Opinion
No. CV10 5033177S
May 4, 2011
MEMORANDUM OF DECISION RE MOTION TO CITE IN ADDITIONAL PARTY (#102), OBJECTION TO AMENDED COMPLAINT (#111)
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiff, Robert Folson, filed a summons and complaint against the defendant, Elrac, LLC, on March 4, 2010. The complaint alleged the following facts. On February 12, 2008, while the plaintiff was operating his vehicle on Interstate 95 South in Branford, Connecticut, he was struck from the rear by a vehicle that was owned and operated with the permission of Elrac. Due to the negligence of the operator of Elrac's vehicle, the plaintiff suffered physical injuries, lost wages and incurred debt for medical care.
The summons lists the defendant as Eltrac, Inc. while the complaint names the defendant as Elrac Inc. In its appearance, the defendant notes that it was named incorrectly on the summons and that the correct name is Elrac, LLC.
Elrac filed a motion to strike the plaintiff's complaint on March 25, 2010, on the ground that General Statutes § 14-154a, the state statute that allows a plaintiff to recover under a theory of vicarious liability against the lessor of a motor vehicle for the actions of the lessee, was preempted by 49 U.S.C. § 30106, a federal statute that prohibits the imposition of vicarious liability of a motor vehicle for damages caused by the negligent acts of the lessee. The motion was granted by the court on April 26, 2010.
Nearly three months later, on July 14, 2010, the plaintiff filed a motion to cite in John Pulley as an additional party defendant, citing an inadvertent omission in the original suit. Elrac filed an objection to the motion, arguing that: (1) the wrong defendant statute does not apply; (2) the statute of limitations has expired; and (3) there is no pending case for Pulley to be cited into. The motion was claimed on the short calendar on October 20, 2010. The court took papers on the motion on November 1, 2010, but, on November 3, 2010, scheduled the motion to be heard at short calendar on November 15, 2010. When plaintiff's counsel failed to appear on November 15, the court marked the matter off.
On November 15, 2010, the defendant filed a motion for judgment citing the plaintiff's failure to file a new complaint within fifteen days after the motion to strike his complaint had been granted, in accordance with Practice Book § 10-44. On November 29, 2010, the court took papers on the motion and ordered that the motion was "[g]ranted unless a new complaint is filed by 12/20/10."
The plaintiff filed an amended complaint on December 20, 2010. It is identical to the stricken complaint with the exception that it names Pulley as the operator of the vehicle. The defendants filed an objection to the amended complaint on December 29, 2010 on the grounds that: (1) the statute of limitations has expired; (2) the plaintiff did not request leave of the court to file an amended complaint to add an additional defendant; (3) the plaintiff's motion to cite in an additional defendant has not yet been ruled upon; and (4) the plaintiff's amended complaint is fatally defective because it does not include a return date on the writ of summons. The objection was heard at short calendar on January 24, 2011 and the court sustained the objection on the grounds that plaintiff's counsel did not file a brief in opposition and did not appear at oral argument.
The defendants named in the amended complaint are Elrac and Pulley. Since the court has granted the motion to cite in an additional defendant, as discussed infra, from hereon, Elrac and Pulley will be referred to as the defendants.
On February 3, 2011, the plaintiff filed a motion to reargue/reconsider the objection which was granted by the court on February 14, 2011. The motion to cite in an additional defendant and the objection to the amended complaint were heard at short calendar on March 7, 2011.
DISCUSSION I Motion to Cite In An Additional Defendant
Practice Book § 9-22 provides that: "Any motion to cite in or admit new parties must comply with Section 11-1 and state briefly the grounds upon which it is made." Practice Book § 11-1, in turn, requires that the motion to cite in be in writing and filed so that a court may act on the motion. "The decision whether or not to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court." (Internal quotation marks omitted.) Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1997), overruled in part on other grounds, Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 904 A.2d 137 (2006). "Factors to be considered include the timeliness of the application, the possibility of prejudice to the other party and whether the applicant's presence will enable the court to make a complete determination of the issues." A. Secondino Son, Inc. v. LoRicco, 19 Conn.App. 8, 14, 561 A.2d 142 (1989).
Elrac argues that the plaintiff should not be allowed to cite in Pulley for three reasons:(1) General Statutes § 52-293, the wrong defendant statute, does not apply; (2) the statute of limitations has passed; and (3) there is no complaint as it has been stricken. It asserts that the wrong defendant statute only applies when there is a reasonable mistake as to the identity of the responsible individual. It further maintains that the wrong defendant statute does not apply in this case because though the plaintiff knew the identity of the driver prior to filing suit, he simply failed to name the driver as the defendant. The plaintiff named the "right person" as a defendant and that the underlying complaint was stricken because Elrac is immune from liability, not because the plaintiff named the wrong defendant. Elrac also argues the plaintiff is attempting to circumvent the statute of limitations through the use of § 52-593. Thirdly, Elrac asserts that because its motion to strike the entire complaint was granted on April 26, 2010 and the plaintiff did not replead within fifteen days, pursuant to Practice Book § 10-44, there is no case pending for which Pulley can be cited into.
First, Elrac's objection that the wrong defendant statute could apply in this case is misplaced. Though Elrac is correct in asserting that § 52-593 does not provide a basis for citing in an additional party, the argument is of no import because the plaintiff does not raise the wrong defendant statute as a ground for the motion. Indeed, he could not, because a motion to cite in an additional party is an application to the court for an order to bring a new party into the original action. "The nature of the motion [to cite in] itself presumes that it is filed within an already existing action." Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 96, 10 A.3d 498 (2010). Moreover, a close reading of § 52-593 reveals that its provisions only applies to new actions. "When a plaintiff in a civil action has failed to obtain judgment by reason of a failure to name the right person as defendant therein, the plaintiff may bring a new action . . ." (Emphasis added.) General Statutes § 52-593. Therefore, the objection on this ground is overruled.
Second, Elrac maintains that the statute of limitations has passed. "While a statute of limitations defense may serve to bar a stale claim, generally this issue is not decided on a motion to cite in or a motion to strike. These procedural vehicles do not allow a court to reach some of the substantive or factual issues that must be resolved before determining the merits of the statute of limitations defense." Dugas v. Northeast Carriers, LLC, Superior Court, judicial district of New London, Docket No. 6000685 (May 28, 2010, Cosgrove, J.). "[I]t is inappropriate, on a motion to cite in an additional defendant, to address the merits of the underlying action that is the subject of the motion." CT Page 10619 Martin v. O'Meara, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0160364 (March 18, 1998, Karazin, J.) ( 21 Conn. L. Rptr. 537). "1) [T]he court does not necessarily have the complaint that asserts the cause of action against the additional defendant at the time the ruling on the motion to cite in is made; 2) all of the procedural vehicles available to challenge the adequacy of the complaint are available to the cited in defendant; 3) in some situations, the existing defendant may not have standing to challenge the new complaint because the right rests with the cited in defendant; and 4) it logically may be concluded that because no argument as of right is available on a motion to cite in, the legislature and/or rules committee never intended for the court to address the legal sufficiency or merits of an action on a motion to cite in." Stop Shop Supermarket Co. v. Alan D. Loeser Co., Superior Court, judicial district of Fairfield, Docket No. CV 00 0378384 (August 8, 2001, Skolnick, J.) ( 30 Conn. L. Rptr. 163). In the present case, Elrac's statute of limitations argument is not properly before the court. Therefore, it will not be considered.
Elrac's third argument is that there is no case in which to cite Pulley since the complaint has been stricken and a new one has yet to become operative. As the defense correctly pointed out during oral argument, the granting of a motion to strike does not terminate the case, it merely strikes the complaint. "If a motion to dismiss is granted, the case is terminated, save for an appeal from that ruling . . . The granting of a motion to strike, however, ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings." (Citation omitted.) Egri v. Foisie, 83 Conn. App. 243, 249, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). Thus, even if a motion to strike an entire complaint has been granted, the case remains active until a motion for judgment has been granted. See Practice Book § 10-44. "Moreover, a motion to cite in or add new parties merely brings them into a case; it does not provide a separate basis for judgment for or against new parties . . . For that to occur, the complaint must be amended to allege a cause of action for or against them." Aqleh v. Cadlerock Joint Venture II, L.P., supra, 299 Conn. 96. "A motion to cite in an additional defendant is no more than an application requesting a court to make a specific order to expand the scope of existing litigation. In other words, it is simply a proposal to enlarge the pool of potentially liable parties in a current, ongoing matter before the court." Id.
In the present case, the motion to cite in an additional party was filed after the motion to strike had been granted, but before the motion for judgment had been filed. Though there was no operative complaint at the time the motion to cite in was filed, there was a current, ongoing matter before the court. Moreover, the court has found no case law to suggest that there must be an operative complaint in order for a motion to cite in an additional party to be granted. Since the motion to cite in an additional defendant was filed only six months after the suit had commenced, Elrac was aware of Pulley's relationship to the action, and allowing Pulley to be cited in will conserve judicial resources, as the plaintiff indicated in court that he would likely file an action against Pulley should this case be dismissed. Therefore, the court grants the plaintiff's motion to cite in Pulley.
The court notes that after the motion to cite in was marked off on November 15, 2010 after plaintiff's counsel failed to appear for short calendar, neither party attempted to reclaim it pursuant to Practice Book § 11-13. Practice Book § 11-13 provides in relevant part: "Unless otherwise provided in these rules or ordered by the judicial authority . . . all motions and objections to request when practicable must be placed on the short calendar list. No motions will be heard which are not on said list and ought to have been placed thereon . . . If a motion has gone off the short calendar without being adjudicated any party may claim the motion for adjudication." Because of the parties' lack of due diligence in this case, the court is faced with a needlessly complicated procedural matter.
II Objection to Amended Complaint
The defendants object to the amended complaint on four grounds: (1) the plaintiff's motion to cite in an additional defendant has not yet been ruled upon; (2) the statute of limitations has expired; (3) the plaintiff did not request leave of the court to file an amended complaint to add an additional defendant; and (4) the plaintiff's amended complaint is fatally defective because it does not include a return date on the writ of summons.
A. Grounds One and Two: Motion to Cite In and Statute of Limitations
As to the first ground, this court's ruling on the motion to cite in an additional defendant renders it moot.
In asserting that the statute of limitations has expired, the defendants again attempt to bring a ground that is clearly improper. Practice Book § 10-50 explicitly states that the proper vehicle in which to contest statute of limitations is by special defense. "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus . . . the statute of limtations . . . must be specially pleaded . . ." Practice Book § 10-50. Only in specific circumstances will a statute of limitations argument be considered in another context. See Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996) (noting two exceptions when statute of limitations is appropriately brought by motion to strike instead of special defense); Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 22-23, 848 A.2d 418 (2004) (describing circumstance when motion to dismiss is proper procedural vehicle to bring statute of limitation defense). The defendants have not presented any authority to suggest that this court should consider a statute of limitations argument in the context of an objection to an amended complaint. Thus, the objection on the ground that the statute of limitations has expired is overruled.
B. Ground Three: Failure to Obtain Leave to Amend Complaint
The third ground, while legitimately raised, is not persuasive. The defendants argue that the plaintiff is attempting to circumvent Practice Book § 10-60. They assert that the complaint filed by the plaintiff should have been a substituted complaint pursuant to Practice Book § 10-44. The plaintiff argues that his complaint is in compliance with Judge Blue's order. The defendants, nevertheless, maintain that the court did not order the plaintiff to add an additional defendant as part of the amended complaint.
Practice Book § 10-44 provides in relevant part: "Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . ." Moreover, the substituted complaint is limited to "new allegations which . . .' correct[s] the defects in the original by setting forth claims which, if proved, could afford a basis for recovery.'" (Internal quotation marks omitted.) East Greylock, LLC v. OBC Associates, Inc., Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X08 CV 04 4002173 (May 4, 2007, Jennings, J.) ( 43 Conn. L. Rptr. 396). It is also true, however, that "Practice Book [§ 10-44] does not preclude an attempt to replead under [Practice Book § 10-60] after the expiration of the fifteen day period following the granting of a motion to strike." Dennison v. Klotz, 12 Conn.App. 570, 574, 532 A.2d 1131 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). Practice Book § 10-60 provides in relevant part: "[A] party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner: (1) By order of judicial authority; or (2) By written consent of the adverse party; or (3) By filing a request for leave to file such amendment, with the amendment appended . . ." "Factors to be considered in passing on a motion to amend are the length of delay, fairness to opposing parties and the negligence, if any, of the party offering the amendment . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Internal quotation marks omitted.) Jacob v. Dometic Origo AB, 100 Conn.App. 107, 111, CT Page 10622 916 A.2d 872, cert. granted, 282 Conn. 922, 925 A.2d 1103 (2007).
1. Amended Complaint as to Elrac
In the present case, Elrac filed a motion for judgment after the plaintiff failed to file a substituted complaint pursuant to Practice Book § 10-44. The court, Blue, J., granted the motion unless "a new complaint is filed by 12/20/10." Since the plaintiff had clearly failed to provide a substituted complaint within fifteen days, pursuant to Practice Book § 10-44, and the judge was ruling on a motion for judgment which stated that the plaintiff had failed to comply with Practice Book § 10-44, this court construes Judge Blue's order as allowing the plaintiff to file a substituted complaint against Elrac pursuant to Practice Book § 10-44. Implicit in Judge Blue's order was the fact that the amended complaint should address the issues raised in the motion to strike. Since the plaintiff's amended complaint with respect to Elrac is essentially the same as the original stricken complaint, the plaintiff has failed to comply with the order and therefore the judgment is granted as to Elrac.
2. Amended Complaint as to Pulley
The plaintiff maintains that his amended complaint complies with Judge Blue's order. While the lack of specificity of the order allows for the interpretation that Judge Blue ordered the plaintiff to file an amended complaint pursuant to Practice Book § 10-60 with respect to Elrac, he simply could not have construed the order to mean that the plaintiff could add an additional defendant. To do so, the court would have to conclude that not only was Judge Blue ordering an amended complaint pursuant to Practice Book § 10-60, but also that he was either granting the motion to cite in an additional defendant or exercising his judicial authority to order an additional party be brought into the case pursuant to Practice Book § 9-18 which provides in relevant part that: "if a complete determination cannot be had without the presence of other parties, the judicial authority may direct that they be brought in." It stretches reality for the court to agree with the plaintiff that he was merely complying with Judge Blue's order when he submitted a complaint that included Pulley. At the time that Judge Blue conditionally granted the motion for judgment, the motion to cite in an additional defendant was not before him and had not yet been considered. As Judge Blue did not hear oral arguments on the motion for judgment, there is no reason to believe that he was even aware that a motion to cite in an additional party had been filed. The plaintiff has presented no evidence to suggest that Judge Blue's order should be construed in such a way and the court declines to do so. This court, therefore, concludes that the plaintiff, through a lack of understanding of the case law and Practice Book rules, misinterpreted Judge Blue's order.
Though the court does not condone the plaintiff's clear disregard of the Practice Book rules, it also recognizes Connecticut's liberal amendment rules and respect for judicial economy. See Jacob v. Dometic Origo AB, supra, 100 Conn.App. 111 ("In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion"); State v. Ten Companies, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 07 5008921 (February 6, 2008, Langenbach, J.) ( 45 Conn. L. Rptr. 40). A liberal reading of Judge Blue's order does allow for the interpretation that he was ordering an amended complaint pursuant to Practice Book § 10-60. Since the court has determined that it would not be prejudicial to allow the plaintiff to cite in Pulley as an additional defendant, likewise it would not be prejudicial to allow the plaintiff an opportunity to amend the complaint to allege counts against Pulley. Moreover, allowing the amended complaint as to Pulley would be neither unfair to the defendants nor would it unduly delay trial. Indeed, an amended complaint is necessary when a motion to cite in an additional party has been granted. Aqleh v. Cadlerock Joint Venture II, L.P., supra, 299 Conn. 96. Thus, the court will overrule the defendants' objection and order the amended complaint as to Pulley nunc pro tunc. See State v. Ten Companies, Inc., supra, Superior Court, Docket No. X03 CV 07 5008921 (treating revised complaint as amended complaint nunc pro tunc); Adler v. Snoddy, Superior Court, complex litigation docket of Stamford-Norwalk at Stamford, Docket No. X08 CV 02 0200492 (Sep. 15, 2004, Adams, J.) (allowing additional paragraphs to be added to count in amended complaint).
C. Ground Four: Improper Summons
The defendants' fourth ground, is that the court lacks subject matter jurisdiction because the summons fails to include a return date. Their claim of insufficiency of process, however, is a claim of lack of personal jurisdiction, not subject matter jurisdiction. A writ of summons "is an essential element to the validity of the jurisdiction of the court . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons." (Citations omitted.) Hillman v Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991). If a plaintiff fails to comply "with these basic requirements . . . the trial court should . . . [grant] the defendant's motion to dismiss . . . for lack of personal jurisdiction . . ." Id. Regardless of whether the challenge to the court's jurisdiction is one based on personal or subject matter jurisdiction, the court finds the claim to be premature.
"There is a general rule that `[w]henever the absence of jurisdiction is brought to the notice of the court, . . . cognizance of it must be taken and the matter passed upon before it can move one further step in the cause, as any movement is necessarily the exercise of jurisdiction' . . . The rule, however, is not inflexible and has been varied in situations where it is manifest that a strict adherence to the rule would work an injustice." (Citation omitted; internal quotation marks omitted.) Zuccari v. Antares Yale Towne SPE, LLC, Superior Court, complex litigation docket of Stamford-Norwalk at Stamford, Docket No. X08 CV 06 5002096 (June 12, 2009, Jennings, J.T.R.) ( 47 Conn. L. Rptr. 813). In Zuccari v. Antares Yale Towne SPE, the plaintiffs sought to cite in additional plaintiffs and amend the complaint to add the cited-in plaintiffs. Id. The defendants filed both objections and motions to dismiss, partially on the ground that the court lacked subject matter jurisdiction to hear the claims because the cited-in plaintiffs had not served process on the defendants. Id. There, the court questioned the defendants' argument stating "[i]f the plaintiff was not allowed to amend his or her complaint because service of process [had] not previously been made, what `complaint' would or could have been served with a summons to cure that defect?" Id. It ultimately found the defendants' argument unpersuasive noting that "the defendants have moved to dismiss the claims that would be stated in the amended process before the amendment has become effective and therefore proper for service of process. Under Practice Book § 10-60, a request to amend complaint, if objected to, only becomes effective if and when approved by the court." Id. It continued to find that "the court may properly exercise jurisdiction for the limited purpose of giving the additional plaintiffs an opportunity to save their claims from dismissal by permitting the amendment to complaint which must accompany the summons they must serve . . ." Id.
The court is presented with a similar situation in the present case. Here, the defendants argue that the court lacks subject matter jurisdiction with respect to Pulley because the plaintiff has served an improper summons with an amended complaint that is not operative. Since the defendants filed a timely objection to the amended complaint, until the court rules, there is no operative complaint. Without an operative complaint, any service made prior to the court's ruling is of no consequence. This court finds Zuccari to be persuasive and holds that it does have jurisdiction for the limited purpose of granting the amended complaint and providing the plaintiff with an opportunity to provide proper service of process. Therefore, the defendants' objection on this ground is overruled and it is ordered that the plaintiff serve a copy of the summons and complaint on Pulley no later than June 16, 2011, with a return date of June 28, 2011.
The defendants cite Minor v Manchester, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0523280 (January 31, 1995, Corradino, J.), Parks v. Department of Motor Vehicles, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0705659 (February 22, 1995, O'Neill, J.), and Datacom Results, Inc. v. Castro, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 93 0704134 (March 21, 1996, Hennessey, J.) ( 16 Conn. L. Rptr. 273), to support their position that the court lacks subject matter jurisdiction because of the failure to supply a return date on the summons. Even if insufficiency of process were an issue of subject matter jurisdiction, which only Datacom Results, Inc. v. Castro explicitly finds, those cases do not apply to the present case because there was no operative complaint in the instant case that could have been served due to the defendants' objection to the amended complaint.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to cite in an additional defendant is granted. The defendant's objection to the amended complaint is overruled as to Pulley and the amended complaint ordered nunc pro tunc. The objection to the amended complaint is sustained as to Elrac and judgment is granted in favor of Elrac.