (2005). "It is futile to seek an administrative remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Citation and internal quotation marks omitted.) Kish v. Cohn, 59 Conn.App. 236, 238 (2000). "The plaintiff's preference for a particular remedy does not determine the adequacy of that remedy." (Citation and internal quotation marks omitted.) Breiner v. State Dental Commission, 37 Conn.App. 700, 705 (2000).
It is not clear whether that resident was then a member of the plaintiff-Society; however, the defendant asserts — and the plaintiff does not dispute — that none of the individuals the plaintiff has moved to cite in (a motion not granted) were signatories to the appeal. Voelker's affidavit asserts a record check confirming no other appeal was filed by any party known to be associated with the plaintiff organization.
With regard to the adequacy of the remedy sought, it is relevant the plaintiff seeks no money damages (which the zoning board could not award) — but injunctive and declaratory relief only. Further, as above stated, the plaintiff does not claim the appeal process did not afford an adequate remedy — only that it would have been "futile."
The plaintiff argues only that the exhaustion of administrative remedies would be futile because the Town "has demonstrated an absolute unwillingness to act." Memo, at 6. It asserts the Town is "aware" of activities at Metacon which pose a threat to the health and safety of neighbors but has taken no action. Id., at 6-7. It cites to a July 25, 2002 letter the Town wrote to a plaintiff-member stating its intent not to act ( Id., at 7.); unfortunately, the plaintiff has not provided the court a copy of the same nor is it an attachment to the complaint. It cites this court to a superior court decision for the proposition "Futility can be shown by a Town's unwillingness to act." Id., at 6, citing to Blakeman v. Planning and Zoning Commission of the City of Shelton, judicial district of Ansonia-Milford, Docket #080675, 2003 WL 23149905 (Dec. 12, 2003) (Upson, J.). The proposition for which that case is cited is not found therein though the court did find the futility of exhaustion based on what the court found was "unwillingness to issue a certificate of compliance in its decision on her application for modification . . ." ( Id., at #3.) Examination of that decision, however, reveals the application for modification was in fact granted — but for the construction of eighteen (18) condominiums only as opposed to the twenty-four (24) units earlier approved. Id., at *1. Thus, the case is not helpful to the court in determining what is meant by "historic" unwillingness nor does the plaintiff attempt to elucidate the same. Finally, plaintiff references defense counsel's acknowledgment, in the Town's memorandum, that "informal complaints . . . have been investigated and found to lack merit under the applicable standards." Id., at 7.
Described as "a letter to a member of the plaintiff" ( Id., at 7.), it clearly was within the power of the plaintiff to produce.
The court rejects the plaintiff's claim of futility. What is not disputed is that no evidence has been adduced the Society — or any member thereof — ever exercised the right to appeal the zoning officer's opinion of August 1, 2003, following her investigation. Also undisputed is that the "investigation" which culminated in such letter consisted of a review of various approvals granted Metacon from January of 1969 through January of 1990 and no fewer than seven (7) site inspections beginning November 25, 2002, and concluding July 28, 2003 (On at least one day, more than one visit was made.). No evidence is provided to suggest any member of the plaintiff ever spoke directly to the zoning officer complained about Metacon's activities or offered to accompany the zoning officer on a site visit or so much as wrote that officer. The plaintiff's burden is to establish exhaustion — or the futility of the same — to establish subject matter jurisdiction. Reference to a letter not provided and broad assertions the Town intended never to act without providing evidence of the same does not establish futility in the face of the absence of any effort to pursue administrative remedies based solely upon the Town's decision to take no action against Metacon in response to (an undefined number of) complaints followed by what Appendix A would suggest was a comprehensive follow-up investigation and review.
There are some few cases in which equity may require a court to excuse the failure to exhaust. See e.g., Bowen v. City of New York, 476 U.S. 467 (1986). The Court in Bowen made clear the ultimate decision whether to waive exhaustion should be guided by the policies underlying exhaustion, which it identified as:
Most such cases — to include Bowen, supra — arise out of claims for entitlement to disability, workers' compensation, or Social Security benefits. See also Matthews v. Eldridge, 424 U.S. 319 (1976); Weiinberger v. Salfi, 422 U.S. 749 (1975). In those cases, the U.S. Supreme Court has required greater sensitivity in view of the nature and extent of the resulting harm if exhaustion were required.
a matter of preventing premature interference with agency processes so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. Id., at 484, citing to 422 U.S., at 765.
It also noted exhaustion "is the rule in the vast majority of cases." Id., at 486. Nothing in the plaintiff's memorandum suggests a rationale for this court's excusal of the need to exhaust.
The Town also argues the plaintiff cannot show they are in possession of a clear and protected right to court intervention by way of mandamus. Mandamus is an extraordinary remedy to be applied only under exceptional conditions. Hennessey v. Bridgeport, 213 Conn. 656, 659 (1990). A party seeking the same must establish: 1) the performance of the zoning official's duty is mandatory and not discretionary; 2) the applicant for the writ has a clear legal right to have the duty performed; and 3) there is no other specific adequate remedy available. 20 Orchard Street, LLC v. Water Pollution Control Authority, 78 Conn.App. 387, 391 (2003). "A writ of mandamus enforces a complete and immediate right, the existence of which is uncontested." Russo v. Common Council, 80 Conn.App. 100, 106 n. 4 (2003). The relevant question is not simply whether the official violated the law but whether that official violated any duty to the plaintiff. Lewis v. Swan, 49 Conn.App. 669, 677 (1998). The duty to be compelled by mandamus must be "a ministerial one; it will not lie to compel the performance of a duty which is discretionary." Beccia v. Waterbury, 185 Conn. 445, 453 (1981). Discretionary duties are performed wholly for the direct benefit of the public and are supervisory in nature; ministerial duties are those performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 168 (1988). Negligence in failing properly to enforce applicable statutes, regulations, and/or codes (as here claimed) are "acts that required in some measure the exercise of judgment by a municipal employee and are not ministerial." Evon v. Andrews, 211 Conn. 501, 506-07 (1989). In objection, the plaintiff cites to Grasso v. Zoning Bd. of Appeals of Groton Long Point Ass'n, Inc., 69 Conn.App. 230, 241 fn.6 (2002), for the proposition mandamus may issue to compel municipal employees to perform a mandatory duty even if that duty can be performed in a discretionary manner. No analysis of that case is provided nor is the court told in what way Grasso applies to the facts here. In Grasso, a property owner applied for a writ of mandamus to compel a zoning board of appeals to hold a hearing on his appeal from the zoning enforcement officer's denial of the owner's application for a permit and site plan approval. The Court, while acknowledging the determination of the zoning board involved the members' exercise of deliberation, discretion, and judgment ( Id., at 237.), found that the language of C.G.S. § 8-7 (specifically, that the board "shall" hear such appeal) was indicative of an intent the responsibility to hold a hearing was a mandatory duty ( Id., at 240.) and it directed the trial court to issue a mandamus to compel a hearing. Id. at 249. Thus, while statutes, regulations, and policies can create ministerial duties, when they relate to fire, police, or other public safety services, they are most often held to create discretionary duties. See e.g., Evon, supra; Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988); Shore v. Stonington, 187 Conn. 147 (1982); Sestito v. Groton, 178 Conn. 520 (1979); Stiebitz v. Mahoney, 144 Conn. 443, 446 (1957). The Grasso Court also noted the plaintiff there had no other alternative for contesting the official's decision because "before he may exercise his statutory right to appeal . . . he must first exhaust the administrative remedy of an appeal to the board." Id., at 249.
The Town asserts the proof that the plaintiff cannot assert it is without an adequate remedy at law is that: a) the plaintiff has pending in this State's federal district court another case against Metacon based on the same claims here advanced (3:04-CV-00803-JBA); and b) this matter presently pends as against Metacon. The Society's response is that another remedy is adequate only if it is equally complete and completely practical. Housing Authority v. Papandrea, 22 Conn. 414, 439 fn 7. It asserts the relief sought by mandamus cannot be obtained in either the pending federal or state court action. This is to ignore, however, that any need the plaintiff may now have for mandamus arises because it did not exercise its administrative remedies as against the zoning board. Its failure to pursue those remedies has impaired its claim of a "clear legal right" to mandamus. Additionally, it is an ipse dixit conclusion that it can't get the remedy of mandamus in the pending actions against Metacon since only a zoning authority can enforce its statutes and/or regulations. The requirement is not that the same remedy be unavailable but that no other available remedy is adequate. The Society offers no analysis and this court, under these circumstances, cannot conclude the remedies available to it by way of injunctive and/or declaratory relief against Metacon are inadequate. Nor can this court conclude the plaintiff has a clear legal right to the relief sought in that discovery is ongoing and the evidence is incomplete.
At the time the Town filed this Motion to Dismiss, there was also pending a separate state court action against Metacon alone. That is no longer so since the other pending state court case has been withdrawn.
For all of the above reasons, the Town's motion to dismiss is granted.
B. Lynch and Boyle's Motion to Dismiss (# 116)
Metacon has brought an apportionment complaint against Leonard Boyle, Commissioner of the Department of Public Safety, and Edward Lynch, Deputy Commissioner of the Department of Public Safety. The Third and Fourth Counts of the Revised Complaint of April 4, 2005, assert causes of action against Metacon — the Third Count for violation of C.G.S. § 22a-16 (which provides a cause of action for declaratory and equitable relief against unreasonable pollution under this state's EPA) and the Fourth Count in private nuisance. The apportionment complaint is brought under C.G.S. § 52-102(b) and asserts Lynch's and Boyle's negligence and carelessness in a virtual laundry list of some twenty-three (23) alleged wrongdoings.
Lynch and Boyle have moved to dismiss the apportionment complaint on the following grounds: 1) They are immune from suit in their official capacities under the doctrine of sovereign immunity; 2) They are immune from suit in their individual capacities under C.G.S. § 4-165; 3) The apportionment complaint is barred for reason of Metacon's failure to exhaust its administrative remedy before the Claims Commissioner; 4) No apportionment complaint lies on any basis other than negligence; and 5) The apportionment complaint was untimely served. The apportionment plaintiff has objected to the motion. Each party has submitted a memorandum of law with attachments and each has waived oral argument and thus consented to the court's adjudication of the motion on the papers.
Though CMO #1 permits the moving party's filing of a Reply brief, Lynch and Boyle have elected not to do so.
Regarding the claim of sovereign immunity, the apportionment defendants argue a claim brought against individuals in their official capacities (as this suit is) is barred because the state cannot be sued without its consent ( Fetterman v. Univ. of Conn., 192 Conn. 539, 550-51) unless the state officials are alleged to have acted in excess of their statutory authority or pursuant to an unconstitutional statute (neither of which is here claimed). Shay v. Rossi, 253 Conn. 134, 169 (2000). The apportionment plaintiff correctly notes that, by its terms, C.G.S. § 22a-16 provides, ". . . any person or . . . corporation . . . may maintain an action . . . for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof . . . for the protection of the public trust in air, water, and other natural resources of the state from unreasonable pollution, impairment, or destruction . . ." Because the state can act only though its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. Sentner v. Board of Trustees, 184 Conn. 339, 342 (1981). Thus, the state's freedom from suit is expressly waived by § 22a-16. The defendants argue that the exception to the bar against suit when state officers are claimed to be acting contrary to statutory authority or pursuant to an unconstitutional statute does not apply when, as here, money damages are sought. There is no claim here that that exception to state immunity applies; further, apportionment claims, under C.G.S. § 52-102b(a), seek merely an apportionment "of liability" as opposed to an apportionment of damages. See Lostritto v. Community Action Agency of New Haven, Inc., et al., 269 Conn. 10, 36 (2004).
The argument that Lynch and Boyle are immune from personal liability under C.G.S. § 4-165 is accurate but not applicable. In its opposing memorandum, Metacon concedes these gentlemen are sued only in their official capacities as Commissioner and Deputy Commissioner of the Department of Public Safety. Thus, § 4-165, which provides no state officer or employee shall be personally liable for damages or injuries which are not wanton, reckless, or malicious, is not relevant.
Had Metacon looked to hold them personally liable, the claim against them (assuming the conduct charged was not wanton, reckless, or malicious) would have to have been presented to the Claims Commissioner under § 4-165.
Boyle and Lynch next argue the failure of Metacon to exhaust administrative remedies because it did not, under § 4-165, first present its claim to the Claims Commissioner. As just above discussed, there is no claim against Boyle or Lynch in their individual capacities — thus, that statute doesn't apply. See Guiliano v. DOT, Docket No. CV-01-0810635-S, judicial district of Hartford (Super.Ct. January 30, 2004) (Wagner, J.), in which the court denied the DOT's motion to dismiss. The court distinguished between environmental harm directly caused by a state agency (as here claimed) and environmental harm caused by third-party polluters pursuant to an activity licensed by a state agency. Wagner, J. denied the motion to dismiss having concluded the licensing statutes did not apply in view of the plaintiffs' allegation of direct action by the DOT, which action resulted in unreasonable harm to the environment. Metacon has here asserted direct action by the Department of Public Safety in its conduct of the State Police firing range. There is standing under § 22a-16.
The apportionment defendants do not even address the Claim Commissioner's source of authority to adjudicate Metacon's apportionment claim — as opposed to a claim for damages.
Our Supreme Court, in Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116 (2003), held that, where the alleged conduct involved a permitting claim, there is no standing pursuant to § 22a-16 to bring a claim directly to the superior court and the claim must be resolved under the appropriate licensing statutes. Id., at 148.
The apportionment defendants next argue Metacon's complaint is defective because it alleges a statutory violation. The simple answer is that Metacon has claimed no fewer than twenty-three (23) allegations of negligence in Paragraph 23 of its complaint. It does not anywhere therein reference a statutory violation; its only reference to § 22a-16 of the General Statutes is in Paragraph 7 for the purpose of establishing standing. The apportionment complaint does not, as Lynch and Boyle state, "sound in a cause of action other than negligence." Memo, at 11. Additionally, the defendants, while citing to C.G.S. § 52-572, fail to address that portion of the statute which reads: "except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, . . ." The argument is without merit.
Finally, the apportionment defendants argue the apportionment complaint was not timely served. The original action was brought by the Society as against Metacon only; that action was filed on May 13, 2004, with a return date of June 15, 2004 (It bore Docket #CV-04-4003593-S when brought [not the docket number claimed by Lynch and Boyle at p. 12 of their memorandum].); thereafter, an action was brought against the Town of Simsbury and, per the Order of Bryant, J., the plaintiff was directed to amend the second action so as to include in that case the allegations directed to Metacon in the first suit. Once that was accomplished (as it was), the Society was to withdraw its first-brought suit against Metacon (That was only recently accomplished on 1/10/06.). The return date of the second complaint (which embraced both the Town and Metacon and presently bears docket #X01-CV-04-4001892 [The docket number on the apportionment complaint has numbers transposed.]) was July 27, 2004. Paragraph 1 of the apportionment complaint makes clear it is that second action (now the only pending action) in which the apportionment complaint was brought. The defendants' position is that, under C.G.S. § 52-102b, the apportionment plaintiff had one hundred twenty (120) days from the return date of the first action brought against Metacon. Metacon argues the one hundred twenty (120) days should not begin to run until the return date of the Amended Complaint (making Metacon and the Town defendants in the same action). Thus, Metacon argues, it had until November 24, 2004, to "file" an apportionment complaint. Metacon's argument is premised upon its reliance upon what was clearly Judge Bryant's intent that only one (1) action survive and the representations of plaintiff's counsel that he would withdraw the first-brought action when the second action was amended so as to include Metacon. The question for this court is whether Metacon's reliance upon the latter (plaintiff counsel's representation re withdrawal) was justified. The court concludes it was not.
At p. 13 of its memorandum, Metacon references the need to "file" its apportionment complaint within one hundred twenty (120) days; the requirement of § 52-102b is "service" within that period.
First, Metacon, in its memorandum, frequently refers to Judge Bryant having "ordered" the amending of the complaint in this case and the plaintiff's withdrawal of the first-brought action once the complaint had been amended. See e.g., Memorandum, at 12. This court finds no such "Order" in the file though clearly Bryant, J. indicated to the parties — at a "pretrial conference" — what she intended them to do. Second, regardless of the fact plaintiff's counsel was less than prompt in withdrawing the first-brought action, his failure to do so did not prevent Metacon from bringing its apportionment complaint in that case. Nor did Metacon, after repeated requests to plaintiff's counsel that it withdraw that action and counsel's repeated failure to do so, take the necessary step of filing its apportionment complaint in the first-brought case so as to preserve its rights. It could have — but did not — file a motion to compel the withdrawal of the first-brought action. Metacon was not, as it claims, "denied the opportunity to present its well grounded argument for apportionment." Memorandum at 14. It knew, at the pretrial conference, it had twenty-one (21) days within which to bring its apportionment complaint if it wished to assert that right. Memorandum, at p. 13. That its filing of an apportionment complaint in the first action would have required the re-filing of the same in this action (once this complaint was amended and the first case was withdrawn) and would thus have resulted in "additional time; expense and confusion of pleadings" ( Id.) is not persuasive. Little additional time would have been required to file again a complaint already drawn; the additional expense would have been limited to the cost of re-service. Whatever "confusion" may have existed would have been lifted when, ultimately, the first case was withdrawn. Counsel provides this court no legal authority in support of its argument.
"Orders" issue from a pretrial conference only under those circumstances in which the court goes on the record; that rarely occurs during a pretrial and there is no evidence Judge Bryant's pretrial was on the record.
§ 52-102b requires the bringing of an apportionment complaint within one hundred twenty (120) days of "the return dated specified in the plaintiff's original complaint." This court is without personal jurisdiction re that complaint since the time limitation of C.G.S. § 52-102b(a) is mandatory. See Lostrito v. Community Action Agency of New Haven, Inc., 269 Conn. 10 (2004). The original complaint against Metacon was the first-brought complaint and it is that complaint which governs the timeliness of the apportionment complaint. Any reliance Metacon had that, within twenty-one (21) days of the pre-trial before Bryant, J., the plaintiff would both amend its complaint here and withdraw the first-brought action in sufficient time for it to timely serve its apportionment complaint was misplaced.
Lynch and Boyle's Motion to Dismiss is thus granted for lack of personal jurisdiction.
C. Metacon's Amended Motion to Strike
The defendant Metacon has moved to strike Paragraphs 2-6 of the Third Count of the Amended Complaint's Prayer For Relief and Paragraphs 3 and 4 of the Fourth Count's Prayer for Relief to the extent they seek temporary injunctive relief for reason of the plaintiff's failure to verify the same by oath pursuant to C.G.S. § 52-471(b). Plaintiff argues the motion is untimely under CMO #1 dated February 28, 2005. It is correct. An initial status conference was conducted on February 28, 2005, at which time counsel requested the dates by which the legal events would be completed; the court accepted those dates, having fully advised the parties of the requirement those dates be met so as to meet the trial date which, once selected, would be preserved for these parties. CMO #1 of the same date provides, in pertinent part of Paragraph 1, "substantive motions addressed to the governing complaint, if any, shall be filed by May 4, 2005." The Amended Motion to Strike is dated October 31, 2005; it was filed on November 2, 2005 — six (6) months late. Metacon filed no prior request for extension of time. Metacon, in its Reply, offers two arguments: 1) It, based on the pretrial conference before Bryant, J., "believed . . . a new scheduling order would be entered . . . running from the date of . . . the Amended Complaint" in this case (Reply, at 2); and 2) this court should exercise her discretion because Metacon will be prejudiced if the court denies the motion as untimely and Metacon will have to incur "discovery costs and rebriefing costs" if the motion is denied and it is in the "court's interest in (sic) promoting judicial economy to rule on issues that are at the very heart of this case, thus streamlining the case, at the earliest possible opportunity." Reply, at pp. 2-3. Clearly, Metacon has not demonstrated the same interest.
In pertinent part the statute provides, "No injunction may issue unless the facts stated in the application thereof are verified by the oath of the plaintiff or of some competent witness."
This court clearly never made representations with regard to a "new scheduling order;" reference therefore must be to a representation — though not an "Order" — by Bryant, J. at a pretrial conference when the two (2) cases then pending were still on the regular docket in Hartford. If Metacon relied on any representation regarding a "new scheduling order," it was ill-advised to then apply — as this very same counsel did on September 21, 2004 — for a transfer to the CLD. Nor did counsel, at the 2/28/05 initial status conference on this docket, ever bring to this court's attention counsel's "belief" regarding a "new scheduling order." As to the claim these issues "will eventually be raised in another format, such as in dispositive motions . . .," (Reply, at p. 2) that is not only not so (for a reason next to be explained) but the court would have hoped counsel would have refrained from a choice of language which presents as either petulant or threatening — neither of which should be the aim of any argument. Further, this court conducted a two-day hearing on the plaintiff's application for a PJR in the first-brought case on June 30 and July 22, 2005. That PJR application was directed to Metacon alone. While that application was filed in the first-brought case, moving counsel suggests no reason why this court, having rendered a Memorandum of Decision on September 16, 2005, would again conduct another hearing on a PJR application directed to Metacon (the plaintiff sought temporary injunctive relief in the second action also) when the PJR application was earlier denied. No additional remedy is available to the plaintiff with regard to temporary relief.
The motion is denied in its entirety.