Opinion
No. HHD CV 09-5033580S
August 6, 2010
MEMORANDUM OF DECISION ON MOTION TO CITE IN AND/OR IMPLEAD NEW PARTIES AND TO FILE THIRD-PARTY COMPLAINT
This action arises out of a disagreement between the majority and minority members of the plaintiff, Yoshu, LLC ("Yoshu"), regarding the restaurant known as Plan B American Tavern (Plan B). On September 30, 2009, the plaintiff commenced this action by way of service of process on the defendant, Kenneth Ward. In its six-count complaint (the "underlying complaint"), the plaintiff alleges the following facts. In 2006, Al Gamble, Shawn Skehan, and the defendant formed Yoshu in furtherance of opening and operating the West Hartford restaurant known as Plan B. By agreement, the membership of Yoshu was as follows: Gamble with a 60 percent interest; Skehan with a 27 percent interest; and the defendant with a 13 percent interest. In addition to his membership interest, the defendant served as manager of Plan B, for which he received a salary. In August of 2006, Gamble, Skehan, and the defendant agreed that any member of Yoshu would automatically surrender his membership interest, without reimbursement, upon the earliest of any of the following events: tennination of his employment with Yoshu; acceptance of employment with a competitor of Yoshu; dishonesty; or knowingly causing Yoshu to suffer harm.
The defendant managed Plan B from July of 2006 to October of 2007. Thereafter, in November of 2007, the defendant submitted his resignation as manager of Plan B and terminated his relationship with Yoshu. Following his resignation, the defendant requested that Yoshu, Gamble, or Skehan purchase his interest in Yoshu for they considered to be an unreasonable and unjustified price. As a result of the defendant's request, Yoshu conducted a review of its financial books and records. From that review, Yoshu discovered that during the defendant's employment with it, he had engaged in the following conduct without its knowledge, consent, permission, or authorization: (1) converting cash transactions: (2) failing or refusing to pay his share of health insurance premiums; (3) "siphoning off [Yoshu's] money;" (4) converting equipment; (5) charging personal expenses with the business expense credit card; (6) engaging in misappropriation of liquor and supplies; (7) failing to repay certain loans to the plaintiff; and (8) issuing unauthorized checks from the plaintiff to third parties. Additionally, Yoshu discovered that within a year after his resignation from it, the defendant accepted employment with one of its competitors and solicited the plaintiff's key employees to join him.
In Count One, labeled "Breach of Contract," the plaintiff alleges that the defendant breached the August 2006 agreement and surrendered his interest in Yoshu. Counts two through four are labeled "breach of fiduciary duty," "conversion," and "statutory theft," respectively. In count five, entitled "fraud," the plaintiff alleges that the defendant perpetrated a fraudulent scheme in order to induce Gamble and Skehan to provide him with a membership interest in Yoshu and a salaried management position with Plan B. Count six attempts to state a cause of action for violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
On January 28, 2010, the defendant filed a "Motion to Cite In and/or Implead" Gamble, Skehan, B Fare, LLC and B East, LLC (the "proposed defendants") as defendants in this action together with a proposed third-party complaint" (the "proposed complaint") against them. The defendant indicates that the Motion was filed under Practice Book §§ 9-22 and 10-11 and General Statutes §§ 52-102, 52-102a, and 52-572j. On the face of the Motion, the defendant makes the following allegations on behalf of himself individually and, pursuant to General Statutes § 52-572j, on behalf of all other similarly situated members of Yoshu. B Fare, LLC is a limited liability company operating a restaurant in Simsbury under the name of Plan B at One Way Fare. B East, LLC is a separate limited liability company that is operating a restaurant in Glastonbury under the name of Plan B Burger Bar. Gamble and Skehan are the principal and majority members of both B Fare, LLC and B East, LLC. Both Plan B at One Way Fare and Plan B Burger Bar offer substantially similar fare to that offered by Plan B. The defendant has no membership interest in either B Fare, LLC or B East, LLC. The involvement of the proposed defendants is necessary to a complete determination of the rights of the parties to this controversy. The defendant attached the proposed complaint, which contains seven counts, to his Motion.
General Statutes § 52-572j provides: "(a) Whenever any corporation or any unincorporated association fails to enforce a right which may properly be asserted by it, a derivative action may be brought by one or more shareholders or members to enforce the right, provided the shareholder or member was a shareholder or member at the time of the transaction of which he complained or his membership thereafter devolved on him by operation of law. The action shall be commenced by a complaint returnable to the superior court for the judicial district in which an office of the corporation or association is located. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs.
"(b) In any action brought pursuant to this section, process shall be served on the corporation or association as in other civil actions, and notice of the service of process after its having been served shall be given to the board of directors and such other interested persons as the court deems proper. It shall not be necessary to make shareholders or members parties thereto. The costs of the action or part thereof which shall include but not be limited to witness fees, court costs and reasonable attorneys fees, may be charged by the court, in its discretion, against the corporation."
Count One, against Gamble and Skehan, alleges breaches of fiduciary duty, improper conduct, and loss of business opportunities based on their use of Yoshu's assets in furtherance of B Fare, LLC and B East, LLC. Counts Two and Three contain similar allegations against B East, LLC and B Fare, LLC respectively. Count Four, against Gamble and Skehan, alleges that Gamble and Skehan conspired with Yoshu's accountant to treat purchases made by the defendant with Yoshu's credit card as income to the defendant notwithstanding the business purpose of the purchases. Count Four further alleges that as a result of the conspiracy, the defendant has faced numerous problems with the IRS and incurred significant expenses. Count Five alleges that Gamble and Skehan acted with malice in refusing to authorize monthly payments for a Hobart Dish Machine used at Plan B so that the defendant would incur the lease payments, as well as other costs, as the lease guarantor. Count Six alleges that during the calendar year of 2008, Gamble and Skehan stripped the defendant of his 13 percent interest in Yoshu without compensation. Count Seven, brought against all proposed defendants, alleges a violation of CUTPA.
On April 13, 2010, the plaintiff filed a memorandum of law in opposition to the defendant's Motion. The defendant responded by filing a memorandum of law in support of his Motion on April 27, 2010. A supplemental memorandum of law was filed by the plaintiff on May 7, 2010; and the Court heard oral argument on May 10, 2010.
In its memoranda of law in opposition, the plaintiff argues that: (1) the defendant's Motion is procedurally defective because it runs afoul of Practice Book § 11-10; (2) the defendant has not alleged that the proposed defendants are or may be liable to him for some or all of the plaintiff's claims against him, as required by General Statutes § 52-102a; (3) the defendant failed to provide facts to support a claim that the proposed defendants are necessary parties under General Statutes § 52-102; and (4) the proposed complaint does not belong in this proceeding because it is unrelated to the subject matter of the plaintiff's claims against the defendant and the defendant is not a fair and adequate representative of Yoshu, as required by General Statutes § 52-572j.
The plaintiff also argues that the defendant's failure to supply facts showing that the proposed defendants are "necessary parties," as required by General Statutes § 52-102, also makes the Motion procedurally defective. Sufficiency, however, is not a procedural issue, and the plaintiff's argument is properly addressed in part III.
I. WHETHER THE DEFENDANT'S MOTION RUNS AFOUL OF PRACTICE BOOK § 11-10
As a threshold matter, the plaintiff argues that the defendant's Motion is not properly before the Court on procedural grounds because he failed to file a memorandum of law along with his Motion. Section 11-10 of the Practice Book requires a movant to file and serve a memorandum of law briefly outlining the claims of law and authority pertinent thereto with certain enumerated motions and requests. Among such listed motions are those brought pursuant to Practice Book §§ 9-22 and 10-11. It is undisputed that the defendant's Motion is one for which Section 11-10 requires an accompanying memorandum of law. Nevertheless, the defendant argues that the plaintiff was properly apprised of the legal basis for the claims raised in his Motion by virtue of prior litigation between the parties.
Practice Book § 11-10 provides in relevant part as follows: "A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests: (1) motions regarding parties filed pursuant to Sections 9-18 through 9-22 and motions to implead a third-party defendant filed pursuant to Section 10-11 . . ."
When faced with a motion unaccompanied by a memorandum of law to which section 11-10 applies, courts have tended not to exalt form over substance. The purpose of section 11-10 is to give the opposing party some specificity as to the legal claims upon which the motion is based. See Wyse v. Wyse, Superior Court, judicial district of Tolland, Docket No. FA 06 400517 (May 30, 2008, Shluger, J.). Accordingly, so long as the moving party provides his opponent with a memorandum of law a reasonable time before oral argument, courts have concluded that the purpose of section 11-10 has been served, and thus consider the motion notwithstanding the lack of an accompanying memorandum See, e.g., Mill Wan Mechanical Contractors v. Elliott, Superior Court, judicial district of Hartford, Docket No. 375971 (January 30, 1992, Hennessey, J.) ( 5 Conn. L. Rptr. 544). Situations where the movant provides a memorandum of law prior to oral argument are factually distinguishable from those where the movant fails to submit any memorandum at all. Cf. Schiavone v. SAL of New London, Superior Court, judicial district of New London, Docket No. CV 06 4005245 (March 7, 2006, Jones, J.) (declining to consider the motion where movant failed to file a memorandum of law).
In the present case, the defendant filed his memorandum of law and the plaintiff filed a written response to it before the Motion was heard on the short calendar. Additionally, at least some of the defendant's claims were litigated between the parties in a prior action. In light of these facts, the Court finds that the plaintiff cannot claim it was unaware of the basis for the defendant's legal claims prior to oral argument. Therefore, because the purposes of Section 11-10 have been served despite the defendant's failure to submit a timely memorandum of law along with the Motion, the Court will consider the Motion as if the Memorandum had been timely filed.
The plaintiff also argues that the Court should not consider the defendant's Motion because the defendant's memorandum of law contains only equitable arguments and "does not refer to a single authority to support his contention[s]." The sufficiency of a memorandum of law, however, has never been a viable ground for refusing to consider a motion on the merits.
II. WHETHER THE DEFENDANT MAY IMIPLEAD THE PROPOSED DEFENDANTS UNDER GENERAL STATUTES § 52-102a
The defendant first seeks to implead the proposed defendants by filing a third-party complaint against them. In Connecticut, a request to implead a third-party defendant is governed by General Statutes § 52-102a and Practice Book § 10-11. Section 52-102a(a) provides, in relevant part, that: "A defendant in any civil action may move the Court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." Our Supreme Court has explained that "[t]he purpose of § 52-102a . . . is clearly to obviate the multiplicity of actions." (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988). In other words, "[t]he object of the [impleader] rule [is] to facilitate litigation, to save costs, to bring all of the litigants into one proceeding, and to dispose of an entire matter without the expense of many suits and many trials." (Internal quotation marks omitted.) Id.
Practice Book § 10-11 provides in relevant part: "(a) A defendant in any civil action may move the Court for permission as a third-party plaintiff to serve a writ, summons and complaint upon a person not a party to the action who is or may be liable to such defendant for all or part of the plaintiff's claim against him or her. Such a motion may be filed at any time before trial and such permission may be granted by the judicial authority if, in its discretion, it deems that the granting of the motion will not unduly delay the trial of the action or work an injustice upon the plaintiff or the party sought to be impleaded."
Though it is rooted in broad notions of promoting judicial economy, the impleader mechanism occupies a very distinct place in our practice — to bring in a third-party defendant who is or may be liable to the third-party plaintiff. The impleader mechanism is not designed to remedy the situation where the defendant is asserting that some non-party is or may be liable to the plaintiff. See Commissioner of Environmental Protection v. Lake Phipps Land Owners Corp., 3 Conn.App. 100, 102, 485 A.2d 580 (1985) (dismissing third-party complaint that alleged third-party defendant is or may be liable to the plaintiff for all or part of the plaintiff's claim against the third-party plaintiff). Furthermore, "[t]he third-party procedure is not designed as a vehicle for the trying together of separate and distinct causes of action, or for the introduction, into the main action, of several parallel, but independent, actions, or separate and independent claims, or for changing the cause of action as asserted, or substituting another action for it, and is not a device for bringing into an action any controversy which may have some relation to it." (Internal quotation marks omitted.) Security Capital Management, Inc. v. DeMonico, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0101795 (June 12, 1990, Lewis, J.) ( 1 Conn. L. Rptr. 735, 736). Accordingly, "[a]s a fundamental and threshold requirement, a third-party plaintiff must allege that the third-party defendant is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against him." (Emphasis added.) Commissioner of Environmental Protection v. Lake Phipps Land Owners Corp., supra, 3 Conn.App. 102.
Applying this standard to the facts of the present case, in order for the defendant to succeed on his Motion, the defendant's proposed complaint must allege that the proposed defendants are or may be liable to him for all or part of Yoshu's claim against him. It is not sufficient if the complaint merely alleges that the proposed defendants are or may be liable to Yoshu for all or part of Yoshu's claim against him or even if it alleges claims having some relation to Yoshu's claim against him.
The defendant's proposed complaint fails to allege that the proposed defendants are or may be liable to him for all or part of Yoshu's claim against him. The proposed complaint instead alleges that the proposed defendants are or may be liable to Yoshu. Although they may also ultimately be liable to the defendant due to his status as a member of Yoshu and the derivative nature of his claim, this point is of no consequences for purposes of this Motion because the allegations against the proposed defendants have nothing to do with indemnity or contribution should Yoshu prevail in its claim against the defendant, as required by section 52-102a(a). They are, instead, completely independent claims that have no liability contingent on whether the defendant breached his fiduciary duties and/or the contract.
Count one of the proposed third-party complaint alleges that Gamble and Skehan are liable to Yoshu for their own conduct in dissipating the assets of Yoshu for the benefit of competitors B Fare, LLC and B East, LLC. Counts two and three make substantially similar allegations, but add a claim of loss of business opportunity and are also made against B Fare, LLC and B East, LLC. These allegations are independent claims against the proposed defendants for their own actions and are not contingent on the outcome of Yoshu's claim against the defendant. In other words, these claims do not depend upon the outcome of a decision regarding whether the defendant breached the August 2006 agreement by going to work for a competitor within a year of his resignation. Likewise, count seven is simply a separate claim that is independent of whether Yoshu prevails on its claims against the defendant.
Counts four, five, and seven are different from the first three counts because they include allegations against Gamble and Skehan by the defendant in his individual capacity instead of alleging harm solely to Yoshu. Once again, however, recovery does not depend on whether Yoshu prevails on its claims against the defendant. Instead of alleging that Gamble or Skehan may be liable to the defendant for Yoshu's claim against him, they are based on separate and independent causes of action that could be asserted in a different legal proceeding regardless of whether the defendant is found liable.
Because the defendant has not alleged sufficient facts in the proposed third-party complaint to establish that the proposed defendants are or may be liable to him for all or part of Yoshu's claim against him, the defendant's Motion to Implead the proposed defendants must be denied.
III. WHETHER THE DEFENDANT MAY JOIN THE PROPOSED DEFENDANTS UNDER GENERAL STATUTES § 52-102
Having concluded that the defendant has failed to allege sufficient facts to implead the proposed defendants, the Court now turns to the issue of whether the proposed defendants should be compelled to join in this action under General Statutes § 52-102 and Practice Book § 9-22. General Statutes section 52-102, which governs joinder of parties to pending legal proceeding, provides: "Upon motion made by any party or nonparty to a civil action, the person named in the party's motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy." The purpose of this rule is to obviate a multiplicity of actions and settle all related controversies in one action. See Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 288, 914 A.2d 996 (2007).
Practice Book § 9-22 provides: "Any motion to cite in or admit new parties must comply with Section 11-1 and state briefly the grounds upon which it is made."
General Statutes § 52-102 governs both motions for joinder and motions to intervene. The defendant's Motion, however, is a Motion for joinder. Our Supreme Court has explained the distinction as follows: "Joinder is a method by which one may be compelled to become a party, whereas intervention is a method by which an outsider with an interest in a lawsuit may come in as a party on his or her application." (Internal quotation marks omitted.) Franco v. East Shore Development, Inc., 271 Conn. 623, 629 n. 7, 858 A.2d 703 (2004).
Whether joinder is appropriate depends on whether the person sought to be joined is a necessary party or has a sufficient interest in the controversy, as determined by the Motion before the Court and the allegations of the underlying complaint. In other words, when deciding whether joinder is appropriate, courts generally limit their consideration to the allegations of the underlying complaint and the motion itself and do not consider the merits of the proposed complaint. See Stop Shop Supermarket Co. v. Alan D. Loeser Co., Superior Court, judicial district of Fairfield, Docket No. CV 00 0378384 (Augnst 8, 2001, Skolnick, J.) ( 30 Conn. L. Rptr. 163); Martin v. O'Meara, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 97 0160364 (March 18, 1998, Karazin, J.) ( 21 Conn. L. Rptr. 537).
It is generally considered inappropriate to consider the merits of the proposed complaint when deciding whether to grant a motion brought pursuant to § 52-102 because: "(1) the court does not necessarily have the complaint that asserts the cause of action against the additional defendant at the time the ruling on the motion . . . is made; (2) all of the procedural vehicles available to challenge the adequacy of the complaint are available to the cited in defendant; (3) in some situations, the existing defendant may not have standing to challenge the new complaint because the right rests with the cited in defendant; and (4) it logically may be concluded that because no argument as of right is available on a motion to cite in, the legislature and/or rules committee never intended for the Court to address the legal sufficiency or merits of an action on a motion to cite in." Fish v. K J Investments, Superior Court, judicial district of New London, Docket No. 5000190 (August 14, 2006, Hurley, J.T.R.).
In deciding whether the proposed defendants should be compelled to join in this action, the initial question is whether they are necessary parties as determined by the allegations of the underlying complaint and the motion itself. "General Statutes § 52-102 . . . makes it mandatory for a trial court to grant a party's motion to add a person as a party `if that person is necessary for a complete determination or settlement of any question involved therein . . .'" (Emphasis added.) Donner v. Kearse, 234 Conn. 660, 669, 662 A.2d 1269 (1995). "Necessary parties . . . are those [p]ersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it . . . [B]ut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. . . . A party is deemed necessary if its presence is absolutely required in order to assure a fair and equitable trial." (Citation omitted; internal quotation marks omitted.) In re Devon B., 264 Conn. 572, 579-80, 825 A.2d 127 (2003).
Our Supreme Court has explained that the distinction between necessary and indispensable parties has eroded. See In re Devon B., supra, 264 Conn. 580 n. 12. Our statutes, including section 52-102, now only refer to necessary parties. See id.
Although Gamble and Skehan, solely by virtue of their interest in Yoshu, may have an interest in the controversy alleged in the underlying complaint, they are not necessary parties to the action. The Court can enter a judgment as to whether the defendant breached his fiduciary duties toward the plaintiff without affecting Gamble or Skehan individually. The plaintiff's action against the defendant is based on the alleged actions of the defendant, and not based on the actions of Gamble or Skehan. It is true that the plaintiff's allegations will in all likelihood require testimony from Gamble and/or Skehan. Nevertheless, this does not make them necessary parties to the action. Their presence is not required in order to assure a fair and equitable trial because any interest that may be affected by a judgment on the underlying complaint is already adequately represented by the presence of the plaintiff.
It is even harder to argue that B Fare, LLC and B East, LLC are necessary parties to this action. They simply have no connection to the plaintiff's action against the defendant for a breach of fiduciary duty. That another breach of fiduciary duty, which ultimately benefitted B Fare, LLC and B East, LLC, could have been alleged in the plaintiff's complaint does not mean that a judgment on the underlying complaint requires their presence. Instead, any claim against B Fare, LLC and B East, LLC can, and should, be brought in a separate legal proceeding.
Since the proposed defendants are not necessary parties to this action, the Court now addresses the issue of whether it should exercise its discretion to make them parties to this proceeding anyway. It is well established that, pursuant to section 52-102(1), the trial court has discretion to decide whether to allow the addition of a party to pending legal proceedings where that party is not a necessary party. See A. Secondino Son, Inc. v. LoRicco, 19 Conn.App. 8, 14, 561 A.2d 142 (1989). "Factors to be considered include the timeliness of the application, the possibility of prejudice to the other party and whether the applicant's presence will enable the court to make a complete determination of the issues." Id.
Aside from doing nothing to facilitate a complete determination of the issues in the underlying complaint (i.e., whether the defendant breached his fiduciary duties), this Court finds that the presence of the proposed defendants would prejudice the plaintiff by causing considerable delay in its suit against the defendant and confusing the issues at trial. Permitting the defendant to represent the plaintiff and assert derivative claims against other members of the plaintiff while, at the same time and in the same proceeding, asserting claims individually against the other members and defending his own actions against the plaintiff would be very confusing indeed. Furthermore, permitting four additional defendants, who are not necessary parties, to join the action at this stage, where the pleadings are closed, would undoubtedly delay the resolution of the plaintiff's claims against the defendant.
Instead of joining the proposed defendants in this action, the better course would be for the defendant to initiate his own action against the proposed defendants. Thereafter, if it appears that any cause of action asserted by the defendant arises out of the same transaction or series of transactions and raises common questions of law or fact as any cause of action in this proceeding, they may be consolidated pursuant to General Statutes § 52-104. Accordingly, this Court declines to exercise its discretion to join the proposed defendants in this action, and thus must deny this portion of the defendant's Motion as well.
General Statutes § 52-104 provides in relevant part: "All persons may be joined in one action as plaintiffs in whom any right of relief in respect to or arising out of the same transaction or series of transactions is alleged to exist either jointly or severally when, if such persons brought separate actions, any common question of law or fact would arise; provided, if, upon the motion of any party, it would appear that the joinder might embarrass or delay the trial of the action, the court may order separate trials, or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he or they may be entitled."
IV. WHETHER THE DEFENDANT MAY ASSERT A DERIVATIVE ACTION UNDER GENERAL STATUTES § 52-572j IN THIS PROCEEDING
According to his Motion, upon making the proposed defendants parties to this action, the defendant seeks to assert a derivative action against them, on behalf of himself and all members of Yoshu, under General Statutes § 52-572j. In opposition, the plaintiff argues that the defendant cannot assert the derivative action because the defendant is not a fair and adequate representative of Yoshu and the claims asserted in the proposed complaint are substantially unrelated to the substance of the underlying complaint.The only Motion before the Court, however, is the defendant's Motion to implead and/or cite in the proposed defendants. Having denied the defendant's Motion, the Court is not required to rule on the merits of the proposed complaint or the propriety of a derivative action by the defendant. The defendant has provided this Court with no legal basis for permitting the claims alleged in the proposed complaint, which are all against non-parties, to come into this proceeding, and the Court has found none. Instead, our General Statutes and rules of practice would tend to favor bringing a separate action and consolidating the two actions, if appropriate, under General Statutes § 52-104.
The plaintiff's argument that the defendant is not a fair and adequate representative of Yoshu, as required under § 52-572j, presents the issue of whether the representative has standing to bring the action. See Fink v. Golenbock, 238 Conn. 183, 199, 680 A.2d 1243 (1996). As standing implicates the Court's subject-matter jurisdiction; May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009); that issue is properly raised after the complaint has been served by a party with standing to do so. Because the proposed complaint has not been served, the Court need not address the issue of whether the defendant has standing to bring, and consequently whether the Court has subject matter jurisdiction to hear, the derivative action.
Furthermore, even assuming that the claims alleged in the proposed complaint "[arose] out of the same transaction or transactions connected with the same subject of action" as those in the underlying complaint, the Court has discretion to separate the causes of action where they cannot conveniently be heard together. See General Statutes § 52-97. Because of the confusion that would result, as articulated in part III, the defendant's action and the underlying complaint could not conveniently be heard together.
For all of the foregoing reasons, the defendant's present Motion must be DENIED. Accordingly, IT IS SO ORDERED this 6th day of August 2010.