Opinion
No. NNI CV 00 0272084
March 13, 2007
MEMORANDUM OF DECISION RE PLAINTIFF'S REQUEST TO AMEND COMPLAINT (#160)
This memorandum of decision addresses the plaintiff's Request to Amend Complaint and accompanying Amended Complaint (#160) filed on November 3, 2006 (2006 complaint). The underlying action has been brought on behalf of the minor plaintiff, Candice DellaValle, who allegedly sustained personal injuries in an incident that occurred upon the ground of a public school, during school hours, on or about February 16, 2000. Arguments concerning issues related to the pending request to amend (#160) were presented on November 13, 2006, and continued on December 4, 2006, along with arguments concerning the pending Motion to Dismiss (#154) that is pending in this matter. Through her request, the plaintiff would have the court utilize and incorporate the facts set forth in the 2006 complaint when measuring the value of the defendants' claims that the matter must be dismissed due to lack of subject matter jurisdiction. The defendants contend that the court is limited to consideration of the allegations set forth in the complaint that was in existence when the pending motion to dismiss was filed, and that it would be improper for the court to utilize the 2006 complaint for any purpose until the motion to dismiss is resolved. For the following reasons, the court finds this issue in favor of the defendants. Accordingly, the plaintiff's Request to Amend Complaint (#160) is hereby denied, without prejudice.
Recently, as explained below, the minor child's prochein ami representative has been substituted in lieu of the above-captioned Tina DellaValle.
I. PROCEDURAL HISTORY
Reference to multiple aspects of the pre-trial proceedings will place the controversy over the 2006 complaint in the appropriate context.
The original complaint in this matter was filed on April 17, 2000, with a return date of May 30, 2000 (2000 complaint). In response to 2000 complaint, the defendants filed their Answer and Special Defenses on June 19, 2000 alleging, in part, that they "are entitled to governmental and/or qualified immunity on the plaintiff's claims." (#102.) The plaintiff's reply to the special defenses was filed on June 29, 2000 (#103) and the pleadings were closed. Thereafter, the pleading process followed a tortuous course:
On May 25, 2004, the defendants filed a Motion to Dismiss (#129) asserting that the named plaintiff lacked standing to maintain the claims asserted, thereby ostensibly depriving the court of subject matter jurisdiction. On June 1, 2004, a Motion to Substitute Plaintiff Party (#130) was filed, along with a memorandum in support of Motion to Substitute Plaintiff as Party (#131). Plaintiff's Motion to Amend Her Complaint (2004 Complaint) (#132) was submitted on behalf of the minor child on that same date, along with a Memorandum of Law in Support of Plaintiff's Motion to Amend Her Complaint (#133). On June 3, 2004, Plaintiff's Objection to Defendant's Motion to Dismiss (#134) was filed. On June 25, 2004, the defendants filed their Reply to Plaintiff's Objection to Defendants' Motion to Dismiss (#135), their Objection to Plaintiff's Motion to Substitute Plaintiff as Party (#136), and their Objection to Plaintiff's Motion to Amend her Complaint (#137).
On October 28, 2004, the court (Frazzini, J.) issued its Memorandum of Decision (#139). This decision addressed the Defendants' Motion to Dismiss (#129), the Plaintiff's Motion to Substitute Plaintiff as Party (#130) and the Plaintiff's Request to Amend Complaint (#132.) The court found, after hearing, that the "case qualifies as one in which the action was commenced in the name of the wrong party by curable mistake . . ." as contemplated by General Statutes § 52-109. Accordingly, the court granted the plaintiff's motion to substitute the party-plaintiff and to amend the complaint, and denied the defendants' motion to dismiss. (#139.) The court's ruling (#139) permitted the 2004 complaint, as amended (#132), to stand as the operative pleading in the litigation.
Section 52-109 provides that: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff."
Thereafter, on October 13, 2006, the defendants filed their Amended Answer and Special Defenses again alleging, in part, that "[t]he defendants are entitled to governmental and/or qualified immunity on the plaintiff's claims." (#150.) The plaintiff's Reply to Special Defenses (#151) was filed October 17, 2006. On October 18, 2006, the defendants filed a new motion to dismiss (#154) directed again at the 2004 complaint, with an accompanying memorandum of law (#155); on this occasion, however, instead of addressing the identity of the individual bringing forth the claim on behalf of the minor plaintiff, the defendants raised the grounds of subject matter jurisdiction based on the theories of governmental and/or qualified immunity which would deprive the court of authority to consider any of the plaintiff's claims. Having anticipated and specifically addressing the issues of subject matter jurisdiction raised in the defendants' recent motion to dismiss, the plaintiff submitted her Objection to Defendant's Motion for Summary Judgment (#152) and accompanying Plaintiff's Memorandum of Law in Support of Her Objection to Defendants' Motion for Summary Judgment (#153) on October 18, 2006, as well. On November 3, 2006, in response to the court's order of October 20, 2006, the Plaintiff's Brief (#158) was filed, addressing identified issues related to the format and content of the 2004 complaint (#132), and contending that the court was not limited to the allegations of the 2004 complaint for purposes of resolving the defendants' questions of subject matter jurisdiction. Also on November 3, 2006, the Defendants' Supplemental Brief in Support of the Motion to Dismiss (#159) was filed, addressing those issues that had been identified by the court as fundamental to resolution to the pending contest over the issues of amendment to the 2004 complaint, governmental and/or qualified immunity. In addition, on November 3, 2006, the plaintiff submitted a new Request to Amend Complaint with an accompanying Amended Complaint, here identified as the 2006 complaint. (#160.)
As previously noted, the special defense of governmental and/or qualified immunity had been submitted through the special defenses directed at the 2000 complaint (#102) as well as through the special defenses (#150) directed at the 2004 complaint.
Although the parties have continued to engage in disputes concerning discovery and other aspects of the pleadings thereafter, without requesting stay of those matters pending resolution of the pending Motion to Dismiss (#159), it is this proposed amended complaint (#160), the 2006 complaint, that is the subject of the court's instant attention.
Under date of November 10, 2006, the defendants prepared and submitted their Objection to Plaintiff's Request to Amend Complaint (objection). Under date of November 16, 2006, the defendants submitted their Supplemental Brief in Support of Objection to Request to Amend (brief). The court was provided with courtesy copies of these submissions; copies were also timely provided which was provided to plaintiff's counsel by facsimile transmission and/or through regular mail on like dates. At oral argument on November 13 and December 4, 2006, the defendants' counsel discussed and advanced the arguments presented in the objection and in the brief. Thus, although neither the court file nor the judicial branch website's "Case Detail" history to date reflect the formal filing of these document, the court has considered and addressed the defendants' claims as presented in the objection and in the brief.
As previously noted, arguments concerning the pending motion to dismiss (#154) and the issues related to the pending request to amend the complaint (#160) were first presented to the court on November 13, 2006. Those arguments were continued on December 4, 2006. Throughout the late fall of 2006 and early winter of 2007, the parties continued to engage in now-resolved disputes concerning the defendants' access to certain aspects of information related to the minor child's mental health issues. On December 15, 2007, after hearing of issues related to discovery rather than focused upon the legal status of the pleadings, the court issued orders (Rubinow, J.) for appointment of the minor child's maternal aunt, Phyllis Sicklier, to serve as the child's next friend in bringing forth the litigation (#162), and allowing this adult to circumscribe the claims to be presented on the minor's behalf through the pleadings and at trial. On February 21, 2007, the plaintiff filed her Motion to Substitute Plaintiff (#163), so that Phyllis Sicklier could serve as the child's next friend in place of her mother Tina DellaValle, who previously held that position.
In anticipation of the continued argument on both issues, on November 20, 2006, plaintiff's counsel had provided the court and defense counsel with a letter intended to serve "in lieu of a brief, to [the court's] request that the parties submit supplemental briefs regarding the plaintiff's request to Amend her Complaint." Through that letter, the plaintiff limited the issues to be addressed on December 4, 2006, candidly stating that "as the . . . proposed amended [2006] complaint purports to allege a new cause of action in indemnity pursuant to § 7-465 against the Town of East Haven as a result of `custodian's' negligence, the plaintiff respectfully concedes that said amendment is procedurally improper." (Emphasis in the original.) However, as with the defendant's objection and brief whose submission is discussed in footnote 4, neither the court file nor the judicial branch website's "Case Detail" history reflects the formal filing of this letter.
This motion was granted (Holzberg, J.) on March 5, 2007.
On February 21, 2007, the plaintiff submitted a Notice of Filing of Amended Complaint with an accompanying Amended Complaint (2007 complaint) (#164), ostensibly incorporating into the pleadings many of the particular factual claims that had been presented through the complaint at issue, the proposed amended complaint filed on November 3, 2006 (#160). On February 28, 2007, the defendants filed their Objection to Plaintiff's Notice of Filing Amended Complaint (#165), properly asserting, in part, that "[t]he decision of whether to permit the proposed amendments is intertwined in some ways with the decision of whether to grant the motion to dismiss [#154]. Both the motion to dismiss and the request to amend are currently pending with this Court." (#165.) However correctly the defendants have categorized the relationship of the amendments proposed through the 2006 complaint and the pending motion to dismiss, again, it is those amendments contemplated by the November 3, 2006 request to amend (#160) alone, not the proposed amendments in the 2007 complaint, that bear the court's attention.
II. PREVAILING STATUS OF THE 2004 COMPLAINT
At oral argument on November 13, and again on December 4, 2006, the defendants urged the court to assess the claims brought in the motion to dismiss (#154) the 2004 complaint without paying any heed to newly asserted or even merely explicated claims that had been raised through the submission of the 2006 complaint (#160). The defendants contend that, as a matter of law, the court is confined to consideration of the allegations set forth in the 2004 complaint (#132), and that the court is precluded from attending to the factual or legal issues set forth in the 2006 complaint (#160). The plaintiff argues to the contrary; that given the court's obligation to view the allegations of the complaint in the light most favorable to the pleader when evaluating issues related to subject matter jurisdiction, the court is compelled to acknowledge and utilize the pleadings are represented by the 2006 complaint (#160). See, e.g., Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006) ("When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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").
While the plaintiff's argument presents compelling notions that would well impact judicial economy in this case which is already heavily laden with documents representing the parties' high-conflict, pre-trial contests, the court is constrained to adopt the defendants' position on this particular, pending issue. As discussed below, the court is obligated, as a matter of law, to resolve the pending motion to dismiss (#154) based upon the pleadings as they stood at the time that motion to dismiss was brought. The Court must rule on the defendants' motion to dismiss (#154) first because it must determine if it has jurisdiction over the pending litigation before it can address whether to allow the proposed amendment to the 2004 complaint. Therefore, the November 3, 2006 motion to amend the 2004 complaint (#160), promoting inclusion of the 2006 complaint in the pleading set before the court, must be denied, albeit without prejudice, as the motion to amend was brought forward by the plaintiff after the defendants has submitted their October 18, 2006 motion to dismiss (#154).
It is axiomatic that "once the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). In Federal Deposit Ins. Corp. v. Peabody, NE, Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996), the Supreme Court addressed the pattern and schedule of proposed pleadings submitted while subject matter jurisdictional issues had been raised by a defendant, in a complex procedural setting not unlike that presented by the case at bar. Effectively affirmed by Federal Deposit Ins. Corp. v. Peabody, the rule in this state is that once subject matter jurisdiction has been raised through a motion to dismiss, it is plain error for the court to attend to any other issues prior to deciding the fundamental jurisdictional issues at hand. See Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6, 826 A.2d 1102 (2003).
Federal Deposit Ins. Corp. v. Peabody, NE, Inc., supra, involved an action against a contractor seeking to recover damages related to construction delays, not a personal injury action. However, the case remains clearly instructive, as it involved the protocol which the trial court must follow when requested to allow amendment of a complaint brought against the state while a motion to dismiss related to the subject of governmental immunity is pending. In Federal Deposit Ins. Corp., the trial court had granted the named defendant's motion to implead, enabling Peabody to serve a third-party complaint upon the state, whom it alleged to be responsible for the work stoppages and revisions that had led to the construction delays. Id., 96. After the state moved to dismiss the third-party complaint for lack of subject matter jurisdiction, but before resolution of that issue, the plaintiff moved to amend the complaint; the court granted the motion to amend first and then denied the motion to dismiss. Id., 96-97. The Supreme Court held that notwithstanding the potential validity of factors presented through that plaintiff's motion to amend, the trial court was primarily obligated to consider and resolve the issue of subject matter jurisdiction. Id., 99. "Regardless . . . of the substantive similarity between Peabody's two third party complaints, it was nonetheless inappropriate for the trial court to consider Peabody's amended third party complaint, rather than its initial complaint, when acting on the state's motion to dismiss for lack of subject matter jurisdiction . . . Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause . . . Consequently, when the state moved to dismiss Peabody's initial third party complaint because of a lack of subject matter jurisdiction, the trial court was obligated to construe that complaint in the manner most favorable to Peabody and to rule upon the state's motion before considering Peabody's motion to amend." (Emphasis added; internal quotation marks and citations omitted.) Id., 99.
Schaghticoke Tribal Nation v. Harrison, supra, dealt with a motion to dismiss filed by the named defendant, a proposal for intervention by a third party in a pending matter and the proposed intervenor's motion to dismiss, all having been submitted to the court on the same day. Schaghticoke Tribal Nation v. Harrison, supra, 264 Conn. 837-38. Even under those circumstances, Schaghticoke stands for the proposition the trial court must limit its attention to any motion to dismiss that implicates subject matter jurisdiction, and must resolve that issue before addressing a motion to intervene. Relying upon Federal Deposit Ins. Corp. v. Peabody, supra, Schaghticoke Tribal Nation v. Harrison noted that ". . . [I]f the court ruled on the motion to intervene before the motion to dismiss, it violated the `jurisdiction first' rule; if the court ruled on the motion to dismiss first, determining that it lacked jurisdiction over the case, then it lacked jurisdiction to consider the motion to intervene." (Emphasis added.) Schaghticoke Tribal Nation v. Harrison, supra, 264 Conn. 839 n. 6.
The Appellate Court has recognized certain circumstances in which the Schaghticoke's "jurisdiction first" rule would not apply. For instance, a complaint can be amended before the court addresses a motion to dismiss, but only when the plaintiff sought to amend the complaint pursuant to Practice Book § 10-59, within thirty days of the return date. See Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 640, 879 A.2d 507 (2005). The provisions of Practice Book § 10-59 do not apply, however, to protect the plaintiff in the instant case; as discussed in Part I., the original complaint in this matter presented a return date of May 30, 2000, and the subsequent thirty-day amendment period has long passed.
Thus, following the reasoning of Federal Deposit Ins. Corp. v. Peabody, supra and Schaghticoke Tribal Nation v. Harrison, supra, it is evident that if this court ruled on the motion to amend the complaint before the motion to dismiss, it would violate the "jurisdiction first rule;" if the court ruled on the motion to dismiss first, determining that it lacked jurisdiction over the case, then it would lack jurisdiction to consider the motion to amend.
III. CONCLUSION
Based on the foregoing principles of law and the facts apparent from the procedural history of this case, the court is compelled to deny the plaintiff's Request to Amend Complaint (#160) filed on November 3, 2006. However, that denial is hereby entered without prejudice, as contemplated by Practice Book § 10-60(a), pending resolution of the defendants' Motion to Dismiss (#154).
Practice Book § 10-60(a) provides, in pertinent part, that "a party may amend his or her pleadings . . . at any time subsequent to the filing of an answer in response to the complaint. (Emphasis added.) Practice Book § 10-60(b), like its companion General Statutes § 52-130, allows the judicial authority to "restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial." In reaching its determination regarding the motion to amend complaint at issue (#160), the court has been mindful that this matter was originally set down to commence trial in early 2007. In view of the new jurisdictional issues at hand, however, that trial date has been stayed, to be reassigned by the judicial authority.
WHEREFORE, without prejudice, the plaintiff's Request to Amend Complaint (#160) is hereby DENIED.