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Mattutini v. City of Derby

Connecticut Superior Court, Judicial District of Ansonia-Milford at Milford
Dec 29, 2004
2004 Ct. Sup. 19713 (Conn. Super. Ct. 2004)

Opinion

No. CV098 0061641S

December 29, 2004


MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS


This matter comes before the court on the defendants' motion to dismiss for lack of diligence pursuant to Practice Book § 14-3. The issue is whether the plaintiff has failed to prosecute this action with reasonable diligence.

The relevant factual and procedural background is as follows. On February 27, 1998, the plaintiff Joanne Mattutini, executrix of the estate of Alfredo M. Cecarelli, brought this wrongful death action on behalf of the decedent, who committed suicide while in the city of Derby's police department lock-up shortly after his arrest on March 15, 1996. The plaintiff has sued the city of Derby, the police chief of Derby and six other police officers of the Derby police department for negligence, recklessness, public nuisance and derivative liability.

On April 13, 1998, the defendants filed a request to revise the complaint, to which the plaintiff filed objections. On May 4, 1998, the court sustained the plaintiff's objections to all but one of the requested revisions. The court entered a judgment of dismissal pursuant to a dormancy program on June 18, 1999. The plaintiff subsequently filed a timely motion to open the judgment of dismissal, which the court, Arnold, J., denied on September 11, 2000. In response, the plaintiff filed a motion to reargue on the grounds that the plaintiff's attorney, a solo practitioner, had been involved in an automobile accident that left him periodically disabled from employment. Thereafter, the court opened the judgment of dismissal.

On September 26, 2000, and again on November 6, 2000, the plaintiff filed a motion for default for failure to plead. On November 11, 2000, the court denied the motion indicating that no revised complaint had been filed.

Except for an affidavit filed in 2000, the next activity in the file was not until July 22, 2004 when the defendants filed the instant motion to dismiss pursuant to § 14-3. The plaintiff responded by filing a revised complaint, a motion for default for failure to plead and an objection to the motion to dismiss on August 17, 2004. On August 24, 2004, the defendants filed a reply to the plaintiff's objection, and three days later, filed a motion to strike two counts of the revised complaint. On September 15, 2004, the plaintiff filed a supplement to her objection. The court heard oral argument on this motion on November 15, 2004.

Practice Book § 14-3(a) states, in relevant part, that "[i]f a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action . . . or on its own motion, render a judgment dismissing the action with costs." This rule of practice "reflects the judicial branch's interest in having counsel prosecute actions with reasonable diligence. Judges, faced with case flow management concerns, must enforce the pace of litigation coming before the court, rather than allowing the parties to do so." (Internal quotation marks omitted.) Gillum v. Yale University, 62 Conn.App. 775, 786, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001).

"[T]he ultimate determination regarding [a motion to dismiss for lack of diligence] rests within the sound discretion of the court." Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). The discretion is properly exercised if "the case has been on the docket for an unduly protracted period or the court is satisfied from the record or otherwise that there is no real intent to prosecute." (Internal quotation marks omitted.) Id. "Under § [14-3], the trial court is confronted with endless gradations of diligence, and in its sound discretion, the court must determine whether the party's diligence falls within the reasonable section of the diligence spectrum." (Internal quotation marks omitted.) Lacasse v. Burns, 214 Conn. 464, 474, 572 A.2d 357 (1990). "It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." Snow v. Calise, supra, 174 Conn. 574.

The defendants move to dismiss the action on the grounds that a three-year, eight-month lapse in the prosecution of the action is unreasonable because the court previously dismissed the action more than five years ago. The defendants further contend that there was no good excuse for the plaintiff's failure to file a revised complaint until more than six years after the action was filed.

The plaintiff counters that the failure to comply with the defendants' request to revise was due to inadvertence. The plaintiff claims that because the plaintiff never received notice from the court as to its ruling on the objections to request to revise, the delay was not unreasonable. The plaintiff also argues that the motion to dismiss is improper because it is not based on any of the grounds asserted in Practice Book § 10-31. Further, the plaintiff contends that the motion to dismiss is now moot because the plaintiff has filed a revised complaint, albeit after the filing of the motion to dismiss, and the defendants have filed a motion to strike. Finally, the plaintiff asserts that the defendants have waived their right to proceed with a motion to dismiss pursuant to Practice Book § 10-7 because they have filed a motion to strike.

Notably, the plaintiff has not filed an affidavit attesting to this inadvertence.

First, the plaintiff's argument that the defendants' motion to dismiss is improper is misplaced. The defendants' motion to dismiss is brought pursuant to Practice Book § 14-3, not pursuant to § 10-31. Second, the motion to dismiss is not moot because the defendants have filed a motion to strike, since the issue still remains whether the plaintiff has failed to prosecute this action with reasonable diligence. Lastly, the plaintiff's contention that the defendants have waived their right to proceed with a motion to dismiss lacks merit because under Practice Book § 10-7, a party must file a motion to dismiss before a motion to strike. Here, the defendants filed the motion to dismiss before filing the motion to strike.

The dispositive issue then is whether the plaintiff has failed to prosecute this action with reasonable diligence. The underlying event in this action occurred in early 1998. More than six years later, the plaintiff now continues prosecution of this action but only after being prompted by the defendant's motion to dismiss. Even assuming that the plaintiff did not receive notice from the court regarding the objections to the requested revisions, the plaintiff nonetheless knew or should have known that the court denied the motion for default for failure to plead because no revised complaint had been filed. Reasonable diligence on the part of the plaintiff would have revealed this disposition. "A lawyer shall act with reasonable diligence and promptness in representing a client." Rules of Professional Conduct 1.3. Mindful of the strong policy favoring a trial on the merits, the court nonetheless finds that the plaintiff's neglect is inexcusable.

The court is satisfied that this case has languished on the docket for a protracted period of time due to the plaintiff's neglect and that the plaintiff has no genuine interest in prosecuting the action based on the failure to file a timely revised complaint. Connecticut rules of practice state that "in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days . . . and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days . . ." Practice Book § 10-8. This case remained dormant between November 16, 2000 and July 22, 2004, because the plaintiff did not move it forward. The "judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." (Internal quotation marks omitted.) Gillum v. Yale University, supra, 62 Conn.App. 786-87.

Accordingly, the defendants' motion to dismiss for failure to prosecute pursuant to Practice Book § 14-3 is granted.

The Court

By Hartmere, J.


Summaries of

Mattutini v. City of Derby

Connecticut Superior Court, Judicial District of Ansonia-Milford at Milford
Dec 29, 2004
2004 Ct. Sup. 19713 (Conn. Super. Ct. 2004)
Case details for

Mattutini v. City of Derby

Case Details

Full title:JOANNE MATTUTINI, EXECUTRIX OF THE ESTATE OF ALFREDO M. CECARELLI v. CITY…

Court:Connecticut Superior Court, Judicial District of Ansonia-Milford at Milford

Date published: Dec 29, 2004

Citations

2004 Ct. Sup. 19713 (Conn. Super. Ct. 2004)