Opinion
No. CV 08-5017943 S
June 16, 2009
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE (Motion #107.00)
FACTS
On August 19, 2008, the plaintiff, Melvin Gordon, filed a one-count negligence complaint against the defendant, Ryder Truck Rental, Inc. d/b/a Ryder. The plaintiff, a resident of Connecticut, alleges the following facts in the complaint. The defendant is a Florida corporation, licensed to do business in Connecticut. The defendant "owned/controlled/maintained" a truck which the plaintiff "operated . . . with the express and/or implied permission of the defendant." On September 26, 2006, the plaintiff "was standing on the lift gate of the . . . truck . . . stopped in the Bronx, New York . . . [He] was unloading goods from the subject truck when the lift gate on the back of the truck broke causing the plaintiff to fall onto the ground and hit his head on the curb [from which] [he] sustain[ed] . . . injuries and damages."
The defendant filed an answer and special defenses on October 14, 2008, to which the plaintiff filed a reply on October 16, 2008, denying "each and every allegation" set forth in the special defenses. On October 17, 2008, the plaintiff filed a motion to strike the defendant's special defenses. On November 21, 2008, the plaintiff filed a motion to strike the defendant's three special defenses on the ground that "all three purported special defenses fail to allege facts consistent with allegations of the plaintiff's complaint and as such are legally insufficient"; this motion properly set forth the claims of insufficiency. In support of the motion, the plaintiff filed a memorandum of law. The defendant filed a memorandum in opposition to the motion on December 1, 2008. The plaintiff did not obtain an order from the court to file its motion to strike special defenses out of order, following the filing of its reply to special defenses, nor did the defendant object at argument or in its briefs to the filing of the motion to strike out of order. The matter was heard at short calendar on March 16, 2009, at which time the defendant withdrew the third special defense.
The defendant filed a memorandum in opposition to that motion, dated November 13, 2008; this court denied the motion to strike, which appeared on the short calendar as a non-arguable matter on November 17, 2008, due to the plaintiff's failure to "raise all claims of legal insufficiency in the motion not just in the memorandum. See Stuart v. Freiburg, 102 Conn.App. 857 (2007)."
In the third special defense, the defendant alleges that the "plaintiff['s] sole and exclusive remedy is confined and limited to the benefits and provisions of the Workers' Compensation Act."
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: "Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(5). "The purpose of a motion to strike is to challenge the legal sufficiency of a pleading . . . to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citations omitted; internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 950, 748 A.2d 299 (2000). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
A special defense must plead facts that "are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 491, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Practice Book § 10-6, entitled "Pleadings Allowed and Their Order," provides as follows:
The order of pleadings shall be as follows:
(1) The plaintiff's complaint.
(2) The defendant's motion to dismiss the complaint.
(3) The defendant's request to revise the complaint.
(4) The defendant's motion to strike the complaint.
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(5) The defendant's answer (including any special defenses) to the complaint.
(6) The plaintiff's request to revise the defendant's answer.
(7) The plaintiff's motion to strike the defendant's answer.
(8) The plaintiff's reply to any special defenses.
"The failure to follow the chronology established by Practice Book § 10-6 is deemed to constitute a waiver of the right to file the particular pleading omitted under § 10-7." W. Horton and K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2008 Edition), § 10-6, Authors' Comments, p. 459. "By filing an answer, a party waives the right to a ruling on a pending motion to strike." Waldo v. R.H.M. Properties, LLC, Superior Court, judicial district of New London at New London, Docket No. 557367 (March 28, 2002, Hurley, J.T.R.) See also Gage v. Drazen, Superior Court, judicial district of New Haven at New Haven, Docket No. 0482741 (August 26, 2004, Arnold, J.) (where plaintiff filed answer to counterclaim prior to filing the motion to strike, and never obtained permission from the court to file out of order, plaintiff waived right to file motion to strike). "In all cases when the judicial authority does not otherwise order, the filing of any pleading provided for by [§ 10-6] will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleadings provided in that section." Practice Book § 10-7.
Our Supreme Court has made clear that if a party wishes to file out of order, prior approval should be obtained from the court. Phaneau v. Commissioner of Motor Vehicles, 166 Conn. 449, 451 (1974). While it is true in the present case that the court, on its own, denied the plaintiff's first motion to strike the special defenses for the plaintiff's failure to raise the claims of insufficiency in the motion, without prejudice for the plaintiff to re-file the motion to strike, a further review of the file reveals that the plaintiff failed to initially obtain permission from the court to file any motion to strike the special defenses, following the filing of the reply.
In Arpin v. Arpin, 28 Conn.Sup. 187 (1969), the court on its own motion struck the plaintiff's demurrer (now a motion to strike) to a special defense which was filed seven days after her reply to such defense. As in the present case, the plaintiff had failed to ask leave of the court to withdraw her reply. Here, the first motion to strike was filed one day after the reply, and the second motion to strike was filed thirty-six days after the plaintiff's reply. As the plaintiff failed to ask leave of the court to either withdraw the reply or file the motion to strike out of order, the motion to strike was improperly filed, and the plaintiff has waived the right to have the court address the legal sufficiency of the defendant's special defenses. For these reasons, no ruling is necessary on the plaintiff's motion to strike.