Opinion
No. CV07-5005600S
January 8, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #107
FACTS
On July 30, 2007, the plaintiff, Nationwide Insurance Company, filed a complaint seeking declaratory judgment against the defendants, Pools by Design, Inc. and Daniel Civitello. This suit was initiated in response to a complaint filed by Jeffrey Foss, a nonappearing defendant in the present case, against the defendants for negligence. As the commercial general liability and insurance provider, the plaintiff seeks a declaratory judgment to determine if, under its policy, the company was required to indemnify and defend the defendants in the underlying negligence suit.
On October 19, 2007, the plaintiff filed a motion to strike all of the special defenses and counterclaims raised by the defendants. The plaintiff submitted a memorandum of law in support of the motion. The defendants filed a memorandum of law in opposition to the motion to strike on November 14, 2007. On November 19, 2007, the plaintiff filed a reply memorandum to the defendant's opposition to the motion to strike.
Also, on November 19, 2007, the plaintiff filed an addendum to its motion to strike. One reason for requiring that the grounds be stated with specificity in the motion itself is because appellate records will only contain the motion, and will not preserve a memorandum of law or other accompanying documents. State Oil Co. v. Carbone, 36 Conn.Sup. 181, 415 A.2d 771 (1979). Consequently, an addendum cannot "cure" a procedural deficiency of the type contemplated in this case. Moreover, in Hartt v. Schwartz, Superior Court, judicial district of New Haven, Docket No. CV 92 0331912 (March 15, 1994, Hodgson, J.) (11 Conn. L. Rptr 203), the court rejected the defendant's attempt to file a second motion to strike. This court will consider the original motion to strike, of October 19, 2007, only.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [complaint] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Practice Book § 10-39(a)(1) provides that a motion to strike may be used to contest "the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted. . ." Practice Book § 10-41 provides: "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."
The plaintiff moves to strike the special defenses and counterclaims because they are legally insufficient. The defendants oppose the motion to strike on procedural grounds. Practice Book § 10-41 requires the moving party to state with specificity the grounds of legal insufficiency. The defendant contends that the plaintiff failed to do so.
Practice Book § 10-41 requires that a motion to strike raising any claims of legal insufficiency "shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claim of insufficiency." (Emphasis added.) Practice Book § 10-41.
Where the party opposing the motion to strike properly objects to its form, our Appellate Court has held that it is error for the Superior Court to address the motion's merits. In Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007), the Supreme Court overturned the judgment of the trial court, which had granted a motion to strike despite the fact that the motion failed to specify the grounds of insufficiency as required by the Practice Book § 10-41. "Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).
In the present case, the plaintiff's motion to strike states: "The grounds of the present motion are that the [s]pecial [d]efenses and [c]ounterclaims are legally insufficient." The motion merely references that support for its claims are included in an attached memorandum of law. This is insufficient. Moreover, Practice Book § 10-41 explains that the party moving to strike must distinctly specify the reason for its claim of insufficiency. The plaintiff has done nothing more than state that they are moving to strike, which cannot be interpreted as providing specification. "Simply stating that all the counts are legally insufficient . . . cannot be considered compliance with Practice Book § 10-41." (Internal quotation marks omitted.) Stuart v. Freiberg, supra, 102 Conn.App. 862. The one exception to this rule is if the party opposing the motion fails to object to the form of the motion, then the motion survives and the memorandum of law in support can be considered. In this case, the exception is inapplicable because the defendants have timely objected.
CONCLUSION
Therefore the plaintiff's motion to strike is denied.