Opinion
FSTCV175016368S
06-11-2018
Gilbert ORLANDO v. Millicent DICKENS
UNPUBLISHED OPINION
OPINION
POVODATOR, J.
This action was commenced by the self-represented (incarcerated) plaintiff, with a return date of January 30, 2017. In June and July of 2017, the defendants moved for summary judgment. Both motions appeared on the short calendar for October 16, 2017, at which time the court was asked to decide the motions "on the papers" (without argument). This was not the first time that at least one of the motions for summary judgment had appeared on a calendar; one of the motions had appeared on two prior occasions, with no effort made to have the court rule upon either or both motions and no effort was made to have the motions heard with argument. October 16, 2017 was the first time that the court had been asked to rule upon such motions (again, without any argument being requested).
On January 26, 2018, the court issued a memorandum of decision, granting both motions for summary judgment.
As of the issuance of this order/decision, the court’s memorandum of decision as to both motions for summary judgment is available on the Judicial Branch website at http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry.aspx?DocumentNo=13831351 . It also may be found on Westlaw at 2018 WL 1003674.
At no time prior to March 28, 2018 (and especially at no time prior to January 26, 2018) did the plaintiff ask for argument on either or both motions. The court must presume that the moving parties duly had notified the plaintiff (or had tried to notify the plaintiff) of their request that the motions be decided by the court, without argument. Equally if not more important, the plaintiff did not file any objection to either or both motions prior to the issuance of a decision on both motions on January 26, 2018. In other words, the motions had been pending for six or more months prior to the issuance of a decision and the court had been asked to decide the motions some three months before issuance of a decision, without any effort by the plaintiff to seek argument or to submit any opposition papers. The plaintiff also did not file anything suggesting a need for more time to respond, whether due to his incarcerated status or due to the need for additional time to obtain necessary responsive materials (see, Practice Book § § 17-45 and 17-47).
See, e.g., ¶ 8 on short calendar FAQ, available on Judicial Branch website at https://jud.ct.gov/external/super/E-Services/efile/shortcalmarkingsFAQs.pdf .
It was not until two months after the court had issued its decision that the plaintiff filed his current motion (# 110.00). In this motion, the plaintiff raises, for the first time, his claimed right to argue in opposition to the motions for summary judgment. (The defendants have not filed any responsive objection to the motion.)
In ruling on the motions for summary judgment, the court noted and applied the principle that there was no burden on the non-moving party (the plaintiff) to respond unless and until the moving parties had satisfied their respective burdens under summary judgment jurisprudence. (The court quoted Romprey v. Safeco Insurance Company of America, 310 Conn. 304, 320 (2013), for that proposition.) Therefore, notwithstanding the absence of any objection, the court still had been required to determine whether the presentations of the defendants established the absence of any material issue of fact. The court was satisfied that the moving parties did carry their burden.
Although the Practice Book seems to give a party the right to insist on argument of a motion for summary judgment, it is not in absolute terms. Practice Book § 11-18 states that "oral argument shall be a matter of right" with respect to a motion for summary judgment, but with conditions. The right to argument is dependent on a party marking the motion "ready" (for argument) pursuant to Practice Book § 11-18(a)(1)- which it appears was not done by any of the parties- or a party serving a notice indicating an intent to appear and argue:
(2) a nonmoving party files and serves on all other parties pursuant to Sections 10-12 through 10-17, with proof of service endorsed thereon, a written notice stating the party’s intention to argue the motion or present testimony. Such a notice shall be filed on or before the third day before the date of the short calendar date and shall contain (A) the name of the party filing the motion, and (B) the date of the short calendar on which the matter appears.
In effect, subsection (2) gives the non-moving party a complementary right to a "ready" marking- asking for argument despite a possible "take papers" marking. The plaintiff did not take advantage of either avenue to ensure a right of argument.
In Marut v. IndyMac Bank, FSB, 132 Conn.App. 763, 771-72, 34 A.3d 439, 444 (2012), the court made it clear that the right to argument is not absolute, but is dependent on compliance with applicable rules and procedures. In that case, the failure to appear for argument, when a request for a continuance had been denied, was deemed a waiver of the right to argue the motion before the court. Here, the motions were marked "take papers" and the plaintiff took no steps- even belatedly- to exercise his right to argument or right to seek argument until well after a decision had been issued as to both motions for summary judgment. (And again, this is in the context of an absence of any written objection to the motions that had been filed, months earlier.)
Notwithstanding the foregoing, the court recognizes the likely difficulty encountered by an incarcerated self-represented party, especially with respect to seeking to appear in a distant courthouse for argument on a civil matter. (There may well be issues as to timeliness of information as to the matter appearing on a calendar and the calendar markings of opposing counsel.) In order to ensure that the plaintiff has an opportunity to be heard, the court is scheduling argument on the plaintiff’s motion for order, which the court is treating as a motion to reargue combined with a request for an opportunity to present oral argument. The court is scheduling argument for July 2, 2018, and is directing the issuance of an order (habeas) to ensure the plaintiff’s attendance. The court will attempt to accommodate scheduling issues, to the extent timely presented to the court in advance of that date, and the court is ordering the attendance of a Jamaican interpreter to avoid any possible concern about the ability of the plaintiff to understand and participate in the proceedings.
Practice Book § 11-12 provides a 20-day period in which to file a motion to reargue, subject to extension by the court upon a showing of good cause. (A request for extension of time must be filed within that 20-day period.) The court has identified good cause, and there has been no objection to the motion itself (substance or timeliness). The court analogizes to the procedure governing filing of an appeal (Practice Book § 63-1 et seq.)- subject to similar rules, with similar time frames- where the failure to object (move to dismiss) is deemed a waiver of untimeliness. Parlato v. Parlato, 134 Conn.App. 848, 850 n.1, 41 A.3d 327, 328 (2012). (The court notes that the motion could be treated as a motion to open the judgment, which would have been timely (but without the required fee- but the plaintiff likely would qualify for a fee waiver, given his long-term incarcerated status; see, State v. Orlando, 163 Conn.App. 155, 134 A.3d 708; cert. denied, 320 Conn. 930 (2016) ).)