Opinion
No. CV03 08 14 62
August 20, 2004
MEMORANDUM OF DECISION RE MOTION TO OPEN JUDGMENT OF NONSUIT
This matter is before the court by way of the plaintiff's motion to open the judgment of nonsuit rendered against the plaintiff on January 26, 2004.
The factual background is as follows: On April 2, 2003, the plaintiff, Andrew Fleischer, filed an application for a temporary injunction and order to show cause against the defendant, Nicholas Cerino. The verified complaint seeks, inter alia, damages in connection with a restaurant business involving the defendant.
On December 24, 2003, the defendant filed a motion for nonsuit against the plaintiff for failure to comply with the defendant's requests for interrogatories and production, dated June 9, 2003. The court rendered a judgment of nonsuit on January 26, 2004. Three and one half months later, more specifically on May 19, 2004, the plaintiff filed a motion to open judgment pursuant to Practice Bock § 17-43. The motion is verified by the oath of the plaintiff's attorney as required by § 17-43(a). In his motion to open judgment, the plaintiff alleges that he "has a good cause of action against the defendant and was prevented by reasonable cause from complying with the defendant's requests for interrogatories and production in that the defendant's requests consisted of seventy-nine interrogatories with numerous sub-parts and twenty-six requests for production." The plaintiff also alleged that compliance with the defendant's requests "required an inordinate amount of time and effort," but claimed that compliance with the discovery requests had then been completed.
On July 3, 2003, the plaintiff filed a request for extension of time to respond to the defendant's interrogatories and requests for production. That motion, however, was not acted upon by the court.
Practice Book § 17-43 provides, in relevant part: "(a) Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant's attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear."
On May 28, 2004, the defendant filed an objection to the plaintiff's motion to open judgment. The defendant objected on the following grounds: (1) the plaintiff failed to comply with the requirements of Practice Book § 17-43 and General Statutes § 52-212(a); (2) the plaintiff failed to present a legally justifiable reason for his noncompliance with discovery; and (3) the plaintiff had still failed to comply with a number of the defendant's discovery requests.
On July 23, 2004, the plaintiff filed a reply memorandum to the defendant's objection, claiming that he "has fully complied, to the best of his ability, with all of the defendant's discovery requests." He argues that his "noncompliance has not disrupted the court's ability to manage this action," and that the "defendant [will] suffer no prejudice if the court opens the judgment."
A motion to open a judgment of nonsuit is governed by Practice Book § 17-43 and General Statutes § 52-212, both of which contain similar language. See Woodruff v. Riley, 78 Conn.App. 466, 470-71, 827 A.2d 743, cert. denied, 266 Conn. 922, 835 A.2d 474 (2003). Section 52-212 requires a party moving for the opening of a judgment to make a two-part showing: "(1) that a good cause of action, the nature of which must be set forth, existed at the time judgment was rendered, and (2) that the plaintiff was prevented from prosecuting the action because of mistake, accident or other reasonable cause." Conway v. Hartford, 60 Conn.App. 630, 633, 750 A.2d 974 (2000). "In ruling on a motion to open a judgment of nonsuit, the trial court must exercise sound judicial discretion . . ." Biro v. Hill, 231 Conn. 462, 467-68, 650 A.2d 541 (1994).
At issue here is whether the plaintiff has satisfied the "mistake, accident or reasonable cause" requirement. The negligence of a party or his counsel, for purposes of 52-212, is not sufficient reasonable cause to set aside a judgment of nonsuit. Segretario v. Stewart-Warner Corp., 9 Conn.App. 355, 362-63, 519 A.2d 76 (1986); see also Jaconski v. AMF, Inc., 208 Conn. 230, 238, 543 A.2d 728 (1988); Jaquith v. Revson, 159 Conn. 427, 431-32, 270 A.2d 559 (1970). Connecticut Appellate Courts have held that the failure to comply with discovery constitutes negligence, which is sufficient grounds for refusing to set aside a judgment of nonsuit. See Biro v. Hill, supra, 231 Conn. 462 (affirming denial of motion to open judgment of nonsuit rendered for plaintiff's failure to comply with discovery requests); Elliss v. Ronning, 11 Conn.App. 652, 528 A.2d 1174 (1987) (affirming entry of nonsuit based on plaintiff's failure to complete interrogatories). Similarly, the Superior Court in Weinstock v. Jarmosko, Superior Court, judicial district of Hartford, Docket No. 335411 (July 10, 1990, Maloney, J.) ( 2 Conn. L. Rptr. 74, 74), denied the plaintiff's motion to open the judgment of dismissal, holding that the plaintiff's repeated failure to comply with discovery orders over a seven-month period constituted negligence.
Negligence, for the purpose of a motion to open pursuant to § 52-212, has been defined as the "lack of due diligence or care." Cruz v. Marlon Starling Enterprises, Inc., Superior Court, judicial district of Hartford, Docket No. CV 88 0344807 (January 29, 1992, Aronson, J.) ( 5 Conn. L. Rptr. 547, 548).
The record reveals that the defendant first requested discovery over a year ago, as evidenced by the defendant's June 9, 2003 notice of discovery. Further, the plaintiff was aware that a motion for nonsuit had been filed on December 24, 2003 for his noncompliance with the defendant's discovery requests. As of four months after the entry of nonsuit on January 26, 2004, the plaintiff had still failed to comply with the discovery requests.
The court notes that the plaintiff had available to him a range of procedural options under the Practice Book, including but not limited to, a request for an extension of time, an objection to the interrogatories/requests for production and a motion for a protective order. See Practice Book §§ 13-15, 13-7, 13-8 and 13-10. The plaintiff, however, failed to avail himself of any of these options.
The court finds that while the plaintiff has now substantially complied with discovery, his noncompliance cannot be said to be due to any mistake, accident or other reasonable cause. The fact that compliance with the discovery requests required a substantial effort cannot excuse more than twelve months of noncompliance.
The court recognizes that it has "the responsibility to process cases in a timely and efficient manner." Jaconski v. AMF, Inc., supra, 208 Conn. 223. The court also recognizes that "[o]ur judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." Id.
The record demonstrates that the plaintiff had ample opportunity to comply with the defendant's requests and also had adequate notice that noncompliance would result in a judgment of nonsuit. Since the procedural history of this matter is devoid of basis for this court to conclude that the plaintiff's discovery compliance failure was due to mistake, accident or other reasonable cause the plaintiff's motion to open the judgment of nonsuit is denied.
RONAN, J.T.R.