Opinion
No. HHD X04 CV-08-6003273 S
May 13, 2009
MEMORANDUM OF DECISION
The defendants Connecticut Light and Power Company (CL P), Northeast Utilities (NU), and Northeast Utilities Service Company's (NUSC) (collectively "CL P defendants" or "movants") motion for dismissal with prejudice, or, alternatively, for an order that nonsuit entered as of December 5, 2008 (#182) (motion for dismissal), is before the court for adjudication. The movants seek dismissal with prejudice or a nonsuit as a result of what they contend are: (1) the plaintiff's failure to comply with the court's November 20, 2008 order on their motion for nonsuit (#133), which directed the plaintiff to file a revised complaint, in compliance with the movants' request to revise, by December 5, 2008; (2) the plaintiff's failure to comply with the court's January 20, 2009 order sustaining their objection to the plaintiff's request for leave to amend his complaint (#159); and (3) the plaintiff's belated and incomplete responses to discovery requests.
On April 8, 2009, the court held a hearing on the motion for dismissal. Although the plaintiff had filed no objection to the motion for dismissal, at the hearing, the court afforded him the opportunity to submit a post-hearing brief. The plaintiff subsequently filed an objection (#225), which the court has considered. The court also has considered the CL P defendants' supplemental filings related to the motion for dismissal. After considering the parties' arguments, the court issues this memorandum of decision.
I Procedural Background
The plaintiff commenced this action with the service of his complaint, dated May 30, 2008. In the complaint, the plaintiff, as administrator of the estate of Anthony E. Pellechia (decedent), seeks to recover damages, as the result of a July 28, 2006 incident in which the decedent allegedly suffered serious personal injuries, from which he died, as a result of a motorcycle which he was operating coming into contact with an energized electrical line on or near the roadway.
On August 18, 2008, the movants filed a request to revise the complaint (#105) (CL P request to revise). The plaintiff moved for a thirty-day extension of time to respond to the CL P request to revise (#110). The plaintiff also moved for an extension of time, until September 25, 2008, to respond to a request to revise the complaint which was filed by the defendants Town of Killingly, Anthony Shippee, and David Sabourin (Town defendants) on June 19, 2008 (#102). The court (Sferrazza, J.) granted this second motion for extension of time on September 8, 2008 (#111).
Arguably, if the plaintiff's motion for an extension of time as to the CL P request to revise had been granted, a thirty-day extension of time would have extended the plaintiff's deadline to respond to that request to revise until October 17, 2008. The plaintiff did not file objections to the CL P request to revise or a revised complaint by October 17, 2008.
On October 28, 2008, the movants filed a motion for nonsuit against the plaintiff for his failure to file a revised complaint in accordance with their request to revise (#133) (motion for nonsuit). No objection to the motion for nonsuit was filed by the plaintiff. On November 18, 2008, the plaintiff filed untimely objections to the CL P request to revise (#146).
Counsel for the parties attended a status conference with the court on November 6, 2008, at which they agreed to the entry of a scheduling order. Among the deadlines in that order, written discovery was to be completed by February 27, 2009, fact witness depositions were to be completed by March 27, 2009, plaintiff's experts were to be disclosed by April 27, 2009, and the pleadings are to be closed by July 1, 2009.
On November 20, 2008, the court issued an order concerning the motion for nonsuit, as follows: "Pursuant to P.B. § 10-37, the time by which the plaintiff was to file any objections to the defendants CL P, NU, and NUSC's requests to revise elapsed. The plaintiff's objections, dated November 18, 2008 (#146) are untimely. Accordingly, the requests are deemed to have been automatically granted. See P.B. § 10-37. Plaintiff shall file a revised complaint within fifteen days of the date of this order." See #133. Thus, instead of ordering a nonsuit at that time, the court afforded the plaintiff an additional extension of fifteen days, until December 5, 2008, to file a revised complaint in compliance with the CL P request to revise.
Practice Book § 10-37(a) provides, in relevant part, "such request shall be deemed to have been automatically granted by the judicial authority on the date of filing and shall be complied with by the party to whom it is directed within thirty days of the date of filing the same, unless within thirty days of such filing the party to whom it is directed shall file objection thereto."
Rather than filing such a revised complaint in compliance with the court's order, on December 4, 2005, the plaintiff filed a request for leave to amend complaint (#157), with an amended complaint. The CL P defendants filed an objection to the request for leave to amend on December 19, 2008 (#159), since the amended complaint did not incorporate most of the revisions sought in the CL P request to revise. The court sustained this objection by order dated January 20, 2009. More than a month later, on February 23, 2009, the plaintiff filed an "objection" to the defendants' objection to the request for leave to amend (#186), which ignored the court's January 20, 2009 order, and asserted that the amended complaint complied with the court's November 20, 2008 order, which had directed the plaintiff to file a revised complaint in accordance with the CL P request to revise. By order dated February 27, 2009, the court found the plaintiff's belated "objection" to be moot, since the court had sustained the CL P defendants' objection to the plaintiff's request for leave to amend complaint on January 20, 2009. See #159.
II Discussion
The CL P defendants seek dismissal with prejudice based on Practice Book §§ 14-3(a) and 17-19. Practice Book § 14-3(a) provides, in relevant part, "[i]f a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action . . . render a judgment dismissing the action with costs." Practice Book § 17-19 provides, "[i]f a party fails to comply with an order of a judicial authority . . ., the party may be nonsuited or defaulted by the judicial authority." In the alternative, the movants seek the entry of a nonsuit against the plaintiff.
The CL P defendants assert that the plaintiff has failed to file a revised complaint incorporating the revisions which they requested, has failed to prosecute this action with reasonable diligence, and repeatedly has ignored the express, unambiguous orders of the court requiring that he file such a revised complaint. In addition, they assert that the plaintiff has failed to comply with their discovery requests.
In response, the plaintiff contends that when he filed his amended complaint on December 4, 2008, he believed it "satisfied" the court's November 20, 2008 order. See plaintiff's objection (#225), p. 3. This contention ignores the clear language of the court's order of that date, quoted above, in which the court stated that the time by which the plaintiff was to file any objections to the CL P request to revise had elapsed and the plaintiff's objections, dated November 18, 2008, were untimely. The plaintiff was explicitly informed by the court that, in accordance with the Practice Book, the CL P requests to revise the complaint were " deemed to have been automatically granted." (Emphasis added.) In addition, the court cited Practice Book § 10-37, quoted above, which also expressly so provides. There is no reasonable basis for the plaintiff to assert either that the court's order was unclear or that it did not direct him to revise his complaint in compliance with the CL P request to revise. The plaintiff effectively concedes that he has never done so. See objection (#225), p. 5, in which the plaintiff states that he is working on a substitute complaint, as a result of what he asserts he learned at the April 8, 2009 hearing, i.e. that his amended complaint is not operative.
In addition, the court is unpersuaded by the plaintiff's additional assertion that he thought that his amended complaint was operative. His contention that he thought that the objection to his request for leave to amend would be placed on the calendar for argument is not well-founded. Practice Book § 10-60, concerning amendments to pleadings, does not provide for oral argument as of right. Practice Book § 11-18(a), which lists the motions for which oral argument is a matter of right, does not mention objections to requests for leave to amend. Further, this court's general case management order, dated October 20, 2008, which was provided to counsel for the parties, paragraph 7, states that "[o]ral argument shall not occur on any motions, except motions to strike, to dismiss, for summary judgment and for judgment of foreclosure, unless requested by the Court."
Likewise, the plaintiff's assertion about his examination of the court's docket is not well-founded. While the plaintiff contends that there was no ruling for entry No. 157 (his request for leave to amend), he ignores the court's ruling on #159, which is the CL P defendants' objection to his request to amend, and which the court sustained on January 20, 2009.
The plaintiff's reference to the CL P defendants' request for adjudication concerning the request for leave to amend complaint (#168) also is unavailing. Therein, the plaintiff was put on notice again that the CL P defendants had objected to the request of leave to amend by reference to docket entry #159, their objection, which was timely filed on December 19, 2008. See Practice Book § 10-60(a)(3) (objection may be filed within fifteen days from the filing of the request for leave to amend). As noted above, it was that objection to request for leave to amend complaint which the court sustained on January 20, 2009. The fact that there was no entry on the plaintiff's request (#157) is immaterial as none was required; the court's order was entered on the objection. The plaintiff's amended complaint did not become operative.
Similarly unpersuasive is the plaintiff's reference to docket entry #161 as to his belated February 23, 2009 objection (#186), which the court found to be moot on February 27, 2009. Docket entry #161 is the Town defendants' motion for judgment of dismissal, which the court denied without prejudice on February 10, 2009; it was not a motion filed by the CL P defendants.
In his objection (#225), page 5, the plaintiff, while apologizing for his poor draftsmanship, incorporates by reference the arguments made in his earlier objection (#186), which the court previously found was moot. The court has considered the arguments made therein, some of which already are addressed above. For example, the plaintiff, without reasonable basis, states that the court's November 20, 2008 order (#133) did not specify the revisions to the complaint which were required. As stated above, in the court's order, the plaintiff was advised that the CL P request to revise was " deemed to have been automatically granted." (Emphasis added.) In addition, as discussed above, the plaintiff's contention that his objections to the CL P request to revise were timely is unfounded. The request for adjudication process does not change Practice Book § 10-37(a).
The plaintiff's reliance on Royce v. Willow Brook Cemetery Association, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97 339069 (May 13, 1998, Stodolink, J.) (22 Conn. L. Rptr. 189) is unavailing. There, the court excused the defendants from the automatic granting provision of Practice Book § 10-37, noting that their co-counsel was an out-of-state attorney, admitted pro hac vice, who may have been unfamiliar with the "harsh dictates of the Practice Book." Id. The same is not true of plaintiff's counsel here.
Further, the plaintiff's argument that he was not informed "as to what exactly was stricken," see objection (#186), page 4, is also unfounded. The court did not strike portions of the complaint; it was the plaintiff's own inaction in response to the CL P request to revise which resulted in the requests being deemed granted, in accordance with the Rules of Practice, by operation of law. The plaintiff's references to the filing of an amended pleading while a motion to strike is pending, and the filing of an amended pleading after the granting of a motion to strike, are inapposite.
Likewise, the plaintiff's reference to Chiarelli v. DePrimo, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0446428 (January 21, 2003, Robinson, J.) (34 Conn. L. Rptr. 76), does not support his position. There, concerning an order that the complaint be revised, and citing Practice Book § 17-19, the court stated, "[t]he defendants' remedy for the plaintiff's failure to comply with the Court order is to move that a nonsuit be entered against the plaintiff . . ." The CL P defendants have done so here.
The plaintiff also cites the position paper, dated November 4, 2008, which he presented in advance of the November 6, 2008 status conference. Therein, the plaintiff requested discussion of the requests to revise, and stated that the Town defendants' request to revise was inappropriate, contending that the proper vehicle was a motion to strike. The request in the position paper did not change the status of the pleadings, or alter the plaintiff's obligations to comply with the Practice Book and court orders. The court is unpersuaded also by the plaintiff's unsubstantiated allusions to the effect of changing the venue to the Complex Litigation Docket in Hartford, and to a misunderstanding as to an agreement for filing the plaintiff's untimely objections to the CL P request to revise.
The plaintiff also argues that he did not intend to not comply with the court's orders. As explained above, his excuses for failing to do so are not well-founded. Although the plaintiff was afforded extensions of time to file an appropriately revised complaint, he did not do so. The plaintiff's continued failure to comply with the court's clear orders evidences a willful failure to do so.
With regard to the movants' contentions that the plaintiff has not complied with their discovery requests, the court notes that, as of the CL P defendants' supplemental response (#239), dated May 1, 2009, they assert that the plaintiff has provided additional documents, but that full compliance still had not been received. At this juncture, the extent of discovery compliance is unclear.
"[A]part from a specific rule of practice authorizing a sanction, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules . . . The decision to enter sanctions . . . and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court." (Citation omitted; internal quotation marks omitted.) Bongiovanni v. Saxon, 99 Conn.App. 221, 228, 913 A.2d 471 (2007).
"[T]he court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Rules are a means to justice, and not an end in themselves . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure . . . Therefore, although dismissal of an action is not an abuse of discretion whe[n] a party shows a deliberate, contumacious or unwarranted disregard for the court's authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort . . . and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court." (Citations omitted; internal quotation marks omitted.) Millbrook Owners Ass'n., Inc., v. Hamilton Standard, 257 Conn. 1, 16-17, 776 A.2d 1115 (2001). The same reasoning "applies equally to nonsuits and dismissals." Blinkoff v. O G Industries, Inc., 89 Conn.App. 251, 258, 873 A.2d 1009, cert. denied, 275 Conn. 907, 882 A.2d 668 (2005).
In considering the imposition of sanctions, three requirements must be met. "First, the order to be complied with must be reasonably clear . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction imposed must be proportional to the violation." (Internal quotation marks omitted.) Bongiovanni v. Saxon, supra, 99 Conn.App. 226-27.
Here, as stated above, the court's November 20, 2008 order was clear. The plaintiff violated it by not filing a revised complaint in compliance therewith by December 5, 2008. The court's order, in effect, was reiterated when the court sustained the objection to the plaintiff's request for leave to amend on January 20, 2009. Even then the plaintiff failed to comply by filing a revised complaint in compliance with the court's orders. See Practice Book § 10-8 (pleadings shall advance within fifteen days of the filing of a decision by the judicial authority).
In considering an appropriate sanction, the court notes that the facts here differ from those in Bongiovanni v. Saxon, supra. There, an amended complaint was filed in December 2002; in June 2005, the court ordered the plaintiff to file a certificate of closed pleadings by six weeks later, July 29, 2005, stating that a failure to do so would result in dismissal. See id., 99 Conn.App. 223. The plaintiff then filed a certificate of closed pleadings when the pleadings were not closed. That certification also contained an acknowledgment that a failure to file an accurate certificate would subject the plaintiff to sanctions. See id., 227. The plaintiff's failure to file an accurate certificate put him in violation of the trial court's order. See id. in affirming the dismissal, the Appellate Court, citing Practice Book §§ 14-3 and 17-19, found that the plaintiff's counsel was not attentive to the state of the pleadings. See id., 225.
Here, in contrast, the court's previous orders did not state that, unless compliance occurred, dismissal would ensue. While that is not a requirement of dismissal with prejudice as a sanction, when coupled with the fact that, here, no improper certificate was filed, it is a factor which militates against such a sanction. Also, no affirmative acknowledgment of a sanctions consequence for noncompliance with a court order is present in the plaintiff's filings.
In addition to Practice Book § 17-19, which, as stated above, provides that a nonsuit may be entered for failure to comply with a court order, Practice Book § 10-18 similarly states that "[p]arties failing to plead according to the rules and orders of the judicial authority may be nonsuited or defaulted, as the case may be." See General Statutes § 52-119 ("Parties failing to plead according to the rules and orders of the court may be nonsuited or defaulted, as the case may be"). Where a party has failed to comply with a request to revise, a nonsuit is a proper remedy. See Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 774, 837 A.2d 841 (2004). Similarly, a nonsuit is an appropriate remedy for noncompliance with a court order concerning a request to revise. See D'Agostino v. Broccoli, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 05 5001595 (January 12, 2007, Scholl, J.), citing Enquire Printing Publishing Co. v. O'Reilly, 193 Conn. 370, 377 n. 12, 477 A.2d 648 (1984) (proper motion is a motion for nonsuit).
In the Appellate Court's recent decision in McVerry v. Charash, 96 Conn.App. 589, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006), the court emphasized the need for the court to enforce its orders. "Overcrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based on the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." (Internal quotation marks omitted.) McVerry v. Charash, supra, 96 Conn.App. 600.
Here, the plaintiff's continued failure to properly revise his complaint in compliance with the Practice Book evidences a lack of due regard to necessary rules of procedure. See Millbrook Owners Ass'n., Inc., v. Hamilton Standard, supra, 257 Conn. 16. The plaintiff may not be permitted to ignore and not comply with the court's orders and the Practice Book. In so doing, the progress of the pleadings has been inexcusably delayed for months. The return day in this matter was June 17, 2008. Nearly eleven months later, as a result of the plaintiff's noncompliance, there is no operative complaint, let alone progress towards closing the pleadings. Allowing this noncompliance would negate Practice Book § 10-37.
The plaintiff had ample, and extended, time to properly revise his complaint, but did not so. The plaintiff has not complied with the court's orders. See, in contrast, Blinkoff v. O G Industries, Inc., supra, 89 Conn.App. 259 (plaintiff later complied with discovery requests after prior lack of diligence and lack of adherence to court orders). In the exercise of its discretion, the court finds that a nonsuit is an appropriate sanction for the plaintiff's failure to file a revised complaint in violation of the court's orders and Practice Book § 10-37.
In their reply (#229), the CLP defendants seek an award of costs. Since such relief was not sought in their motion, nor at the hearing, the court declines to consider it.
CONCLUSION
For the foregoing reasons, the CL P defendants' motion for dismissal is granted in part and denied in part. A nonsuit may enter against the plaintiff, as of the date of this decision, as to his claims against the CL P defendants.
It is so ordered.