Chantal Peoples v. John Carberry (2011)

MEMORANDUM OF DECISION

In this action, the self-represented plaintiff, Chantal Peoples, initially filed a two-count complaint against the defendant, John Carberry, on May 7, 2010, followed by a revised complaint on October 15, 2010.   The matter arises out of the defendant's alleged pro bono representation of the plaintiff in a bankruptcy proceeding and a suit against her former lawyer between 2005 and 2008.   In the revised complaint, count one was for legal malpractice and count two was for breach of contract.   The court, Adams, J., struck count two on March 17, 2011.   On April 11, 2011, the court, Mottolese, J., granted the plaintiff's motion to extend the time period to file a substitute complaint.   She then filed a three-count substitute complaint on April 29, 2011.

In the substitute complaint, count one is a claim for legal malpractice that adds some new facts that were not alleged in the October 15, 2010 revised complaint.   Count two and count three appear to state causes of action for fraudulent misrepresentation and fraudulent nondisclosure, allegations that did not appear in the earlier complaints.   The prayer for relief in the substitute complaint also mentions punitive damages for the first time.

On May 13, 2011, the defendant moved to strike the substitute complaint, arguing that it adds two new causes of action without the consent of the defendant or the court as required by Practice Book § 10–60.¹  The plaintiff filed an objection to the motion to strike on May 25, 2011.   In her objection, the plaintiff argues that some time in late 2010 or early 2011 she came upon a transcript of a 2006 hearing that “had information which the plaintiff clearly recognized as fraudulent misrepresentation and fraudulent nondisclosure.”   She argues that she meant to amplify or expand count one rather than add a new cause of action and that the new claims in counts two and three were properly pleaded in the substitute complaint pursuant to a literal reading of Practice Book § 10–44.²  The plaintiff also argues that the motion to strike does not comply with Practice Book § 10–41 because it does not set forth each claim of insufficiency and specify the reasons for those claims.   The court heard argument on the defendant's motion to strike and the plaintiff's objection on June 6, 2011.

DISCUSSION

“A motion to strike is the proper procedure to attack the legal sufficiency of an amended pleading that is filed in violation of Practice Book § 10–60 ․” Daniels v. Felner Corp., Superior Court, judicial district of Fairfield, Docket No. CV 00 0378370 (May 13, 2002, Sheedy, J.).   In support of his motion, the defendant cites East Greyrock LLC v. OBC Associates Inc., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 04 4002173 (May 4, 2007, Jennings, J.) (43 Conn. L. Rptr. 396, 396), in which a court struck certain counts of the plaintiffs' complaint, following which the plaintiffs filed a substitute complaint where they added allegations and causes of action that were not contained in the original complaint and were unrelated to the stricken counts.   The plaintiffs argued that nothing in Practice Book § 10–44 prevents them from alleging new facts or bringing new causes of action following the granting of a motion to strike.  Id., 397.   The court disagreed with this contention, reasoning as follows:  “Practice Book § 10–44 in context clearly limits the authority to file an amended complaint within fifteen days after the granting of a motion to strike to new allegations which ․ correct the defects in the original by setting forth claims which, if proved, could afford a basis for recovery ․ The granting of a motion to strike ․ would allow the plaintiffs the opportunity to replead their complaint to satisfy the insufficiency of the allegations ․ Even though the pleading has been stricken, only the defective portion of the pleading is affected and, as provided by [Practice Book § ]10–44 ․ that part may be amended within fifteen lays after the motion is granted.”  (Citations omitted;  internal quotation marks omitted.)  Id.

Another court has ruled that it “does not construe Practice Book § 10–44 as providing a plaintiff with the opportunity to assert new causes of action without a court order, consent of the parties or leave of the court as required by Practice Book § 10–60.”  State v. Ten Companies, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 07 5008921 (February 6, 2008, Langenbach, J.) (45 Conn. L. Rptr. 40, 41).

At the same time, the court recognizes that the Practice Book rules are to 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.   Furthermore, “[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.”  (Internal quotation marks omitted.)  Orcutt v. Commissioner of Correction, 284 Conn. 724, 740 n.26 (2007).   Were the court to grant the defendant's motion to strike, the plaintiff would likely move to amend her complaint by leave of court via Practice Book § 10–60, an amendment that will in all likelihood be allowed given Connecticut courts' liberal approach in permitting amendments.   See, e.g., Intercity Development, LLC v. Andrade, 286 Conn. 177, 190 (2008).   Respect for judicial economy favors denying the defendant's motion.

Courts have permitted amendments to pleadings even where the Practice Book was not strictly adhered to.   For instance, in Adler v. Snoddy, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 02 0200492 (September 15, 2004, Adams, J.), following the granting of a motion to strike, the plaintiff filed an amended complaint adding paragraphs to count four, which was unaffected by the motion to strike.   The defendants moved to strike those paragraphs on the ground that the plaintiff did not seek leave to amend.   Id. The court recognized that “[because] the Fourth Count was not affected by the decision it could not be amended without leave of the court,” yet declined to strike the offending paragraphs, reasoning that “the pleadings are not yet closed and discovery has not been completed since there have been numerous and ongoing disputes that remain unresolved” and thus, “[t]he defendants will not be unfairly prejudiced by the amended Fourth Count.”   Id.

Similarly in State v. Ten Companies, Inc., supra, 45 Conn. L. Rptr. 40, the plaintiff filed a revised complaint alleging new causes of action following the granting of a motion to strike.   The motion to strike the revised complaint was brought on both procedural and substantive grounds.  Id., 40.   Citing East Greyrock LLC v. OBC Associates Inc., supra, 43 Conn. L. Rptr. 397, the court noted that “[t]he context of § 10–44 is limited to providing a plaintiff with the opportunity to replead those portions of the complaint that have been stricken as insufficient.”  Id. While acknowledging that the revised complaint did not strictly comply with practice rules, the court, “given Connecticut's liberal amendment rules and for the sake of judicial economy,” declined to grant the motion to strike on procedural grounds because “the court would still end up addressing the substantive grounds raised in the current motion in a later motion to strike that would inevitably be filed once the plaintiff complied with the Practice Book rules.”  Id., 41.

Judicial economy is an important consideration in the present case.   As explained above, the granting of the defendant's motion to strike will only result in a counterproductive delay of this action because of the likelihood of a subsequent Practice Book § 10–60(a) amended complaint by leave of court.   Furthermore, Practice Book § 10–44 as written does not explicitly disallow the alleging of new facts and causes of action following the granting of a motion to strike, and Connecticut's appellate courts have not interpreted the rule in this way.   Thus, the plaintiff's reliance on a literal reading of the rule was reasonable and was not inconsistent with binding case law.   The defendant has not argued that the substitute complaint will cause unfair prejudice, and the case has not been assigned for trial.   Striking the substitute complaint is not mandatory under the Practice Book and will serve no apparent useful purpose.³  For the foregoing reasons, the defendant's motion to strike is denied.

David R. Tobin, J.

FOOTNOTES

FN1. Practice Book § 10–60(a) provides in relevant part:  “Except as provided in Section 10–66, 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 in the following manner:  (1) By order of judicial authority;  or (2) By written consent of the adverse party;  or (3) By filing a request for leave to file such amendment ․”.  FN1. Practice Book § 10–60(a) provides in relevant part:  “Except as provided in Section 10–66, 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 in the following manner:  (1) By order of judicial authority;  or (2) By written consent of the adverse party;  or (3) By filing a request for leave to file such amendment ․”

FN2. Practice Book § 10–44 provides in relevant part:  “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading ․”.  FN2. Practice Book § 10–44 provides in relevant part:  “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading ․”

FN3. In response to the plaintiff's other objection to the motion to strike, the court rules that the motion sets forth and specifies the reasons for the claim of insufficiency and is therefore proper under Practice Book § 10–41..  FN3. In response to the plaintiff's other objection to the motion to strike, the court rules that the motion sets forth and specifies the reasons for the claim of insufficiency and is therefore proper under Practice Book § 10–41.

Tobin, David R., J.