Opinion
HHDCV166065674S
12-12-2016
Boppers Entertainment, LLC v. Rene Hue dba Willow Designs
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#119)
Cesar A. Noble, J.
The plaintiff has moved to strike the defendant's special defenses On the grounds that they represent an attempt to re-argue issues of jurisdiction already decided against the defendant by the court's, Elgo, J., denial of her motion to dismiss. The defendant in her objection does not dispute that her special defenses are a continued assertion of a lack of subject matter jurisdiction. She argues, instead, that she is not attempting to " re-litigate" the issue of subject matter jurisdiction. Rather, she claims, the issue was not previously fully litigated with sufficient evidentiary submission, and, additionally, there is no finality on the issue of subject matter jurisdiction such that a defendant has the right to present evidence as it becomes available to address this issue. The court is not persuaded by the defendant's arguments.
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of . . . any special defense contained [in an answer]." Practice Book § 10-39(a)(5). See also, Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480 498, 815 A.2d 1188 (2003).
The court concludes that the defendant's special defense of lack of subject matter jurisdiction is legally insufficient since the claim must be raised only by a motion to dismiss. " [A] motion to dismiss is . . . the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " Accordingly, a claim of lack of subject matter jurisdiction is not properly brought by way of a special defense . . . Buddington v. Sterling Winthrop, Inc., Superior Court, judicial district of New Haven, Docket No. CV-92-0327296-S (November 12, 1993, Zoarski, J.) (10 Conn.L.Rptr. 358, )." Central Connecticut Acoustics, Inc. v. New York-Connecticut Development Corp., Superior Court, judicial district of New Haven, Docket No. CV-10-6011417-S (April 11, 2011, Woods, J.), 2011 WL 1734440, *3. It is also not proper where the defendant's special defense seeks to relitigate the jurisdiction issue which the court has previously addressed. Avery v. Maxim Healthcare Services, Inc., Superior Court, judicial district of New Haven, Docket No. CV-12-6033069-S (November 7, 2013, Wilson, J.) (57 Conn.L.Rptr. 147, 149, ), 2013 WL 6439664, *3.
The defendant directs the court's attention to Investment Associates v. Summit Associates, Inc., 132 Conn.App. 192, 31 A.3d 820, 824 (2011), aff'd, 309 Conn. 840, 74 A.3d 1192 (2013), as providing support for her view that there is no finality on the issue of subject matter jurisdiction and she should be permitted to raise the issue as evidence becomes available. The defendant's reliance on Investment Associates is misplaced. The Appellate Court in that case balanced the doctrine of the finality of judgments with the general rule that a challenge to subject matter jurisdiction may be raised at any time. Investment Associates v. Summit Associates, Inc., supra, 132 Conn.App. 198-02. Among the factors balanced were whether the complaining party previously had the opportunity to litigate the question of jurisdiction, " the prevention of a miscarriage of justice, whether the subject matter was so far beyond the jurisdiction of the court as to constitute an abuse of authority . . . and whether there are strong policy reasons for allowing a second opportunity to raise the issue of subject matter jurisdiction." Id., 198. The defendant's only argument favoring the re-litigation of the issue (contrary to her assertion indeed this is what is sought) is that they did not have the opportunity to " fully litigate" the issue at the time of the motion to dismiss because of evidentiary limitations. This argument misapprehends the scope of a motion to dismiss for subject matter jurisdiction.
" [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts." Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009). Where " a factual presentation is necessary, it is an abuse of discretion for the court to deny an opportunity for discovery." Lake Road Trust Ltd. v. ABB Powertech (Pty) Ltd., 136 Conn.App. 671, 678, 51 A.3d 1109 (2012). A review of the record in this case indicates that there was no request for discovery made by the defendant. Neither does the defendant point to any newly discovered evidence that a diligent inquiry would not have previously disclosed. She may not, therefore, now be heard to claim that she was not offered the opportunity to fully litigate the question of jurisdiction. An effort to do so again is in the nature of attempting a second bite at the apple which is disfavored. Cf. C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 101 n.39, 919 A.2d 1002 (2007).
The plaintiff's motion to strike the defendant's special defenses is, therefore, granted.