Opinion
No. CV-08-5020153
October 30, 2008
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE (#109)
The plaintiff has filed this action against the Yale University police department and officers C. Cofrancesco and B. Donnelly, alleging a failure to provide medical treatment subsequent to injuries sustained during an encounter with Cofrancesco and Donnelly. The defendants have answered the complaint and set forth seven special defenses. The plaintiff moves to strike certain portions of the answer and special defenses. Specifically, he seeks to strike a portion of paragraph 5 of the defendants' answer, as well as special defenses three and four on the ground that they are irrelevant.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). In ruling on a motion to strike, a trial court is obligated to take the facts 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).
The defendants first argue that the motion should be denied on the basis of the plaintiff's failure to comply with the provision of the Practice Book that requires a memorandum of law be submitted with the motion to strike. Practice Book § 10-42(a) provides that "each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Plaintiff's motion is simply a motion, devoid of accompanying memorandum or any citation to any legal authority. The court is mindful that the plaintiff represents himself in this action. Where a layman appears pro se, the court follows a liberal policy and carefully considers the party's claims as far as they are fairly presented upon the record to ensure that no injustice has been done to him under the law. See Goldstein v. Fisher, 200 Conn. 197, 198 (1986). Nevertheless, while the plaintiff is afforded this latitude, the court is equally cognizant that "the right of self-representation provides no attendant license not to comply with relevant rules of procedure and substantive law." New Haven. v. Bonner, 272 Conn. 489, 498 (2004); see also Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149 n. 8 (1982) (nothwithstanding leniency accorded pro se litigants, "we cannot, and will not, entirely disregard the established rules of procedure"). While the court will consider the motion on this occasion, in the future, the plaintiff must comply with the Practice Book or risk losing an argument for his failure to do so.
At argument on the motion, the plaintiff claimed that the portion of the answer in paragraph 5, as well as the special defenses, were irrelevant to his complaint and should be stricken. This argument fails on several grounds. First, a party cannot move to strike based on irrelevancy; that is the proper function of a request to revise. "[A] motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations. The proper vehicle would be a request to revise." (Internal quotation marks omitted.) Sabatasso v. Bruno, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4003811 (March 17, 2006, Wiese, J.). "[T]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike . . . If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike any count of the plaintiff's revised complaint pertaining to their respective liabilities for which the plaintiff was unable to allege the necessary prerequisites." (Citation omitted.) Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).
The defendants next argue that, with respect to their answer in paragraph 5, the plaintiff has sought to strike only a portion of the answer. This he cannot do. "A single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense . . ." Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) ( 43 Conn. L. Rptr. 458). Here, the plaintiff has sought to strike even less than a single paragraph; the law does not support such action.
Finally, as to the special defenses pled by the defendants, the plaintiff argues that they are irrelevant. Practice Book § 10-50 requires certain special defenses to be specially alleged. All other defenses may be raised under a general denial. Practice Book § 10-46. The defendants argue that the special defenses pled simply put the plaintiff on notice as to the issues to be raised in the defense of the case, which is the rationale underlying Practice Book § 10-50. Barfield v. Gasparri, 1993 WL 426332 (Conn.Super. Oct. 12, 1992 Sylvester, J.) [ 10 Conn. L. Rptr. 243]. In line with that reasoning, certain Superior Court decisions have held that a defendant is entitled to plead a defense that could have been raised as a simple denial. Kiewlen v. Mallison, 2000 WL 1918055 (Conn.Super. Dec. 21, 2000 Levine, J.) [ 28 Conn. L. Rptr. 565] and cases cited therein; Davis v. Gleeson, 5 Conn.Sup. 325 (1937). By alleging certain facts as a special defense, the defendants have done no more than alert the plaintiff to the theory of their case.
For all the above reasons, the Motion to Strike (#109) is denied.