Opinion
NNHCV165037046
02-22-2017
Julia Antoine v. Elm City Communities et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS [#107.00]
Steven D. Ecker, Judge.
Defendant Mastrobattisto, Inc. moves to dismiss the complaint, pursuant to Practice Book § 10-30, based on insufficiency of service of process. The motion is denied because it was filed on January 5, 2017, more than thirty days after November 14, 2016, which is the date when Mastrobattisto appeared. See Practice Book § 10-30(b) and § 10-32.
Mastrobattisto contends that its motion was timely filed because the court granted its motion for extension of time filed November 14, 2016, thereby giving it until January 11, 2017, within which to answer or file a responsive pleading. The court is aware that numerous superior courts have held that a timely motion for extension of time, if granted, will serve to extend the thirty-day time limitation under § 10-30(b). See, e.g., Arnold v. FYC Entertainment LLC, No. HHD-CV-156062624, 2016 WL 6499147 (Oct. 4, 2016) [63 Conn.L.Rptr. 176, ]. Other superior courts have reached the opposite conclusion. See, e.g., Mathis v. Marriott International, Inc., NNH-CV-146044292, 2014 WL 5138023 (Sept. 12, 2014); see also 1 R. Dupont, Dupont on Connecticut Civil Practice at p. 10-60 (2016-17) (" An extension of time within which to plead pursuant to P.B. Sec. 10-8 will not extend the [thirty-day] time limit for filing a motion to dismiss pursuant to [§ 10-30(b)]").
This court agrees with the outcome in the latter line of cases, but arrives at that result based on slightly different reasoning. This court's view is that a superior court has the authority to extend the time limitation set forth in Practice Book § 10-30(b) and toll the corresponding " automatic" waiver provision contained in § 10-32. This specialized relief, however, is not within the scope of a boilerplate extension of time filed without reference to either of these particularized deadline/waiver provisions. In other words, if a party wants an extension of the deadline contained in § 10-30(b), and wishes to avoid the otherwise applicable waiver provision of § 10-32, then he or she needs to request that relief expressly.
This approach is fair and sensible. The basic, generic timing for advancement of the pleadings is contained in Practice Book § 10-8. The deadline contained in § 10-30 applies to motions to dismiss only, and exists independently of the generic pleading deadlines contained in Practice Book § 10-8. Perhaps more importantly, this particular deadline is singled out for special treatment in § 10-32, which expressly states that motions to dismiss based upon designated grounds (including insufficiency of process or insufficient service of process, the grounds at issue in the present case), are waived if not made within the time provided by § 10-30. The Practice Book thus treats this particular deadline differently than other pleading deadlines, and a party seeking to extend the deadline and toll the associated waiver provision should act accordingly.
Motions for an extension of the pleading deadline are filed by defendants at the outset of almost every case. The language used in these motions is usually standard boilerplate, as it was in the present case. Absent special circumstances, the undersigned judge, like most judges, will grant such motions as a matter of course at the beginning of a case, so that defendants often will have sixty or ninety days, and occasionally even longer, within which to plead. When the court grants these boilerplate motions, however, it acts on the reasonable assumption that a defendant needs the additional time either to collect the facts needed to answer the complaint, or to conduct legal research in connection with a motion to strike the complaint. Other judges may have different practices, but when this court grants a routine, generically-worded motion for extension of time to plead, it does not intend to permit the defendant extra time to challenge the sufficiency of process or service of process. Those grounds can be raised without delay based on readily available information. Moreover, motions subject to the waiver rule in § 10-32 are included within the scope of that rule for good reason; if a party wants an exemption from those particularized time limitations, it needs to ask for it with particularity, and explain why the request should be granted.
" The undersigned defendant requests an extension of time for thirty (30) days, up to and including January 11, 11, 2017, within which to plead in this case. Counsel requires additional time in order to gather the necessary information required to file a proper responsive pleading." Motion for Extension of Time to Plead, dated November 11, 2016 (#105.00).
Three additional points warrant mention. First, it should not be forgotten that a dismissal based on insufficient process or service of process usually does nothing more than cause delay and additional expense. Often--as in the instant case--these consequences are visited upon self-represented plaintiffs, who do not know the intricacies of the rules governing service of legal process. The defect, moreover, is usually cured easily (by re-serving defendant in proper fashion), and, in most circumstances, the cause of action can be saved even if the statute of limitations has run in the meantime. See Conn. Gen. Stat. 52-592; Rocco v. Garrison, 268 Conn. 541, 551, 848 A.2d 352 (2004). Under these circumstances, dismissal on these particular grounds, as a practical matter, is an empty exercise. Of course, if a party wishes to stand on its rights in this regard, it has every right to do so, but there is no injustice in holding a defendant, who insists on technical compliance, to itself comply with technicalities. This means that the defendant must exercise its rights within the thirty-day period contained in § 10-30 or it will be deemed to waive that right pursuant to § 10-32. If, for some reason, more time is needed to file a motion subject to these specialized deadline/waiver provisions, that intention should be clearly and expressly stated in a motion for extension of time. Defendant here did not request any relief with respect to these particular rules of procedure, and the court did not intend to grant any such relief when it granted the generically-worded motion for extension of time to plead.
Second, although a party in defendant's position is not required to demonstrate prejudice in connection with its motion to dismiss, it is very hard to see why (in the absence of any prejudice whatsoever arising from the insufficient service) it would be " unjust" to construe the Practice Book as this court has done. To the contrary, in the absence of any actual prejudice to defendant, it is the self-represented plaintiff who would face the risk of injustice; were the case were to be dismissed, plaintiff could face the possibility of losing her cause of action despite the fact that the defendant received notice of the lawsuit, retained counsel, and appeared in court to defend the case on the merits.
Defense counsel was not able to articulate any claim of prejudice when asked to do so at oral argument.
Third, the court recognizes that part of the problem here arises from the imprecise use of the word " pleading" in Connecticut practice. In legal parlance generally, " pleadings" and " motions" are different things. See Canadian Overseas Ores Ltd. v. Compania de Acero del Pacifico S.A., 727 F.2d 274, 277 (2d Cir. 1984) (noting that there is a clear distinction between " pleadings" and " motions" in federal practice); Housing Authority v. Gardiner, No. NLSP 21-6253, 1994 WL 247467, *2 (Superior Court, June 1, 1994) (" Motions are distinguished from pleadings.") (citing 61A Am.Jur.2d, Pleading, § 1 n.14 (1981)). The prominent legal lexicographer, Bryan Garner, explains the distinction: " [ P ] leading should be distinguished from court paper, which is a broader term. Motions, briefs and affidavits are court papers, not pleadings . Examples of pleadings are complaints, petitions, counterclaims, and answers." B. Garner, Garner's Dictionary of Legal Usage (3d ed. 2011) (italics in original). Pleadings are the documents setting forth a party's formal claim or defense based on particular factual allegations. See Ballantine's Law Dictionary (3d ed. 1969) (defining " pleading" as " [a] formal statement by a party to an action or proceeding of the operative facts, as distinguished from the evidentiary facts, which constitute the respective claim or defense"); Black's Law Dictionary (10th ed. 2014) (defining " pleading" as " [a] formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials or defenses"); cf. Nizzardo v. State Traffic Comm'n, 259 Conn. 131, 162, 788 A.2d 1158 (2002) (quoting the Black's definition with approval). Motions, by contrast, are written or oral applications to the court, used for the purpose of attacking pleadings or obtaining auxiliary relief in the course of the litigation. See, e.g., Practice Book § 11-2 (defining " motion" as " any application to the court for an order, which application is to be acted upon by the court or any judge thereof").
This distinction is observed in Connecticut usually--but not always. The Practice Book in particular uses the word " pleading" inconsistently. Thus, for example, Chapter 10 of the Practice Book, entitled " Pleadings, " includes rules governing not only those pleadings within the standard definition (complaint, answer, counterclaim, special defense, or reply to special defense), but also motions and requests addressed to the pleadings (motion to dismiss, requests to revise, motion to strike). Practice Book § 10-6, which prescribes the " order of pleading, " lists motions and requests as well as pleadings. On the other hand, the same Practice Book, both in Chapter 10 and elsewhere, often employs language reflecting the traditional distinction between pleadings and motions. See, e.g., § 10-1 (prescribing fact-pleading rules applicable to " [e]ach pleading, " and plainly referring only to pleadings in the usual sense, not motions); § 10-12 (referring separately to pleadings and motions in a listing of papers that must be served on opposing party); § 10-78 (prohibiting reference in pleadings to collateral source payments received by any party; plainly not applicable to motions); § 15-6 (" instead of reading the pleadings, counsel for any party shall be permitted to make a brief opening statement . . ."). Other provisions are more ambiguous in this regard. See, e.g., § 10-8 (rules governing filing deadlines for " pleadings, including motions and requests addressed to the pleadings, shall advance within thirty days from the return date, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of thirty days . . .") Perhaps it was this set of circumstances that one Connecticut author had in mind when she observed:
The term " pleadings" has two common definitions: (1) the complaint, answer, special defenses, counterclaim, cross-complaint, reply--essentially the allegations that join the issues in a case (for purposes of " closing" the pleadings; or (2) any document on pleading paper filed in court (as opposed to correspondence, agreements, etc.).
Jeanine Dumont, Pleadings and Pretrial Practice: A Deskbook for Connecticut Litigators, at p.3 (1998 ed.).
The foregoing state of affairs reinforces the need for precision and specificity in any motion that, in whole or in part, seeks relief from the time deadline and waiver rules of Practice Book § 10-30(b) and § 10-32. A plain-statement requirement in this context (i.e., requiring a party to say so if it is seeking more time to file a motion subject to waiver under § 10-32) removes the ambiguity described above. If a defendant wishes to extend the time within which it may seek dismissal on the particular grounds subject to waiver under § 10-32, it should place the plaintiff (and the court) on notice of that intention. Then, if plaintiff objects, he or she can say so in a limited objection to the motion; likewise, if the court wants to impose limitations, or believes it is without authority to extend this particular deadline, it will understand the need to address the point in its ruling on the motion.
This is not the only context in which a plain-statement requirement would be helpful in connection with a motion for extension of time. For example, problems can also arise when a party uses vague language in a motion for an extension of time to respond to discovery, and then later argues that the extension preserved its right to file objections to the discovery within the enlarged time period. This court's view is that ambiguity along these lines should be construed against the drafting party.
The motion to dismiss is denied.