Rajanikant Patel v. Flexo Converters Meriden, Inc. et al. (2011)

MEMORANDUM OF DECISION MOTION TO DISMISS # 165 AND REQUEST TO AMEND # 170

FACTS

On June 17, 2009, the plaintiff, Rajanikant Patel, filed a two-count complaint against the defendants, Flexo Converters Meriden, Inc. (Flexo Meriden) and Hi–Tek Solutions, LLC (HiTek).   In his two-count revised complaint,¹ Patel alleges that, on or about June 8, 2007, he was injured at the manufacturing facility of his employer, Flexo Converters U.S.A., Inc. (Flexo USA), which is located at 1200 Northrop Road in Meriden (the property).²  In particular, Patel alleges that he was injured while attempting to dislodge a bag from a machine he was operating, which had been altered so that it would continue to operate when the safety door was open.   In count one, Patel alleges that he was injured as a result of the negligence of Flexo Meriden because it owned the property and allowed the machine to be altered so that it would continue to operate when the safety door was open.   In count two, Patel alleges that he was injured as a result of the negligence of Hi–Tek because it performed work for Flexo USA and Flexo Meriden at the manufacturing facility located on the property and altered the machine so that it would continue to operate when the safety door was open.

On August 17, 2009, Flexo USA filed a motion to intervene as a party plaintiff, which was granted by order of the court, Matasavage, J., on August 31, 2009.   In its intervening complaint, Flexo USA alleges that Patel's alleged injuries arose out of and in the course of his employment with Flexo USA, whereby it claims that any damages recovered by Patel be apportioned so that Flexo USA is reimbursed for amounts it has paid, and may become obligated to pay, for workers' compensation benefits.

On September 21, 2009, Hi–Tek filed an answer and special defense to Patel's revised complaint.   On September 22, 2009, Patel filed a reply to HiTek's special defense.   On October 14, 2009, Flexo Meriden filed an answer to Flexo USA's intervening complaint and an amended answer and special defense to Patel's revised complaint.³  On October 22, 2009, Patel filed a reply to Flexo Meriden's special defense.   On October 23, 2009, Patel filed a certificate of closed pleadings.

On August 13, 2010, Flexo USA filed a motion for summary judgment as to Patel's amended complaint, dated January 16, 2009, which was granted by order of the court, J. Fischer, J., on January 7, 2011.   On August 27, 2010, Flexo Meriden filed a motion for summary judgment as to Patel's revised complaint, dated July 20, 2009, which was granted by order of the court, J. Fischer J., on November 16, 2010.

Thereafter, on January 19, 2011, Hi–Tek filed a counterclaim against Flexo USA.⁴ In its counterclaim, Hi–Tek alleges that, while it installed a key lock switch on the machine that required the use of keys to allow the machine to run with the safety door open, Flexo USA requested and contracted with Hi–Tek to install the key lock switch.   Hi–Tek further alleges that it provided all keys for the key lock switch to Flexo USA's supervisors and was advised by Flexo USA that the keys would be kept only by the supervisors and utilized only for maintenance and not for the general operation of the machine.   In count one of its counterclaim, Hi–Tek alleges that any injuries sustained by Patel were as a result of the negligence of Flexo USA, most notably, that it was in control of the machine and allowed general operation of the machine with the safety door open.   In count two of its counterclaim, Hi–Tek alleges that Flexo USA breached its contract with Hi–Tek in that it allowed general operation of the machine with the safety door open.   As a result, Hi–Tek seeks indemnification from Flexo USA for any damages assessed against Hi–Tek with respect to Patel's revised complaint.

On January 31, 2011, Flexo USA filed a motion to dismiss Hi–Tek's counterclaim, in part, on the ground that Hi–Tek failed to file a request to amend its answer, pursuant to Practice Book § 10–60, or an amended answer with its counterclaim, pursuant to Practice Book § 10–54.   On March 9, 2011, Hi–Tek filed an objection to Flexo USA's motion to dismiss and a request to amend its answer along with an amended answer and counterclaim.   On March 14, 2011, Flexo USA filed an objection to Hi–Tek's request to amend.   Arguments with respect to the motion to dismiss were heard at short calendar on March 14, 2011.

I

MOTION TO DISMISS

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).

In its memorandum of law in support of its motion to dismiss, Flexo USA argues that the court lacks personal jurisdiction over it because:  (1) the counterclaim was not filed prior to the close of pleadings pursuant to General Statutes § 52–584;  (2) the counterclaim was not filed with Hi–Tek's answer and special defenses to Patel's revised complaint pursuant to Practice Book § 10–54;  and (3) the counterclaim was filed without Hi–Tek seeking leave of court to amend its pleadings pursuant to Practice Book § 10–60.   In response, Hi–Tek counters that Flexo USA's motion to dismiss is an improper motion relative to this particular issue because Flexo USA has been a party to this action since August 2009, and, therefore, the court does have jurisdiction over Flexo USA.

At the outset, a motion to dismiss is the improper procedural vehicle for raising these arguments.   With respect to Flexo USA's first argument, § 52–584 provides:  “No action to recover damages for injury to the person, or to real property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”   A statute of limitations defense “must be specially pleaded and cannot be raised by a [motion to dismiss].”  Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972).   Therefore, this argument is improperly raised in Flexo USA's motion to dismiss.

With respect to Flexo USA's second argument, Practice Book § 10–54 provides:  “In any case in which the defendant has either in law or in equity or in both a counterclaim, or right of setoff, against the plaintiff's demand, the defendant may have the benefit of any such setoff or counterclaim by pleading the same as such in the answer, and demanding judgment accordingly;  and the same shall be pleaded and replied to according to the rules governing complaints and answers.”   The Appellate Court has stated that Practice Book § 10–54 “neither implicates the court's subject matter jurisdiction ․ nor the court's personal jurisdiction ․ By contrast, the motion to strike attacks the sufficiency of the pleadings ․ The ․ argument attacking the technical propriety of the defendant's counterclaim, therefore, should not have been raised by a motion to dismiss, but rather by a motion to strike.”  Mulcahy v. Mossa, 89 Conn.App. 115, 128, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005).   Therefore, this argument is improperly raised in Flexo USA's motion to dismiss.

As to Flexo USA's third argument, Practice Book § 10–60(a) provides the manner m which a party may amend his or her pleadings.   Nevertheless, Practice Book § 10–60(a) specifically states:  “If an opposing party shall have an objection to any part of such request or the amendment appended thereto, such objection in writing specifying the particular paragraph or paragraphs to which there is objection and the reasons therefor, shall, after service upon each party as provided by Sections 10–12 through 10–17 and with proof of service endorsed thereon, be filed with the clerk ․” Furthermore, if an objection is based on the sufficiency of the pleadings or, more specifically, the technical propriety thereof, the proper procedural vehicle is a motion to strike.   See Mulcahy v. Mossa, supra, 89 Conn.App. 128.   Because a motion to strike is required to challenge the legal sufficiency of a counterclaim filed without an answer pursuant to Practice Book § 10–54, a motion to strike is similarly required to challenge the legal sufficiency of a counterclaim filed without a request to amend an answer pursuant to Practice Book § 10–60.   Therefore, this argument is improperly raised in Flexo USA's motion to dismiss.

For the foregoing reasons, Flexo USA's motion to dismiss is denied.

II

REQUEST TO AMEND

“[A] party may amend his or her pleadings or other parts of the record or proceedings at any time ․ 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, with the amendment appended, after service upon each party as provided by Sections 10–12 through 10–17, and with proof of service endorsed thereon ․” Practice Book § 10–60(a).  “The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.   If the amendment occasions delay in the trial or inconvenience to the other party, the judicial authority may award costs in its discretion in favor of the other ․” Practice Book § 10–60(b).

The Supreme Court has stated that “[a] trial court has wide discretion in granting or denying amendments to the pleadings ․” Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985).  “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.”  (Internal quotation marks omitted.)  Intercity Development, LLC v. Andrade, 286 Conn. 177, 190, 942 A.2d 1028 (2008).  “The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case.”  (Internal quotation marks omitted.)  Mastrolillo v. Danbury, 61 Conn.App. 693, 696, 767 A.2d 1232 (2001).   A trial court acts within its discretion in allowing a party to amend its pleading if it finds that “permitting the amendment would not work an injustice to either the plaintiff or the defendant and that the granting of the motion would not unduly delay trial.”  Tornaquindici v. Keggi, 94 Conn.App. 828, 845, 894 A.2d 1019 (2006).

In its request to amend, Hi–Tek argues that it would be in furtherance of judicial economy to allow an indemnification claim in the present action and would not cause any substantial delay due to the fact that Flexo USA has been a party to this action since August 2009, and is aware of all the pleadings.   In its objection to Hi–Tek's request to amend, Flexo USA reincorporates the arguments it set forth in its motion to dismiss and further argues that “Hi–Tek's procedural impropriety has caused further delay and motion practice.”   In particular, Flexo USA contends that it has been a party to this action since August 31, 2009, such that Hi–Tek clearly had time to assess its position concerning Flexo USA well before Hi–Tek filed its counterclaim.

With respect to Flexo USA's first argument under § 52–584, a statute of limitations defense “must be specially pleaded ․” Ross Realty Corp. v. Surkis, supra, 163 Conn. 391.   Therefore, it is improperly raised in Flexo USA's objection to Hi–Tek's request to amend.⁵  With respect to Flexo USA's second and third arguments under Practice Book §§ 10–54 and 10–60, Hi–Tek has properly filed a request to amend its answer and an amended answer along with its counterclaim and, therefore, there is no procedural impropriety.

Furthermore, this court finds that it would not work an injustice to any party or unduly delay trial to grant Hi–Tek's request to amend its answer to include a counterclaim against Flexo USA. Accordingly, Hi–Tek's request to amend is granted.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. On July 20, 2009, Patel filed a revised complaint in response to Flexo Meriden's request to revise, dated June 19, 2009..  FN1. On July 20, 2009, Patel filed a revised complaint in response to Flexo Meriden's request to revise, dated June 19, 2009.

FN2. Previously on December 17, 2008, Patel commenced an action against Flexo USA. On January 16, 2009, Patel filed a one-count amended complaint against Flexo USA. On July 22, 2009, the court, Gould, J., granted a motion to consolidate the two actions..  FN2. Previously on December 17, 2008, Patel commenced an action against Flexo USA. On January 16, 2009, Patel filed a one-count amended complaint against Flexo USA. On July 22, 2009, the court, Gould, J., granted a motion to consolidate the two actions.

FN3. Flexo Meriden had originally filed an answer and special defense to Patel's revised complaint on August 20, 2009..  FN3. Flexo Meriden had originally filed an answer and special defense to Patel's revised complaint on August 20, 2009.

FN4. At this time, Hi–Tek failed to file a request to amend its answer or an amended answer with its counterclaim..  FN4. At this time, Hi–Tek failed to file a request to amend its answer or an amended answer with its counterclaim.

FN5. To the extent that a statute of limitations defense could be properly set forth in an objection to a request to amend, it bears noting that the proper statute is that for indemnification under General Statutes § 52–598a.   See Beasley v. Yale University, Superior Court, judicial district of New Haven;  Docket No. CV 020460260 (October 3, 2005, Rodriguez, J.) (40 Conn. L. Rptr. 89, 91).  Section 52–598a provides:  “Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.”   Therefore, Hi–Tek's counterclaim is not precluded by the statute of limitations..  FN5. To the extent that a statute of limitations defense could be properly set forth in an objection to a request to amend, it bears noting that the proper statute is that for indemnification under General Statutes § 52–598a.   See Beasley v. Yale University, Superior Court, judicial district of New Haven;  Docket No. CV 020460260 (October 3, 2005, Rodriguez, J.) (40 Conn. L. Rptr. 89, 91).  Section 52–598a provides:  “Notwithstanding any provision of this chapter, an action for indemnification may be brought within three years from the date of the determination of the action against the party which is seeking indemnification by either judgment or settlement.”   Therefore, Hi–Tek's counterclaim is not precluded by the statute of limitations.

Fischer, Jack W., J.