Opinion
No. CV06 5001886S
December 8, 2009
MEMORANDUM OF DECISION RE OBJECTION TO DEFENDANTS' REQUEST TO REVISE #131
On October 3, 2006, the plaintiff, Wiacek Farms, LLC, commenced this action against the defendants, the city of Shelton (the city), Mark Lauretti, Robert Kulacz, John Anglace and Thomas Dingle. The original complaint was amended three times, first on January 17, 2007, again on March 21, 2007 and a third time on November 20, 2008.
The third amended complaint (the complaint) is the operative complaint at this juncture. It contains three counts, the first two pertaining to all the defendants, the third pertaining only to the city. The first count identifies each of the individual defendants as officers of the city — Lauretti as Mayor, Kulacz as the City Engineer, Anglace as President of the Board of Aldermen and Dingle as Zoning Enforcement Officer — and alleges that each "is sued in this action in his individual and official capacities." It makes various allegations that are designed to set out a claim against the defendants for "tortious interference with the plaintiff's contracts and business expectancies." The crux of these allegations is that although, in March of 2004, the Shelton Planning and Zoning Commission accepted the plaintiff's plan to subdivide its property into twenty-four units, its efforts to proceed in accordance with this plan were subsequently frustrated by the city and the individually named defendants. It is essentially alleged that Lauretti spearheaded an effort to sink the plaintiff's subdivision plan because the resulting development would compete with another being undertaken by a limited liability company owned by Lauretti. The plaintiff claims that the other individually named defendants conspired with Lauretti and, in various ways, helped him halt the plaintiff's project until its property could ultimately be taken by eminent domain. The second count incorporates all the allegations of the first count, then makes additional allegations designed to establish a claim for violation of the Connecticut Antitrust Act, General Statutes § 35-24 et seq.
The third count applies only to the city and claims that the city "was estopped from refusing to accept [the plaintiff's] applications to construct [a] road system [because] the [c]ity had expressly approved" those plans previously. It alleges that, because the city did subsequently refuse to accept the applications, the plaintiff suffered economic harm and seeks damages. This count is not relevant to the request to revise and objections thereto that are now before the court.
On January 22, 2009, the defendants filed a request to revise that targets various aspects of counts one and two. In total, it seeks eight revisions, but each request is essentially premised upon the same rationale. The first two requests ask the plaintiff to revise counts one and two, respectively, to "[s]pecify which of the [i]ndividual [m]unicipal [d]efendants are being sued in their individual and/or official capacities . . ." The individual defendants argue that these revisions are necessary because "[a]s currently pled, [they] cannot set up a motion to strike based upon whether they are being sued individually and/or officially." Similarly, requests three through five ask the plaintiff to revise count one to clarify, as to each alleged act or omission, whether the defendants Anglace, Kulacz and Dingle were functioning in their individual or official capacities when they acted or failed to act. Requests six through eight seek these same revisions in count two. The defendants argue that these revisions are necessary because "different defenses . . . apply to each capacity" and, as currently pled, Anglace, Kulacz and Dingle cannot determine which defenses to rely upon in setting up a motion to strike. As required by Practice Book § 10-14, the request to revise was accompanied by a certificate of proof of service, which certifies that the request to revise was sent to the defendants' counsel of record on January 19, 2009. The plaintiff filed a responsive pleading entitled "Responses and Objections to Defendants' Request to Revise" on February 26, 2009. In it, the plaintiff responds to the defendants' first two requested revisions by stating that "[d]efendants Anglace, Dingle [and] Kulacz are sued in their individual capacities." In response to the remaining requested revisions, the plaintiff objects by asserting that "[t]he Third Amended Complaint sets forth in detail the acts and omissions of each of the defendants so as to put them on notice of [the] [p]laintiff's claims in a manner that allows each defendant to admit, deny or seek to strike."
The rules pertaining to the request to revise are set out in Practice Book §§ 10-35 through 10-38. "The request to revise is a motion for an order directing the opposing party to revise his pleadings in the manner specified." Royce v. Westport, 183 Conn. 177, 180, 439 A.2d 298 (1981). It is to be used, among other reasons, "[w]henever any party desires to obtain . . . a more complete or particular statement of the allegations of an adverse party's pleading, or . . . separation of causes of action which may be united in one complaint when they are improperly combined in one count . . ." Practice Book § 10-35. A request to revise is properly used to set up a motion to strike. See Rowe v. Godou, 209 Conn. 273, 279-80, 550 A.2d 1073 (1988).
Subsequently, on March 13, 2009, the defendants filed a reply to the plaintiff's objection, which essentially reiterates the arguments made in the request to revise itself. Thereafter, on September 9, 2009, the plaintiff filed "Objections to Defendants' Request to Revise Dated February 26, 2009." This document appears to be nothing more than a copy of the earlier responses and objections filed by the plaintiff on February 26, 2009.
The court notes, however, that, pursuant to Practice Book § 10-37, any objection the plaintiff wished to make to the defendants' request to revise had to be filed within thirty days of January 22, 2009, the date the request to revise was filed. The plaintiff's responses and objections were therefore untimely and the revisions requested by the plaintiff were automatically granted by operation of law. Practice Book § 10-37(a). Furthermore, the court agrees with the defendants that the requested revisions are necessary. Our appellate courts have recognized that different defenses are available to public-officer defendants in official-capacity actions than are available in personal-capacity actions. See generally Mercer v. Strange, 96 Conn.App. 123, 128-29, 899 A.2d 683 (2006) (listing various defenses to illustrate "the basic distinction between personal-and official-capacity actions" (internal quotation marks omitted)).
Practice Book § 10-37 provides in relevant part: "(a) Any such request [to revise], after service upon each party as provided by [§§]10-12 through 10-17 and with proof of service endorsed thereon, shall be filed with the clerk of the court in which the action is pending, and 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."
In the present case, it is impossible to determine whether counts one and two of the complaint are intended to assert claims against the individual municipal defendants in their official capacities, their personal capacities or both. On the one hand, the complaint identifies the individual municipal defendants according to the positions they hold as officers of the city. Additionally, the alleged acts and omissions described in the complaint generally seem to be related to the official duties of the individual defendants' positions with the city, though only Lauretti is expressly alleged to have been "acting in his capacity as [m]ayor" at the relevant times. On the other hand, the complaint expressly states that each of these individual defendants "is sued . . . in his official and individual capacities." Muddying the waters further is the plaintiff's assertion in the "Responses and Objections to Defendants' Request to Revise" it filed on February 26, 2009 that "[d]efendants Anglace, Dingle [and] Kulacz are sued in their individual capacities."
One court has observed that there are actually "three categories of lawsuits against government officers: (1) official capacity suits that are, in reality, suits against the government itself; (2) personal capacity suits against government officers for official acts; and (3) personal capacity suits against government officers for personal acts." Antinerella v. Rioux, 44 Conn.Sup. 368, 371, 690 A.2d 450 (1995). The distinctions made between the three types of claims are important not merely because they notify a particular defendant of which defenses are available, but also because they will often determine who is ultimately required to answer for an award of damages — the individual defendant or the governmental entity — should the plaintiff prevail. See id.
What is clear, however, is that, although the plaintiff is entitled to bring claims against the individual municipal defendants in their official and personal capacities in a single action, it may not so in a single count. In Bazzano v. Arroyo, Superior Court, judicial district of Litchfield, Docket No. 0063015 (November 1, 1993, Pickett, J.), the court refused to grant a motion to dismiss filed by the defendant, a state trooper. The complaint at issue there was in one count, and asserted claims against the defendant "individually and in his official capacity." Id. The court reasoned that it could not grant the motion to dismiss, which was premised upon a lack of subject matter jurisdiction, because even if the doctrine of sovereign immunity barred the official-capacity claim made against the defendant, that defense did not apply to the individual-capacity claim, and the court therefore maintained jurisdiction over that portion of the single-count complaint. Id. As the court explained, "[t]he appropriate procedure would have been a request to revise the complaint into two counts, one against the defendant in his individual capacity and a count against the defendant in his official capacity. The defendant then should have filed a motion to strike the count of the plaintiff's complaint that was alleged against the defendant in his official capacity." Id. See also Wells v. Plainfield, Superior Court, judicial district of Windham, Docket No. CV 02 0068211 (March 24, 2003, Foley, J.) (denying motion to strike individual-capacity claims because defendants failed to first separate those claims from official-capacity claims with request to revise).
In the present case, the defendants' request to revise has already been granted by operation of law. The plaintiff must therefore file a revised complaint within 45 days of the date hereof that clearly indicates whether each claim is made against each municipal defendant in his official or individual capacity. If the plaintiff intends to assert claims against any of the individual municipal defendants in both capacities, it must do so in separate counts so that the relevant defendant may then utilize whatever defenses and procedural mechanisms he deems appropriate.
The Court