Opinion
No. CV 99-588424 S
April 9, 2003
MEMORANDUM OF DECISION ON MOTIONS FOR WITHDRAWAL WITH PREJUDICE AND MOTION FOR AWARD OF COSTS AND ATTORNEYS FEES
On November 5, 2002, almost four years after commencing this environmental enforcement action against the defendants in connection with alleged violations of State hazardous waste disposal laws, the plaintiff State Commissioner of Environmental Protection, Arthur J. Rocque, Jr., unilaterally withdrew the action against two individual defendants, Brian E. Cote and Daniel Malchman, by having his counsel from the State Office of the Attorney General file a signed withdrawal of the action on which the words "without prejudice" were prominently written. Defendants Cote and Malchman ("the movants") have responded to this voluntary, though designedly temporary, cessation of hostilities against them by moving this Court to impose sanctions upon the plaintiff for alleged bad faith in commencing, prosecuting, and ultimately withdrawing this action. The sanctions requested include: (1) the entry of an order, as to each movant, that the plaintiff's withdrawal was "with prejudice"; (2) the awarding of reasonable attorneys fees for the defense of the action to defendant Cote; and (3) the awarding of costs under General Statutes § 52-81 to defendant Cote.
The pending motions are based upon the common claim that this action was withdrawn for purely tactical reasons, to wit: to advance the State's interests in parallel criminal prosecutions against them based upon the same alleged hazardous waste violations. The movants claim, in particular, that the withdrawal was filed in order to help State prosecutors from the Office of the Chief State's Attorney to defeat their motions to dismiss their criminal charges on grounds of double jeopardy.
Criminal charges were first brought against defendants Cote and Malchman in September 1998. This action was commenced over one year after those criminal charges were filed, and was actively prosecuted thereafter. When, however, the defendants attempted to obtain civil discovery from the State by deposing a DEP investigator, plaintiff's counsel assertedly stood aside to permit the Office of Chief State's Attorney, Division of Criminal Justice ("DCJ"), to intervene in this case for the purpose of staying further discovery herein.
As their criminal cases proceeded, the movants moved to dismiss all criminal charges against them on the ground that the State was then violating their Fifth and Fourteenth Amendment right not to be placed twice in jeopardy for the same offense by simultaneously subjecting them to two parallel criminal prosecutions — their criminal cases and this environmental enforcement action — based upon the same underlying conduct. Shortly before those motions were to be argued, claim the movants, this action was preemptively withdrawn by the plaintiff as a tactical maneuver to permit the DCJ to defeat their criminal motions to dismiss because the essential factual predicate of those motions — the simultaneous pendency of two parallel prosecutions based upon the same underlying conduct — was no longer true. In fact, the motions to dismiss were denied, and prosecution of the movants' criminal cases continued.
I. Claim for Order Declaring That Withdrawal Was "With Prejudice"
One remedy sought by both movants in this case is an order declaring that the plaintiff's withdrawal against them was "with prejudice." The effect of such an order, as envisioned by the movants, would be to prevent the plaintiff from refiling his withdrawn claims against them at any future time.
In seeking such relief, the movants acknowledge, as they must, that under General Statutes § 52-80, the
plaintiff may withdraw any action . . . returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof.
Even so, they argue that where, as assertedly here, the right to withdraw is abused to gain a tactical advantage over another party, the Court has the power to restrict or forbid its exercise to remedy or prevent injury to the other party's legal rights.
In this case, claim the movants, they have already been harmed by the plaintiff's unilateral withdrawal "without prejudice" of his claims against them, for the withdrawal led directly to the denial of their criminal motions to dismiss on grounds of double jeopardy. In the future, moreover, they claim that the anticipated refiling of the plaintiff's withdrawn claims against them will harm them both in the defense of their criminal cases and in the defense of the refiled claims. The movants have not explained or suggested how the refiling of the plaintiff's claims against them may affect their rights in their criminal cases, except, perhaps, by restoring the procedural basis for seeking dismissal on double jeopardy grounds. In a refiled environmental enforcement action, however, they claim specifically that their rights would be affected by "anticipated additional delays, legal costs and disruption" in further defending against the refiled claims.
The plaintiff opposes the defendants' request that his withdrawal against them be deemed to have been "with prejudice" on several different grounds. First, he notes that there is no legal authority for the defendants' motions in the Connecticut Practice Book, insisting that this is so because, as the Appellate Court ruled in Sicaras v. City of Hartford, 214 Conn. App. 771, 775-76, cert. denied, 241 Conn. 916 (1997), "[t]he right of a plaintiff to withdraw his action before a hearing on the merits as allowed by [several Statutes] § 52-80, is absolute and unconditional." Absent any statutory limitation upon this "absolute and unconditional" right, the plaintiff claims that this Court has no power to restrict or forbid his free exercise of that right.
Notwithstanding the foregoing argument, the plaintiff acknowledges that in rare cases, a plaintiff's right to withdraw before a hearing on the merits can be restricted to prevent another party, typically the defendant, from losing rights acquired in the first action that would be injuriously affected by the withdrawal. Our Supreme Court has expressly excepted such cases from the strict application of Section 52-80 and its predecessors since as early as 1912. Bristol v. Bristol Water Co., 85 Conn. 661, 673, 84 A. 314 (1912) ("Every action may be withdrawn prior to verdict or final judgment; whenever it can be done without injuriously affecting rights of the defendant acquired by reason of the action"). Ever since Bristol was decided, our trial courts have relied upon it and its progeny as a basis for preventing withdrawals whose effect is to undermine or compromise defendants' rights. See, e.g., Kantrowitz v. Clipfel, 21 Conn. Sup. 371, 155 A.2d 59 (1959) (forbidding withdrawal where it would violate the defendants' right to a speedy trial); Nationwide Mutual Ins. Co. v. Blesso, Superior Court, judicial district of New Britain, Docket No. 485520 (May 11, 1999) (Shortall, J.) ( 24 Conn.L.Rptr. 541) (granting motion to restore withdrawn case to the docket where the plaintiffs withdrew the case to avoid the effect of the Court's adverse pretrial rulings); Byrd v. Leszcynski, 28 Conn.L.Rptr. 88, 2000 WL 1433865 (Ct. Sup. 2000) (Berger, J.) (same as Kantrowitz and Nationwide).
Here, however, the plaintiff contends that there is no basis for claiming that his withdrawal against the movants violated any rights they had acquired in this action. In fact, he argues that the movants had acquired no such rights, for they lost every pretrial motion ever argued in this case. This case was therefore not withdrawn as to the movants to avoid the effect of an unfavorable judicial ruling, or to cause the movants any other loss or deprivation in connection therewith. Nor was it brought to delay the trial of this action, for all discovery had been stayed ever since the DCJ intervened in the case, and thus trial was not imminent at the time of the withdrawal. In short, the defendants lost nothing by the withdrawal except the claimed burden, if a burden it was, of being "prosecuted" simultaneously in two separate forums.
Finally, the plaintiff asserts that his withdrawal of this action did not in fact constitute an abuse of civil process. The parallel "prosecution" of criminal charges and a civil enforcement action is legally permissible, he argues, yet so is the decision to forego the latter temporarily to avoid the inevitable complications that arise when both proceedings are pending simultaneously. Here, he concedes, he did withdraw this action to enable the criminal case to proceed more expeditiously, and he is prepared to wait until that case is resolved to decide if and when a new action based on his withdrawn claims should be filed.
The Court agrees with the plaintiff that there is no valid legal basis for restricting his right to withdraw his claims against the movants in this case. No rule of court or statute authorizes the Court impose such a restriction on any basis, and the only common-law basis for imposing one — the rule of Bristol v. Bristol Water Co., supra — cannot be relied on herein. The Court has no evidence that the plaintiff's withdrawal resulted in the loss or compromise of any rights acquired by the movants in this case. The denial of the movants' motions to dismiss their criminal charges on grounds of double jeopardy surely did not constitute the loss of any right acquired in this action. To the contrary, since a criminal defendant has the constitutional right not to be placed twice in jeopardy for the same offense, the plaintiff's withdrawal of this environmental enforcement action, if it can fairly be characterized as a criminal prosecution, only served to end the very constitutional violation which the movants complained of in their motions to dismiss. Surely, they had no right to the continuation of the alleged double jeopardy violation so that they might pursue a dismissal of their criminal charges based upon it.
This case, moreover, does not involve any other proven violation of rights acquired by the movants before the case was withdrawn. The withdrawal did not cause the movants to lose their right to a speedy trial on the withdrawn claims, for as argued by the plaintiff, all discovery had been stayed and the case was not close to trial when it was withdrawn. Nor did the withdrawal cause them to lose any special procedural advantages earned by prevailing on pretrial motions or winning other pretrial rulings, for there is no evidence that they ever acquired any such procedural advantages. In short, there is no basis for restricting the plaintiff's right to withdraw this case under the rule of Bristol v. Bristol Water Co., supra.
Against this background, it is simply of no moment that the plaintiff withdrew this case for the purpose of promoting the State's interest in effectively prosecuting the movant's criminal cases. Moreover, it does not leave the defendants without a remedy if the plaintiff's withdrawn claims are refiled and so pursued as to violate their rights either in the refiled action or in their criminal cases. If and to the extent that the prosecution of the refiled action prejudices the movants in that action itself, they can seek appropriate remedies from the trial court at that time. If delay resulting from the withdrawal hinders their ability to develop evidence or present a defense, such as by making witnesses or evidence unavailable to them or more difficult or costly to find, the movants can request appropriate sanctions from the trial court. In addition, even if the plaintiff ultimately prevails against the movants in his refiled environmental enforcement action, the movants can point to the delay caused by the State's simultaneous pursuit of criminal charges and the plaintiff's resulting tactical maneuvering as a basis for lowering any penalties that might otherwise be imposed upon them for delay in remedying any underlying environmental violations.
As for their criminal cases, if the later refiling and/or continued prosecution of the plaintiff's withdrawn claims against them interferes with their ability to prepare or present a defense, they can move the criminal court for appropriate sanctions, including suppression of evidence or outright dismissal of charges, on grounds similar to those asserted in support of a motion to dismiss for prejudicial pre-arrest delay. At this time, one can only speculate about these possibilities, albeit with substantial certainty that the criminal court will be fully prepared to act to preserve the movants' due process rights.
For all of these reasons, the movants' request for an order that the plaintiff's withdrawal of the action against them be "with prejudice" must be denied.
II. Claim For Attorneys Fees CT Page 5014
A second remedy sought by defendant Cote, but not defendant Malchman, is an award of money to pay for his attorneys fees in this case. As grounds for this request, defendant Cote argues that the sudden, tactically motivated withdrawal of this action after almost four years of vigorous litigation suggests that there was never any legitimate basis for prosecuting the action against him, and in fact that the principal purpose for prosecuting it was unrelated to seeking the relief requested herein. According to defendant Cote, the awarding of attorneys fees is an appropriate sanction to impose upon the plaintiff for his wasteful, costly abuse of the legal process.The plaintiff opposes this aspect of defendant Cote's request for relief on two grounds. First and foremost, he argues that his prosecution of this action prior to withdrawal was always well justified by the facts known to him and always pursued to obtain the relief requested in his pleadings, to wit: injunctive relief and civil penalties. Hence, though he concededly withdrew this action unilaterally, he claims that he did so to promote the timely, effective resolution of his withdrawn civil claims, which could not be adjudicated until the movants' criminal cases were concluded. By expressly withdrawing his claims "without prejudice," argues the plaintiff, he clearly indicated his desire to reinstate those claims at a later time if he determined that it would serve the public interest.
The plaintiff's second argument in opposition to defendant Cote's request for attorneys fees is that there is no legal authority for awarding such fees following the withdrawal of a civil lawsuit, either by rule or statute or at common law. The general rule in Connecticut, as in most American jurisdictions, is that in the absence of a controlling contract or statute that provides otherwise, civil parties must bear their own attorneys fees even when they have been successful in the prosecution or defense of a civil action. Here, because there is no contract between the parties and no statute authorizing the awarding of attorneys fees to successful litigants in environmental enforcement proceedings, this Court assertedly has no power to award such fees for any reason.
The Court agrees with the plaintiff that there is absolutely no legal authority in this State for the awarding of attorneys fees to successful litigants in environmental enforcement actions. Absent any statutory exception to the prevailing "American rule" for actions of that type, this Court has no power to award the requested remedy.
As for defendant Cote's lament that this Court's failure to grant him such a remedy would leave him "without recourse," the Court respectfully disagrees for the following reasons. If, as he claims, this action was without merit from the outset, or if, in the alternative, it was pursued primarily for improper purposes, defendant Cote does have proper remedies, including the awarding of attorneys fees, in a separate civil action for vexatious suit or abuse of process. If he seeks and receives permission from the Claims Commissioner to commence such a damages action against the plaintiff, and pursues such an action to a successful conclusion in an adversary trial, he will be fully compensated for all financial losses occasioned by the unjustified pursuit of this action before it was withdrawn.
For all of these reasons, defendant Cote's request for attorneys fees must also be denied.
III. Claim for Costs Under General Statutes § 52-81
A third remedy originally requested by defendant Cote, but not by defendant Malchman, was an award of court costs pursuant to General Statutes § 52-81, which provides:
upon the withdrawal of any civil action after it has been returned to the court and entered upon the docket, and after an appearance has been entered for the defendant, a judgment for costs, if claimed by him, shall be rendered in his favor, but not otherwise.
Under this statute, defendant Cote claimed costs in the amount of $611.65.
At oral argument, however, defendant Cote acknowledged that under Triangle Contractors, Inc. v. Young, 20 Conn. App. 218, 221, 565 A.2d 262, cert. denied, 213 Conn. 810, 568 A.2d 795 (1989), the proper procedure for seeking costs under Section 52-81 requires that the taxation of costs in civil cases begin with an action by the court clerk. Only after the clerk has given notice to the adverse party to be present and has proceeded to tax costs does the rule provide for appeal of that taxation to the trial court.
Id. at 221-22. In light of that acknowledgment, he withdrew this claim for relief for the purpose of pursuing it by proper procedure.
CONCLUSION
For the foregoing reasons, the movants' pending Motions are hereby DENIED. IT IS SO ORDERED this 9th day of April 2003.
Michael R. Sheldon, J.