Samantha Jascowski v. Gary Ross (2011)

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Cosgrove, Emmet L., J. Opinion Title MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 124) ISSUE AND SUBMISSION The defendant moves to strike portions of the following paragraphs:  paragraph three of count one, paragraph one of count two, and paragraph one of count three.1  The defendant moves to strike such portions, which allege conduct occurring after the plaintiff reached the age of eighteen, on the ground that such claims are barred by the statute of limitations.   The defendant further moves to strike the portion of count two in paragraph six, which alleges a violation of General Statutes § 53a–73a by the defendant after the plaintiff reached the age of sixteen, on the ground that such conduct is not prohibited by Connecticut law.   FACTS On January 17, 2006 the plaintiff, Samantha Jascowski, filed a three-count complaint against the defendant, Gary Ross, alleging the following facts.   Between approximately 1995 and 2002, when the plaintiff was approximately 12 through 19 years of age, the defendant intentionally and deliberately assaulted the plaintiff by deliberately engaging in physical sexual contact in total disregard of the plaintiff's age and well-being.   The defendant's actions were willful and malicious, and the plaintiff has suffered various injuries as a result.   In counts one, two and three, the plaintiff alleges intentional assault and battery, sexual assault and intentional infliction of emotional distress, respectively.   DISCUSSION “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)   Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   “[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”   Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)   Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”   (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   A. The defendant argues that the court should strike paragraph three of counts one, two and three, with respect to conduct that allegedly occurred after the plaintiff reached the age of eighteen, on the ground that such allegations are barred by the statute of limitations, pursuant to General Statutes § 52–577.   The plaintiff counters that case law, as well as our Practice Book, make it impermissible for the court to strike a portion of a paragraph in the plaintiff's complaint, and that even if such action was permissible, the plaintiff's claims were timely commenced and are not barred by the statute of limitations.   General Statutes § 52–577 provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”   General Statutes § 52–577d provides:  “Notwithstanding the provisions of § 52–577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.”  “[T]he [term] ‘minor’ ․ shall be deemed to refer to a person under the age of eighteen years ․ and ‘age of majority’ shall be deemed to be eighteen years old.”   General Statutes § 1–1d.   In the present case, the allegations in the plaintiff's complaint arise from a period of time “[b]etween approximately 1995 and 2002, when the plaintiff was approximately 12 through 19 years of age.”   The plaintiff was born on May 10, 1983, and therefore, she reached the age of majority on May 10, 2001.   Consequently, any allegations that refer to conduct that occurred before May 10, 2001, when the plaintiff turned eighteen, would fall under the thirty-year statute of limitations set out in § 52–577d.   Allegations referring to conduct that occurred after May 10, 2001 however, would fall under the three-year statute of limitations set out in § 52–577.   Thus, the defendant may have defenses to the conduct that occurred after May 10, 2001, that he does not have for conduct occurring prior to that date.   As the plaintiff correctly points out, “[a]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count ․ However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action ․ [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Citation omitted;  internal quotation marks omitted.)   Vanstean–Holland v. Lavigne, Superior Court, judicial district of New London, Docket No. CV 08 5007959 (September 2, 2009, Martin, J.).   On the other hand, it is well established that “[t]he ability of trial judges to manage cases is essential to judicial economy and justice.”   Krevis v. Bridgeport, 262 Conn. 813, 819, 817 A.2d 628 (2003).  “The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases.”  (Internal quotation marks omitted.)   Vertex, Inc. v. Waterbury, 278 Conn. 557, 563–64, 898 A.2d 178 (2006).   Additionally, our Practice Book provides:  “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”   Practice Book § 1–8.   In the present case, paragraph three of the plaintiff's complaint establishes the time period in which the alleged conduct by the defendant occurred.   Included within this time period are dates when the plaintiff was a minor as well as dates where the plaintiff had already reached the age of majority.   Such portions of paragraph three of the plaintiff's complaint alleging conduct occurring after the plaintiff reached the age of eighteen are barred by the applicable statute of limitations.   While the weight of authority suggests that in most situations a motion to strike does not lie with respect to an individual paragraph of a complaint, denying the present motion on such grounds would not facilitate business or advance justice, and would ultimately lead to confusion and the additional expenditure of time and money for the court and the parties involved.   B. The court denies the defendant's request to strike the allegations of paragraph six of count two as there is no reference to the age of the plaintiff when such violations allegedly occurred.   CONCLUSION For the foregoing reasons, the court grants the defendant's motion to strike as it pertains to allegations of conduct occurring after the plaintiff reached the age of majority in paragraph three of counts one, two, and three.   The court denies the defendant's motion to strike paragraph six of count two.   Cosgrove, J. FN1. As noted by the plaintiff in her opposition to the defendant's motion to strike, the defendant's reference to paragraph one of both counts two and three seems to intend to refer to paragraph three of all counts, as it has been incorporated by reference.   The court will therefore interpret it as such.