Summary
discussing denial of the motion to dismiss in 2001
Summary of this case from O'Connor v. PiersonOpinion
No. CV 01-0808376S
May 20, 2003
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The defendant, Wethersfield Board of Education, has moved to dismiss the above-captioned matter based upon the prior pending action doctrine. The defendant had previously filed a similar motion. The previous motion to dismiss was dated August 9, 2001 and date stamped by the clerk's office on August 13, 2001. The plaintiff's appearance was dated July 9, 2001 and date stamped in the clerk's office on July 10, 2001. Thus, it appears that the original motion to dismiss was not filed within 30 days of the defendant's appearance.
On September 25, 2001, Judge Hale denied the defendant's motion to dismiss which had been pressed on the same grounds as the instant motion. It does not appear that the timeliness of the motion entered into Judge Hale's opinion. It is true, as the defendant's argue, that both parties believed that the counts in the federal action were about to be dismissed by the federal court and so informed Judge Hale. In fact, those counts have not been dismissed.
Clearly some of the claims in the federal case are similar, if not identical, to the claims in the state case. Equally clearly, there are claims in the state case that are not in the federal case.
The Court notes that the return date in the present state action was June 26, 2001 and that the parties are scheduled to begin picking a jury on June 18, 2003, approximately 30 days from now.
DISCUSSION
In its brief, the defendant states "the prior pending action rule does not truly implicate that the subject matter jurisdiction of the court . . ." Halpern v. Board of Education, 196 Conn. 647, 652 (1985). Practice Book § 10-30, et seq. requires a motion to dismiss for non-subject matter jurisdiction issues be filed within 30 days of the defendant's appearance. Practice Book §§ 10-6 and 10-7 mandate that the defendant who files pleadings farther down than the motion to dismiss in the order of pleadings is deemed to have waived the right to file an earlier pleading. The Court knows of no authority explaining the effect of the earlier motion to dismiss on the later motion to dismiss when the first motion to dismiss was denied, at least in part, because of a mutual misunderstanding by the parties. It is clear that even the initial motion to dismiss was not filed within 30 days of the appearance.
The Court holds that the right to file a motion to dismiss has been waived. Accordingly, the motion to dismiss is denied.
As a further grounds for denying the motion to dismiss, the Court agrees with the reasoning of Judge Skolnick, in Otero v. Housing Authority of Bridgeport, 26 Conn.L.Rptr. 569, 2000 Ct. Sup. 474 (2000). Otero concerned a case in which an employment termination claim was filed in state court, but removed to federal court. A second action concerning the same general matter was then filed in state court and the argument was made that the matter should be dismissed because of the prior pending action doctrine. Our Supreme Court has held that the prior pending action doctrine applies when two actions are virtually alike and pending in the same jurisdiction. [Emphasis added.] See Cumberland Farms, Inc. vs. Groton, 247 Conn. 196, 216 (1998). As Judge Skolnick points out:
It should be noted that "when one action is in a state court and the other is in the federal court sitting in the same jurisdiction . . . [n]either is abatable because of the pendency of the other, except possibly when the first action is in a federal court because of removal from the state court. In such cases, many states will abate the second state action for the same cause."
Judge Skolnick goes on to explain that there is a split of authority on whether the removal changes the result of the prior pending action doctrine. Otero appears to conclude that even in the case of removal, the prior pending action doctrine does not apply if one case is in state court and the other case is in federal court.
Accordingly, the motion to dismiss is denied because one case is in state court and one case is in federal court. The motion to dismiss is denied because the matters are not pending in the same jurisdiction.
Finally, it is clear that the prior pending action doctrine is discretionary with the court. In the instant matter there are some identical claims and some which are not identical. The matter is scheduled for a trial within 30 days in the state court and no trial date has been established in federal court. The court declines to exercise its discretion to abate the state court action. Because the decision to dismiss is discretionary, the motion to dismiss is denied.
BY THE COURT
Kevin E. Booth, J.