Opinion
No. 4001286
June 27, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS #102
FACTS
On October 22, 2004, the plaintiff, Alton C. Trusler, commenced this present action by serving a one-count complaint dated October 20, 2004, against the defendant, Anteon Corporation. The complaint alleges violations of the Age Discrimination in Employment Act, 29 U.S.C. § 630, et seq., and the Connecticut Fair Employment Practices Act, General Statutes § 46a-60 et seq. This action arises from an alleged wrongful termination based upon age discrimination. This complaint dated October 20, 2004, had a return date of November 9, 2004, however, the plaintiff failed to return this complaint to the court.
Subsequently the plaintiff commenced a second identical action against the defendant by complaint dated October 25, 2004, served on October 27, 2004 and filed with the court on October 29, 2004. This complaint dated October 25, 2004, also had a return date of November 9, 2004 and the plaintiff returned this complaint to the court on October 29, 2004. This second identical complaint alleges the same violations against the same defendant. On November 5, 2004, the defendant filed a petition for removal to the United States District Court District of Connecticut pursuant to 28 U.S.C. §§ 1441(a), 1441(b) and 1446(b).
On January 5, 2005, defendant filed a motion to dismiss the plaintiff's complaint on the ground that "there is prior pending action in [f]ederal [c]ourt . . . which the [p]laintiff has appeared and the [d]efendant has answered." The defendant asserts in its memorandum of law in support of its motion that on October 25, 2004, it received a copy of the plaintiff's complaint dated October 20, 2004. Thereafter, the defendant removed the matter to federal court. The defendant acknowledges that the plaintiff never returned to the Superior Court the initial complaint dated October 20, 2004, but served an identical complaint against the defendant dated October 25, 2004. The defendants asserts that the plaintiff has filed an appearance in federal court, and that the federal court has exercised its jurisdiction by issuing a scheduling order for discovery. The defendant argues, inter alia, that pursuant to the prior pending action doctrine, abatement of an action in state court is proper where the federal court has initiated its proceedings and invoked its jurisdiction over the removed case.
The plaintiff argues in his memorandum of law in opposition that the removed action is not properly before the federal court because the plaintiff had not yet brought an action in state court that could be removed by the defendant. The plaintiff asserts that the complaint was not returned and therefore no action was pending before the state court. In addition, the plaintiff argues that the prior pending action doctrine does not apply where there are two actions pending in different jurisdictions.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "Although the prior pending action rule does not truly implicate the subject matter jurisdiction of the court, a motion to dismiss is the proper device by which to request that the trial court dismiss the second action." Voris v. Loomis, Superior Court, judicial district of Danbury, Docket No. 323221 (June 27, 1996, Moraghan, J.) ( 17 Conn. L. Rptr. 113, 114).
"The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefor, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction." (Emphasis added; internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998); see also Regional Refuse Disposal v. Colebrook, Superior Court, judicial district of Litchfield, Docket No. CV 93 0062299 (October 7, 1993, Pickett, J.) ( 10 Conn. L. Rptr. 184) (where the court noted that the prior pending action doctrine is not applicable where two actions, which are virtually alike, "are pending in different states or where one action is in a state court and the other in a federal court sitting in the same state.").
"It is settled that when a state court and a court of the United States may each take jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it, to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted . . . The rule is limited to actions which deal either actually or potentially with specific property or objects. Where a suit is strictly in personam, in which nothing more than a personal judgment is sought, there is no objection to a subsequent action in another jurisdiction, either before or after judgment, although the same issues are to be tried and determined . . ." (Emphasis in original; internal quotation marks omitted.) Voriss v. Loomis, supra, 17 Conn. L. Rptr. 114.
In Murphy v. Uncle Ben's, Inc., 168 F.3d 734 (5th Cir. 1999), the plaintiff had parallel actions pending in the state and federal courts claiming age discrimination in employment in violation of both state and federal law. The United States Court of Appeals for the Fifth Circuit, in reversing the district court order for abstention of the federal action, found, inter alia, that the plaintiff's action did not involve any res or property over which any court, federal or state, has taken control. Id., 738. The court further found that "[t]he federal and state cases involve the same plaintiff, the same defendant, and the same issue, viz., whether [the defendant's] discrimination against [the plaintiff's] in employment on the basis of age. This parallel litigation is duplicative, not piecemeal; [t]he prevention of duplicative litigation is not a factor to be considered in an abstention determination . . . The only bar to dual prosecution is dismissal due to res judicata." (Citation omitted; internal quotation marks omitted.) Id.
In the present case, the plaintiff has claimed discrimination in employment due to age in violation of both Connecticut and federal laws. As such, the claim does not involve any res or property, and therefore the rule that the tribunal whose jurisdiction first attaches to an action holds it, is not implicated. Furthermore, the prior pending action doctrine requires that the actions to be virtually alike and in the same jurisdiction. Here, the plaintiff does not have a prior pending action in the courts of Connecticut. The complaint dated October 20, 2004, which was received by the defendant on October 25, 2004, was never returned to the Superior Court. "The return of the complaint to court passes the physical control of the case from the litigants to the court. An appearance or any proper pleading may be filed at any time after, although never before, a process is returned to court . . . A case is pending in court from the time it is returned to the court . . . It is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed . . ." (Citation omitted; internal quotation marks omitted.) American Realty Co. v. Villafane, Superior Court, judicial district of Hartford (March 27, 1995, DiPentima, J.) (13 Conn. L. Reptr. 630, 630-31); see also Arpaia v. Corrone, 18 Conn.App. 539, 541, 559 A.2d 719 (1989). Therefore, there is no prior pending action in the Connecticut Superior Court.
Moreover, any pending action in the United States District Court for the District of Connecticut is there by virtue of federal jurisdiction, not state jurisdiction. See Otero v. Housing Authority, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0366854 (April 27, 2000, Skolnick, J.) ( 26 Conn. L. Rptr. 569, 570) ("because the prior action was removed from state court and is pending in federal court, the two actions are pending in different jurisdictions"); Daly Electrical Contractor, Inc. v. Conte, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0155499 (November 26, 1997, Lewis, J.) (where the court noted that an action pending in state and federal courts were in different jurisdictions); Regional Refuse Disposal v. Colebrook, supra, Superior Court, Docket No. CV 93 0062299. Therefore, in the present case, any pending action in federal court does not implicate the prior pending action doctrine because the action is in a different jurisdiction. See CT Page 10860 Otero v. Housing Authority, supra, 26 Conn. L. Rptr. 569, 570 (where the court held, in part, that the prior pending doctrine did not apply to actions not pending in the same jurisdiction); see also O'Connor v. Board of Education, Superior Court, judicial district of Hartford, Docket No. CV 01 0808376 (May 20, 2003, Booth, J.) ( 34 Conn. L. Rptr. 621, 622 n. 1) (where the court discussed Otero v. Housing Authority and stated that " 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 is in federal court."); Regional Refuse Disposal v. Colebrook, supra, Superior Court, Docket No. CV 93 0062299. Therefore, the prior pending action doctrine does not apply in the present case. Consequently, the motion to dismiss is denied.
CONCLUSION
For all the foregoing reasons, the defendant's motion to dismiss is hereby denied.
D. Michael Hurley, JTR