Opinion
No. CV08 501 98 23 S
December 29, 2008
MEMORANDUM OF DECISION
The defendant in the above entitled action has moved pursuant to Practice Book § 10-31 for a dismissal of the complaint in this matter on the basis of a claim for a prior pending action involving the parties to this claim arising out of the same occurrence. By way of background, this action arises out of an automobile accident which occurred on April 11, 2008 on I-95 in the town of Milford. The plaintiff has filed a complaint against the defendant claiming personal injuries.
The basis for the defendant's claim is that she has filed a claim in the Eastern District of New York against the defendant for personal injuries which the plaintiff in this case claims was filed after she had sent a letter of representation to the defendant.
"It has long been the rule that when two separate lawsuits are `virtually alike' the second action is amenable to dismissal by the court . . . the rule does not apply, however, when the two actions are for different purposes or ends or involves different issues or where there is not a strict identity of the parties . . .
The court must examine the pleadings to ascertain whether they actions are virtually alike and whether they are brought to adjudicate the same underlying right . . . Moreover to invoke the prior pending action doctrine the actions must be of the same character, for the same cause and relief and in all respects identical, both actions must assert the same rights, demand the same relief, and be founded on the same facts or the title or essential basis of the relief must be the same." (Internal quotation and internal citations omitted.) Otero v. Housing Authority of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV99 0366854 (April 27, 2000 Skolnick, J.) [ 26 Conn. L. Rptr. 569].
In the claim filed in the Connecticut Superior Court, the plaintiff is seeking damages for personal injuries from the defendant who is represented by the same attorney representing the defendant in the Federal Court case in New York. In the Federal Court case in New York, the plaintiff is damages for personal injuries as a result of the accident, however, the plaintiff in this case is represented by attorneys hired by her automobile liability insurance company. They are doing only defending the claim in New York and pursuant to an answer and special defenses submitted by the defendant, they have not asserted a counterclaim on behalf of the plaintiff in this case. Summarily, the plaintiff in this case does not have an attorney of her choosing representing her in New York nor does she have an attorney pursuing her claim for personal injuries as she has in the Connecticut Superior Court case.
The prior pending action doctrine does not serve to bar a second suit when the two actions are for different purposes or ends. See Conte v. Murphy, supra, 23 Conn.App. 174, 178, 179, Fishman v. Middlesex Mutual Insurance Co., 4 Conn.App. 339, 347-48; see also Sarafino v. Hartford Financial Services Group, Inc., 50 Conn.Sup. 512; Young v. Greater Atlantic Pacific Tea Co., No. XL7CV084036357S, October 3, 2008, Berger, J.
As was indicated, the defendant's action is pending in the Federal United States District Court for the Eastern District of New York and the present case is pending in the Superior Court for Fairfield County in Connecticut. "When one action is in the state court and the other is in the federal court sitting in the same jurisdiction . . . neither is abatable because of the pendency of the other, except possibly when the first action is in a federal court because of removal from the state court" Otero v. Housing Authority of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV99 0366854 (April 27, 2000, Skolnick, J.). "The prior pending action doctrine applies where two actions are virtually alike and pending in the same jurisdiction." See Cumberland Farms v. Groton, 247 Conn. 196, 216 (1998).
In Trusler v. Anteon Corp., Superior Court, judicial district of New London at New London, Docket No. 4001286 (June 27, 2005, Hurley, J.T.R.) [ 39 Conn. L. Rptr. 547]. The applicable law was succinctly summarized as follows: "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 action 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 27, 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
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 00262299." supra at Page 10860. For the foregoing reasons, the motion to dismiss is denied.