Opinion
No. CV02 039 74 13
February 17, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE #135
On October 21, 2002, the plaintiff, David Senise (Senise), filed a complaint against the defendant, third-party plaintiff, Merritt 7 Venture, LLC (Merritt), the owner and/or possessor of a building located at 101 Merritt Seven, Corporate Park, Norwalk, Connecticut (the premises). Senise alleged that while on the premises he tripped and fell on a piece of plywood and sustained injuries. He further alleged that his injuries were caused by Merritt's negligence.
Merritt answered, denying the allegations of negligence and on April 6, 2005, filed a third-party complaint against the third-party defendant, Pechiney Plastic Packaging, Inc. (Pechiney), a lessee of certain property located at the premises. Merritt alleges that Pechiney, on or before the date of Senise's fall, hired a moving entity to assist Pechiney with the moving of personal property. Merritt further alleges: (1) that this entity negligently left the pieces of wood or masonite on the floor upon which Senise tripped, (2) that the entity was the agent of Pechiney, and (3) that pursuant to the lease Pechiney owes it a duty to indemnify and hold it harmless from and against Senise's action. Pechiney filed an answer denying the allegations of the third-party complaint and asserting nineteen special defenses. One special defense alleges that the claim is barred by laches.
On July 12, 2005, Merritt filed the instant motion to strike Pechiney's special defense of laches on the ground that the defense has not been sufficiently pleaded. Merritt has submitted a memorandum in support of the motion. On December 27, 2005, Pechiney filed a memorandum of law in opposition to the motion. The matter was heard on the short calendar on January 17, 2006.
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 325 n. 21, 709 A.2d 1089 (1998). "In . . . ruling on the motion to strike, the trial court [has an] obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
Merritt argues that in order to adequately plead a special defense in Connecticut the defendant must articulate the elements that comprise the special defense. Consequently, Merritt argues that the motion to strike Pechiney's special defense of laches should be granted as Pechiney has failed to allege the necessary elements; that (1) there was an inexcusable delay and (2) the delay resulted in prejudice to Pechiney.
Pechiney counters that the motion to strike should be denied because Merritt has failed to attach the unpublished Superior Court cases which it cites in its memorandum of law in support of the motion as directed by Practice Book § 5-9. Pechiney further argues that all that is required to put forth a special defense is to plead that notwithstanding the facts alleged in the third-party complaint, Merritt does not have a cause of action. Thus, Pechiney maintains that its special defense of laches meets the pleading requirements of Practice Book § 10-50.
Practice Book § 5-9 provides that "[a]n opinion which is not officially published may be cited before a judicial authority only if the person making reference to it provides the judicial authority and opposing parties with copies of the opinion."
Pechiney's procedural argument, that the court should deny the motion to strike based on Merritt's failure to supply the court with copies of the unpublished superior court cases it cites to, is unconvincing. Pechiney fails to cite to, and the court is unaware of any cases in which failure to comply with § 5-9 has been considered a fatal defect.
Furthermore, contrary to Pechiney's assertions, it has not met the pleading requirements of § 10-50 as to its laches defense laid out in paragraph seventeen of its special defenses. Practice Book § 10-50 provides in relevant part: "Facts which are consistent with [the plaintiff's] statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." Explicit in this rule is that a party pleading a special defense must plead facts, consistent with the special defense they are alleging.
In Todd M. v. Richard L., 44 Conn.Sup. 527, 541, 696 A.2d 1063 (1995), the court noted that "[t]he Connecticut courts have held that a special defense of laches must be stricken if it fails to plead facts sufficient to support the legal conclusion that the claim is barred by laches." There, the court struck the defendants' special defense of laches where the defendant merely pleaded the conclusion that the "[p]laintiff's claims are barred by the doctrine of laches." Id.
"Laches consists of an inexcusable delay which prejudices the defendant . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Citation omitted; internal quotation marks omitted.) Farmers Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990). Thus, Pechiney must plead facts consistent with this special defense.
Paragraph seventeen reads as follows: "The claims set forth in the third party's complaint are barred by the doctrine of laches." This pleading like the pleading reviewed by the Todd court is a mere legal conclusion devoid of any facts supporting the necessary elements of inexcusable delay and prejudice. For the reasons stated above, the court hereby grants Merritt's motion to strike Pechiney's special defense of laches.