Opinion
No. HHD-CV-10-6022074
June 1, 2011
MEMORANDUM OF DECISION RE REQUEST TO REVISE (#144) AND OBJECTION TO REQUEST TO REVISE (#145)
The plaintiff in the present action, Paul Deutsch, M.D., is a doctor who lives and practices in the Norwich area. The named defendant, Backus Corporation d/b/a the William Backus Hospital (Backus), is a hospital located in the Norwich area. The plaintiff has medical staff privileges with Backus. The other defendants, Richard Finley, Edward Fisher, Anthony Alessi, M.D. and David Kalla, M.D., were either employed by or professionally affiliated with Backus at all times relevant to the present action. The basis for the present action is an accusation that the plaintiff improperly accessed and disseminated patient information and a series of subsequent internal review proceedings in which the subject was the plaintiff's medical staff privileges.
The operative version of the complaint (the substitute complaint) was filed on February 24, 2011. It was filed in response to the court's January 14, 2011 decision on the defendants' motion to strike [ 51 CLR. 337], the previously operative version of the complaint. The court granted the motion with respect to eight of the plaintiff's ten counts. The plaintiff then filed a motion to reargue or reconsider the court's decision on the motion to strike on January 28, 2011 and a notice of intent to appeal on February 1, 2011. The court denied the motion to reargue or reconsider on February 9, 2011. The plaintiff subsequently filed the substitute complaint. The present request to revise was filed by the defendants on March 10, 2011. The plaintiff in turn filed the present objection to the request, accompanied by an exhibit documenting the changes to the complaint, on April 6, 2011. The objection came before the court as a nonarguable matter on the April 18, 2011 short calendar docket.
Subsequent to the appearance of this matter on the short calendar, on May 13, 2011 this matter was transferred to the complex litigation docket (Berger, J.). Judge Berger requested that this court, Cosgrove, J., rule on these motions.
DISCUSSION
Practice Book § 10-35 provides: "Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds improperly combined in one defense, or (4) any other appropriate correction in an adverse party's pleading, the party desiring such amendment in an adverse party's pleading may file a timely request to revise that pleading."
"It is true that the . . . request to revise . . . may not ordinarily be used to test substantial rights in lieu of a [motion to strike] . . . but we have held that [s]uch a motion is proper to attack an amended complaint after a [motion to strike] has been sustained where the allegations of such complaint appear to be the same, in substance, as [those of] the one which was stricken." (Citation omitted; internal quotation marks omitted.) Royce v. Westport, 183 Conn. 177, 180, 439 A.2d 298 (1981) 180. "If the amended complaint state[s] a new cause of action, the [request to revise] should [be] denied. If, however, the amended complaint merely restate[s] the original cause of action, without curing the defect, the [request to revise] [is] properly granted." (Internal quotation marks omitted.) Melfi v. Danbury, 70 Conn.App. 679, 684, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).
Request to Revise One
This request is addressed to the first count of the complaint, which sounds in vexatious litigation under General Statutes § 52-568. The defendants request that the court order the plaintiff to delete the count in its entirety because it simply reiterates the corresponding count in the previously operative version of the complaint, which was stricken. The plaintiff objects to the request by arguing that the count cures the defect identified by the court, because the allegations contained therein have been amended to state that the internal review process at issue was a "civil complaint" under the statute, rather than a "civil action." According to the plaintiff, the court struck the count because its allegations were insufficient to state that the internal review process was a "civil action" covered by the statute. The court overrules the plaintiff's objection. The court struck the previous iteration of the count for the reason that there is no legal precedent for applying the statute to the type of "vexatious litigation" alleged by the plaintiff, i.e., the internal review process. The plaintiff's reinterpretation of the internal review process from a "civil action" to a "civil complaint" therefore does not cure the defect identified by the court. Accordingly, the court orders that the plaintiff delete the count in its entirety from the substitute complaint.
Request to Revise Two
This request is addressed to the second count of the complaint, which sounds in a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The defendants request that the court order the plaintiff to delete the count in its entirety because it simply reiterates the corresponding count in the previously operative version of the complaint, which was stricken. The plaintiff objects to the request by arguing that the count cures the defect identified by the court, because the allegations contained therein have been amended to state that the defendants' challenged conduct implicated Backus' business and entrepreneurial activities and therefore may be subject to CUTPA. According to the plaintiff, the court struck the count because it alleged that the defendants' conduct during the internal review process violated CUTPA, and our appellate courts have held; see, e.g., Harris v. Bradley Memorial Hospital and Health Center, Inc., 296 Conn. 315, 994 A.2d 153 (2010); that an internal review process regarding medical staff privileges is not an actionable basis for a CUTPA cause of action if it does not implicate a hospital's business or entrepreneurial activities. Count two of the substitute complaint contains several new allegations describing in detail how the defendants' challenged conduct qualifies as "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). It is therefore materially different from the stricken count two. The issue of whether the plaintiff will be able to provide factual and legal support for the connection that he alleges between the subject matter of the present action and Backus' business and entrepreneurial activities is not presently before the court; it will be determined in subsequent proceedings. Accordingly, the court sustains the plaintiff's objection.
Requests to Revise Three and Four
These requests are addressed to the fourth and fifth counts of the complaint, which sound in breach of contract and breach of the covenant of good faith and fair dealing, respectively. In both counts, the plaintiff states that he relies upon the corresponding cause of action and allegations set forth in the previously operative version of the complaint, which remain as pleaded, and incorporates them by reference into the substitute complaint. The defendants request that the court order the plaintiff to set forth the allegations upon which he relies in the substitute complaint itself. The plaintiff objects to the request by arguing that it is improper under § 10-35 and that he need not replead counts four and five, because they have not been stricken. The court overrules the plaintiff's objection.
"The voluntary filing of an amended complaint operates as a withdrawal of the prior complaint, and, thereafter, the earlier complaint, though remaining in the files and constituting part of the history of the case, can furnish no basis for a judgment . . ." Connecticut Bank of Commerce v. Giordano, 67 Conn.App. 79, 81, 787 A.2d 9 (2001), cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). By filing the substitute complaint, the plaintiff withdrew the previously operative version of the complaint and therefore cannot refer to it now to allege that the defendants are liable for breach of contract and breach of the covenant of good faith and fair dealing. The court further concludes that the defendants' request is proper under § 10-35(1), which lists a desire to obtain "a more complete or particular statement of the allegations of an adverse party's pleading" as a basis for a request to revise. The court therefore orders the plaintiff to revise the substitute complaint by setting forth — and not simply incorporating by reference to another pleading — the allegations that comprise counts four and five, in accordance with § 10-35(1).
Requests to Revise Five, Six, Seven and Eight
These requests are addressed to the sixth and seventh counts of the complaint, which sound in defamation and invasion of privacy, respectively. The defendants request that the court order the plaintiff to delete both counts in their entirety, because they simply reiterate the corresponding counts in the previously operative version of the complaint, which were stricken. In the alternative, the defendants request that the court order the plaintiff to set forth the allegations upon which he relies in the substitute complaint itself. The plaintiff states in both counts that he stands upon the corresponding cause of action and allegations set forth in the previously operative version of the complaint, which remain as pleaded, and incorporates them by reference into the substitute complaint. The plaintiff objects to the requests by arguing that he intends to appeal the court's decision on the motion to strike with respect to these counts and that he should not be forced to replead them in the substitute complaint. The court sustains the plaintiff's objections, insofar as it recognizes the plaintiff's express preservation of his right to appeal the court's decision on the motion to strike. See Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 64 Conn.App. 192, 195 n. 2., 779 A.2d 882 (2001), rev'd in part on other grounds, 260 Conn. 766, 802 A.2d 44 (2002).
Because the plaintiff must revise the complaint to comply with the orders set forth in this decision, the court recommends that the plaintiff also revise counts six and seven in order to make his preservation of his right to appeal clearer on the face of the complaint. This can be achieved, for example, by stating this intent to appeal in the captions that preface the counts or by mentioning the stricken counts but leaving them blank. See, e.g., East Greyrock LLC v. OBC Associates, Inc., Superior Court, complex litigation docket at Stamford-Norwalk, Docket No. X08 CV 04 4002173 (June 6, 2008, Jennings, J.) [ 45 Conn. L. Rptr. 753]. The court also recommends that the plaintiff revise counts six and seven in order to delete the references to the corresponding counts in the previously operative version of the complaint, because such incorporation is improper for the reasons stated in this decision on requests to revise three and four.
Requests to Revise Nine and Ten CT Page 12666
These requests address the eighth and ninth counts of the complaint, which sound in intentional infliction of emotional distress and negligent infliction of emotional distress, respectively. The defendants request that the court order the plaintiff to delete both counts in their entirety, because they simply reiterate the corresponding counts in the previously operative version of the complaint, which were stricken. The eighth count was stricken on the ground that the defendants' alleged conduct was insufficient to fulfill the "extreme and outrageous" criterion for an intentional infliction of emotional distress cause of action. The plaintiff objects to the request addressed to the eighth count by arguing that the count cures the defect identified by the court, because the allegations contained therein have been amended to state that the defendants' "extreme and outrageous" conduct consisted not only of "false representations," which the plaintiff identifies as the only basis for the court's decision, but also the defendants' use of false evidence and destruction and withholding of exonerating evidence. The ninth count was stricken on the ground that the allegations contained therein were insufficient to state that the defendants engaged in conduct that they knew or should have known would likely cause the plaintiff's severe emotional distress. In concluding that the plaintiff had not pleaded foreseeability, the court looked to Perodeau v. Hartford, 259 Conn. 729, 792 A.2d 752 (2002), for the proposition that a disciplinary proceeding in a workplace context is a nonactionable basis for a negligent infliction of emotional distress cause of action. The plaintiff objects to the request addressed to the ninth count by arguing that the count cures the defect identified by the court, because the allegations contained therein have been amended to expressly state that no employer-employee relationship existed between him and Backus at all times relevant to the present action, thus making Perodeau is inapplicable. The court overrules the plaintiff's objections. The court's decision on the motion to strike demonstrates that the court reasonably inferred the facts labeled by the plaintiff as newly alleged from the allegations contained in the stricken versions of the counts and nonetheless concluded that they were legally insufficient. The eighth and ninth counts are therefore the same in substance as the stricken versions of the counts, and the court orders that the plaintiff delete them in their entirety from the substitute complaint.
Request to Revise Eleven
This request is addressed to the eleventh count of the complaint, which sounds in common-law vexatious litigation. The eleventh count was first pleaded in the substitute complaint. The defendant requests that the court order the plaintiff to delete the count in its entirety, because it simply reiterates count one of the previously operative version of the complaint, which sounded in statutory vexatious litigation and was stricken by the court. The plaintiff objects to the request by arguing, inter alia, that the request wrongly characterizes the count as a reiteration of a stricken count and is therefore procedurally improper. The court agrees and, for this reason, sustains the plaintiff's objection. If the defendants wish to challenge the count's legal sufficiency and its similarity to the stricken statutory vexatious litigation count, it may do so by filing a motion to strike.
CONCLUSION
For the foregoing reasons, the court sustains the plaintiff's objections to requests to revise two, five, six, seven, eight and eleven and overrules the plaintiff's objections to requests to revise one, three, four, nine and ten.