Opinion
UWYCV146024854S
01-11-2016
Carmen Marcucci v. General Growth Services, Inc
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO IMPLEAD (#110)
ROBERT B. SHAPIRO, JUDGE OF THE SUPERIOR COURT.
In this premises liability action, the defendants move for permission, as third party plaintiffs, to add two new parties, ERMC Property Management Company of Illinois, LLC and AlliedBarton Security Services, LLC (Allied Barton), claiming that they are or may be liable for all or part of the plaintiff's claim. AlliedBarton filed an objection (#111), to which the defendants replied (#112).
" The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court . . . Judicial discretion [however] . . . is always legal discretion, exercised according to the recognized principles of equity . . . In essence, the trial judge's discretion should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." (Citation omitted; internal quotation marks omitted.) In re Devon B., 264 Conn. 572, 580-81, 825 A.2d 127 (2003). " Factors to be considered include the timeliness of the application, the possibility of prejudice to the other party and whether the [proposed additional party's] presence will enable the court to make a complete determination of the issues." A. Secondino & Son, Inc. v. LoRicco, 19 Conn.App. 8, 14, 561 A.2d 142 (1989). It is within the court's " broad discretion to deny [a] defendant's motion to cite in . . . on the ground . . . that it would . . . unduly delay the trial . . ." Sturman v. Socha, 191 Conn. 1, 9, 463 A.2d 527 (1983).
General Statutes § 52-102a(a) provides, " [a] defendant in any civil action may move the court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The motion may be filed at any time before trial and permission may be granted by the court if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action nor work an injustice upon the plaintiff or the party sought to be impleaded." Practice Book § 10-11(a) contains similar language.
Section 52-102a " furthers the salutary purpose of encouraging parties to consolidate the litigation flowing from a given factual circumstance into a single judicial proceeding thereby avoiding multiplicity of actions." Malerba v. Cessna Aircraft Co., 210 Conn. 189, 195, 554 A.2d 287 (1989). A defendant does not have a statutory right to implead a third party; " the statute commits the decision of such motions to the sound discretion of the trial court." Cupina v. Bernklau, 17 Conn.App. 159, 164, 551 A.2d 37 (1988).
As to motions to modify scheduling orders, three factors have been identified for consideration: whether good cause has been shown; whether there is prejudice to an opposing party; and whether modification would necessitate a lengthy continuance of the trial date. See DiFederico v. Sikorsky Financial Credit Union, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4006583 (January 8, 2008, Kochiss Frankel, J.) (44 Conn.L.Rptr. 772).
" The court has wide latitude in docket control and is responsible for the efficient and orderly movement of cases." Daily v. New Britain Machine Co., 200 Conn. 562, 574, 512 A.2d 893 (1986). " The court's scheduling orders are essential to the fair and efficient management of cases. As the Appellate Court recently reiterated in McVerry v Charash, 96 Conn.App. 589, 600, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006), '[o]vercrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based on the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards.' (Internal quotation marks omitted.) Enforcement of a scheduling order is critical in cases . . ." (Internal quotation marks omitted)." Hodgate v. Ferraro, Superior Court, judicial district of Hartford, Complex Docket at Hartford, Docket No. CV 05 4034694, (April 16, 2008, Shapiro, J.), affirmed, 123 Conn.App. 443, 3 A.3d 92 (2010).
The defendants previously agreed to a scheduling order in this matter on November 13, 2014 (#108). The parties selected October 4, 2016 as the date for jury selection.
The movants cite no authority and, except for stating that they have no objection to allowing AlliedBarton to conduct discovery and engage in motion practice or to adjourning the trial date, and except for arguing that AlliedBarton was on notice concerning this matter since October 9, 2014, do not discuss the factors, listed above, on which the court should premise the exercise of its discretion in considering a motion to implead.
AlliedBarton contends that if impleader was granted it would be prejudiced and would suffer an injustice, as it has been completely uninvolved in the litigation and had no opportunity to affect its direction.
A certificate of closed pleadings was filed on October 31, 2014 (#106). The defendants did not file their motion to implead, which is accompanied by an extensive proposed third-party complaint, until December 18, 2015, over eleven months after the entry of the scheduling order.
The defendants' presentation acknowledges that they were aware of AlliedBarton's identity in October 2014, as they assert that by correspondence on October 9, 2014, well over a year ago, they tendered their defense and indemnity claim to AlliedBarton. They also assert that AlliedBarton denied the tender in October 2015.
If the proposed third-party defendants were brought into the case now, the entire schedule for the matter would be disrupted. General Statutes § 52-102a(b) provides, in relevant part, that each third-party defendant " shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the third-party plaintiff, and shall be entitled to file cross-complaints against any other third-party defendant. The third-party defendant may also assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim and may assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff." " [T]he pleadings are to be treated in the same manner as those in the ordinary civil action." Senior v. Hope, 156 Conn. 92, 97, 239 A.2d 486 (1968).
A third-party defendant " will have an opportunity, subsequent to the granting of the motion to implead, to contest the legal sufficiency of the objectionable portions of the third party complaint; . . . [and will have] all the other procedural mechanisms available . . . to protect [its] interests." (Citations omitted.) Campagna v. Aronson, Superior Court, judicial district of Danbury, Docket No. 31 29 72, (February 23, 1995, Stodolink, J.).
Thus, if two third-party defendants were added now, the pleadings would be re-opened, not closed, over fifteen months after the return date, which was September 30, 2014. In addition, the new parties would be entitled to conduct written discovery, and other parties would be entitled to conduct written discovery as to them. In the scheduling order it was agreed that all discovery, including concerning experts, would be concluded by December 28, 2015. Reopening the pleadings and discovery would also disrupt the schedule for the filing and argument of dispositive motions, which are to be filed by February 1, 2016 and argued no later than April 1, 2016. Permitting these disruptions to occur would delay the scheduled October 2016 trial, which already is scheduled to occur long after the date of the alleged slip and fall on March 15, 2013.
" Once the court had established a firm timetable for events to occur, the parties were bound by these dates. If the [defendants] had additional motions they wished to file, they should have acted within the deadline." Daily v. New Britain Machine Co., supra, 200 Conn. 574. See Ivimey v. Watertown, 30 Conn.App. 742, 745, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993) (trial court did not act unreasonably or contrary to law when it determined that all pleadings filed after answer were untimely in view of orders to close the pleadings some fourteen months after the commencement of the action).
The motion to implead AlliedBarton is untimely, since it could have been presented much earlier. The defendants have not shown good cause to modify the agreed-to schedule. In the exercise of its discretion, the court concludes that granting of the motion to implead would disrupt the schedule to which the defendants agreed, unduly delay the trial of the action, and work an injustice upon AlliedBarton. See General Statutes § 52-102a. Under these circumstances, there is no need for the court to consider AlliedBarton's argument that claims against it are time-barred.
CONCLUSION
For the foregoing reasons, the defendants' motion to implead is denied. It is so ordered.