Opinion
No. HHD X04 CV-08-4038185 S
March 18, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS AND STRIKE (#139)
In this employment matter, the defendants move to dismiss and strike portions of the plaintiff's second amended complaint (#132). The court heard oral argument concerning the motion on March 17, 2009. In his objection, dated March 2, 2009 (#146), the plaintiff states that he withdraws challenged Counts One, Two, Four, and Five.
I
In reply, the defendants rely on General Statutes § 52-80, which provides that, after the commencement of a hearing on an issue of fact, the plaintiff may withdraw an action only by leave of court for cause shown. They assert that the court's January 12, 2009 ruling (#134), which was rendered after consideration of the parties' motion papers only and without a hearing or oral argument, and which granted in part and denied in part their motion for protective order concerning the taking of non-party witness depositions, amounted to a hearing on the merits. Citing Derby v. DiYanno, 142 Conn. 708, 713, 118 A.2d 308 (1955), which relied on former General Statutes § 7801, a predecessor to § 52-80, they assert that the court may exercise discretion to prohibit the plaintiff from withdrawing the challenged counts.
Section 52-80 provides, in relevant part, "[t]he plaintiff may withdraw any action . . . before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown."
"A plaintiff may withdraw an action unilaterally and unconditionally before a hearing on the merits." (Footnote omitted.) Viera v. Cohen, 283 Conn. 412, 429, 927 A.2d 843 (2007) (citing General Statutes § 52-80). "The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by [General Statutes] § 52-80, is absolute and unconditional." (Internal quotation marks omitted.) Daigneault v. Consolidated Controls Corp., 89 Conn.App. 712, 714, 875 A.2d 46, cert. denied, 276 Conn. 913, 888 A.2d 83 (2005), cert. denied, 546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006).
The earlier decision cited by the defendants, Carvette v. Fidelity Deposit Co. of Maryland, 152 Conn. 697, 699, 204 A.2d 409 (1964), which concerned a plaintiff's earlier acquiescence in the substance of the judgment, prior to attempting to withdraw the action, is not contrary to this authority.
The court's prior adjudication of the motion for protective order does not come within the ambit of § 52-80. Here, no hearing was held, and no witness testified. Even where a court holds a hearing, and hears testimony, such as on a motion to dismiss, such "a limited hearing on a limited issue . . . cannot be transposed into a hearing on the merits . . . [C]ourts may and indeed [are] often obligated to decide questions of law raised as preliminary motions prior to trial [yet] questions of fact are generally reserved until the time of trial . . . [.] The phrase `hearing on the merits' refers to the trial of the issues of fact raised by the complaint and `joined' by the answer to the complaint." (Internal quotation marks omitted.) A.I, Credit Corp. v. M.A. Gronski, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0452088 (March 11, 2003, Silbert, J.) (34 Conn. L. Rptr. 317).
Thus, the plaintiff had the unconditional right to withdraw Counts One, Two, Four, and Five in his objection to the instant motion. They are no longer pending before the court.
II
The plaintiff also asserts that the court may not strike part of a count, so that the motion to strike part of Count Three, concerning allegations of invasion of privacy, should be denied. In reply, the defendants argue that the court should treat their motion to strike as a request to revise.
The defendants' reply states that Count Three improperly contains a cause of action for unreasonable publicity and a cause of action for publicity that unreasonably placed the plaintiff in a false light before the public. Without citing decisional law which provides authority, the defendants ask the court to consider their motion as a "motion to revise" under Practice Book § 10-35. Practice Book §§ 10-35 to 10-38 provide a separate procedure for seeking revisions to a complaint by request.
Baker v. Cheshire, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 07 5013602 (April 24, 2008, A. Robinson, J.) (45 Conn. L. Rptr. 452), cited by the defendants, does not hold that a motion to strike may be treated as a request to revise. Rather, it points out that the proper way to challenge the combining of two or more causes of action in a single count is by request to revise, which was not done there.
Practice Book § 10-38, concerning waiver of pleading revisions, states, "[w]henever any party files any request to revise or any subsequent motion or pleading in the sequence provided in Sections 10-6 and 10-7, that party thereby waives any right to seek any further pleading revisions which that party might then have requested." According to the sequence provided in Practice Book § 10-6, a defendant's motion to strike the complaint is a subsequent motion. See Practice Book § 10-6(4). While the Appellate Court has, in the interest of judicial economy, treated a request to revise as a motion to strike, see Girard v. Weiss, 43 Conn.App. 397, 417, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996), that decision does not provide authority for the court to do the opposite.
In addition, as noted above, the defendants seek to strike Count Three in part, by striking the unreasonable publicity cause of action. They do not seek to strike the plaintiff's "false light" invasion of privacy claim.
The court cannot grant a "`surgical' motion to strike" which is addressed to only part of a count. Baker v. Cheshire, supra, Superior Court, Docket No. CV 07 5013602; Ahmad v. Yale-New Haven Hospital, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X02 CV 04 0183725 (September 29, 2004, Schuman, J.) (38 Conn. L. Rptr. 238).
CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss and strike is denied.
It is so ordered.