Opinion
No. CV 11 6018143
August 16, 2011
MEMORANDUM OF DECISION ON MOTION TO REARGUE OR FOR RECONSIDERATION
On April 14, 2011, the plaintiff, Mario Fiallo, commenced this action against the defendant Allstate Insurance Co. On April 25, 2011, the plaintiff filed an amended complaint. On May 9, 2011, the defendant filed a motion to strike that complaint together with a supporting brief based on Powell v. Infinity Ins. Co., 282 Conn. 594, 922 A.2d 1073 (2007). On May 19, 2011, the plaintiff filed a motion for an extension of time within which to respond to the defendant's motion to strike. The motion did not contain a specific date or amount of time the plaintiff desired. The defendant's motion to strike and the plaintiff's motion for extension of time both appeared as non-arguable matters on the court's non-arguable short calendar of May 31, 2011. That day, the court granted the plaintiff's motion for extension of time to May 31, 2011. The following day, the court granted the defendant's motion to strike. On July 1, 2011, the defendant filed a motion for judgment pursuant to Practice Book § 10-44. On July 5, 2011, the plaintiff filed an objection to the defendant's motion to strike. On July 6, 2011, the plaintiff filed an objection to the defendant's motion for judgment and a motion for reargument or reconsideration of the motion to strike. The defendant objects to the plaintiff's motion for reargument or reconsideration. The defendant also requests oral argument on its motions and objections and the plaintiff's motions.
While the defendant's motion to strike was eligible for the May 31, 2011 short calendar, the plaintiff also had a reasonable expectation that his motion for extension of time would be granted and that he would have a reasonable period of time thereafter within which to file a brief opposing the motion to strike. See Practice Book §§ 10-30, 10-40 and 11-15. However, he was not afforded a reasonable time to respond.
In his motion to reargue or reconsider, the plaintiff argues that he did not receive notice of the court's order granting the motion to strike and was unaware of that order until the defendant moved for judgment on July 1, 2011. The defendant does not concede that the plaintiff did not receive notice and argues that the plaintiff's motion is untimely.
Practice Book § 11-12(a) provides in relevant part: "A party who wishes to reargue a decision or order rendered by the court shall, within twenty days from the issuance of notice of the rendition of the decision or order, file a motion to reargue . . ." Here, notice of the decision granting the defendant's motion to strike was issued on June 1, 2011. Under Practice Book § 11-12(a), the plaintiff should have filed a motion for reargument no later than June 21, 2011. He filed his motion sixteen days late.
Even if the plaintiff received notice of the granting of the motion to strike in June and even if his motion to reargue or reconsider is, as it appears, untimely, I held earlier this year that the time period for the filing of a motion to reargue pursuant to Practice Book § 11-12(a) is not jurisdictional and that the court has discretion to permit a motion to reargue beyond that time period. See part I of Torres v. Carrese, Superior Court, judicial district of Fairfield, Docket No. CV 06 5011368 (March 14, 2011, Levin, J.). The court chooses to exercise that discretion here, especially since it was an administrative error of the court — granting the plaintiff an illusory period of time within which to oppose the motion to strike — that precipitated this morass.
As has often been stated, "[d]iscretion without a criterion for its exercise is [the] authorization of arbitrariness." (Internal quotation marks omitted.) State v. Bergin, 214 Conn. 657, 692, 574 A.2d 164 (1990). Factors to be considered in passing on whether to entertain the merits of an untimely motion to reargue are the reasons the arguments on the merits were not raised initially, including the negligence, if any, of the party seeking reargument, the facial appeal of grounds for reargument, the length of the delay in filing the motion, and fairness to the opposing Cf. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-03, 460 A.2d 488 (1983) (enumerating nonexclusive factors to be considered in passing on a motion to amend).
An administrative error of the court precipitated this morass, the delay in filing the motion to reargue or reconsider is slight and the defendant will not be prejudiced in the sense that "the delay caused a disadvantage in asserting and establishing a claimed right or defense . . ." (Internal quotation marks omitted) In re Mushroom Transportation Co., Inc., 382 F.3d 325, 337 (3rd Cir 2004) (discussing the concept of prejudice in the context of the defense of laches). Even assuming arguendo that the plaintiff was negligent in not timely filing his motion to reargue or reconsider, such negligence does not outweigh the other factors, which militate in his favor.
The plaintiff's motion to reargue or reconsider is granted. The court will not address the merits of the motion to strike. Both parties seek oral argument. The parties may schedule the defendant's motion to strike for argument before the court at a regular short calendar.