Opinion
No. X04 CV-09-5032765 S
September 15, 2011
MEMORANDUM OF DECISION
In its May 26, 2011 memorandum of decision (#161) (decision), the court concluded that this matter is barred by the federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 et seq. (PLCAA), which prohibits the commencement of a "qualified civil liability action." See 15 U.S.C. § 7902(a). The court granted the defendants' motion to dismiss the plaintiffs' second amended complaint, and ordered that judgment enter for the defendants. This matter is before the court concerning the plaintiffs' motion to reargue defendants' motion to dismiss (#163) (motion to reargue) and their renewed motion for to leave to amend (#162) (June 2011 motion to amend), which, post-dismissal, seeks to amend their second amended complaint. Requests for adjudication concerning these motions were filed on September 1, 2011.
I Background
The background of this matter was summarized in the decision and need not be repeated. Additional background is provided in view of the issues raised by the motion to reargue and the June 2011 motion to amend.
In this matter, the plaintiffs amended their complaint twice in response to motions to dismiss based on the PLCAA. The original complaint was served in August 2009 (see return of service). In response to a motion to dismiss and/or strike, the plaintiffs filed a request for leave to amend their complaint and an amended complaint in December 2009 (#105). The defendants did not object; as a result the amended complaint became operative. In response to a second motion to dismiss and/or strike, the plaintiffs sought leave to file their second amended complaint (#114) in March 2010. Again, the defendants did not object and the second amended complaint became the operative complaint.
In June 2010, after a third motion to dismiss and/or strike filed by the defendants, again premised on the PLCAA (#118), the plaintiffs sought permission to amend again, to file a third amended complaint. See #126. Since the defendants opposed this third proposed amended complaint (see #127), and since the defendants' motion to dismiss and/or strike was pending and the defendants challenged subject matter jurisdiction by asserting that the PLCAA required the immediate dismissal of the case, the court declined to rule on the request for leave to amend. See Order dated July 20, 2010 (#131) (July 2010 order). The court ordered a briefing schedule and scheduled the defendants' motion for hearing. Subsequently, the United States of America was permitted to intervene to address the constitutionality of the PLCAA. See #147.86. After briefing and oral argument, the decision was issued on May 26, 2011.
The plaintiffs filed their June 2011 motion to amend on June 15, 2011 at 5:00 p.m. The court's E-Filing system also recorded that on June 15, 2011, at 5:04 p.m., the motion to reargue was received for filing. See Exhibit 2 to plaintiffs' reply (#171). As reflected on the Court's Docket, the motion to reargue was deemed to be filed on the next day, June 16, 2011, twenty-one days after the issuance of the decision.
The docketing of the filing of the motion to reargue as having occurred on June 16, 2011, not on June 15, 2011, was required by Practice Book § 7-17, which provides, in relevant part, "a document that is electronically received by the clerk's office for filing after 5 o'clock in the afternoon on a day on which the clerk's office is open or that is electronically received by the clerk's office for filing at any time on a day on which the clerk's office is closed, shall be deemed filed on the next business day upon which such office is open." (Emphasis added.) The plaintiffs did not move for an extension of time in which to file the motion to reargue.
II Discussion A
CT Page 19525
Timeliness
The plaintiffs seek reargument, and leave to amend, based on City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. May 4, 2011) ( Mickalis), a decision issued after oral argument of the motion to dismiss was held by this court on March 7, 2011. Although that decision of the United States Court of Appeals was issued three weeks before this court issued its decision on May 26, 2011, the plaintiffs did not bring it to the court's attention until after they received the court's decision granting the motion to dismiss, when they filed the June 2011 motion to amend on June 15, 2011 and their motion to reargue on June 16, 2011. The plaintiffs assert that reargument and amendment are warranted, since Mickalis determined that the PLCAA is not subject matter jurisdictional. See id., 645 F.3d 127. As discussed below, that ruling applied to federal courts.The defendants contend that the time permitted by the Rules of Practice in which to seek reargument elapsed before the motion to reargue was filed, making it untimely. Assuming, arguendo, that the plaintiffs had timely filed their motion to reargue, thereby tolling the deadline to appeal, the defendants also assert that the motion to amend should be denied because it would cause unreasonable delay, take unfair advantage of and prejudice the defendants, and confuse the factual issues. In addition, they assert that the plaintiffs are judicially estopped from changing their factual allegations to attempt to negate the dismissal of the case.
"A party only has twenty days from the date of judgment in which to file a motion for reconsideration. Practice Book § 11-12(a). After the twenty days has passed, no such motions can be filed and the judgment becomes final." Weinstein v. Weinstein, 275 Conn. 671, 699-700 n. 21, 882 A.2d 53 (2005). "[T]he time to appeal runs from the announcement of the trial court of its decision, either orally or by filing a memorandum of decision, and the time within which to file the appeal is not postponed to the formal entry of judgment . . ." Grzys v. Connecticut Co., 123 Conn. 605, 607 n., 198 A. 259 (1938). See Jaquith v. Revson, 159 Conn. 427, 431, 270 A.2d 559 (1970) ("[A]ctual judgment was the pronouncement by the court of its decision upon the issues before it, which took the form of a memorandum of decision").
"Practice Book Sections 11-11 and 11-12 require a motion to reargue to be filed within twenty days of the filing and mailing of the decision sought to be reargued." Rossman v. Morasco, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 01 0183603 (December 21, 2006, Adams, J.). As explained in Anderson v. City of New London, Superior Court, judicial district of New London at New London, Docket No. CV 541273 (February 24, 2000, Corradino, J.), "Practice Book § 11-11 applies to `[a]ny motions which would, pursuant to Section 63-1, delay the commencement of the appeal period . . . and any motions which, pursuant to Section 63-1, would toll the appeal period . . .' A motion will delay the commencement of the appeal period if it is a motion . . . that, if granted, would render the judgment, decision or acceptance of the verdict ineffective. Practice Book § 63-1(c)(1). `Motions that, if granted, would render a judgment, decision or acceptance of the verdict ineffective include . . . motions that seek . . . reargument of the judgment or decision.' Id. The motion, however, will only delay the commencement of the appeal period if it `is filed within the appeal period . . .' Id.
Practice Book § 63-1 provides that `[u]nless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given.' Practice Book § 63-1(a) . . . The motion is untimely because it was not filed within twenty days cf. K.A. Thompson Electric Co. v. Wesco, Inc., 24 Conn.App. 758 (1991) where the court said: `Because the plaintiff's motion to reargue was timely filed within the original appeal period and the appeal was filed within twenty days of the denial of that motion, we conclude that the plaintiff's appeal was timely filed.' Id., pp. 760-61. The issue raised in the case was `whether the timely filing of a motion to reargue tolls the runnings of the appeal period.' Id., p. 758. The court decided that it did and refused to dismiss the appeal. A corollary of the court's reasoning is that if the motion to reargue had not been filed within the appeal period, the trial court would not have entertained the motion to reargue. For example, a trial court has no power to extend the time for an appeal unless a motion requesting such relief is filed within the appeal period. In re Karen R., 45 Conn.Sup. 255, 257 (1998), Farmers Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 366 (1990). If that is the case, how can the court entertain a motion to reargue going to the merits filed beyond the appeal period? It cannot." (Emphasis in original.)
The plaintiffs contend that their motion to reargue was timely because their June 2011 motion to amend, which was filed previously at 5:00 p.m. on June 15, 2011, tolled the appeal period when it was filed.
Practice Book § 63-1(c)(1) states, in relevant part, "[i]f a motion is filed within the appeal period that, if granted, would render the judgment, decision or acceptance of the verdict ineffective, . . . a new twenty day period or applicable statutory time period for filing the appeal shall begin on the day that notice of the ruling is given on the last such outstanding motion . . ." Practice Book § 63-1(c)(1) also provides, in relevant part, "Motions that, if granted, would render a judgment . . . ineffective include, but are not limited to, motions that seek: the opening or setting aside of the judgment; a new trial; the setting aside of the verdict; judgment notwithstanding the verdict; reargument of the judgment or decision; collateral source reduction; additur; remittitur; or any alteration of the terms of the judgment.
`Motions that do not give rise to a new appeal period include those that seek: clarification or articulation, as opposed to alteration, of the terms of the judgment or decision; a written or transcribed statement of the trial court's decision; or reargument of a motion listed in the previous paragraph."
Thus, "[m]otions that, if granted, would render a judgment, decision, or acceptance of the verdict ineffective include motions that seek any alteration of the terms of a judgment or decision." In re Haley B., 262 Conn. 406, 412, 815 A.2d 113 (2003). Practice Book § 63-1(c)(1) lists the types of motions which would render a judgment or decision ineffective and states that such motions are "not limited to" those listed. A motion to amend a complaint is not among those listed. Since it is addressed to a plaintiff's allegations, and not to a judgment or decision, a motion to amend a complaint differs from the type of motions contemplated in Practice Book § 63-1(c)(1).
The plaintiffs' June 2011 motion to amend is not a Practice Book §§ 63-1(c)(1) motion. It presents again their proposed third amended complaint, which is dated June 18, 2010, almost one year prior to the issuance of the decision on May 26, 2011.
The June 2011 motion to amend does not seek to modify the court's judgment. In Jaser v. Jaser, 37 Conn.App. 194, 655 A.2d 790 (1995), the court explained the distinction between a motion which seeks the modification of a judgment and one which seeks reargument. "Regardless of how the [plaintiffs] characterize . . . [their] motion, we must examine the practical effect of the trial court's ruling in order to determine its nature." Id., 202. "A modification is defined as [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact . . . Conversely, the purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it . . . While a modification hearing entails the presentation of evidence of a substantial change in circumstances, a reconsideration hearing involves consideration of the trial evidence in light of outside factors such as new law, a miscalculation or a misapplication of the law. To set aside means [t]o reverse, vacate, cancel, annul, or revoke a judgment . . ."(Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 202-03.
The filing of a motion to amend does not, as the plaintiffs contend, render the dismissal moot. Such a motion is not the equivalent of a motion seeking either a modification to or a vacating of a judgment of dismissal. In re Haley B., supra, 262 Conn. 406, cited by the plaintiffs, illustrates this distinction. There, an oral request was treated by the trial court as a motion for clarification and the trial court changed its decision as to frequency of visitation. See id., 409-10. Notwithstanding the trial court's characterization of the motion, the Supreme Court looked "to the substance of the relief sought by the motion rather than the form," id., 413, and found that "a portion of the court's original decision, namely, that part requiring weekly visitation, was rendered ineffective by the subsequent order of the court reducing visitation to a monthly basis. It is apparent to us, therefore, that the parties presented, and the trial court ruled on, in substance, a motion to alter or modify the trial court's previous judgment." (Emphasis in original.) Id., 414. Since the terms of the judgment were modified, the trial court's order gave rise to a new twenty-day appeal period. See id.
Here, in contrast, the motion to amend seeks to change the plaintiffs' allegations. Rather than substantively address the decision and the reasons why the court found their claims were barred by the PLCAA, the plaintiffs claim that their allegations in the proposed third amended complaint bring the case outside the PLCAA. See plaintiffs' memorandum (#165), p. 5. The court addresses the proposed changes below at pages 14-15.
In addition, the texts of the plaintiffs' own motions show that their June 2011 motion to amend could not toll the appeal period because it did not comply with Practice Book § 11-11. Practice Book § 11-11 provides, in relevant part, "Any motions which would, pursuant to Section 63-1, delay the commencement of the appeal period, and any motions which, pursuant to Section 63-1, would toll the appeal period and cause it to begin again, shall be filed simultaneously insofar as such filing is possible and . . . shall indicate on the bottom of the first page of the motion that such motion is a Section 11-11 motion. The foregoing applies to motions to reargue decisions that are final judgments for purposes of appeal . . ." (Emphasis added.) The motion to amend does not state that it is a "Section 11-11 motion." In contrast, at the bottom of its first page, the motion to reargue does state that it is such a motion.
The plaintiffs also assert that the motion to reargue was not just one document filed in isolation and that Practice Book § 63-1 contemplates multiple filings. Practice Book § 63-1(e) provides, "Any party filing more than one motion that, if granted, would render the judgment, decision or acceptance of the verdict ineffective, shall file such motions simultaneously insofar as simultaneous filing is possible." The fact that the plaintiffs were filing two motions does not convert the June 2011 motion to amend into a motion which would render the decision ineffective or operate to negate the date of filing requirement set forth in Practice Book § 7-17. Practice Book § 63-1(e) directs a party who is filing more than one motion which would render a judgment or decision ineffective to file them together, rather than days or weeks apart.
For the reasons stated above, the motion to amend is not a motion which tolls the appeal period. The motion to reargue, which, as stated above, was filed on June 16, 2011, was untimely. "Under our rules the court concludes it does not have the power or right to decide this matter in any other way." Anderson v. City of New London, supra, Superior Court, Docket No. CV 541273.
B Amendment
The plaintiffs argue that the court's July 2010 order concerning their previous motion to amend runs counter to City of N.Y. v. Mickalis Pawn Shop, LLC, supra, 645 F.3d 114 ( Mickalis), which was issued three weeks prior to this court's May 26, 2011 decision, but not brought to the court's attention by the plaintiffs until after they received this court's decision dismissing this case. The plaintiffs contend that, in light of Mickalis, which concluded that, in federal court, the PLCAA is not subject matter jurisdictional, this court should now grant their June 2011 motion to amend.
In essence, this aspect of the plaintiffs' argument seeks to reargue the court's July 2010 order, long after the twenty-day period afforded by Practice Book § 11-12 for the filing of a motion to reargue. See Practice Book § 11-12(d) (§ 11-12 applies to decisions which are not final judgments). The plaintiffs did not file a timely motion to reargue concerning the court's July 2010 order. "After the twenty days has passed, no such motions can be filed . . ." Weinstein v. Weinstein, supra, 275 Conn. 699-700, n. 21.
Also, the court is unpersuaded that Mickalis counsels a different result in this Connecticut court. There, the United States Court of Appeals "conclude[d] that the PLCAA's bar on `qualified civil liability action[s],' 15 U.S.C. § 7902(a), does not deprive courts of subject-matter jurisdiction. The language of the PLCAA does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [district courts] . . . Instead, it provides only that `[a] qualified civil liability action may not be brought in any Federal or State court.' 15 U.S.C. § 7902(a). Although the phrase `may not be brought' suggests absence of jurisdiction, the phrase is not equivalent to a clear statement of Congress's intent to limit the power of the courts rather than the rights of litigants . . . In the absence of such a clear statement, we must treat the PLCAA as speaking only to the rights and obligations of the litigants, not to the power of the court . . . Having determined that we possess subject-matter jurisdiction, we would, in the ordinary course, proceed to consider whether the . . . lawsuit is nonetheless barred by the PLCAA. In this case, however, the defendants did not fully litigate their defenses under the PLCAA, but instead withdrew from the litigation, defaulted, and suffered a default judgment to be entered against them. We accordingly inquire not whether the . . . lawsuit was barred by the PLCAA, but rather, whether the district court abused its discretion in entering a default judgment against the defendants." (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Id., 645 F.3d 127.
Here, the parties extensively briefed and argued the applicability of the PLCAA in connection with the defendants' motion to dismiss, and no default judgment was involved. Once jurisdiction was raised by the defendants' motion to dismiss, the court was obligated to consider it. "Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . The court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 816, 12 A.3d 852 (2011).
In addition, Mickalis concerned subject matter jurisdiction in the United States District Court, not in the Connecticut Superior Court. Whether a federal court has subject matter jurisdiction presents a question which differs from whether this court has subject matter jurisdiction. "Federal district courts, like other Article III courts, are `courts of limited jurisdiction . . . [that] possess only that power authorized by [the] Constitution and statute.' Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005)[.]" (Internal quotation marks omitted). Arar v. Ashcroft, 532 F.3d 157, 170 (2d Cir. 2008).
"[U]nlike the judicial articles of most state constitutions and that of the United States constitution (article III), the powers and jurisdiction of the two courts [originally] specifically named in the Connecticut constitution (the Supreme and Superior Courts) are not specified. The reason is obvious. The 1818 constitution neither created nor provided for the creation of a new judicial system of new courts. Rather, it adopted and gave permanence in the constitution to the existence of the . . . Superior Court as the trial court of general jurisdiction." (Footnote omitted; internal quotation marks omitted.) State v. DeJesus, 288 Conn. 418, 456-57, 953 A.2d 45 (2008). In contrast to the United States District Court, this court's subject matter jurisdiction is derived from Connecticut law, not the United States Constitution or federal statutory law. See id.
Consistent with the approach discussed in City of N.Y. v. Mickalis Pawn Shop, LLC, supra, this court, in its decision, proceeded to conclude that the operative complaint was barred by the PLCAA. As a result, judgment entered for the defendants. Where the PLCAA bars the action, dismissal is required. See City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 389, 395, 404 (2d Cir. 2008), cert. denied, 129 S.Ct. 1579, 173 L.Ed.2d 675 (2009) (motion to dismiss amended complaint; appellate court directed dismissal of the case as barred by the PLCAA.).
"An amendment after judgment . . . is a possible, but most extraordinary, remedy, to be allowed only in exceptional cases and with the greatest caution." Kelly, Administrator v. New Haven Steamboat Co., 75 Conn. 42, 47, 52 A. 261 (1902). "[T]he trial court has wide discretion in granting or denying amendments before, during, or after trial." (Internal quotation marks omitted.) CT Page 19532 Sherman v. Ronco, 294 Conn. 548, 554 n. 10, 985 A.2d 1042 (2010).
"In determining whether there has been an abuse of discretion [in granting or denying an amendment], much depends on the circumstances of each case . . . In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party." (Citations omitted; internal quotation marks omitted.) McNeil v. Riccio, 45 Conn.App. 466, 474, 696 A.2d 1050 (1997). "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." (Internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn.App. 114, 132, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003).
"In exercising its discretion with reference to a motion for leave to amend, a court should ordinarily be guided by its determination of the question whether the greater injustice will be done to the mover by denying him his day in court on the subject matter of the proposed amendment, or to his adversary by granting the motion, with the resultant delay." DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971).
As explained above, the plaintiffs filed three complaints in this matter since it was commenced in August 2009 (see return of service), prior to the court's consideration of the motion to dismiss the second amended complaint. As a result, the defendants briefed three separate motions to dismiss premised on the PLCAA. The proposed third amended complaint is the plaintiffs' fourth attempt at pleading their claims. Thus, the plaintiffs had ample opportunity to frame their allegations adequately so that they would have their day in court concerning their claims, which, as discussed in the court's decision, arise from the assault, abduction and shooting to death of Jennifer Magnano. See Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992) (court may properly deny motion to amend where, after several opportunities to do so, plaintiff has not framed complaint adequately).
Without citations to authority and without analysis, the plaintiffs assert, in their memorandum (#165), page 5, that their proposed "amendments specifically bring the case outside the scope of the PLCAA, allowing Plaintiffs their day in court." Their reply memorandum (#171) is similarly devoid of such citations and analysis to support this assertion.
For example, they do not address the court's discussion of the issues in its decision, which included extensive citations to decisional authority. In their memorandum, page 2, they cite proposed amendments in the third amended complaint, which allege that the defendants "`negligently and unlawfully transferred [the Glock and ammunition] to Scott Magnano' without completing a required Form 4473 or conducting a required Brady background check, even though they `reasonably should have known that Magnano was not legally eligible to purchase a firearm.'" In its decision concerning the second amended complaint, the court addressed issues concerning transfer and delivery (see decision, pages 9-16) and discussed ATF Form 4473 and the background check requirement (see decision, pages 26-27).
Similarly, at page three of their memorandum, the plaintiffs assert that their proposed amendments also allege that the defendants "`entrusted the firearms to Magnano' and `transferred dominion and control of the firearms to Magnano' even though Sportsman's Outpost `knew or had reason to know [Magnano] was likely to use the [Glock 21] firearm in a manner involving unreasonable risk of bodily harm to himself'"; and that "the gun shop's illegal and untimely failure to report to law enforcement that the gun was no longer in the shop is a common tactic used by `gun dealers who sell guns off the books, without records of sale or background checks.'" In its decision, the court also addressed negligent entrustment (see decision, pages 23-26) and the fact that no "off the books sale" by the defendants to Magnano was alleged (see decision, pages 15-16). Review of the plaintiffs' proposed amendments shows that, again, this theory is neither pleaded nor necessarily implied in their allegations. See third amended complaint, ¶¶ 69-70; Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010).
"Because the plaintiffs do not cite any authority or develop their claim with analysis, [the court concludes] that the claim is inadequately briefed. See, e.g., Connecticut Light Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (`[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly' [internal quotation marks omitted])." Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 194 n. 4, 3 A.3d 56 (2010). See Smith v. Andrews, 289 Conn. 61, 80, 959 A.2d 597 (2008), where, concerning a schedule of patients and surgeries to be performed, see id., 77, the court stated, "With respect to the schedule, the plaintiff's brief consists of three pages of facts and no citation to any legal authority. We consider that claim to be abandoned." (Emphasis in original.) Here, likewise, in the absence of analysis and citations to authority, the court considers the plaintiffs' claim that their proposed amendments bring the case outside the scope of the PLCAA to be inadequately briefed and, therefore, abandoned.
In view of the history of this matter, discussed above, involving the successive pendency of motions challenging the plaintiffs' various complaints, no trial date was scheduled. As discussed in the decision, the PLCAA prohibits the commencement of a "qualified civil liability action" in any state court. See 15 U.S.C. § 7902(a). The court is mindful of the purposes of the PLCAA, as stated by Congress, among which are: "(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended . . . [and] (4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce." See 15 U.S.C. § 7901(b).
Thus, the circumstances here differ substantially from those in cases cited by the plaintiffs concerning amendments. In contrast to Miller v. Fishman, 102 Conn.App. 286, 292, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008), where the plaintiffs demonstrated that if they had been allowed to amend their complaint, "the basis for summary judgment would have fallen away"; here, as discussed above, the plaintiffs have not substantively addressed the court's decision and shown that their proposed amendments would take the case outside the PLCAA's prohibition.
Similarly, no circumstances involving a statutory prohibition and successive motions to dismiss were present in Burton v. Stamford, 115 Conn.App. 47, 52-53, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009), where the trial court set aside a directed verdict and determined, in the exercise of its discretion, that the plaintiff's motion to amend during trial should have been permitted. The trial court stated, "the denial [of the motion to amend] turned a plaintiff claiming serious injuries out of court without a decision on the merits of his claim. Permitting the amendment would have caused the defendant only to have to reframe its request to charge and final arguments to the jury in terms of one statute rather than another. The key liability issues would be the same under either statute . . ." (Internal quotation marks omitted.) Id., 61. Accordingly, the trial court concluded that the amendment "would cause no prejudice to the defendant [.]" Id., 62.
The situation in Jacob v. Dometic Origo AB, 100 Conn.App. 107, 110-11, 916 A.2d 872, cert. granted, 282 Conn. 922, 925 A.2d 1103 (2007), also differs from the circumstances in this matter. In that matter, there was no history of successive motions dismiss filed by the defendants, based on a statutory scheme which prohibited the commencement of the action. Rather, in Jacob, the trial court denied a motion to amend since it concluded that the plaintiff had been negligent in prosecuting the claim. See id., 112. Under the circumstances there, the Appellate Court stated, "[a]lthough the plaintiff may have been delinquent in filing her memorandum of law opposing summary judgment and brought this motion for leave to amend the complaint after the time for pleadings had closed, no significant injustice or prejudice worked against the defendants." Id., 114.
As discussed above, here, in view of the purposes of the PLCAA, since the plaintiffs were afforded several opportunities to frame their allegations, requiring the defendants to continuously address the plaintiffs' changing allegations, allowing the proposed amendments post-judgment, when the amendments have not been shown to take the case outside of the PLCAA's prohibition on commencement of a "qualified civil liability action" in any state court, see 15 U.S.C. § 7902(a), would prejudice and take unfair advantage of the defendants.
In earlier cases cited by the plaintiffs, Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980); Smith v. New Haven, 144 Conn. 126, 132, 127 A.2d 829 (1956); and Cook v. Lawlor, 139 Conn. 68, 72, 90 A.2d 164 (1952), there was no similar history and no statutory scheme which prohibited the commencement of the action.
The procedural history here is closer to that in Collum v. Chapin, 40 Conn.App. 449, 671 A.2d 1329 (1996), where the plaintiff moved to amend his complaint after issuance of the court's memorandum of decision granting the defendants' motion for summary judgment. See id., 451. The Appellate Court affirmed the trial court's refusal to allow the plaintiff to amend the complaint after he received the trial court's decision and stated, "[t]he trial court's refusal to allow a belated amendment to a pleading in response to the filing of a motion for summary judgment by the adverse party will be sustained unless there is clear evidence of an abuse of discretion . . . Where, as here, the motion was filed after the court had already ruled in favor of the defendant on its summary judgment motion, its action was clearly justified." (Internal quotation marks omitted.) Id., 453-54.
Under the circumstances here, the defendants would be unduly prejudiced and unfair advantage of them taken if amendment were permitted after judgment by the court. At this stage of the proceedings, since the plaintiffs had several opportunities to adequately plead their claims in advance of the court's consideration of the motion to dismiss the second amended complaint, in order to avoid the PLCAA's prohibition on commencement of a "qualified civil liability action"; and since they have not shown that their proposed amendments would take the case outside the PLCAA in order to afford them an opportunity to present their case on the merits at trial, the greater injustice would be done to the defendants if the court permitted the proposed amendments after judgment has been rendered and the case dismissed, by continuing this litigation, thus requiring them to go on defending against it.
The Supreme Court recently reiterated the policy that "[o]nce a judgment [is] rendered it is to be considered final and it should be left undisturbed by post-trial motions except for a good and compelling reason . . . Otherwise, there might never be an end to litigation." (Citation omitted; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107, 952 A.2d 1 (2008). For the reasons stated above, in the exercise of the court's discretion, the plaintiffs' June 2011 motion to amend is denied.
In view of this determination, the court need not consider the defendants' judicial estoppel argument.
CONCLUSION
Based on the foregoing reasons, the plaintiffs' motion to reargue and their June 2011 motion to amend are denied. It is so ordered.