Alan Neri v. National Railroad Passenger Corporation (2010)

MEMORANDUM OF DECISION

This is an action sounding in inverse condemnation, obstruction of way and illegal crossing of right of way.   The plaintiff is Alan Neri and the defendants are National Railroad Passenger Corporation (“Amtrak”) and the Connecticut Department of Transportation (“State”).

This case was commenced by the plaintiff in March 2006.   On September 20, 2006, the plaintiff served interrogatories and requests for production upon Amtrak pursuant to Practice Book § 13-9 et seq.   Amtrak objected to some of the interrogatories and production requests in June 2007, but failed to provide responses to the other requests.¹  Commencing on February 23, 2007, and continuing for over the next three years, multiple requests for extensions of time to comply with said discovery requests and multiple motions for default for failure to provide discovery were heard by the court.   On February 15, 2008, Amtrak filed a motion for extension of time to file until March 1, 2008, which was granted by the court.   On October 6, 2008, the court Taylor, J., entered an order requiring compliance within twenty-one days.

At a status conference held before the court, Holzberg, J, on October 27, 2009, the court was advised that Amtrak had failed to fully comply with the discovery requests filed on September 20, 2006.   The court ordered counsel for Amtrak to fully comply with the court's order as to the discovery requests by November 3, 2009.   The court ordered that if full compliance was not made by that time, a default would enter and no motion to set aside the default or to reopen would be considered by the court.   A production of documents was received by plaintiff's counsel on November 3, 2009, but the bulk of the disclosure remained incomplete.   The documentation provided was unresponsive to the production requests and no interrogatories were answered.   Specifically, the purported compliance did not respond to requests for production numbers 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22, 24 and 26.   Further, no compliance was provided as to request for production numbers 17, 19, 21, 23, 25 and 27, to which objections thereto had been previously overruled by the court.   As a result of Amtrak's failure to comply with the court's order, the plaintiff filed a motion for default on February 2, 2010.   Amtrak filed an objection to the motion for default on February 14, 2010, on the basis that compliance had been made within the time requested by the court and that there was no prejudice to the plaintiff.   On February 19, 2010, a default entered against Amtrak for failure to comply with the court's order.

Thereafter, on May 17, 2010, Amtrak filed a verified motion to set aside the default.   In that motion, counsel for Amtrak represented that Amtrak had prepared responses to requests for production numbers 17, 19, 21, 23 and 25 on January 8, 2008, and that it appeared from his file that these responses were sent to plaintiff's counsel.   A copy of a letter and attachments from Amtrak's counsel to plaintiff's counsel, dated January 8, 2008, was attached to Amtrak's motion to set aside the default.   At the time of oral argument on the motion, counsel for the plaintiff represented to the court that said responses and documentation had not been received and that the copy provided with the motion to set aside the default was the first time that they had received the same.

Further, as pointed out by plaintiff's counsel, the documentation attached to the January 8, 2008 letter clearly did not represent full compliance as required by the court's order.   Specifically, plaintiff's counsel represented that production request number seventeen, requesting that “any and all documents including maps, correspondence, notes or bills concerning the installation of the barrier between the railroad and the subject property be produced,” was never complied with and no such documentation was provided to counsel.   Further, no response was given to interrogatory numbers one and two.   The response to interrogatory seven provided that “materials concerning the barrier installed by Amtrak or its agents are attached.”   Plaintiff's counsel represented, however, that they were never provided with said materials.   Further, the copy of the documents provided with the May 17, 2010 motion to set aside the default omitted pages two, three and four.   Plaintiff's counsel represented to the court at the time of oral argument that said information is especially important to the plaintiff's case and is necessary to meet his burden of proof.

Amtrak filed a reply to the plaintiff's objection to the motion to set aside the default, dated June 2, 2010.   In that reply, counsel for Amtrak concedes that “there is a long history of noncompliance with discovery” and acknowledges that the record reflects that long history of noncompliance.   Further, counsel for Amtrak concedes that plaintiff's counsel did not receive material which counsel for Amtrak thought was sent because, upon review, it was still in his file.   Counsel for Amtrak also acknowledges the court's order that a motion to open the default would not be considered, as referenced above, but argues that this court is not bound by that order.   Counsel for Amtrak indicates to the court that the plaintiff has not moved for a judgment on the default.   Counsel also contends that it did not receive notice of the actual default although he was aware that the default would be entered if he did not comply within seven days, which he conceded he did not do.   Counsel for Amtrak further contends that the plaintiff has not argued that there is a lack of good cause to open the default pursuant to Practice Book § 17-42, although it is not contended by counsel for Amtrak that the plaintiff carries any burden related to this under Practice Book § 17-42.

Counsel for Amtrak submits that good cause exists to open the default and excuses the long history of noncompliance in this case as being the result of a medical issue experienced by counsel, as referenced and detailed in the motion to set aside.   Counsel for Amtrak represented that the medical condition has negatively impacted his practice, and this case, over the last three years.   While he concedes that compliance was not made to plaintiff's counsel, he argues that his medical condition constitutes “good cause” and that the court may impose other orders or terms aside from a default, such as those prescribed in Practice Book § 13-14(b).  Specifically, counsel for Amtrak discusses such other alternatives as the award of the costs of the motion and reasonable attorneys fees, an order that the matters for which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action or an entry prohibiting Amtrak from introducing designated matters into evidence.   Counsel for Amtrak also submits that as of June 2, 2010, he has provided plaintiff's counsel with additional copies of the discovery and production that was apparently not sent in January of 2008.   Counsel for Amtrak also relies on General Statues § 52-235b, entitled “[p]roceedings stayed if attorney unable to appear,” in arguing that his medical condition is a disabling condition which should allow the court to open the default at this stage of the proceedings.²

This matter, a privileged case, was initially scheduled for jury selection on September 15, 2009.   It was then rescheduled for trial to the court on May 19, 2010.   A motion for a six-month continuance for said trial date was filed by Amtrak's counsel on May 10, 2010, on the basis of the above referenced medical condition which required him to reduce his caseload.   A brief note from the doctor of Amtrak's counsel indicated that he would need several months.   This court granted the motion and continued the trial date to July 20, 2010.

Practice Book § 17-42, which governs the opening of a default where judgment has not been rendered, provides in relevant part:  “A motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown upon such terms as it may impose.”   See Rowe v. Goulet, 89 Conn.App. 836, 841, 875 A.2d 564 (2009).  (“The motion to open default, in this case, is governed by Practice Book § 17-42 because the default was entered prior to final judgment”).   In deciding whether good cause has been shown as contemplated by Practice Book § 17-42, the court, in its discretion, “may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause;  ․ factors such as the seriousness of the default, its duration, the reasons for it and the degree of contumacy involved;  ․ but also the totality of the circumstances, including whether the delay has caused prejudice to the nondefaulting party.”   (Citations omitted;  internal quotation marks omitted.)  Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998).   Further, as “[the] determination of whether to set aside [a] default is within the discretion of the trial court ․ [it] will not be disturbed unless that discretion has been abused or where injustice will result.”  (Internal quotation marks omitted.)  Id. “[A] court should not open a default when the defendant admits that he received actual notice and chose to disregard the court's authority.”  Rowe v. Goulet, supra, 89 Conn.App. 842.

In the present case, Amtrak has failed to make the requisite showing of good cause to open the default as required by Practice Book § 17-42.   The circumstances of this case demonstrate an egregious history of noncompliance by Amtrak, as outlined above.   The court has reviewed the documents attached to the January 8, 2008 letter and they appear to be unresponsive to the September 2006 discovery requests.   Further, Amtrak's purported response did not identify what production requests were being complied with and did not comply with Practice Book §§ 13-7(b), 13-7(c), 13-10(b) and 13-15.

Amtrak's purported compliance with the discovery requests is clearly incomplete.   The bulk of the compliance, including that submitted as of June 2, 2010, has still not been made, even though it has been three and one-half years since the initial discovery requests.  “While many delays are unavoidable and even necessary, those delays that are caused by a deterioration of professional courtesy and indifference to its impact on opposing counsel and parties, especially when accompanied by brinkmanship of the sort displayed in this case, need not be tolerated by litigants and should not be condoned by the courts.”   Segan v. Allstate Insurance, Superior Court, judicial district of New Haven, Docket No. CV 96 038542 (October 29, 1996, Silbert, J.) (18 Conn. L. Rptr. 166).   Further, the requested discovery is necessary to the plaintiff's case and the plaintiff has been prejudiced by the lack of compliance so close to the trial date.

The court finds that Amtrak has made no showing of mistake, inadvertence or misfortune.   Further, counsel for Amtrak has clearly failed to comply with at least several court orders regarding its compliance with the discovery.   The court has considered the medical condition of Amtrak's counsel, but notes that said condition did not preclude him from the practice of law, and it appears to have been ongoing for at least the last three years.  General Statutes § 52-235b, relied on by Amtrak's counsel regarding his medical condition, is irrelevant here.  Section 52-235b provides that a proceeding may be stayed if an attorney is unable to appear based on his cessation as a member of the bar or due to a physical or mental incapacitation.   In this case, counsel has made numerous court appearances regarding the ongoing failure of discovery compliance in addition to status conferences and the instant motion.   Thus, counsel for Amtrak is not “disabled so as to prevent him from appearing in court” and it cannot be credibly argued that he is incapacitated pursuant to § 52-235b.

Counsel for Amtrak also relies on Carter v. D'Orso, 5 Conn.App. 230, 497 A.2d 1012 (1985), as support for the position that this court should open the default here.  Carter v. D'Orso, however, is inapposite to the present case, where the issue there was “whether the trial court abused its discretion in refusing to open and set aside the default judgment because of the defendants' failure to submit an affidavit, disclosing the reasonable cause claimed and in general terms the nature of their defense to the action, with the motion to open the judgment, although such affidavits were presented along with the defendants' testimony prior to the court's decision.”  Id., 233.   In the present case, counsel for Amtrak has not satisfactorily cured his failure to provide the various discovery requests, and at the time of this decision, such compliance has still not been made.   This stands in stark contrast to Carter v. D'Orso, where the defendants came into compliance before the trial court made its decision on the motion to open and set aside the default.  Id., 234-35.   As such, Carter v. D'Orso does not provide authority for the position Amtrak presently argues.

Counsel for Amtrak also argues that this court should impose orders other than a default, such as those delineated in Practice Book § 13-14(b).  Practice Book § 13-14(b), however, is not mandatory, and Practice Book § 13-14(a) only provides that “the judicial authority may, on motion, make such order as the ends of justice require.”  (Emphasis added.)   Thus, this court is not required to make any orders under Practice Book § 13-14(b).  This holds especially true where counsel for Amtrak was aware of the court's order resulting from the status conference held before Judge Holzberg on October 27, 2009, which provided that a default would enter if Amtrak did not comply with the discovery requests and no motion to set aside the default or to reopen would be considered by the court.

It is clear from the record that the plaintiff has been prejudiced by Amtrak's failure to fully comply with his discovery requests and continues to be prejudiced on the eve of trial.   Counsel for Amtrak has had an abundant amount of time to comply with the discovery requests over the last three and one-half years and has egregiously failed to do so.   Further, counsel for Amtrak failed to comply with multiple court orders regarding discovery compliance.   While the court notes the ongoing personal and medical problems of Amtrak's counsel, it is clear to the court that the failure to comply with the court's multiple orders concerning the discovery requests was deliberate, continuous, willful and unwarranted.   Accordingly, the defendant Amtrak has failed to establish the requisite showing of good cause.   The motion to set aside the default is denied.

Burgdorff, J.

FOOTNOTES

FN1. Amtrak's objections were ruled on by the court, Holzberg, J., on March 28, 2008..  FN1. Amtrak's objections were ruled on by the court, Holzberg, J., on March 28, 2008.

FN2. General Statutes § 52-235b provides:  “If, prior to judgment, an attorney for any reason ceases to be a member of the bar or becomes physically or mentally incapacitated or otherwise disabled so as to prevent him from appearing in court in an action in which he has appeared for a client, further proceedings shall not be taken in the action against the client, without leave of the court, until thirty days after notice to appear in person or by another attorney has been served upon the client either personally or in such manner as the court directs.”.  FN2. General Statutes § 52-235b provides:  “If, prior to judgment, an attorney for any reason ceases to be a member of the bar or becomes physically or mentally incapacitated or otherwise disabled so as to prevent him from appearing in court in an action in which he has appeared for a client, further proceedings shall not be taken in the action against the client, without leave of the court, until thirty days after notice to appear in person or by another attorney has been served upon the client either personally or in such manner as the court directs.”

Burgdorff, Mary-Margaret D., J.