Opinion
No. HHD X04 CV-08-6003273 S
December 17, 2009
MEMORANDUM OF DECISION
This matter is before the court concerning the defendants Town of Killingly, Anthony Shippee, and David Sabourin's (Town defendants) motion for nonsuit (#292), against the plaintiff, Anthony J. Pellecchia, Administrator, for failure to revise his complaint.
The plaintiff filed an objection (#321), and the parties also filed four other submissions (two each), in response or reply, the last of which was dated November 20, 2009 (#329). After considering the parties' arguments, the court issues this memorandum of decision.
I Procedural Background
The court previously set forth the procedural history of this matter in several other decisions, including those dated May 13, 2009 (#242), and October 23, 2009 (#313). The plaintiff commenced this action with the service of his complaint, dated May 30, 2008. In the complaint, the plaintiff, as administrator of the estate of Anthony E. Pellechia (decedent), seeks to recover damages, as the result of a July 28, 2006 incident in which the decedent allegedly suffered serious personal injuries, from which he died, as a result of a motorcycle which he was operating coming into contact with an energized electrical line on or near the roadway.
On June 19, 2008, the Town defendants filed a request to revise the complaint (#102). On August 14, 2008, the Town defendants filed a motion for nonsuit, seeking a nonsuit against the plaintiff for failure to revise his complaint within the time allowed by the Rules of Practice (#107) (first Town motion for nonsuit). On August 18, 2008, defendants Connecticut Light and Power Company (CL P), Northeast Utilities (NU), and Northeast Utilities Service Company's (NUSC) (collectively "CL P defendants") also filed a request to revise the complaint (#105) (CL P request to revise).
The plaintiff requested a thirty-day extension of time to respond to the CL P request to revise (#110). The plaintiff also moved for an extension of time, until September 25, 2008, to respond to the request to revise the complaint which was filed by the Town defendants. The court (Sferrazza, J.) granted this second motion for extension of time on September 8, 2008 (#111). Thereafter, plaintiff neither timely objected to the requests to revise nor did he revise his complaint in conformance with either request to revise.
On October 28, 2008, the CL P defendants filed a motion for nonsuit against the plaintiff for his failure to file a revised complaint in accordance with their request to revise (#133) (CL P motion for nonsuit). No objection to the CL P motion for nonsuit was filed by the plaintiff. On November 18, 2008, the plaintiff filed untimely objections to the CL P request to revise (#146).
Counsel for the parties attended a status conference with the court on November 6, 2008, after which a scheduling order was issued. Among the deadlines in that order, the pleadings were to be closed by July 1, 2009.
On November 20, 2008, the court issued an order concerning the CL P motion for nonsuit, as follows: "Pursuant to P.B. § 10-37, the time by which the plaintiff was to file any objections to the defendants CL P, NU, and NUSC's requests to revise elapsed. The plaintiff's objections, dated November 18, 2008 (#146) are untimely. Accordingly, the requests are deemed to have been automatically granted. See P.B. § 10-37. Plaintiff shall file a revised complaint within 15 days of the date of this order." See #133. Thus, instead of ordering a nonsuit at that time, the court afforded the plaintiff an additional extension of fifteen days, until December 5, 2008, to file a revised complaint in compliance with the CL P request to revise.
Practice Book § 10-37(a) provides, in relevant part, "such request shall be deemed to have been automatically granted by the judicial authority on the date of filing and shall be complied with by the party to whom it is directed within thirty days of the date of filing the same, unless within thirty days of such filing the party to whom it is directed shall file objection thereto."
Similarly, on November 24, 2008, the court issued an order concerning the first Town motion for nonsuit, as follows: "Pursuant to P.B. § 10-37, the time by which the plaintiff was to file any objections to the defendants' (Town of Killingly, Shippee, and Sabourin) requests to revise elapsed. Accordingly, the requests are deemed to have been automatically granted. Plaintiff shall file a revised complaint by December 5, 2008." See #107.
Rather than filing such a revised complaint in compliance with the court's orders, on December 4, 2008, the plaintiff filed a request for leave to amend complaint (#157), with a proposed amended complaint. The CL P defendants filed an objection to the request for leave to amend on December 19, 2008 (#159), since the amended complaint did not incorporate most of the revisions sought in the CL P request to revise. On December 24, 2009, the Town defendants filed a motion for judgment of dismissal (#161), based on the plaintiff's failure to revise his complaint in accordance with the court's November 24, 2008 order on their first motion for nonsuit (#107). The court sustained the CL P defendants' objection to the proposed amended complaint by order dated January 20, 2009.
On February 10, 2009, the court issued an order concerning the Town defendants' motion for judgment of dismissal (#161), which stated: "Denied without prejudice. The motion does not specify in what way the proposed amended complaint (#157) did not comply."
On February 23, 2009, the plaintiff filed an "objection" to the CL P defendants' objection to the request for leave to amend and to the Town defendants' motion for judgment of dismissal (#186), which ignored the court's January 20, 2009 and February 10, 2009 orders, and asserted that the amended complaint complied with the court's November 20, 2008 order. By order dated February 27, 2009, the court found the plaintiff's belated "objection" to be moot.
The Town defendants filed a motion to strike, dated April 21, 2009 (#227), which was addressed to counts fourteen, fifteen, and nineteen of the plaintiff's December 2008 proposed amended complaint.
Thereafter, the court considered the CL P defendants' motion for dismissal with prejudice, or alternatively, for an order of nonsuit (#182) and issued its memorandum of decision on May 13, 2009 (#242), granting a nonsuit as to the claims against the CL P defendants. Therein, at pages 5 and 12, the court stated that the plaintiff's proposed amended complaint, filed on December 4, 2008 (#157), was not operative.
At the hearing which was held on June 12, 2009 concerning the Town defendants' motion to strike, which neither the plaintiff nor his counsel attended, the court reiterated that the plaintiff's December 2008 proposed amended complaint was not operative, and, therefore, there was no complaint to strike.
On September 1, 2009, the court issued an order sustaining the Town defendants' June 19, 2009 objection (#257) to the plaintiff's amended revised substitute complaint, dated June 5, 2009 (#249). Once again, the plaintiff had presented an amendment which did not incorporate the revisions requested by the Town defendants in their June 2008 request to revise (#102), and which violated the court's November 24, 2008 order concerning the required revisions (#107). By memorandum of decision, dated October 23, 2009 (#313), the court denied the plaintiff's motion for reconsideration of the September 1, 2009 order.
II Discussion A
The Town defendants seek a nonsuit based on Practice Book §§ 10-18, 17-19, and 17-31. Practice Book § 10-18 provides that "[p]arties failing to plead according to the rules and orders of the judicial authority may be nonsuited or defaulted, as the case may be." Practice Book § 17-19 similarly states, "[i]f a party fails to comply with an order of a judicial authority . . . the party may be nonsuited or defaulted by the judicial authority." Practice Book § 17-31 provides, in relevant part, "[w]here either party is in default by reason of failure to comply with Section . . . 10-35, . . . the adverse party may file a written motion for a nonsuit[.]" Practice Book § 10-35 provides for the filing of a request to revise.
General Statutes § 52-119 likewise provides, "Parties failing to plead according to the rules and orders of the court may be nonsuited or defaulted, as the case may be."
The Town defendants assert that the plaintiff has failed to file a revised complaint incorporating the revisions which they requested, and has ignored the express order of the court requiring that he file such a revised complaint. They contend that the plaintiff is openly defying the court's November 24, 2008 order.
In response, the plaintiff contends that the Town defendants failed to object to the plaintiff's December 4, 2008 proposed amended complaint (#157) in a timely manner, thereby consenting to it; and pled out of order. The plaintiff also asserts that, absent extraordinary circumstances, the court cannot reject the plaintiff's revised complaint.
In addition, in his reply (#326), page 1, the plaintiff states, "The Plaintiff in his objection is merely pointing out to the court that in good faith he amended his complaint in conformity for [sic] the Defendants' Request to Revise." The court initially addresses this last assertion, which is clearly contrary to the record and unfounded.
In their request to revise (#102), the Town defendants requested the plaintiff to revise counts six, seven, and nine of the original complaint, which, respectively, allege negligence against Sabourin, Shippee, and the Town of Killingly. In the third, fourth, ninth, tenth, and fifteenth requests to revise, the Town defendants requested the plaintiff to eliminate claims and allegations of negligence against the Town defendants in counts six, seven, and nine. In their requests, the Town defendants repeatedly stated that the plaintiff's exclusive remedy as to them was through General Statutes § 13a-149, the municipal highway defect statute.
In count nine, the plaintiff also seeks indemnification.
Review of the December 2008 proposed amended complaint shows that the plaintiff did not comply with the Town defendants' requests. Counts fourteen (paragraph 8), fifteen (paragraph 8), and nineteen thereof contain allegations of negligence against the Town defendants which, in their request to revise, they requested the plaintiff to eliminate.
The plaintiff thus continues to ignore the clear language of the court's order (#107), in which the plaintiff was explicitly informed by the court that, in accordance with the Practice Book, the Town defendants' requests to revise the complaint were " deemed to have been automatically granted." (Emphasis added.) In addition, the court cited Practice Book § 10-37, quoted above, which also expressly so provides. There is no reasonable basis for the plaintiff to assert that he complied with the court's order in his December 2008 proposed amended complaint.
Although the plaintiff was afforded extensions of time to file an appropriately revised complaint, he did not do so. The court already has found, in its May 13, 2009 decision (#242), that the plaintiff's continued failure to comply with the court's clear orders evidences a willful failure to do so. His defiance of the court's orders continues.
The court also is unpersuaded that the Town defendants waived their requests and consented to the December 2008 proposed amended complaint, either by not filing an objection within fifteen days, see Practice Book § 10-60(a)(3), or by later filing a motion to strike. In effect, the plaintiff's argument that the Town defendants consented to his lack of compliance with the court's order of November 24, 2008, which required the plaintiff to revise his complaint in accordance with their requests to revise, seeks to treat the court's order as if it had never been entered and as if the plaintiff properly could ignore that order by pleading as if he had not been ordered to comply with the requested revisions. Practice Book § 10-60 did not afford the plaintiff such license. Also, as noted above, the Town defendants filed their motion for judgment of dismissal (#161), which was denied, without prejudice, only because the motion did not specify how the December 2008 proposed amended complaint failed to comply with the court's order.
Practice Book § 10-60(a)(3) provides, in relevant part, that a party may amend his or her pleadings "(3) [b]y filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon. If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party."
The plaintiff was obligated to comply with the court's orders. "The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril . . . [A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings." (Citation omitted; internal quotation marks omitted.) Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985). "[I]t must be remembered that respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom." (Internal quotation marks omitted.) Id., 148.
None of the case law cited by the plaintiff concerned a party's failure to comply with a prior order of the court requiring revisions to a prior pleading. See Glens Falls Insurance Co. v. Somers, 146 Conn. 708, 712, 156 A.2d 146 (1959) (incumbent on adversary to assert that party waived her right to file motion).
Similarly, the procedural history in Darling v. Waterford, 7 Conn.App. 485, 508 A.2d 839 (1986), differed materially. There, an amended appeal of a compensation award was not objected to within the fifteen-day period prescribed by then Practice Book § 176 (now § 10-60). See id., 487. The court stated, "[t]he amendment, therefore, was deemed to be filed with the consent of the defendant. The defendant's objection on the day of trial to the plaintiffs' request to amend their complaint came too late. The trial court had no discretion, at that time, to deny the request, absent extraordinary circumstances." Id. In Darling, no prior history of failure to comply with a court order was involved. Here, the court's prior order was ignored by the plaintiff. The December 2008 proposed amended complaint did not become operative since it violated the court's November 24, 2008 order.
Likewise, the procedural history in Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 07 5010811 (April 8, 2008, Elgo, J.), did not involve a court-ordered revision to the complaint. There, after a request to revise was filed on October 5, 2007, and, within the thirty-day period in which to respond provided by Practice Book § 10-37, on October 18, 2007, the plaintiffs filed a motion to amend, with a revised complaint. See id.
Here, as noted above, after the court denied, without prejudice, their motion for judgment of dismissal, the Town defendants subsequently moved to strike portions of the December 2008 proposed amended complaint. That did not amount to a waiver of their right to the court-ordered revisions. The order of pleadings set forth in Practice Book 10-6 states that a request to revise precedes a motion to strike. Practice Book § 10-7 provides, "[i]n all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." As set forth above, the court clearly ordered the plaintiff to revise his complaint in accordance with the Town defendants' requests to revise, long before the Town defendants moved to strike portions of the proposed amended complaint. The motion to strike did not nullify the court's order.
The Town defendants were not required to object to or seek revisions to the December 2008 proposed amended complaint after the court already had ordered the plaintiff to revise his complaint in compliance with their prior request to revise. If the plaintiff were permitted to ignore the court's orders, and Practice Book § 10-37, by amending the complaint as if the prior steps which were addressed to it had not occurred, it would turn the Practice Book "on its head," Griswold Airport, Inc. v. Town of Madison, 289 Conn. 723, 736, 961 A.2d 338 (2008), by encouraging parties to flout court orders.
B
"[A]part from a specific rule of practice authorizing a sanction, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules . . . The decision to enter sanctions . . . and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court." (Citation omitted; internal quotation marks omitted.) Bongiovanni v. Saxon, 99 Conn.App. 221, 228, 913 A.2d 471 (2007).
"[T]he court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Rules are a means to justice, and not an end in themselves . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure . . . Therefore, although dismissal of an action is not an abuse of discretion whe[n] a party shows a deliberate, contumacious or unwarranted disregard for the court's authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort . . . and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court." (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16-17, 776 A.2d 1115 (2001). The same reasoning "applies equally to nonsuits and dismissals." Blinkoff v. O G Industries, Inc., 89 Conn.App. 251, 258, 873 A.2d 1009, cert. denied, 275 Conn. 907, 882 A.2d 668 (2005).
In considering the imposition of sanctions, three requirements must be met. "First, the order to be complied with must be reasonably clear . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction imposed must be proportional to the violation." (Internal quotation marks omitted.) Bongiovanni v. Saxon, supra, 99 Conn.App. 226-27.
Here, as stated above, the court's November 24, 2008 order was clear. The plaintiff violated it by not filing a revised complaint in compliance therewith by December 5, 2008. The plaintiff continues to fail to comply by filing a revised complaint in compliance with the court's orders. More than a year after the plaintiff was ordered to revise his complaint in conformance with the Town defendants' request to revise, he steadfastly refuses to do so.
In their memorandum of law (#323), page 4 n. 1, the Town defendants state that, following the court's October 23, 2009 memorandum of decision (#313), they advised the plaintiff that they would not pursue their motion nonsuit if the plaintiff would file an amended complaint in compliance with the court's November 24, 2008 order. They state that the plaintiff declined to do so.
In addition to Practice Book § 17-19, which, as stated above, provides that a nonsuit may be entered for failure to comply with a court order, Practice Book § 10-18 similarly states that "[p]arties failing to plead according to the rules and orders of the judicial authority may be nonsuited or defaulted, as the case may be." See General Statutes § 52-119. Where a party has failed to comply with a request to revise, a nonsuit is a proper remedy. See Connecticut Light Power Co. v. St. John, 80 Conn.App. 767, 774, 837 A.2d 841 (2004). Similarly, a nonsuit is an appropriate remedy for noncompliance with a court order concerning a request to revise. See D'Agostino v. Broccoli, Superior Court, judicial district of Hanford at Hartford, Docket No. CV 05 5001595 (January 12, 2007, Scholl, J.), citing Enquire Printing Publishing Co. v. O'Reilly, 193 Conn. 370, 377 n. 12, 477 A.2d 648 (1984) (proper motion is a motion for nonsuit).
In the Appellate Court's recent decision in McVerry v. Charash, 96 Conn.App. 589, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006), the court emphasized the need for the court to enforce its orders. "Overcrowded 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. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system." (Internal quotation marks omitted.) McVerry v. Charash, supra, 96 Conn.App. 600.
Here, the plaintiff's continued failure to properly revise his complaint in compliance with the Practice Book and the court's orders evidences a lack of due regard to necessary rules of procedure. See Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 16. The plaintiff may not be permitted to ignore and not comply with the court's orders and the Practice Book. In so doing, the progress of the pleadings has been inexcusably delayed for over a year. The return day in this matter was June 17, 2008. Eighteen months later, as a result of the plaintiff's noncompliance, there is still no properly revised complaint, and no progress towards closing the pleadings. Allowing this noncompliance would negate Practice Book § 10-37.
The plaintiff had ample, and extended, time to properly revise his complaint, but did not do so. The plaintiff has not complied with the court's orders. See, in contrast, Blinkoff v. O G Industries, Inc., supra, 89 Conn.App. 259 (plaintiff later complied with discovery requests after prior lack of diligence and lack of adherence to court orders). In the exercise of its discretion, the court finds that a nonsuit is an appropriate sanction for the plaintiff's failure to file a revised complaint in violation of the court's November 24, 2008 order and Practice Book § 10-37.
C
In its October 23, 2009 memorandum of decision (#313), page 4, paragraph 2, the court stated, "[i]n any future pleadings or motions, the parties are directed to refer to the history of this matter by title of the motion, date, and docket entry number of said motion or filing. If referring to court rulings, parties are directed to refer to the title, date, and docket entry number of the motion to which the ruling applies."
The plaintiff's submissions concerning the instant motion for nonsuit violate this order of the court, by not providing required references, particularly docket entry numbers. The plaintiff is notified that if other submissions are filed which violate the court's October 23, 2009 order, sanctions will be considered.
CONCLUSION
For the foregoing reasons, the Town defendants' motion for nonsuit is granted. A nonsuit may enter against the plaintiff, as of the date of this decision, as to his claims against the Town defendants. It is so ordered.