Opinion
No. X05CV4003788S
October 9, 2009
MEMORANDUM OF DECISION ON PLAINTIFFS' REQUEST TO REVISE (ENTRY #262), MOTION TO STRIKE ENTRY #263 AND MATTER IN AVOIDANCE (ENTRY #263.10)
This case was commenced by the plaintiffs on February 24, 2005. The plaintiffs assert claims arising from the decedent's tongue cancer and subsequent death which they alleged resulted from the decedent's use of the defendant's smokeless tobacco products. On October 10, 2005, the plaintiffs filed an amended complaint (Entry #112), and on December 25, 2005, the defendants moved to strike the amended complaint in its entirety. On June 16, 2006, the court, Shay J., granted the defendant motion to strike counts three, four, five, seven, eight, ten, eleven and thirteen of the plaintiffs' amended complaint (Entry #176). Thereafter, on August 11, 2006, the defendant filed its answer and special defenses (Entry #184), to which the plaintiffs filed a reply on October 19, 2006, setting forth a general denial (Entry #199.10). The plaintiffs also filed a certificate of closed pleadings, certifying "that the pleadings have been closed on the issue or issues as to all parties" (Entry #198).
Two years later, on October 28, 2008, at a hearing regarding the modification of case management deadlines, this court inquired as to whether a second amended complaint was filed removing the counts stricken by Judge Shay's June 16, 2006 decision. (Transcript 10/28/08 [Tr., p. 1.) The court's inquiry was merely an attempt to clarify and update the pleadings. The plaintiffs believed that a second amended complaint, removing the counts stricken by Judge Shay's decision, was filed. (Tr., p. 2.) The plaintiffs stated: "If I'm mistaken I will correct it immediately and I will provide a copy, Your Honor." (Tr., p. 2.) The court then went on to state: "If you could get a copy of the current complaint to the court by email to my court officer, that would be greatly appreciated." (Tr., p. 18.) Two days after that hearing, on October 30, 2008, the plaintiffs filed a second amended complaint that did not include the counts stricken by Judge Shay's decision (Entry #259). Thereafter, on December 10, 2008, the defendant re-filed its answer and special defenses (Entry #261), omitting any responses to the stricken counts to comply with the court's desire to have the pleadings in the case conform to Judge Shay's earlier ruling. Apart from removing the counts stricken by Judge Shay, there were no substantive changes made to the counts contained in the second amended complaint, nor to the defendant's special defenses related to those counts. Additionally, neither the plaintiffs nor the defendant raised any new allegations or special defenses.
It should be noted that pursuant to Practice Book § 10-44, a party whose pleading has been stricken may file a new pleading within fifteen days after the granting of any motion to strike. In the present matter, the plaintiffs elected not to do so.
Now the plaintiffs attempt to take advantage of its filing of a second amended complaint, and the defendant's re-filing of its answer and special defenses, by challenging the defendant's special defenses by simultaneously filing three new motions: a request to revise, a motion to strike, and matter in avoidance. All three filings address different special defenses. The plaintiffs' latest motions will not be considered by the court. Moreover, the court believes it will not be working an injustice by its refusal, as there have been no material changes to the pleadings since the plaintiffs filed their certificate of closed pleadings.
The court notes that some courts have viewed the simultaneous filing of motions as waiving the right to file the initial motion. In Mainolfi v. Zoning Board of Appeals, 146 Conn. 634, 635-36, 153 A.2d 460, 461 (1959), the court stated that "[t]he defendants simultaneously filed a motion to expunge and a demurrer. Under the provisions of Practice Book [§§ ]80 and 81, the filing of the demurrer, in the absence of an order of the court to the contrary, operated as a waiver of any right to a determination of the motion to expunge . . . Both the motion to expunge and the demurrer were decided, apparently simultaneously. The determination of the motion to expunge after the filing of the demurrer was erroneous. The rule is not a mere burdensome technicality. The function of a demurrer is to test the sufficiency of a pleading. This cannot be done if, as a result of attacks on it by motion, the pleading is to undergo change after the demurrer has been drafted and filed." Thus, if a motion to strike and a request to revise are filed simultaneously, a court should only consider the motion to strike. See also Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A.2d 1134 (1989) (holding that by simultaneously filing a motion to strike and a motion to dismiss, the plaintiff waived the right to file a motion to dismiss); Thorsen v. Durkin Development, Superior Court, judicial district of New Britain, Docket No. CV 07 5003021 (June 26, 2007, Prestley, J.) ( 43 Conn. L. Rptr. 671, 672) (holding that the filing of an answer as to four of five counts waived the right to file a request to revise the fifth count). The court, however, need not address this at the present time.
"It is neither unreasonable, nor contrary to the law, for the court to determine that pleadings filed after the pleadings have been closed . . . have been untimely filed." (Citation omitted.) Meehan, Meehan Gavin, LLP v. Paniccia, Superior Court, judicial district of Fairfield, Docket No. CV 044001862 (October 14, 2005, Rodriguez, J.), citing Ivimey v. Watertown, 30 Conn.App. 742, 745, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993); see also Zaritsky v. New, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 054005458 (July 6, 2009, Adams, J.) (denying the motion to strike because it was filed three weeks after the certificate to close the pleadings was filed, and thus, it was untimely).
As the pleadings that are the subject of this decision were filed some two years after the pleadings were closed, the court finds them to be untimely. The plaintiffs appear to have misconstrued the court's request. By asking to be provided with an amended complaint, the court was merely asking to be provided with an amended complaint that depicts the most accurate state of the pleadings, i.e., one that conformed with Judge Shay's decision on the motion to strike. By its request, the court was not reopening the pleadings or opening any door that would allow the parties to raise issues that they previously elected not to raise. The plaintiffs were first aware of these special defenses they now seek to challenge back in August 2006. Rather than challenge the special defenses at that time, the plaintiffs replied with a general denial and elected to close the pleadings. The plaintiffs' filing of a general denial waived their right to file a request to revise or a motion to strike the defendant's special defenses without obtaining permission from the court. Practice Book §§ 10-6, 10-7. Since filing their reply and closing the pleadings in October 2006, the plaintiffs have not asked this court for approval to file any additional motions challenging the defendant's special defenses. Additionally, although the plaintiffs contend that the communications between the parties evidence the defendant's consent to the filing of the present motions, the court finds that the communications between the parties do not support such a finding.
Even if the court were to find that the defendant consented to the filing of the subject motions, that is not dispositive. The court is not bound by an agreement between the parties to alter the sequence of pleadings. See Chase Family Ltd. Partnership No. 3 v. Hartford Redevelopment Agency, Superior Court, judicial district of Hartford, Docket No. 306763 (April 17, 1990, Maloney, J.) ( 1 Conn. L. Rptr. 509, 510).
It is clear that filing an answer waives the right to file a motion addressed to the pleadings, and this court will not allow the plaintiffs' filing of a second amended complaint on the facts as presented here to be a vehicle for that purpose. Merely omitting the counts previously stricken does not open the door for the plaintiffs to now challenge the defendant's special defenses via a new round of motions. The plaintiffs were aware of these special defenses in August 2006. As the plaintiffs were previously in a position to raise these issues, but failed to do so before filing an answer and closing the pleadings, the court finds that the subject motions are untimely.
Accordingly, the plaintiffs' motion to strike is denied, and the defendant's objections to the plaintiffs' request to revise and matter in avoidance are sustained.
SO ORDERED