Opinion
No. CV02 0818806 S
September 15, 2004
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The defendant's motion to strike, dated August 14, 2004 (#121), appeared on the short calendar for September 13, 2004, at which time the court heard oral argument. For the reasons stated below, the motion is granted in part and denied in part.
In the motion, the defendant contends that various paragraphs of the plaintiff's revised complaint, dated July 30, 2004 (# 120), which are repeated in all of its four counts, do not comply with the court's order (Sheldon, J.) of July 15, 2004 (# 118.10), which overruled portions of the plaintiff's objection to request to revise. The defendant seeks to strike these paragraphs and asserts that, absent these paragraphs, the plaintiff fails to state a cause of action upon which relief may be granted. In response, the plaintiff presented his revised objection to motion to strike and a memorandum of law in support thereof, dated September 7, 2004 (#123).
In the memorandum, the plaintiff noted that he submitted the revised objection to substitute for an earlier objection.
The standard of review on a motion to strike is well established. "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . ." (Citations omitted and internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004).
"Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense." Colon v. SNET, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV01 0385673 (May 21, 2002, Gallagher, J.), n. 3. This court agrees with the majority. See Peterken v. Epright, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 01 0096940 (July 29, 2002, Shapiro, J.) ( 32 Conn. L. Rptr. 571).
However, here the plaintiff has not objected to consideration of the motion on this ground. "Unless the party opposing the motion objects on this ground, however, this defect in the motion is waived. See id., 572 . . . Although the portions of the count[s] that the defendant . . . now seek[s] to strike do not embody an entire cause of action, the plaintiff has not objected to the defendant['s] motion to strike on this ground. Accordingly, the court will consider the merits of the motion." (Citation omitted.) Labaire v. Blumenthal, Superior Court, judicial district of Windham at Putnam, Docket No. CV 03 0069892 (July 9, 2003, Potter J.).
In the court's order, Judge Sheldon directed the plaintiff to specify, in paragraph 22 of the revised complaint, the names of an inmate and a corrections officer. In the revised paragraph 22, the last names of these individuals are provided. The defendant asserts that first names and identifying numbers should have been provided as well. By providing these last names, the plaintiff has complied with the court's order sufficiently for the defendant to respond and to engage in discovery.
The court's order also directed the plaintiff to "state with particularity, in paragraph 33 of his original Complaint, as repleaded in his Revised Complaint, at least the body parts claimed to have been injured by the defendant's alleged conduct and in addition shall specify any permanent consequences claimed to have resulted from his claimed injuries." The defendant contends that the revised complaint lists no injured body parts and lists no claimed permanent injuries to the body parts it fails to list. See defendant's memorandum of law, p. 2.
These challenged paragraphs, which appear as paragraph 32 of the first count, paragraph 33 of the second count, paragraph 36 of the third count, and paragraph 33 of the fourth count, each specify that the plaintiff alleges that he sustained injuries to his genitalia, chest, and neck. Thus, compliance with the court's order as to identifying the body parts which the plaintiff claims to have been injured has occurred.
In addition, the plaintiff has pleaded in these paragraphs that he has suffered various psychological injuries, including, for example, post-traumatic stress disorder. The last sentence of each paragraph states, "[t]hese injuries have caused and will continue to cause the Plaintiff in the future, great pain and suffering, both mental, emotional, and physical." The only change in this sentence from the original complaint is the addition of the words "in the future."
In his memorandum, p. 4, the plaintiff states that the challenged paragraphs do allege permanent consequences. As noted, the court previously ordered the plaintiff to "specify any permanent consequences claimed to have resulted from his claimed injuries." To vaguely assert that the plaintiff will suffer from his injuries "in the future" is not the same as claiming that one or more of them is permanent in nature. See Donoghue v. Smith, 114 Conn. 64, 65-66, 157 A. 415 (1931). Since, according to his memorandum, the plaintiff does claim some permanent injury, this sentence of the challenged paragraphs does not comply with the court's previous order and it is stricken.
In view of the fact that only this portion of these paragraphs is stricken, the court need not consider the defendant's contention that, without the challenged paragraphs, the plaintiff's revised complaint fails to state a claim upon which relief can be granted. The court declines to strike the revised complaint in its entirety.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is granted, in part, only as to the last sentence in the following: paragraph 32 of the first count, paragraph 33 of the second count, paragraph 36 of the third count, and paragraph 33 of the fourth count. These sentences are stricken from the revised complaint. The other aspects of motion to strike are denied. It is so ordered
BY THE COURT
ROBERT B. SHAPIRO
JUDGE OF THE SUPERIOR COURT