Opinion
No. CV-04-4001498-S
October 20, 2006
MEMORANDUM OF DECISION ON MOTION TO RESTORE TO DOCKET
The defendant has moved to restore this case to the docket after the plaintiff withdrew it on the eve of trial, only to file the same action after the trial date had passed.
On April 20, 2006 the court denied the plaintiff's motion to amend his complaint. On April 21, 2006 the plaintiff withdrew the complaint, thereby avoiding the trial scheduled for April 24, 2006. Prior to July 31, 2006, the date of the Motion to Restore, the plaintiff filed a new complaint identical to the one precluded by the court in its April 20, 2006 ruling.
This case was clearly withdrawn to circumvent the court's ruling on the motion to amend the complaint. The effect of that ruling was that the case remained as originally plead: a suit to recover $78,000 under a consulting agreement between the parties. The proposed amended complaint sought to recover in excess of $1.5 million under a different portion of the same consulting agreement.
The defendant claims that he has been prejudiced because he has been denied his right to a speedy trial of the issues already framed. Such a right, if it does exist, is infrequently asserted by defendants in civil cases. However, the defendant certainly has incurred additional attorneys fees in preparation for a trial which the plaintiff avoided by his withdrawal of action. He will undoubtedly be forced to incur duplicative attorneys fees in defending the new action.
The situation before the court underscores the need for a change in our procedures for allowing unilateral withdrawal of actions. Connecticut General Statutes § 52-80 provides in pertinent part: CT Page 19466
The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.
No hearing on an issue of fact had occurred in this action before the plaintiff withdrew it. Therefore, the withdrawal did not require the leave of court. Our Appellate Court has held that "the right of a plaintiff to withdraw his action before a hearing on the merits as allowed by Section 52-80 is absolute and unconditional." Smith v. Reynolds, 54 Conn.App. 381, 735 A.2d 827 (1999); Sicaras v. Hartford, 44 Conn.App. 771, 775-76, 692 A.2d 1290 (1997); Baker v. Cordisco, 37 Conn.App. 515, 521, 657 A.2d 230 (1995); Housing Authority v. Hird, 13 Conn.App. 150, 156, 535 A.2d 377 (1988).
Relying on § 52-80 and the existing Appellate authority, the majority of trial courts have refused to restore cases to the docket at the behest of the defendant after those cases have been withdrawn and then refiled by the plaintiff. Mag, Executor v. JDL Management Services, LLC, 2002 Conn.Super. LEXIS 3373 (Hodgson, J.); Brown v. Lemorillon, 2000 Conn.Super. LEXIS 3633 (Harrigan, JTR); Liberty Mutual v. Racine, 1999 Conn.Super. LEXIS 3195 (Pellegrino, J.); Paparello v. Paparello, 1998 Conn.Super. LEXIS 63 (Gaffney, J.); Sussman v. DAN Joint Venture II, 1997 Conn.Super. LEXIS 325 (Aurigemina, J.)
In Mag, Judge Hodgson examined the distinction between the procedure for withdrawal of actions under § 52-80 and the Federal Rules of Civil Procedure:
Rule 41 of the Federal Rules of Civil Procedure provides that a party may withdraw a case without prejudice as of right up to the time that it has been served with an answer or a motion for summary judgment by the adverse party. After that point, a party may withdraw a claim only upon order of the court and "upon such terms as the court deems proper," and the court has the option to authorize withdrawal with or without prejudice to refiling. Fed.R.Civ.P. 41(a)(2) ("Unless specified in the order, a dismissal under this paragraph is without prejudice"). This provision enables federal trial courts to prevent parties from avoiding trial dates by withdrawing cases and bringing the same claims again. The federal rules do not, of course, apply in this court.
The withdrawal of an action to avoid the effect of a court's ruling or avoid a trial date undermines the power of the court to fairly administer justice. However, the plaintiff's withdrawal of this suit was authorized by the provisions of § 52-80 and, therefore, the court has no authority to restore the case to the docket.
For the foregoing reasons, the Motion is denied.