Opinion
FSTCV196040355S
07-18-2019
MILLBANK MANUFACTURING COMPANY v. Charles DURKIN, III
UNPUBLISHED OPINION
OPINION
Hon. Edward R. Karazin, J., Judge Trial Referee
This action arises out of a notice of loss by the defendant, Charles Durkin III, to the plaintiff, Millbank Manufacturing Company, that a product of the plaintiff caused irregularities in the electrical workings of the defendant’s house. Since March 2018, the parties have engaged in discussions aimed at resolving the defendant’s alleged property damage. On March 6, 2019, the plaintiff filed a verified bill of discovery complaint against the defendant. The complaint alleges that the plaintiff wrote to the defendant requesting to inspect the product in issue, for purposes of evaluating the product and responding to claims of property damage asserted by the defendant. The plaintiff also alleges that the defendant has not produced the materials requested or made the product available to inspect. The plaintiff seeks an order permitting plaintiff’s counsel to inspect the product at issue or perform expert testing to evaluate the claims asserted by the defendant.
On March 22, 2019, the defendant filed motions to dismiss no. 102 to 106 seeking to dismiss this action on the grounds that: i) plaintiff’s counsel has violated the duty owed to former clients; ii) the present action violates the prior pending action doctrine; iii) the failure to list Travelers as a plaintiff is a defect in the summons; iv) the plaintiff failed to provide certain information to the defendant; and v) the court lacks subject matter jurisdiction because the product in issue is regulated by federal law and the appropriate forum is the United States District Court.
The plaintiff filed an objection on April 4, 2019, arguing that the defendant’s motions to dismiss are without merit and should be denied in their entirety.
"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). Motion #102 moves to dismiss on the grounds of being a former client.
Our Practice Book in § 10-30 provides in relevant part that: "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." In the present case, the basis of the defendant’s motion is that plaintiff’s counsel is conflicted under the ethical rule of duties to former clients. A motion to dismiss is not a proper motion to assert violation of an ethical rule by counsel. The appropriate motion is a motion to disqualify counsel under Rule 1.9 of the Rules of Professional Conduct. A motion to dismiss must assert one of the grounds under § 10-30, the defendant has failed to assert a proper basis for a motion to dismiss. Accordingly, the defendant’s motion to dismiss #102 is denied. Motion #103 moves to dismiss on the grounds of the prior pending action doctrine.
"[A] motion to dismiss is the proper vehicle to raise the issue of a prior pending action, [although] the doctrine does not truly implicate subject matter jurisdiction." (Internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009). "[T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement." (Internal quotation marks omitted.) Id., 395. "[U]nder our present rules of procedure, courts have refused to dismiss actions on the grounds of the prior pending action doctrine when the prior action was terminated or withdrawn before the hearing on the motion to dismiss." (Internal quotation marks omitted.) Casper v. George A. Green, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-98-0144205-S (November 20, 1998, Leheny, J.) (23 Conn.L.Rptr. 413); see also Briggs v. Briggs, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-026460-S (May 8, 2007, Hickey, J.) ("the fact that there was at one time an action which is between the same parties, is the same character, and has been brought to achieve the same objective ... does not abate the current action if that former action is terminated at any time prior to the hearing on a plea in abatement in the second action"); Tuccio Custom Homes, LLC v. Lamonica, Superior Court, judicial district of Danbury, Docket No. CV-07-5001958-S (March 31, 2008, Shaban, J.) (the court cannot grant motion to dismiss based on prior pending action doctrine when prior action is not pending).
"The plea in abatement ... has ... been replaced by the motion to dismiss." (Citation omitted.) Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985).
In the present case, the previous case captioned Durkin, III Charles v. Milbank Manufacturing Company, Docket No. CV-196039730-S was withdrawn on February 19, 2019, which was prior to commencement of this action and hearing of this motion to dismiss. Accordingly, the prior pending action doctrine is not applicable to the present case because the previous case is not actually pending, as it was withdrawn. The defendant’s motion to dismiss #103 is denied.
Motion #104 moves to dismiss on the grounds of insufficiency of process.
Generally, "[a] defect in process ... such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). "Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court’s personal jurisdiction over the defendant is lost." (Internal quotation marks omitted.) General Electric Capital Corp. v. Metz Family Enterprises, LLC, 141 Conn.App. 412, 420, 61 A.3d 1154 (2013). "[Parties] are not fungible, even if they are represented by the same attorney and have similar interests." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing Inc., 59 Conn.App. 224, 235, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000); see also Bravo v. Baio Insurance Agency, LLC, Superior Court, judicial district of Hartford, Docket No. CV-125036385-S (February 27, 2013, Peck, J.). "The general rule is that one party has no standing to raise another’s rights." Sadloski v. Manchester, 235 Conn. 637, 643, 668 A.2d 1314 (1995).
In the present case, the plaintiff’s complaint does not name Travelers as a party to this action, neither has Travelers moved the court to be added as a party to this action. Travelers is therefore not a party to this action. The defendant’s motion to dismiss on the basis of the summons not listing Travelers as a plaintiff is an attempt by the defendant to assert the rights of a non party, which he has no standing to do. The defendant cannot assert Travelers’ rights when Travelers has not done so itself. "The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., supra, 59 Conn.App. 234. The court, therefore, has no jurisdiction to enter orders in favor of a non party, in this case, issuing an order that the summons is defective because Travelers was not listed as a plaintiff. The court finds that the summons is not defective and hereby denies the motion to dismiss #104. Motion #105 motion to dismiss on the grounds of failure to provide information.
Our Practice Book in § 10-30 provides in relevant part that: "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." In the present case, the basis of the defendant’s motion is that the plaintiff has not provided him with certain information requested relating to safety of the product. This ground is not a proper basis for a motion to dismiss under § 10-30. The defendant has failed to assert a proper basis for a motion to dismiss. Accordingly, the defendant’s motion to dismiss #105 is denied.
Motion #106 motion to dismiss on the grounds of no subject matter jurisdiction.
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006).
"The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought ... As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries ... The bill is well recognized and may be entertained notwithstanding the statutes and rules of the court relative to discovery ... Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well rounded objection against the exercise of the court’s discretion." Berger v. Cuomo, 230 Conn. 1, 5-6, 644 A.2d 33 (1994). "[T]he petitioner must ... show that he has no other adequate means of enforcing discovery of the desired material, the availability of other remedies ... for obtaining information [does] not require the denial of the equitable relief ... sought ... The remedy is designed to give facility to proof." (Citations omitted; internal quotation marks omitted.) Id., 6; see also Hadley v. Wyman-Gordon Inv. Castings, Superior Court, judicial district of New London, Docket No. CV-537847-S (January 10, 1997, Booth, J.).
"[P]laintiff’s claims, grounded in product liability ... are traditionally the concern of state law. Plaintiff’s state remedies are no less viable because the products may also be regulated under the FHSA [Federal Hazardous Substance Act] or the CPSA [Consumer Product Safety Act] ... Nor will relegation of plaintiff to state law remedies frustrate any statutory purpose or national interest." (Citation omitted.) Riegel Textile Corp. v. Celanese Corp., 493 F.Supp. 511, 521 (S.D. N. Y 1980), aff’d, 649 F.2d 894, 902-03 (2d Cir. 1981); see also Duplin v. Whink Products Company, Superior Court, judicial district of Hartford, Docket No. CV-93-0527351-S (May 2, 1994, Wallace, J.) .
The purpose of a bill of discovery complaint is to facilitate access to information sought by the parties prior to commencing an action and not for the court to hear the anticipated action on the merits. The issue of whether the court has subject matter jurisdiction to hear the anticipated action on the merits does not come into play at this stage of the proceedings. The court’s subject matter jurisdiction at this stage of the proceedings concerns whether the court has jurisdiction over the verified bill of discovery complaint. The plaintiff has petitioned the court to allow it to inspect the product in issue before the anticipated action based on products liability is commenced by the defendant. Such an order is within the court’s equitable jurisdiction, and proper when considering the nature of the potential claim. Therefore, the defendant’s argument that the court lacks subject matter jurisdiction because the product in question is regulated by the Consumer Product Safety Act fails as the court is not hearing the merits of the anticipated action. Further, the defendant has not provided any case law or analysis regarding preemption of the plaintiff’s claims under the verified bill of discovery complaint. Accordingly, the defendant’s motion to dismiss #106 is denied.
Accordingly, the defendant’s motions to dismiss #102, #103, #104, #105 and #106 are hereby denied. The plaintiff’s objection #108 is sustained.
SO ORDERED.