Michael Bradley v. Paula Moran et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO AMEND # 211

On November 23, 2010, the plaintiff, Michael Bradley, filed a motion for to amend and a second amended complaint.   After being granted two motions for extension of time, the defendants, Paula Moran, Anne Moran and Heath Comley, filed an objection to the plaintiff's motion to amend on December 22, 2010.   The plaintiff filed a reply to the objection on December 30, 2010.¹

Before considering the merits of motion and the objection, the court must review some of the procedural history of this case.   On June 1, 2009 and August 5, 2009, the defendants filed motions for summary judgment.   At the time of the motions, the plaintiffs operative complaint was the version filed by the plaintiff on April 24, 2008.   The April 24, 2008 complaint contained ten counts, but the tenth count, which alleged defamation with respect to Comley, was stricken pursuant to an agreement between the parties on August 4, 2008.   This court issued a memorandum of decision regarding the motions for summary judgment on December 2, 2009.   The court granted the defendants' motions with respect to counts two, three, five, six, eight and nine, but denied the motions with respect to counts one, four and seven.

On April 8, 2010, the defendants filed a second set of motions for summary judgment on the remaining counts of the plaintiff's complaint.²  Subsequently, on September 3, 2010, the plaintiff filed a motion to amend and a first amended complaint.   On September 13, 2010, the defendants filed a motion for extension of time for thirty days in which to respond to the plaintiff's motion to amend.   The extension of time was granted but the defendants took no further action with respect to the first amended complaint.   Pursuant to Practice Book § 10-60(a)(3),³ the first amended complaint is now the operative complaint.

On November 23, 2010, the plaintiff filed the motion to amend that is the subject of this decision.   At issue is whether the court should grant the plaintiff's motion, which would make the second amended complaint the operative complaint in the present case.

“While our courts have been liberal in permitting amendments ․ this liberality has limitations.   Amendments should be made seasonably.   Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment ․ The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial ․ Whether to allow an amendment is a matter left to the sound discretion of the trial court.”  (Internal quotation marks omitted.)  Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583, 833 A.2d 908 (2003).   In Dow & Condon, Inc. v. Brookfield Development Corp., the defendant filed an amended answer and special defenses on the day that trial was scheduled to begin.  Id. In the amended answer and special defenses, the defendant raised a new special defense that the co-brokerage agreement at issue in the case violated § 20-328-8a(e) of the Connecticut Regulations.  Id. The Connecticut Supreme Court upheld the trial court's decision to allow the amendment, noting that “the new affirmative defense did not inject any new factual issues into the case, but instead raised a purely legal issue.”   Id., 584.

In the present case, counts one, four and seven of the first amended complaint are titled “tortious interference with contract” and are brought against Paula Moran, Anne Moran and Comley, respectively.   These counts are identical to counts one, four and seven of the second amended complaint.   The difference between the first amended complaint and the second amended complaint is the addition of counts eleven, twelve and thirteen, which are entitled “tortious interference with expectation.”   Counts eleven, twelve and thirteen are brought against Paula Moran, Anne Moran and Comley, respectively.   With the exception of the titles, counts eleven, twelve and thirteen exactly mirror counts one, four and seven of both the first and the second amended complaints.   Put simply, the plaintiff seeks to amend his complaint by using the exact same factual allegations to assert two alternative theories of liability.   The plaintiff is claiming that his allegations amount to two causes of action:  “tortious interference with contract,” which is already pleaded in the first amended complaint, and “tortious interference with expectation.”   This is analogous to the situation in Dow & Condon, Inc. v. Brookfield Development Corp.;   the plaintiff is not seeking to add any factual issues but is instead raising a new legal issue.

“Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.”  Dreier v. Upjohn Co., 196 Conn. 242, 492 A.2d 164 (1985).   Here, the plaintiff seeks to plead an alternative theory of liability by relying on the same factual allegations that are in the first amended complaint, which is currently operative.   This case has not been set for trial and the court finds that allowing the amendment is not substantially unfair to the defendants because the plaintiff does not seek to amend any factual allegations.   Accordingly, the plaintiff's motion to amend is granted and the defendant's objection is overruled.

Cosgrove, J.

FOOTNOTES

FN1. The plaintiff filed a duplicate reply on January 5, 2011..  FN1. The plaintiff filed a duplicate reply on January 5, 2011.

FN2. The plaintiff has filed an objection to the motions for summary judgment.   Those motions and the plaintiff's objection are currently pending before this court..  FN2. The plaintiff has filed an objection to the motions for summary judgment.   Those motions and the plaintiff's objection are currently pending before this court.

FN3. Practice Book § 10-60(a)(3) provides, in relevant part:  “[A] party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section ․ [b]y filing a request for leave to file such amendment, with the amendment appended ․ If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”.  FN3. Practice Book § 10-60(a)(3) provides, in relevant part:  “[A] party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section ․ [b]y filing a request for leave to file such amendment, with the amendment appended ․ If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”

Cosgrove, Emmet L., J.