Opinion
No. HHD-CV-11-6020540 S
October 28, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#118)
The plaintiff, CitiMortgage, Inc., has filed a motion to strike the counterclaims and special defenses asserted by the defendants in their sixty-three-page "Amended Answer, Affirmative Defenses and Counterclaim." That pleading alleges thirty-two affirmative defenses and a twelve-count counterclaim. The plaintiff claims that "[e]ach of Defendants' counterclaims are legally insufficient because such claims (or substantially similar claims) were dismissed with prejudice in previous litigation. The special defenses asserted by Defendants are likewise deficient because they rely on the same theories as the counterclaims and, further, improperly contradict the well-pled factual allegations in CitiMortgage's complaint." For the same reasons stated by Judge Swienton in Cugliari Realty, LLC v. Plante, Superior Court Judicial District of New Britain at New Britain, Docket No. CV 10-6003662-S (Sep. 20, 2011), the motion to strike is denied. Judge Swienton stated: "Res judicata must be specially pleaded when raised against special defenses pursuant to Practice Book § 10-57. Section 10-57 states in relevant part: `Matter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply.' See Homeside Lending, Inc. v. Martin, Superior Court, judicial district of New London at New London, Docket No. 561110 (August 7, 2002, Martin, J.) (citing § 10-57 and denying motion to strike special defense on the ground of res judicata). It is submitted that the plaintiff's motion to strike the defendant's special defenses and counterclaim must be denied. Similarly, res judicata cannot be the basis of a motion to strike the defendant's counterclaim because it must be specially pleaded pursuant to Practice Book § 10-50. Section 10-50 states in relevant part: `Facts which are consistent with [the plaintiff's] statements [of fact] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . res judicata must be specially pleaded.' E.g., Statewide Grievance Committee v. Presnick, 216 Conn. 135, 137 n. 3, 577 A.2d 1058 (1990) (noting that raising res judicata by motion to strike is a `procedural irregularity'); Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994) (`Res judicata . . . is a special defense that is considered after any jurisdictional thresholds are passed'). `[S]ummary judgment is an appropriate vehicle for raising a claim of res judicata . . .' (Citations omitted.) Joe's Pizza, Inc. v. Aetna Life Casualty Co., 236 Conn. 863, 867 n. 8, 675 A.2d 441 (1996)."
The plaintiff, although acknowledging "that res judicata is generally raised as a special defense rather than in a motion to strike" (Memorandum of Law in Support of Motion to Strike, p. 5, n. 6), claims that a motion to strike is proper here because the defendants' pleading incorporates and quotes the federal district court's decisions. The plaintiff cites Tracy v. New Milford, 101 Conn.App. 560 (2007). There the court held that the lower court properly dismissed the plaintiff's statutory claim for employment discrimination where he had not pled that he had filed a complaint with the Commission on Human Rights and Opportunities, a predicate to his right to sue. The plaintiff claimed on appeal that he had done so and submitted certain documents to the court in support of his position. In response, the Court noted that: "[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion." (Internal quotation marks and citation omitted.) Id., 566. The Court commented that the plaintiff could have referenced the documents in his complaint and attached them to it but he had not done so. Clearly the Tracy decision does not support the plaintiff's claim that a motion to strike is proper here. The plaintiff appears to rely on Tracy for the proposition that if a document is referenced in a pleading it can be relied on to attack that pleading by way of a motion to strike. Even assuming that proposition is correct, the defendants, although referencing the District Court's decision in their pleadings, also argue that it failed to address certain issues, such as their intent in executing the alleged instruments, and do not attach it to their pleading. See, Ninth Affirmative Defense. Therefore they have not made the decision a part of their claims and therefore it cannot be relied upon to support a motion to strike since, as noted in Tracy, the court cannot rely on materials outside the pleadings in determining a motion to strike.