Opinion
No. DBD-CV07-4008131 S
January 7, 2010
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO CITE IN ADDITIONAL PARTIES (#114)
FACTS
On August 6, 2009, the plaintiffs, Timothy O'Hanlon et al., filed a five-count amended complaint against the defendants, the city of Danbury et al., alleging the following facts. The Danbury city charter (the charter) provides for a system of hiring and promoting city employees based on merit. This system is administered by the civil service commission (the commission) and regulated by the civil service rules, which prescribe how new employees are selected. On April 13, 2005, the commission and Danbury publicized an open competitive examination for the purpose of hiring entry level firefighters. This process resulted in multiple violations of the charter and the civil service rules, leading to the improper appointment of candidates for the entry level firefighter positions. The appointments were both procedurally improper and were made based on subjective criteria in violation of the charter's merit-based hiring system.
The other plaintiffs in this action are Adam Sussman, William Ratajack, Christopher Brink and James Meyers. Ratajack was added as a plaintiff while this case was pending in federal court.
The plaintiffs' amended complaint of August 6, 2009 improperly names the parties that the instant motion seeks to cite in as defendants. The court has not yet granted permission to cite in additional parties, nor does the court have jurisdiction over these parties since they have not been served with process. The amended complaint, however, is proper as to the plaintiffs and defendants already before this court.
The other named defendants in this action are Mark Boughton, in his individual and official capacity as mayor of Danbury; Peter Siecienski, in his individual and official capacity as chief of the Danbury fire department; Philip Curran, in his individual and official capacity as deputy chief and then interim acting chief of the Danbury fire department; Geoffrey Herald, in his individual and official capacity as chief of the Danbury fire department; Michael Finn, Sr., in his individual and official capacity as chairman of the civil service commission for the city of Danbury; and Seth Ambruso, James Croswell, Raymond Guard, Shawn McGee, Kevin Sullivan, Richard Gallagher, Gary Bruce, Keith Sellick, Theodore Mourges, Adam Hughes, Michael Sedgwick, John Whitehead, Robert Hanson, Nicholas Cabral, Kyle Houser, Justin Bierbower, Nate Chapin, Douglas Zaniewski, Kenneth Stilson, Jonathan DeJoseph, Patrick Heron, Kent Bonsignore, James Gagliardo, Roger Bohan, James Carson, Sean Wanat, Joseph Stabile, Nicholas Velotti, Michael Vitolo, Philip Espitee, Kevin Lunnie, Gabriel Rivera, Kenneth Monteavaro, Michael Finn, Jr., Gregory Korotash, Jordan Sherman, Dickon Brown, Allan Lewis and Paul Perrotti, who have all been appointed entry level firefighters for the city of Danbury.
The plaintiffs' original complaint, filed on October 31, 2007, was removed to the United States District Court for the District of Connecticut in November of 2007. The federal court dismissed some of the plaintiffs' claims, including their federal claim pursuant to section 1983 of title 42 of the United States Code, and the matter was remanded to this court. On August 6, 2009, the plaintiffs filed the operative five-count amended complaint as well as the instant motion to cite in additional parties on the first count, a cause of action sounding in quo warranto. The plaintiffs seek to cite in Seth Ambruso, James Croswell, Gary Bruce, Keith Sellick, Theodore Mourges, Robert Hanson, Nicholas Cabral and Kyle Houser on the ground that they were hired under the same improper appointment process as the currently named individual firefighter defendants. On August 20, 2009, the defendants filed two motions objecting to the plaintiffs' motion to cite in additional parties on the grounds that the complaint falls beyond the three-year statute of limitations, and, alternatively, that the doctrine of laches bars these claims against the new defendants. On September 11 and October 5, 2009, the plaintiffs filed memoranda of law in further support of the motion to cite in, and requested that the court deny the defendants' objection on the grounds that the parties to be cited in must be added as necessary parties, and that the statute of limitations and laches defenses may only be properly raised after the court determines if the parties have an interest in the case and are necessary to a full and equitable resolution of the issues at bar.
The procedural history of this action in federal court was provided in the defendants' objection to the plaintiffs' motion to cite in additional parties as it is not mentioned in the plaintiffs' complaint or the instant motion.
These motions are identical documents except that second includes two cases attached in support of the motion.
DISCUSSION
"Upon motion made by any party or nonparty to a civil action, the person named in the party's motion . . . (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein . . ." General Statutes § 52-102. "General Statutes § 52-102 now makes it mandatory for a trial court to grant a party's motion to add a person as a party if that person is necessary for a complete determination or settlement of any question involved therein . . ." (Internal quotation marks omitted.) Donner v. Kearse, 234 Conn. 660, 669, 662 A.2d 1269 (1995). "Necessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it." (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 226 n. 10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct 1106, 137 L.Ed. 2d. 308 (1977).
The plaintiffs argue that the court should grant the motion to cite in additional defendants because the parties to be cited in are necessary parties to the litigation and must be included for the court to effect a fair, equitable and final determination of the case. In their memorandum in opposition, the defendants argue that the motion to cite in should be denied because the complaint falls beyond the three-year statute of limitations and the doctrine of laches bars the claims against the new defendants. The plaintiffs' memorandum of law in further support of the motion argues that the defendants' objection is improperly asking the court to litigate the putative defendants' special defenses before those defendants are properly before the court, and that the defendants' special defenses cannot properly be addressed on a motion to cite in. The plaintiffs' second supporting memorandum of law further argues that in a quo warranto action, the legality of an appointment to a public office may be challenged during the entire period of incumbency.
"[Q]uo warranto is the exclusive method of trying the title to an office . . . The legality of a public office is not determined or established by the temporary or permanent nature of the incumbent's appointment, and its legality is subject to challenge by quo warranto during the entire period of incumbency. Because of the public's interest in its government by legal public officers, there can be no waiver of quo warranto entitlement by inaction during the passage of time. The defendant's appointment [is] void ab initio, and [is] not cured by his serving of a probationary period and obtaining permanent certification. [If] at all times he exercised the powers of the office de facto, and not de jure, he is subject to removal by quo warranto." (Citation omitted, internal quotation marks omitted.) Carleton v. Civil Service Commission, 10 Conn.App. 209, 216-17, 522 A.2d 825 (1987). "There simply cannot be any decree or final decision in a quo warranto action in the absence of the parties whose ouster is sought . . . [T]he challenged [parties] are indispensable parties in whose absence the case could not be disposed of properly on its merits." (Citations omitted, internal quotation marks omitted.) Demarest v. Fire Dept., 76 Conn.App. 24, 30, 817 A.2d 1285 (2003). "Indispensable parties must be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action]." (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., supra, 238 Conn. 226 n. 10.
"In Connecticut, courts have found that it is generally improper to determine on a motion to cite in whether the statute of limitations has run against the parties to be cited in." Longhenry v. Groton, Superior Court, judicial district of New London, Docket No. 539211 (December 15, 1998, Martin, J.) ( 23 Conn. L. Rptr. 562, 563 n. 7). But see Storti v. Crystal Mall Associates Ltd. Partnership, Superior Court, judicial district of New London, Docket No. 524191 (August 10, 1993, Teller, J.) ( 9 Conn. L. Rptr. 552) (hearing statute of limitations argument but denying the motion on other grounds). "[I]t is inappropriate to address the merits of the underlying action when considering a motion to cite in a party defendant . . . [A]ll of the procedural vehicles available to challenge the adequacy of the complaint are available to the cited in defendant . . . the existing defendant may not have standing to challenge the new complaint because the right rests with the cited in defendant . . . it logically may be concluded that because no argument as of right is available on a motion to cite in, the legislature and/or rules committee never intended for the court to address the legal sufficiency or merits of an action on a motion to cite in. (Internal quotation marks omitted.) Fish v. K J Investments, Superior Court, judicial district of New London, Docket No. 5000190 (August 14, 2006, Hurley, J.).
"Laches consists of two elements. First, there must have been a delay that was inexcusable, and second, that delay must have prejudiced the defendants . . . However, the legality of a public office . . . is subject to challenge by quo warranto during the entire period of incumbency." (Citations omitted, internal quotation marks omitted.) Meyer v. Collins, Superior Court, judicial district of Tolland, Docket No. CV 96 62010 (February 4, 1997, Klaczak, J.) ( 19 Conn. L. Rptr. 85), aff'd 49 Conn.App. 831, 717 A.2d 771 (1998); see also Carleton v. Civil Service Commission, supra, 10 Conn.App. 216-17.
In the present case, the plaintiffs seek to cite in additional defendants whom, like many of the current defendants, were allegedly appointed to their positions as Danbury firefighters in violation of the charter and the civil service rules. Because a quo warranto action cannot be adequately addressed on the merits "in the absence of parties whose ouster is sought," Demarest v. Fire Dept., supra, 76 Conn.App. 30, the parties to be cited in are indispensable parties to this action. The parties to be cited in are also necessary parties under § 52-102 because the plaintiffs' suit will affect important interests such as their positions as firefighters, tenure and means of livelihood. It would also be inconsistent with equity and good conscience for the court to decide this suit without providing these parties with an opportunity to join the action and protect their interests. As such, the parties to be cited in are necessary and indispensable parties and must be cited in by the court.
In their memorandum in opposition to the motion to cite in, the defendants raise two defenses, arguing that the action, as it pertains to the new defendants, falls outside the statute of limitations, and alternatively, that the doctrine of laches bars the plaintiffs from citing in these additional parties. It is improper, however, for the defendants to address the merits of the underlying action when the court considers a motion to cite in because the right to challenge these claims lies with the cited in defendants. Fish v. K J Investments, supra, Superior Court, Docket No. 5000190. Even were the defendants able to properly raise defenses on behalf of the parties to be cited in, the statute of limitations defense fails because in a quo warranto action an office holder is subject to legal challenge "during the entire period of incumbency" and here the parties to be cited in hold offices that are being challenged. Carleton v. Civil Service Commission, supra, 10 Conn.App. 216-17. Likewise, the doctrine of laches defense fails because a quo warranto action cannot be waived by the passage of time due to the public's interest in the legality of its government officers. Id. For the foregoing reasons, the court grants the plaintiffs' motion to cite in additional parties.
So ordered.