Robin Brammer D.O. v. William Rosver M.D. et al. (2010)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

In this case an application was filed by the plaintiff for a prejudgment remedy against certain assets of the defendants.   The basis of the application is made pursuant to an attached complaint, lying on six counts.   The plaintiff had entered into an employment agreement with the defendants which expired as of a certain date and attempts to negotiate a new agreement were unsuccessful.   While these attempts were going on the plaintiff continued to work for the defendants and the plaintiff claims she was not properly compensated for this work and misrepresentations were made about her compensation.   Although it is not entirely clear from the complaint representations were made that dispute its expiration, compensation for her work were to be made under the terms of the original employment agreement.   Both parties seem to assume this to be the case-see paragraph 12 of Dr. Rosver's affidavit where he relies on provision of employment agreement providing for mandatory binding arbitration under original or November 4, 2004 agreement.

The defendants have now filed a motion to dismiss the application for a prejudgment remedy based on the ground that the court does not have subject matter jurisdiction to hear the application.   Paragraph 13g of the employment agreement is very broad.   It reads:

any and all disputes arising out of, under, in connection with, or in relation to this agreement shall be settled by arbitration in Hartford, Connecticut, before the American Arbitration Association in accordance with its rules then obtaining, and judgment upon any award rendered may be entered in any court having jurisdiction thereof.

Even if it is posited that, that language contemplates attachments and/or other prejudgment remedies cannot be secured in the courts, that would not prevent court intervention.   Such agreements between private parties are made in the context of statutory and common-law rulings.   Section 52-422 provides as follows:

§ 52-422 Order pendent elite

At any time before an award is rendered pursuant to an arbitration under this chapter, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when said court is not in session, any judge thereof, upon application of any party to the arbitration, may make forthwith such order or decree, issue such process and direct such proceedings as may be necessary to protect the rights of the parties pending the rendering of the award and to secure the satisfaction thereof when rendered and confirmed.

The act does not make any exceptions to the court's power to act thereunder based on whether an arbitration provision is mandatory or even whether, for example, the arbitration agreement itself provides for attachment remedies, cf Bahrain Telecommunications Co. v Discovery et al., 476 F.Sup.2d 176, 186 (D.Conn.2007).

The defendants argue that the court has no jurisdiction to hear the application because at the time it was filed and at the time the motion to dismiss was filed the plaintiff had “not yet submitted an application for arbitration.”   This reading is said to comport with the statutory language which states a judge can make an order pendente lite “upon application of any party to the arbitration.”   The application was made July 28, 2009.   The parties unsuccessfully attempted to resolve the dispute but these efforts proved unsuccessful.   The plaintiff then filed a demand for arbitration on April 30, 2010.   The plaintiff argues that as of that date there is now an arbitration proceeding pending so that section 52-422 has been complied with.

The defendants make a rejoinder:  “The plaintiff's entire objection (to the motion to dismiss) is predicated upon the false belief that her initiation of an arbitration proceeding more (9) months after she invoked Conn. Gen.Stat. § 52-422 is sufficient to retroactivity create jurisdiction here.   However, because a pending arbitration is an essential condition that must exist before, § 52-422 may be invoked, the plaintiff's argument rings hollow Goodson v. State 232 Conn. 175, 180 (1995) (emphasis by defendants).”

The defendants are quite correct in citing Goodson for the proposition that the “essential condition prescribed by the statute (§ 52-422) must be met or a court has no subject matter jurisdiction to grant the relief it provides for,” id.   But after this language the court states:  “Thus a pending arbitration is an essential condition that must exist before § 52-422 may be invoked.   It is undisputed that on the date the trial court conducted its hearing and entered its order there was no pending arbitration.   The essential condition prescribed by the statute was not met, therefore, and the trial court lacked jurisdiction to have considered the plaintiff's petition pursuant to § 52-422.”  (Emphasis by this court.)

Because an application for arbitration has now been filed any judge now has jurisdiction to act under § 52-422.   When the application was filed no judge would have had the power to so act, the application at that point is a piece of paper as to which a hearing date cannot even be assigned.   It is in the act of granting the relief that the court exercises § 52-422 jurisdiction as Goodson makes clear.   There might very well be reason for a party to just file the application before the machinery of arbitration is invoked-settlement negotiations may be active or contemplated and invoking arbitration with its deadlines and formal requirements might be thought to have a negative effect on efforts to settle the dispute.   Yet the party filing the application might want to reserve the right to take immediate action to protect the client's interests if negotiation efforts fail.

So what then is the remedy if the defendants were to prevail on this issue?   Must a new application be now filed.   It seems to the court that that would be a cumbersome overlay in these cases, not dictated by reading of Goodson.   The motion to dismiss is denied.

Corradino, J.T.R.

Corradino, Thomas J., J.T.R.