Opinion
No. X10 UWY CV 05-5001409 S
March 31, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#142)
Background
This is a tort, breach of contract, and Connecticut Unfair Trade Practices ("CUTPA") action filed in October 2005 by the Plaintiffs, Phillip Kuo and his wife, Kai-Ling Kuo, arising out of injuries Phillip Kuo claims that he sustained when he was allegedly assaulted in a parking lot owned by the Defendant, MIP Lessee, LP, and controlled by Interstate Management Company, LLC, d/b/a the Trumbull Marriott. Kuo alleges that he is a member of the Church of New York, an affiliate of the Christian Fellowship Church. He claims that in November of 2003, the Church held a conference at the Trumbull Marriott. As part of a Group Sales Agreement between the Trumbull Marriott and the Church, the Trumbull Marriott agreed to provide hotel rooms, meeting space, and food and beverage services for the Church conference at special group rates. Amended Complaint, ¶ 9. Pursuant to the Agreement, the Plaintiff reserved a room for himself and his family at the Church group rate, in order to attend the conference. Amended Complaint, ¶ 14.
On November 8, 2003, after he had checked into his room at the Trumbull Marriott, the Plaintiff left the hotel and went to the hotel parking area where a van belonging to the Church was parked. It was the Plaintiff's intention to use the van in order to transport some children to a Church-sponsored event. Amended Complaint, ¶ 16. While in the hotel parking lot, the Plaintiff was physically assaulted by an individual later identified as Arthur Stewart, who was subsequently arrested. Following Stewart's arrest, evidence was later discovered linking Stewart to several robberies at the Trumbull Marriott prior to November 8, 2003. Amended Complaint, ¶¶ 18-21.
In Count Three of their Complaint dated October 10, 2005, the Plaintiffs allege a violation of § 42-110 of the General Statutes, CUTPA. On January 24, 2006, the Defendants filed their Answer and Special Defenses to the Plaintiffs' Complaint. Nowhere in the Answer do the Defendants challenge the legal sufficiency of Count Three of the Complaint other than to allege in their Special Defenses to Counts One Three Four and Five, that the "plaintiffs fail to state a claim upon which relief may be granted." On April 24, 2006 the Plaintiffs filed their reply to the Special Defenses. Following a request made to the Plaintiffs by the Defendants, and with the permission of the court and the consent of the Defendants, the Plaintiffs filed an Amended Complaint on July 17, 2006 to correctly identify the names of the Defendants. The substantive allegations of the Plaintiffs' claims remained the same. The Defendants did not file any motions challenging the legal sufficiency of Count Three, or any of the other Counts in the Amended Complaint, until October 22, 2007, when they filed a Motion to Strike Count Three of the Plaintiffs' Amended Complaint. On November 20, 2007, the Plaintiffs filed an Opposition to the Defendants' Motion to Strike, based both on timeliness and the merits.
On December 26, 2007, the Defendants filed a second Motion to Strike Counts One, Two, Four, and Five of the Plaintiffs' Amended Complaint. The Plaintiffs filed an Opposition to Defendants' Motion to Strike on February 13, 2008. Oral argument on both motions to strike took place on February 19, 2008.
Discussion Timeliness of Objection
The Defendants argue that, pursuant to Practice Book §§ 10-40 and 10-42, the Plaintiffs' objection to the Motion to Strike should be precluded because the objection was not filed in a timely manner. Section 10-42 directly addresses the timeliness of objections to a motion to strike. Objections to a motion to strike must be filed "at least five days before the date the motion is to be considered on the short calendar." The motion must be filed and served in accordance with the procedural rules set forth in Practice Book §§ 10-12 through 10-17. According to § 10-13, service by mail is considered complete upon mailing.
The Defendants argue that, because the opposition was not filed within ten days of the motion to strike and no motion for an extension of time was made, and the Defendants did not receive the Plaintiffs' opposition to their Motion to Strike until February 15, 2008, only four days before the oral argument held on February 19th, the opposition is untimely, and the Plaintiffs have waived their right to object. However, the certificate of service, dated February 13, 2008, signed by the Plaintiffs' counsel, indicates that a copy of the opposition had been mailed to the Defendants' attorneys on that date. Pursuant to § 10-13, the Plaintiff satisfied the completion requirement for service by mail on February 13, 2008, the date that the objection was mailed. The Motion to Strike was heard by the court on February 19, 2008, six days after service of the Plaintiff's Objection to the Motion to Strike was completed. Thus, under § 10-42, the Plaintiff's Objection was served in a timely fashion. In any event, the failure to timely file an objection to a motion to strike may be waived by the trial court. Fitzpatrick v. East Hartford B.P.O. Elks, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 380905 (Clark J., Jan. 18, 1991). Here the Defendants were given an opportunity to respond at oral argument, and in a subsequent memorandum, to the Plaintiffs' objection to the motions to strike, and the Plaintiffs' original objection was filed only approximately 29 days after the first motion to strike was filed. Therefore the court waives any defect in the timeliness of their objection and will consider it.
Timeliness of the Motion to Strike
Section 10-61 of the Practice Book states: "When any pleading is amended the adverse party may plead thereto within the time provided by section 10-8 or, if the adverse party has already pleaded, alter the pleading . . . within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe . . . if the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading." Pursuant to § 10-8 of the Practice Book, pleadings and motions are to advance one step within each successive period of fifteen days from the preceding pleading.
The Plaintiffs claim that pursuant to § 10-61 of the Practice Book, the Defendants' previously filed answer now stands and the Motion to Strike is untimely and must therefore be denied. The Defendants argue that the court has discretion with respect to the ten-day window provided by § 10-61 and it may and should be overlooked by the court.
The Plaintiffs cite Williams v. Feely, Superior Court, Judicial District of New London, at New London, Docket No. 055000295 (Hurley, J.T.R., Oct. 2, 2006) [42 Conn. L. Rptr. 168], in which the court noted that the defendant had ten days from the filing of an amended complaint to file a motion to strike. Yet there the plaintiff did not object to the timeliness of the motion to strike.
The Defendants point to Lawrence v. Commodore Commons Condominium Association, Superior Court, Judicial District of Ansonia-Milford, at Milford, Docket No. CV 98 063281 (Curran, J., Sept. 8, 2000) [28 Conn. L. Rptr. 56] as instructive. The insurer Defendant filed a motion to strike one of the counts of the second substitute complaint based on legal insufficiency. The motion was filed outside the time set by the court for the filing of a responsive pleading. The court noted that: "the court, in its discretion, may overlook the fact that a motion to strike is untimely where both parties have submitted arguments on the merits of the motion." (Citations omitted.) Yet there no answer had been previously filed, and the motion to strike was filed on April 7, 2000 when the court had extended the time to file a responsive pleading to March 24, 2000. Because both the plaintiff and the defendant had advanced substantive arguments regarding the motion to strike, the court in that case chose to exercise its discretion and overrule the plaintiff's objection to the untimely filing of the motion to strike.
The Defendants also cite several other cases in which trial courts have exercised their discretion in overlooking the untimeliness of a motion to strike or other responsive pleading to an amended pleading. However, with respect to the filing of a motion to strike in response to an amended complaint, none of the cases cited by the Defendants considered a passage of time nearly as far beyond the Practice Book directives as in the present case. See, Williams v. Feely, Superior Court, Judicial District of New London at New London, Docket No. 055000295 (Hurley. J.T.R., Oct. 2, 2006) (motion to strike filed 5 days past the ten-day limitation but the plaintiff did not object to the timeliness of the motion); Langer v. Nationwide Mutual Insurance, Superior Court, Judicial District of Ansonia-Milford at Milford, Docket No. CV02 0077564S (Upson, J., Mar. 1, 2004) (motion to strike filed 1 day past the thirty-day limitation set forth in § 10-8 is untimely on its face but the court may overlook the untimeliness where the parties have advanced substantive arguments on the merits of the motion); Fusco v. Jones, Superior Court, Judicial District of Windham at Putnam, Docket Number CV 900607275 (Potter, J., Mar. 16, 2000) (court exercised its discretion to deny motion to strike filed three months past the time prescribed in § 10-61 on substantive rather than procedural grounds); D.A.N. Joint Venture v. Salinardi, Superior Court, Judicial District of New Haven, Docket No. 403946 (Levin, J., Feb. 23, 2000) [26 Conn. L. Rptr. 424] (time period set forth in § 10-61 for filing an amended pleading in response to an adversary's amended pleading is directory, not mandatory, and amended answer filed about a month late was allowed). As the court in D.A.N. Joint Venture noted, "[t]hat the ten-day period in Practice Book § 10-61 is directory does not, of course, license a party to file an amended pleading years after it should have been filed." In Butler v. Buchanan Marine, Inc., Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV95 0149347 S (D'Andrea, J., May 22, 1998), the court denied a motion to strike an amended complaint where the Defendant had filed an answer and did nothing for eighteen months following the Plaintiffs' filing of an amended complaint. In this case, the Defendants filed their Motion to Strike at least fourteen months past the time allowed by the Practice Book. Even in the cases cited by the Defendants in which the court exercised its discretion to overlook the ten-day period set forth in § 10-61 the moving party had not so long delayed. In indicating that the court has discretion to allow an out of order pleading the Appellate Court in Sabino v. Ruffolo, 19 Conn.App. 402, 404 (1989), stated: "Section 6 of the Practice Book supports this view by allowing for the liberal interpretation of the rules where `strict adherence to them will work surprise or injustice' because the very design of the rules is `to facilitate business and advance justice.'" Here the allowance of the motions to strike at this late date, where the pleadings were closed almost two years ago, would prejudice the Plaintiffs and delay this matter further.
The Motions to Strike are denied as untimely.