Opinion
X03HHDCV165042400S
06-06-2017
Sylvester Traylor v. State of Connecticut et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE KNOWLES DEFENDANTS' MOTION TO DISMISS (#132.00)
Ingrid L. Moll, Judge.
Before the court is the motion to dismiss dated June 9, 2016, filed by defendants Robert Knowles, Neil Knowles, and Advanced Telemessaging (" the Knowles defendants"), based on the prior pending action doctrine (" motion to dismiss") (#132.00). Specifically, the Knowles defendants claim that the instant action should be dismissed in light of a previously filed action, captioned Sylvester Traylor v. Bassam Awwa et al., Docket No. FST-CV11-5015359-S, Judicial District of Stamford-Norwalk (" 2011 Action"). The plaintiff, Sylvester Traylor (" the plaintiff" or " Mr. Traylor"), did not file a memorandum of opposition and did not appear at the February 6, 2017 hearing on the motion. For the reasons stated below, the court grants the Knowles defendants' motion to dismiss.
Mr. Traylor is a self-represented party.
I
BACKGROUND
The instant action is one of more than a dozen lawsuits brought by the plaintiff stemming from the tragic death of his late wife, Roberta, in 2004. The plaintiff alleges, among other things, that Roberta's psychiatrist, defendant Bassam Awwa, M.D. (" Awwa"), and his practice, Connecticut Behavioral Health Associates P.C. (" CBHA"), acted negligently in their psychiatric treatment of Roberta and spoliated evidence after her death. The plaintiff alleges that the Knowles defendants, who at the relevant times operated a telephone answering service for CBHA, also spoliated evidence after Roberta's death by destroying records, including information concerning telephone calls placed by the plaintiff to Awwa shortly before her death.
See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. KNL-CV06-5001159-S; Traylor v. State, Superior Court, judicial district of New London, Docket No. KNL-CV09-4009523-S; Traylor v. Steward, Docket No. 3:10-CV-00639(CFD) (D.Conn.); Traylor v. Awwa, Docket No. 3:11-CV-00132(AWT) (D.Conn.), upon remand, FST-CV11-5015139-S; Traylor v. Gerratana, Superior Court, judicial district of Hartford, Docket No. HHD-CV11-5035895-S; Traylor v. Hammond, Docket No. 3:12-CV-01625(AWT) (D.Conn.); Traylor v. State, Superior Court, judicial district of New London, Docket No. KNL-CV13-5014624-S; Traylor v. Cosgrove, Superior Court, judicial district of New London, Docket No. KNL-CV13-5014602-S (withdrawn); Traylor v. State, Docket No. 3:13-CV-00663(AWT) (D.Conn.); Traylor v. Eric Parker, Superior Court, judicial district of Waterbury, Docket No. UWY-CV13-5017115-S; Traylor v. Eric Parker, Docket No. 3:13-CV-01828(AWT) (D.Conn.); Traylor v. Waterford, Docket No. 3:13-CV-00507(AWT) (D.Conn.); Traylor v. Kopp, Superior Court, judicial district of New London, Docket No. KNL-CV-154012676-S.
In order to put the instant action in its proper context, the court recites summaries of the plaintiff's 2006 and 2011 cases.
2006 Action
The plaintiff brought his initial suit in 2006. See Traylor v. Awwa, Superior Court, judicial district of New London, Docket No. CV 06-5001159-S (" 2006 Action"). The court in the 2011 Action, described below, summarized the history of the 2006 Action as follows:
In the 2006 case the plaintiff alleged that Awwa was negligent in several ways including that he prescribed certain medications which were inappropriate for Roberta and that he failed to adequately inform her of the risks associated with the medications he prescribed, and that he failed to supervise, monitor or otherwise follow through with the plaintiff concerning his wife's suicidal behavior. The plaintiff specifically alleged that he called Awwa and CBHA, in the days leading up to Roberta's death, concerning her indications that she was suicidal and a danger to herself but that the plaintiff received no return calls. The plaintiff specifically alleged that Awwa and CBHA were negligent in that they refused to return his phone calls concerning the increased suicidal behavior of Roberta. The plaintiff's complaint was brought both in his individual capacity and his capacity as duly appointed administrator of the estate of his late wife.
On July 12, 2010 the plaintiff filed an Amended Complaint in the 2006 case which sounded in eight counts. The first six counts of that Amended Complaint were based upon various medical malpractice claims against each of the 2006 defendants. The Seventh Count alleged that the 2006 defendants (which did not include the Knowles defendants) had spoliated evidence and the Eighth Count alleged that the 2006 defendants had violated the Connecticut Unfair Trade Practices Act (CUTPA). On July 29, 2010 then Judge Trial Referee, Thomas F. Parker entered an order dismissing Counts One through Six of the July 12, 2010 Amended Complaint. On August 11, 2010 Judge Parker filed a Memorandum of Decision articulating the basis for his order dismissing Counts One through Six. While the court will not recite the details of the Judge Parker's August 11, 2010 Memorandum of Decision it is fair to say that a significant component of the twenty-eight-page decision was the Court's view that the original complaint did not contain a certificate that complied with Conn. Gen. Stat. § 52-190a which required a certificate of faith with a medical opinion. The Court's decision acknowledged that a medical opinion dated October 18, 2006 was obtained on that date. The Court's decision was based on its determination that the subsequently obtained medical opinion could not rescue the plaintiff's action that was brought approximately four months prior to the time that the plaintiff obtained the medical opinion. It is fair to say that the plaintiff disagrees with the substance of the Court's August 11, 2010 Memorandum of Decision. Subsequently, the 2006 Court granted the defendant's Motion to Strike the seventh and eighth counts of the Amended Complaint. On October 5, 2010 the court (Parker, J.T.R.) denied the defendants' Motions for Non-Suit and on February 15, 2011 the court (Parker, J.T.R.) dismissed counts seven and eight.
The plaintiff filed an appeal to the Appellate Court but that appeal was dismissed by the Appellate Court on December 19, 2011. The plaintiff filed a petition for certification to the Connecticut Supreme Court on December 29, 2011 but that petition was denied by the Connecticut Supreme Court on January 27, 2012, effectively ending the 2006 case.(Footnote omitted.) Traylor v. Awwa, No. FST-CV11-5015359-S, 2016 WL 7165563, at *1-2 (Conn.Super. Oct. 26, 2016) (Genuario, J.).
2011 Action
The procedural background of the plaintiff's 2011 Action is summarized as follows:
In January 2011, subsequent to the dismissal of counts 1 through 6 of the Amended Complaint filed in the 2006 case, the plaintiff brought this action returnable to the New London Superior Court against multiple defendants. That complaint alleged, in part, that the various state actors and certain private parties had discriminated against the plaintiff in violation of federal law because of his inter-racial marriage to Roberta. (The complaint alleges that the plaintiff is black and Roberta was white.) The case was removed to the United States District Court for the District of Connecticut on January 25, 2011 (See Traylor v. Awwa et al., United States District Court for the District of Connecticut (New Haven) Docket #3:11cv-00132-AWT). After various proceedings in federal court the case was dismissed or judgment entered in favor of ten of the thirteen defendants. The United States District Court then remanded the remaining state court claims against the Knowles defendants for adjudication in state court on March 23, 2015 (federal court docket #431) which order was confirmed after re-argument on June 10, 2015 (federal court docket #442). After several proceedings in different venues of the Superior Court the case was transferred to the Judicial District of Stamford/Norwalk on February 10, 2016. The Knowles defendants filed an Answer and Special Defense on February 16, 2016 responding to the Amended Complaint filed in federal court dated April 5, 2011. The plaintiff filed a request to amend his complaint on March 3, 2016 which the Knowles defendants objected to on March 14, 2016. The plaintiff filed a Motion to Strike the Answer and Special Defense and on April 26, 2016[, t]his court rendered a decision denying the plaintiff's Motion to Strike the Answer and Special Defense and ruled that the operative complaint was the Amended Complaint filed in federal court on April 5, 2011. This particular history is important to the matter currently before the court because in April 2016 when this court rendered its decision it was apparent that the parties had a disagreement as to what was the operative complaint in the case at bar. The court expressly found in its decision on April 26, 2016 that the operative complaint was the Amended Complaint dated April 5, 2011 for the reasons stated in that decision. (See Docket No. 180.1.) The April 5, 2011 Complaint contained only one remaining count not adjudicated by the United States District Court. That count was Count 11 alleging that the Knowles defendants had spoliated certain evidence pertinent to the plaintiff's case against Awwa and CBHA. The plaintiff continues to assert in [his] opposition to the Motion for Summary Judgment that the operative complaint is the June 7, 2013 Complaint filed in federal court as federal court docket #274. The court will not repeat all of the reasons contained in its decision dated April 26, 2016 as to why the court determined that the April 5, 2011 complaint was and is the operative complaint but refers the reader to that decision for the detail of the federal court proceedings contained therein. This court, in deciding the Motion for Summary Judgment, will not revisit or reconsider its decision of April 26, 2016 and will address the defendants' Motion for Summary Judgment as it is directed to the remaining count eleven of the April 5, 2011 Amended Complaint.(Footnote in original; second footnote omitted.) Traylor v. Awwa, No. FST-CV11-5015359-S, 2016 WL 7165563, at *2 (Conn.Super. Oct. 26, 2016).
The defendants included Bassam Awwa, M.D.; Attorney Donald Leone; Richard Blumenthal, Connecticut Attorney General; the City of New London; Joseph D'Alesio of the Connecticut Judicial Branch; the New London Criminal Division for the State of Connecticut Attorney's Office; Dr. Robert Galvin, Commissioner of the Connecticut Department of Public Health and the Knowles defendants.
On October 26, 2016, the court granted summary judgment in favor of the Knowles defendants in the 2011 Action. See Traylor v. Awwa, No. FST-CV11-5015359-S, 2016 WL 7165563, at *7 (Conn.Super. Oct. 26, 2016) (Genuario, J.). A review of the docket sheet in that matter reveals that Mr. Traylor is currently seeking appellate review of that decision.
Instant Action
The plaintiff commenced the instant action by way of summons and complaint on or about April 6, 2016, returnable to the judicial district of Stamford-Norwalk. On June 6, 2016, the action was transferred to the judicial district of Danbury. (#103.03.) In his 106-page amended complaint dated April 19, 2016 (#112.00) (" amended complaint"), which is the operative complaint, the plaintiff asserts claims against: (1) the State of Connecticut, the Connecticut Appellate Court, Connecticut Superior Court Judges Emmet L. Cosgrove, Terence A. Zemetis, Kari A. Dooley, and James W. Abrams, and former Connecticut Superior Court Judge Thomas F. Parker (" Parker"), (collectively, " the State defendants"); (2) the Awwa defendants; and (3) Robert Knowles, Neil Knowles, and Advanced Telemessaging (collectively, the " Knowles defendants"). Specifically, the plaintiff asserts the following counts: (1) Count One--due process and equal protection violation, as to the State defendants; (2) Count Two--fraudulent concealment, as to the Awwa defendants and the Knowles defendants; (3) Count Three--spoliation, as to the Awwa defendants and the Knowles defendants; (4) Count Four--violation of the Connecticut Unfair Trade Practices Act (" CUTPA"), as to CBHA and Advanced Telemessaging; (5) Count Five--intentional infliction of emotional distress, as to the Awwa defendants, the Knowles defendants, and Parker; and (6) Count Six--loss of consortium, as to the Awwa defendants and the Knowles defendants.
In response to the plaintiff's amended complaint, all defendants filed either a motion to dismiss or a motion for summary judgment in June 2016. Such motions included the instant motion to dismiss filed by the Knowles defendants on June 9, 2016, along with a supporting memorandum and accompanying exhibits. (##132.00-134.00.) On July 22, 2016, Mr. Traylor moved for a 90-day extension of time to file responses to defendants' motions. (#172.00.) Such motion, had it been granted at the time of its filing, would have required Mr. Traylor to file his responses in October 2016. The undersigned's assignment to the complex litigation docket commenced in September 2016. Thereafter, the undersigned became aware of Mr. Traylor's pending motion for extension of time and granted it, giving him an additional month on top of the lengthy 90-day extension of time he had requested. (#172.86.) Thus, Mr. Traylor's deadline to respond to the defendants' respective motions to dismiss and/or for summary judgment became November 23, 2016, and a hearing date was set for December 20, 2016. (Id. )
On November 23, 2016, Mr. Traylor did not file the required briefs. Instead, he filed (1) a motion to open and vacate the foregoing court order (#172.86) and (2) a motion entitled " motion for an extension of time to plead." (##183.00 and 184.00.) Because those motions requested that the court vacate its November 2, 2016 order (#172.86), which granted Mr. Traylor essentially a four-month period to prepare opposition briefs, the court denied Mr. Traylor's motions.
On December 5, 2016, Mr. Traylor filed another motion for extension of time, requesting an additional 60-day extension of time to file such responses. (#191.00.) The court granted Mr. Traylor's motion and calculated the 60 additional days from the date on which his responses were then most recently due (i.e., November 23, 2016), making the new deadline January 23, 2017. (#191.86.) That same order set February 6, 2017, as the hearing date on such motions. (Id.) Mr. Traylor did not file any opposition briefs (or any other motion for extension of time) on or before January 23, 2017.
On February 1, 2017, Mr. Traylor filed a motion for continuance of a " February 23" status conference. There was no status conference, however, scheduled for February 23, 2017. Accordingly, the court presumed that Mr. Traylor was requesting a continuance of the only hearing then-scheduled, that being the February 6, 2017 hearing. The reason provided by Mr. Traylor for the requested continuance was his claim that he had not had enough time to prepare opposition briefs to the defendants' respective motions to dismiss and motion for summary judgment, which were filed in June 2016. (#210.00.) Additionally, in such motion, Mr. Traylor represented that he had " contacted all counsel . . . of record about [his] intention to seek a continuance" and that they had " not responded." At the February 6, 2017 hearing, however, counsel represented that Mr. Traylor had not contacted them. On February 2, 2017, Mr. Traylor filed a request for adjudication regarding his February 1 motion for continuance, specifically representing that " he is having problems with his vision due to medication." (#218.00.)
On February 2, 2017, the court ruled on Mr. Traylor's February 1, 2017 motion for continuance as follows:
Plaintiff's motion seeks a continuance of a February 23, 2017 scheduled event. There is no scheduled event, however, for February 23, 2017. The court presumes that the plaintiff instead seeks another continuance of the hearing currently scheduled for February 6, 2017. Based on the lengthy period of time that has passed since the filing of the motions at issue and the lengthy continuances previously granted to the plaintiff, the court denies the request to continue the February 6 hearing. However, the court will give the plaintiff an opportunity to argue at that hearing why he should be afforded additional time to submit briefs in opposition to the defendants' pending motions. The plaintiff must bring documentation for the court's in camera (court-only) review to support his claim that he has been physically unable to comply with the court's deadlines. The court will decide at that time whether a separate hearing should be scheduled.(Emphasis added.) (#210.86.) On February 3, 2017, Mr. Traylor obtained his medical records from a VA office and had them sent from the New London courthouse, by way of an email from a clerk in New London to the undersigned's court officer. Such records were marked at the February 6, 2017 hearing as Court Exhibit 1 and were ordered to remain a court-only exhibit.
As confirmed on the record on February 6, 2017, by the court officer assigned to this docket, during the afternoon of Friday, February 3, 2017, Mr. Traylor called him and said that he had driven to a VA office that day to obtain his medical records and that he had driven to the New London courthouse that day to have those records emailed to the undersigned's chambers. That same afternoon, Mr. Traylor filed a so-called " Notice of Compliance." (#219.00.) Despite the fact that his motion to continue the February 6, 2017 hearing had already been denied, Mr. Traylor informed the court in his notice that he would not be attending the hearing, claiming for the first time that he was unable to drive as a result of prescribed medication. The court found, however, that by driving to a VA office and driving to the New London courthouse on Friday, February 3, 2017, the same day he made such a claim, Mr. Traylor's own conduct belied his claim that he would be unable to attend court the following Monday, February 6, 2017. Moreover, Mr. Traylor's February 1, 2017 request to continue the February 6, 2017 hearing made no claim that he could not drive. That claim was raised for the first time after the court denied his February 1, 2017 request.
With regard to the issue of the medical records that Mr. Traylor arranged to have, and did have, emailed to the undersigned's court officer on Friday, February 3, 2017, the court carefully reviewed such medical records for the purpose of considering Mr. Traylor's claim that vision problems prevented him from preparing briefs in opposition to the defendants' dispositive motions. As stated on the record on February 6, 2017, the court found that those records do not reflect any complaints relating to, or any treatment of, a vision problem that would prevent Mr. Traylor from complying with his court-related obligations. Furthermore, in light of his driving a motor vehicle on Friday, February 3, 2017, the court did not credit Mr. Traylor's claim that he was experiencing vision problems so severe that he could not work on briefs in opposition to the defendants' June 2016 motions. The foregoing history led the court to the conclusion that Mr. Traylor was flagrantly disregarding the court's deadlines and the court's February 3, 2017 order denying his request to continue the February 6, 2017 hearing. Accordingly, the court proceeded with the February 6, 2017 hearing, which Mr. Traylor failed to attend.
II
DISCUSSION
Relying on the prior pending action doctrine, the Knowles defendants move to dismiss the instant action, insofar as it is directed to them, on the ground that it is virtually the same as the 2011 Action. " [T]he prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike in the same jurisdiction . . . The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on crowded court dockets." (Citation omitted; emphasis added; internal quotation marks omitted.) Selimoglu v. Phimvongsa, 119 Conn.App. 645, 649, 989 A.2d 121, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).
" [A] motion to dismiss is the proper vehicle to raise the issue of a prior pending action . . ." (Citations omitted; internal quotation marks omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381, 403, 973 A.2d 1229 (2009).
The court's analysis of this issue is governed by Bayer v. Showmotion, Inc., 292 Conn. 381, 973 A.2d 1229 (2009), in which our Supreme Court stated: " [T]he trial court must determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similar to warrant the doctrine's application. In order to determine whether the actions are virtually alike, [the court] must examine the pleadings . . . to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties . . ." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Id. at 397.
" Following that initial determination, the court must proceed to a second step. If the court has concluded that the cases are exactly alike or insufficiently similar, the court has no discretion; in the former situation, it must dismiss the second action, and in the latter, it must allow both cases to proceed . . . Where actions are virtually alike, but not exactly alike . . . the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action." (Citation omitted; internal quotation marks omitted.) Kleinman v. Chapnick, 140 Conn.App. 500, 506, 59 A.3d 373 (2013).
Applying the principles recited above, the court first considers whether the actions, insofar as they are brought against the Knowles defendants, are exactly alike, virtually alike, or insufficiently similar to warrant the doctrine's application. In doing so, the court has compared (1) the plaintiff's claims against the Knowles defendants in the instant action, specifically, counts two through six of the amended complaint dated April 19, 2016 (#112.00), with (2) the plaintiff's claims against the Knowles defendants in the 2011 Action, specifically, count eleven of the April 5, 2011 amended complaint, which the court in that case held was the operative complaint. Mr. Traylor is the plaintiff in each action, and each of the Knowles defendants is a defendant in each action. The plaintiff's claims against the Knowles defendants in both actions arise out of the alleged spoliation and/or destruction of the plaintiff's late wife's medical records and/or telephone communication records and correspondence relating to her care and treatment. Compare Count Eleven of Amended Complaint dated April 5, 2011 in 2011 Action, with ¶ 72 and Counts Two through Six of Amended Complaint dated April 19, 2016 (#112.00). Indeed, the plaintiff's amended complaint in the instant action is replete with references to the 2011 Action, which make clear that the claims asserted here are strikingly similar to those asserted therein. Although the causes of action and claims for damages are not identical, " the applicability of the doctrine does not turn on the issue of whether the two actions seek the same remedy . . . The key question is whether the two actions are brought to adjudicate the same underlying rights." (Citation omitted.) Kleinman, 140 Conn.App. at 506. Accordingly, the court concludes that the plaintiff's claims against the Knowles defendants in the actions are virtually alike for purposes of the prior pending action doctrine. See Lodmell v. LaFrance, 154 Conn.App. 329, 335, 107 A.3d 975 (2014).
The April 5, 2011 amended complaint in the 2011 Action appears in this record at #134.00.
Having concluded that the actions, insofar as they were brought against the Knowles defendants, are virtually alike, the court considers whether circumstances justify the dismissal of the plaintiff's claims against the Knowles defendants in the instant action. " The policy reasons behind the doctrine are well suited to this case. The prior pending action doctrine prevents defendants from being 'harassed by the pendency against him or her at the same time of two actions based on the same cause of action, at the instance of the same plaintiff, who has a complete remedy by one of them . . . [The doctrine] is based on the principles of comity, convenience, and the necessity for orderly procedure in the trial of contested issues.' 1 C.J.S. 51, Abatement & Revival § 19 (2005)." Lodmell, 154 Conn.App. at 335-36 (affirming judgment of trial court dismissing action based on prior pending action doctrine where the plaintiff's claims were virtually alike). Further, the claims in the two actions so obviously overlap that the plaintiff moved to consolidate the matters. (See #102.00, 171.00.) The court concludes that the dismissal of this second action against the Knowles defendants is warranted.
III
CONCLUSION
For the foregoing reasons, the Knowles defendants' motion to dismiss (#132.00) is granted.