Opinion
No. X01 CV-03-0181305-S
March 1, 2006
MEMORANDUM OF DECISION RE MOTION TO AMEND COMPLAINT (#177)
Factual and Procedural Background
This is a class action brought by the named plaintiff ("Zeigler") and others who, like him, purchased digital videodisc players ("DVD players") claimed to have been manufactured by Sony Corporation of America and/or Sony Electronics, Inc. ("Sony"). The claim essentially is that certain DVD players have an electrical defect manifested by such symptoms as picture freezing, frequent display of the message "no disc" and/or "C13.00" error messages, lack of lip synchronizations, etc. Zeigler asserts the defendants deny any defect, have failed to recall the alleged defective products, and, in general, have been unresponsive to customer needs.
The original complaint of June 10, 2003, asserted six (6) causes of action: 1) negligence; 2) breach of express warranty; 3) breach of implied warranty; 4) breach of contract; 5) unjust enrichment; and 6) violation of the Connecticut Unfair Trade Practices Act (CUTPA). Zeigler also there alleged defendants knew of the defects but either concealed that information from the public or made affirmative misrepresentations regarding the same. Compl., 2, 17-19. The original complaint referenced both "defective electrical systems" and a "faulty fuse." Id., 14, 17. It specifically identified eight (8) models of digital video players ( 2) and limited the class to Connecticut residents who purchased one of these models "between June 11, 1999, and the present." 7(a). Thereafter, on April 12, 2004, the court conducted an initial status conference at which the parties suggested certain dates by which discrete tasks would be accomplished; the court accepted those dates and published a Case Management Order ("CMO") on the same date. That Order provided for the filing of a Motion for Class Certification by October 13, 2004, and the submission of all briefs regarding the same by December 17, 2004 (CMO, 1); it provided all written discovery be completed by September 20, 2004 ( Id., 2) and that fact witness depositions be completed by January 31, 2005 ( Id., 3). A hearing on the Motion for Class Certification was originally scheduled for August 11, 2005; The court, however, postponed the hearing until the publication of Collins v. Anthem Health Plans, Inc., 275 Conn. 309 (2005), so that the parties would have the benefit of our Supreme Court's view on the burden of proof in class certification hearings. On September 14, 2005, the court provided notice by facsimile of that decision and urged the parties to read it since the law announced therein, in this court's opinion, would "prompt — if not necessitate — modifications and/or withdrawals (sic)" of the class action. On September 28, 2005, plaintiff's counsel acknowledged receipt of that notice and informed he would "make a status report to the Court after further consultation." Id. No status report was ever provided and, having heard nothing from either party, the court, on January 25, 2006, set down the hearing on class certification for April 19, 2006 by which time the case would then be two (2) months shy of three (3) years old. That hearing date still pertains.
The Motion for Class Certification was timely filed. It was accompanied by a Memorandum of Points and Authorities which contained certain allegations not asserted in the complaint but relevant to adjudication of the instant motion. Zeigler there alleged, for example, the defendants' use of the DVD-VCR logo "was an affirmative representation which communicates to consumers that Sony [DVD players] will . . . properly play any and all DVD discs . . ., without exception," that defendants knew the players were defective as evidenced by Sony service bulletins which described malfunctions but were concealed from the public, and that defendants affirmatively misled consumers by concealing "performance problems" when responding to complaints. The Memorandum alleged a possible source of the problem was an integrated circuit identified as a "PROM" (a one-time programmable read-only memory) which, in the event of failure would "undoubtedly experience the problems described [in the complaint]." Ex. C to Opp. Memorandum, at 5, 8-10, and 11-13. Nowhere in the original complaint or the Memorandum of Points and Authorities is there an allegation that a common defect was experienced by all class members or caused the "performance problems" experienced by each class member. Briefing was completed by December of 2004 as ordered and written discovery and fact witness depositions were completed over a year ago. Despite the lack of a status report as promised and despite the completion of briefing in December of 2005, plaintiff's counsel did not file the instant Request for Leave to Amend the Complaint until December 14, 2005, and did not file a Request for Adjudication of the same until January 31, 2006. In its Request, plaintiff indicated he wished to "incorporate [in the Proposed Amended Complaint] relevant facts brought to light during discovery . . . to fit the Collins mold and to plead the alleged fraudulent concealment violations with particularity." Motion, p. 2.
That was clearly prompted by the court's reminder to the parties — on January 25, 2006, that no such Request for Adjudication had yet been received nor was there any indication whether the plaintiff intended to file a Reply to the defendants' objection to this motion (The court never received a response to her inquiry and no Reply has been filed.).
The court has carefully examined the allegations of the original complaint with those of the proposed complaint and notes the following:
a) The original complaint lists eight (8) models; the proposed complaint identifies twelve (12) models (Some — but not all — of the original list is repeated and the others are new.). Added to the confusion is that paragraph 7 of the proposed complaint omits DVP-F21 from the models listed in paragraph 2.
b) The time period in the proposed complaint is one month longer than that stated in the original complaint.
c) Only three (3) causes of action are asserted in the proposed complaint — breach of contract, unjust enrichment, and CUTPA.
Defendants have objected to the Request because: a) it is untimely; b) the proposed complaint does not cure the "defect" that prompted the court's September 14, 2005, notice re Collins, supra; and c) granting the plaintiff's request would unfairly prejudice them.
Applicable Law
"Whether to allow an amendment is a matter left to the sound discretion of the trial court." 1525 Highland Associates, LLC v. Fohl, 62 Conn.App. 612, 617 (2001). Connecticut courts have generally been liberal in permitting amendments (See Henry v. Klein, 15 Conn.App. 496, 500-01) and are even more liberal in allowing formal amendments to cure a defect ( Bennett v. United Lumber Supply Co., 114 Conn. 614). This liberality, however, has limitations. Amendments should be seasonably made. Matthiessen v. Vanech, 266 Conn. 822, 849 (2003). "The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial." Franc v. Bethel Holding Co., 73 Conn.App. 114, 132, cert. granted on other grounds, 262 Conn. 923 (2002). P.B. § 10-60(b) provides in pertinent part, "The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial. If the amendment occasions delay in the trial or inconvenience to the other party, the judicial authority may award costs in its discretion in favor of the other party." In addition to considering the length of the delay and fairness to opposing parties, the court may also consider the "negligence, if any, of the parties offering the amendment . . ." Billy Leo, LLC v. Michaelidis, 87 Conn.App. 710, 714 (2005).
Adjudication
Whether the plaintiff's delay in moving to amend the complaint is in fact negligence or mere inattention or lack of diligence is a matter of semantics. What is clear is that the plaintiff has exhibited a pattern of delay in responding to the court's multiple notices regarding improper pleadings and the timeliness of pleadings which have required the court to expend greater time managing this case and greater vigilance overseeing the pleadings than should be necessary in a matter on the complex litigation docket. See e.g., this court's notices under date of 9/17/04, 5/13/05, 7/26/05, and 1/25/06. On occasion, the plaintiff has simply been unresponsive as when it has indicated it would provide the court a status report but did not or when the court inquired whether a Reply to a pleading would be filed and the plaintiff chose not to respond and to file no Reply. In fairness to local counsel, the appearance and participation of pro hac vice counsel may have complicated the matter and may have unnecessarily restricted the ability of local counsel to respond appropriately or timely. No acceptable reason exists for plaintiff's delay in responding to this court's clear communication to the parties on September 14, 2005, until December 14, 2005. The prejudice to the defendants if this amendment is permitted is clear. They have a right to know the number and identity of the claimed defective DVD player models sufficiently in advance of the hearing on the motion for class certification to prepare for cross-examination of any witness the plaintiff may then produce. The parties were advised on 1/25/06 that that hearing would go forward on 4/19/06. Yet, as of this date, defendants do not know which models are claimed defective and, even if the amendment were granted, would not know whether to Reply on the information provided in Paragraph 2 or Paragraph 4 of the proposed complaint. Further, the granting of this Request would likely lead one — or both — parties to require additional time for yet mere discovery when discovery was completed almost a year ago and when this case is already three plus years old. To assert the granting of this amendment would not prejudice the defendants is startling since, to borrow the words of a colleague, it is as plain as the proverbial pikestaff. Nor is it reasonable to suggest the filing of this motion was delayed by settlement efforts when, as plaintiff claims, no progress with regard to settlement was made between September and December of 2005.
Pro hac vice counsel has authored the instant motion and memorandum, cites Illinois law — likely because there is litigation against Sony presently pending there — while providing no analysis of this state's governing law, and has offered factual and legal assertions which are inaccurate as will later herein be referenced. While no doubt more experienced and knowledgeable regarding claimed defects in Sony products, the lack of familiarity with this forum's procedural requirements in pre-trial matters is discernible.
The court is unpersuaded by the plaintiff's argument this amendment ought to be permitted because no trial date has yet been set. Class actions differ from other civil matters in that they require two hearings/trials — the class certification hearing and, if certification is granted, a full trial on the merits.
Plaintiff's suggestion that any claimed prejudice to defendants would be eliminated by including plaintiff's counsel in a protective order entered in the Illinois case ignores both that time is now a factor given the April 19, 2006, hearing date but also that it is not sufficient to state counsel here will have the opportunity to view documents regarding the additional models when defendants have the right to cross-examine witnesses who may testify as to defects in new models in advance of the hearing date.
Of as much or greater concern to the court is the plaintiff's apparent failure to recognize the implications of Collins, supra, for certification of this class. As defense counsel has stated, the "message" of our Supreme Court is that, at a certification hearing, the generalized evidence offered to prove the elements of each of the causes of action pled, on a class-wide basis, must predominate over the need for individualized proof. Adding more DVD player models claimed defective and expanding the time period for purchase collide with the directive in Collins, supra, and citation to an Illinois case in which the court takes a considerably more expansive view of the burden of proof in establishing predominance than does the law by which this court is governed is not helpful to class members or to the court. The proposed amendment does not cure the difficulties posed by the original complaint; Collins clearly suggests the amendment increases the "risk" to class members. Whether that risk defeats class certification, as the defendants argue, cannot now be said.
As Collins states, there is a relationship between the ability to establish predominance and the ability to demonstrate superiority since, if individualized issues predominate, the less superior a class action will be because the more unmanageable the litigation. 275 Conn., at 347.
The plaintiff is incorrect in asserting it is inappropriate for defendants to argue the merits of the plaintiff's motion for certification or his ability to prevail at trial in response to this Request to Amend. See Avon Plumbing Heating Co. v. Fey, CT Page 4134 40 Conn.App. 351 (1996) (While reversing on other grounds, the Appellate Court concluded there was no abuse of discretion in the trial court's denial of an amendment to the complaint because, inter alia, "it would not have made any difference in determining whether the, plaintiff's cause of action was barred" [by a statute governing written contract requirements under Connecticut's Home Improvement Act]). Id., at 356. Contrary to the assertion that defendants may only argue the merits of a certification motion by way of a motion to strike, the court, in adjudicating a motion to amend, may consider substantive arguments.
Though plaintiff states his reason for amending the complaint is to "incorporate relevant facts brought to light during discovery . . ." (Motion, at 2.) and to plead the defendants' "alleged fraudulent concealment violations with particularity" ( Id.), examination of the plaintiff's Memorandum of Points and Authorities in support of his class certification motion establishes much of what he has pled in the proposed amendment are assertions made in the just referenced memorandum. Compare, e.g., plaintiff's memorandum at pp. 8-10 and proposed complaint, 42-53.
Because the Request to Amend is untimely in view of the date of the hearing for class certification, because it is unnecessarily prejudicial to the defendants, and because permitting the amendment will likely require additional discovery long after CMO #1 required its completion, the Request to Amend is denied.
ORDER
Plaintiff has asserted that, if the instant motion were denied, he "stands ready to file an Amended Complaint without the new additional models." Memorandum, at 5. It is the court's hope this decision will guide the filing of an Amended Complaint such as to obviate the need for further objection by defendants and without the internal inconsistencies evidenced by the proposed amended complaint. Regardless, the court ORDERS the amendment be filed no later than March 15, 2006, and any objection be filed no later than March 24, 2006, in view of the hearing date of April 19, 2006.