Sylvestor Traylor, Administrator of the Estate of Roberta Mae Traylor et al. v. Bassam Awwa, M.D. et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO REARGUE [392]

The Motion to Reargue is denied.

However, the court, not briefly, discusses themes present in the Motion to Reargue, and in earlier motions, which shows that plaintiffs are totally unaware of the consequences of their filing an amended complaint.   See Motion for Articulation, August 11, 2010[387], and Motion for Default for Failure to Plead August 6, 2010.[381]  Particularly, upon the filing of amended complaints, defendants, as of right, can plead to each amended complaint “by motions and requests addressed [to the amended complaint],” Practice Book §§ 10-61 and 10-8, and an answer.

In their Motion to Reargue dated August 17, 2010[392], plaintiffs claim:  “(1) The Court erred in ignoring the Connecticut Practice Book Rules on the time limit for the Defendants to file their initial Motion to Dismiss ․ (2) The Court erred in ignoring the filing out of order rule.”   Motion to Reargue, August 17, 2010, p. 1.[392]

As the court understands plaintiff's contentions, plaintiff claims that Defendants first filed a Motion to Dismiss on January 7, 2007.   According to plaintiffs, it was tardy as it should have been filed within 30 days after the Return Day.

Plaintiffs argue:

Defendants' original Motion to Dismiss was untimely ․ Pursuant to PB § 10-6 and 10-8, the defendant had 30 days to file his motion to dismiss after the return of the complaint.   As noted by Judge Hurly [Sic] ․ the Defendant's Motion to Dismiss was filed over two months after the certificates were filed by the Plaintiff ․ Defendant filed nothing with this court for well over 30 days, in fact, it was not until June 7, 2007, that the Defendant filed a response to entry # 132.   Motion to Reargue, August 17, 2010, pp. 2-3.[392]

The Motion to Dismiss plaintiffs refer to is the Motion to Dismiss dated January 4, 2007 which was file stamped by the clerk “January 8, 2007.”  [146] This January 4, 2007 Motion to Dismiss was addressed to the plaintiffs' “action,” which at the time was lead by the Amended Complaint dated July 31, 2006 and filed on August 2, 2006.[119]

Plaintiffs are confused.   Plaintiffs are just plain mistaken.   Their unfamiliarity with litigation practice is lamentable;  their misrepresentation of the facts shown in the record can hardly be condoned or tolerated.

Contrary to plaintiffs' assertion, Defendants first Motion to Dismiss was filed on July 27, 2006.   See Motion To Dismiss, July 25, 2006, file stamped July 27, 2006.[105]  It was filed “within thirty days of the filing of [defendants] appearance.”  Practice Book § 10-30.   At that time, there had been only one Complaint.

That Motion to Dismiss was based on insufficiency of process, insufficiency of service of process and lack of personal jurisdiction over the defendant Connecticut Behavioral Health Associates, P.C. Motion To Dismiss, July 25, 2006, file stamped July 27, 2006, p. 1.[105]

Using Defendants' Motion to Dismiss as a primer, plaintiffs moved to amend their Complaint and thereafter served the new complaint christened “Amended Complaint,” July 31, 2006, filed August 2, 2006, on Connecticut Behavioral Health Associates, P.C. This Amended Complaint was filed as of right.   Practice Book § 10-59.

On December 14, 2006, Judge Hurley ruled on the July 25, 2006 Motion to Dismiss.   Contrary to what plaintiffs have represented, Judge Hurley did not even suggest that any of defendants' contentions in their July 25, 2006 Motion to Dismiss [105] were incorrect concluding, “The plaintiff has rectified the errors in the original process and service of process.”   The plaintiff made these corrections induced and driven by the deficiencies cataloged in defendants' July 25, 2006 Motion to Dismiss.  [105] Largely on the basis of corrections plaintiffs made in their amended process, corrections induced by defendants' Motion to Dismiss, Judge Hurley denied the Motion to Dismiss.   But Judge Hurley found:  “As required by Practice Book § 10-30, the defendant's filed their motion to dismiss within 30 days of the filing of their general appearances on July 7, 2006.   Memorandum of Decision, December 14, 2006, pp. 1-2.[142]  Judge Hurley found the Motion to Dismiss was timely.

On December 26, 2006, plaintiffs again moved for leave to amend their complaint.   See [143].   With this filing, plaintiffs filed their Amended Complaint dated December 22, 2006. [143.50] Defendants objected.  [144] The court (Hurley, J.T.R.) sustained the defendants' Objection. [144]

By virtue of the sustained Objection, the July 31, 2006, Amended Complaint [109.01, 110.01] remained as the operative complaint.

It is true that defendants did not file a response to “entry # 132.   None was required.   Entry # 132 is not a pleading.   It is a contrivance of plaintiffs to try to obfuscate plaintiffs' not having filed a medical opinion of similar health care provider as required by General Statutes § 52-190a.

Plaintiffs claim the defendants could not file the July 16, 2010 Motion to Dismiss [366] (the subject of the present Motion to Reargue) because defendants had previously filed a Request to Revise, thus pleading out of order.   The Request to Revise plaintiffs rely upon for their contention is the July 9, 2009 Request to Revise. [327]

The July 9, 2009 Request to Revise [327] specifically says it is directed to the “Amended Complaint dated June 4, 2009.”  [310] See Request to Revise, July 9, 2009, p. 1, opening paragraph. [327]

The Motion to Dismiss which was the subject of the court's August 11, 2010 decision was directed to plaintiffs' Second Amended Complaint, July 12, 2010. [362]  The Request to Revise that the plaintiffs cite and rely upon was directed to the previous Amended Complaint dated June 4, 2009.[310]

The July 12, 2010 Motion to Dismiss [366] was not filed out of order because defendants had filed a Request to Revise the Amended Complaint dated June 4, 2009.   Thus, there was no violation of plaintiffs' claimed “out of order rule.”

Plaintiffs should understand, but they apparently do not, that each time plaintiffs have filed or file an amended complaint, the defendants are permitted to respond to it by a motion to dismiss, a request to revise, a motion to strike and an answer, or even all of same without regard to how defendants responded to any one or more of prior versions of the complaint.   Defendants have not filed motions or requests addressed to any version of plaintiffs' numerous complaints outside the order prescribed by Practice Book § 10-6.

Section 10-61 provides:  “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8.”  Section 10-8 provides that 30 days after the return day, “subsequent pleadings, motions and requests [addressed to the amended pleading] shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required.”  “One step” and “the decision of the judicial authority if one is required” mean that a motion to dismiss, a request to revise, a motion to strike, and an answer, and each of them, may be filed against an amended complaint.   There is no provision in the rules prohibiting the filing of motion to dismiss, a request to revise, a motion to strike, and/or an answer against an amended complaint because a defendant had filed a motion to dismiss, a request to revise, a motion to strike, and/or an answer, or one or more of same, to a previous complaint or amended complaint.

Plaintiffs state:  “[T]he Court relied on dissimilar cases.”   Motion to Reargue, August 17, 2010, p. 1.[392] Plaintiffs say:  “Not one of the cases referred to ․ in Judge Parker's written decision involved granting a Motion to Dismiss when that decision was untimely filed.   That statement may well be true.   But, neither the court nor the plaintiffs know whether it is true or not.   In any event, there was no untimely motion to dismiss here.

Reargument is denied.   No other specific relief is requested.   The decision granting the Motion to Dismiss [366] stands.

Parker, J.T.R.

Parker, Thomas F., J.T.R.