Opinion
No. CV-95-4031060-S
July 10, 2008
MEMORANDUM OF DECISION
The defendant Sullivan Associates has filed this motion to dismiss the plaintiff's action pursuant to Practice Book Sec. 14.3. Section 14.3 provides "(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11-1, or on its own motion, render a judgment dismissing the action with costs." The plaintiffs oppose this motion.
The court will review the procedural background of these cases which first initially filed in 1994 and 1995. The individual plaintiffs (relators) filed complaints with the Connecticut Human Rights Commission (CHRO) regarding alleged discriminatory rental practices engaged in by the defendant. Eventually the CHRO filed these consolidated cases with the superior court on behalf of the relators Patricia Roper and Patricia Hanson against Sullivan Associates. After trial judgment was rendered in favor of the Defendant, the Plaintiffs appealed, and the supreme court, in October of 1999, reversed the trial court and remanded the case for further proceedings.
The supreme court held "the defendant may not rely solely on section 8 eligibility as a basis for turning potential tenants away nor may it apply more stringent income requirements to section 8 rental applicants than to other rental applicants." Commission on Human Rights and Opportunities v. Sullivan Associates, 250 Conn. 763, 792 (1999) (hereinafter referred to as Sullivan I.). On remand the court held "[U]nless the defendant makes the requisite showing that the relators had `insufficient income' to meet the totality of their rental obligations, the commission is entitled to prevail on the issue of liability. In that event, there must he a hearing on what the proper remedy should be. The judgments are reversed and the cases are remanded for a new trial limited to the issue of whether the relators had insufficient income within the meaning of sec. 46a-64c(b)(5) and, in the event the commission prevails on the issue of the defendant's liability, for a hearing to determine the appropriate remedy." Id. At 793.
After the remand from the supreme court on October 12, 1999, this case then found its way to this Court by way of an order for transfer from the Superior Court Housing Session at Bridgeport in February of 2000. A pretrial conference was held in May or June of 2000. Discovery began thereafter and the second of the two relators' notice of compliance with discovery, was filed with the court on August 29, 2001. There is no further activity documented in the court file until the plaintiff filed, pursuant to Practice Book 14-8, a certificate of closed pleadings on March 14, 2008. Shortly there after, the defendant filed this motion to dismiss for lack of Diligence on March 13, 2008.
The Defendant notes that the case has essentially been inactive for nearly seven years and argues that this inactivity evidences the Plaintiff's failure to prosecute with reasonable diligence. The Defendant's brief accurately cites multiple cases where the courts have dismissed cases for failure to prosecute with reasonable diligence where the periods of inactivity ranged from as little as ten months to over four years. The court further agrees with the defendant's arguments that the duty to prosecute this case lies upon the plaintiffs as they are seeking affirmative relief. Even though the terms of the remand limit the scope of the liability portions of the trial, the supreme court also contemplated that the court would take evidence regarding what remedies would be appropriate. Clearly the plaintiff would bear the burden in establishing what remedy would be appropriate. If these facts were the only facts this court would be inclined to grant the defendant's motion. Seven years is a very long time to allow a case to lay stagnant. But there are further factors that weigh in the court's considerations.
As the Supreme Court was considering Sullivan I but before its decision in October of 1999, a separate incident giving rise to a claim of discrimination against the principals of the defendant Sullivan Associates was occurring. In this separate incident the defendant, as it had in Sullivan I, asserted that participation in Section 8 was voluntary and that Denisse Colon did not have sufficient income to qualify for housing. The CHRO on behalf of the relator Denisse Colon pursued the complaint of discrimination and prevailed at trial. The defendant argued in the Colon case that the trial court improperly applied Sullivan I. The defendant pursued appeals from the trial court's decision to the supreme court. In its appeal to the supreme court the defendants argued that Sullivan I should be reconsidered and overruled and further that the trial court had misapplied Sullivan I. In Comm. On Human Rights Opportunities v. Sullivan, 285 Conn. 208 (2008) (hereinafter referred to as Sullivan II) the court held that Sullivan I was properly decided. Sullivan II was announced on January 22, 2008.
It is apparent from this abbreviated description of the filings in Sullivan I and Sullivan II that the inactivity in this case, Sullivan I on remand, substantially coincided with the litigation of Sullivan II. A review of the Sullivan I and Sullivan II demonstrates that except with regard to the individual relators and an additional defendant, the parties overlap, the lawyers overlap and similar facts and the same issues were presented to the supreme court for adjudication in each case.
This issue then is whether the court in the unique context of this litigation should discipline the plaintiffs' delay with a dismissal of their action. None of the cases cited by the defendant in its brief involved the failure to prosecute an action upon remand. Further, it does not appear that any of the cases involved a shadow case involving many of the same parties, raising the same issues and seeking to overturn a prior appellate disposition. The defendant sought reargument before the supreme court in Sullivan I, which request was denied. The defendant used Sullivan II to press forward and receive another opportunity to request the supreme court to reconsider and overrule its decision of Sullivan I.
The defendant has not raised arguments claiming that it has been prejudiced by the failure of the plaintiffs to prosecute this claim with reasonable diligence.
In reviewing the court's file in this case the court looked for a memorandum from the status conference that was held in May or June of 2000 to determine why Sullivan I was not promptly placed upon the trial list in 1999. The court did not find such a memorandum although it found a letter from counsel referencing a June 1, 2000 status conference before Judge DeMayo. The letter discussed issues relating to the disclosure of experts and a motion in limine. Further, it is unclear to the court why a certificate of closed pleadings required by Practice Book 14-8 would be required to get a case such as this placed on a trial list. The pleadings were closed and the supreme court ordered a limited hearing upon remand.
The court speculates that the plaintiff may have decided not to inquire why the court had not scheduled a trial in this matter because they were aware of the defendant's determination to relitigate the holdings of Sullivan I. They may have desired to avoid the costs of trial on remand if the defendant was successful in persuading the supreme court to overrule Sullivan I. Had the plaintiffs advanced such arguments to the court they might well have persuaded the trial court to stay the hearing on remand until Sullivan II was concluded. The defendant may have desired to focus its energy and expenditures on obtaining a second hearing on the issues adjudicated in Sullivan I rather than to presenting evidence and contesting damages/remedies in Sullivan I.
A review of the language of Practice Book 14-3 places the discretion for dismissal in the hands of the court but does not articulate any specific factors that the court is to consider in determining "reasonable diligence." The court will be guided by analogy from Connecticut jurisprudence related to nonsuits or dismissals in discovery disputes. "[D]iscretion imports something more than leeway in decision-making . . . It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Rules are a means to justice, and not an end in themselves . . . 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 . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort . . . [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court." (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 16-17. The reasoning of Millbrook Owners Assn., Inc. applies equally to nonsuits and dismissals. Blinkoff v. O G Industries, Inc. 89 Conn.App. 251, 257-58 (2005).
The court has also reviewed the analogous Federal Rule of Civil Procedure 36 which authorizes the involuntary dismissal of actions pending in the federal court. Rule 36(b) provides "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." The case of Alvarez v. Simmons Market Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988,) articulated several factors that the court must consider before dismissing a case: "(1) the duration of the plaintiff's failures, (2) whether plaintiff had received notice that further delays would result in dismissal, (3) whether the defendant is likely to be prejudiced by further delay, (4) whether . . . the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard, and (5) whether the judge has adequately assessed the efficacy of lesser sanctions."
While the court is troubled by the plaintiff's delay in actively pursuing their remedies upon remand it notes that the plaintiffs may have relied upon the court to automatically place the matter on the trial list. It is not clear that the plaintiff was on notice that it had to do anything further to have the clerk's office schedule the matter for a hearing. Additionally, the defendant has not articulated any arguments regarding prejudice. Given Connecticut's strong preference for resolving a dispute on its merits rather than procedural defaults and given the shadow litigation of Sullivan II, the court finds that in the context of this case the dismissal of the plaintiff's action would be inappropriate. The motion to dismiss is denied.