Joseph Cox v. Victoria Reyes–D'Arcy et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 139)

FACTS

On August 4, 2010, the plaintiff, Joseph Cox, commenced this action by service of process against Victoria Reyes–D'Arcy, Joseph Benedict and the Pathology Consultants of New London, P.C. (PCNL).  On November 29, 2010, following a request to revise, the plaintiff filed a revised complaint alleging breach of fiduciary duty and civil conspiracy against Reyes–D'Arcy and Benedict, and bad faith against PCNL. On September 20, 2011, the plaintiff filed a request to amend his complaint to include two additional counts against PCNL, alleging employment discrimination based on age and disability, pursuant to General Statutes § 46a–60.¹  On that same day, the plaintiff filed his amended complaint with the court and served on the Connecticut Commission on Human Rights (No.133).

On October 3, 2011, the defendant filed an objection to the plaintiff's request for leave to amend the complaint and a motion to dismiss counts four and five of the amended complaint on the ground that the court lacks subject matter jurisdiction over the discrimination claims because the plaintiff failed to properly bring the action before the court.   The defendant also filed a memorandum of law, a signed and sworn affidavit of the defendant's attorney, Emily Gianquinto, and an authenticated copy of the release of jurisdiction from the Commission on Human Rights and Opportunities (CHRO) in support of its motion.   On October 3, 2011, the plaintiff filed an objection to the motion to dismiss and a memorandum of law.   The defendant subsequently filed a reply memorandum on October 21, 2011.   The matter was heard at short calendar on November 28, 2011.

DISCUSSION

“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[A] subject matter jurisdictional defect may not be waived ․ [or jurisdiction] conferred by the parties, explicitly or implicitly ․ [T]he question of subject matter jurisdiction ․ once raised, either by a party or by the court itself ․ must be answered before the court may decide the case.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).  “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009).

A

Operative Complaint

The filing of both an objection to the request to file an amended complaint and a motion to dismiss complicates the court's consideration of the present matter.   On September 20, 2011, the plaintiff filed a request for leave to file an amended complaint and separately filed an amended complaint.   In response, the defendant objected to the plaintiff's request and filed a motion to dismiss the separately filed amended complaint.  Practice Book § 10–59 provides in relevant part:  “The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein ․ during the first thirty days after the return day.”  Practice Book § 10–60(a) further provides, in relevant part:  “[A] party may amend his or her pleadings or other parts of the record or proceedings at any time ․ (3)[b]y filing request for leave to file such amendment, with the amendment appended, after service on each party ․ and with proof of service endorsed thereon.”  “[A]n amendment shall be deemed to have been filed by consent of the adverse party if no objection to the request for leave to file the amendment is made within fifteen days from the date of filing.”  Stuart v. Stuart, 112 Conn.App. 160, 182, 962 A.2d 842 (2009), rev'd in part on other grounds, 297 Conn. 26, 996 A.2d 259 (2010);  see Practice Book § 10–60(a)(3).

If the request is objected to, the amended complaint only becomes effective if it is approved by the court.   See Practice Book § 10–60.  “Whether to allow an amendment is a matter left to the sound discretion of the trial court.  [An appellate] court will not disturb a trial court's ruling on a proposed amendment unless there has been a clear abuse of that discretion․  It is the [plaintiffs'] burden ․ to demonstrate that the trial court clearly abused its discretion ․ 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 essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.”   (Internal quotation marks omitted.)  Beckenstein v. Reid & Riege, P.C., 113 Conn.App. 428, 435–36, 967 A.2d 513 (2009).

In the present case, the defendant timely objected to the plaintiff's request to file an amended complaint.   As a result, the amended complaint is not operative until the court rules on the request.   The present motion to dismiss, therefore, is directed at two counts of an inoperative complaint.  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, supra, 264 Conn. 545.   Based upon the facts of this case and the posture of this case the court overrules the objection to the filing of this amended complaint so that the operative complaint for the purposes of this motion to dismiss is the amended complaint.

B

Amending Complaint to Add Statutory Discrimination Claim

The defendant argues that counts three and four of the plaintiff's amended complaint should be dismissed for lack of subject matter jurisdiction because the claim was not brought to the Superior Court within ninety days after the CHRO released the complaint.   Specifically, the defendant argues that amending the complaint is not the same as bringing an action, therefore the plaintiff did not comply with the relevant statutes.   In addition, the defendant argues, in its reply memorandum, that the relation back doctrine does not apply, and that notice of the claims does not confer jurisdiction on the court.

The plaintiff counters that the defendant has not provided any support for its argument that an amended complaint is insufficient to bring an action pursuant to General Statutes § 46a–101.   In addition, the plaintiff asserts that an amendment which sets up a new cause of action speaks as of the date when it is filed, which would be the commencement date.   The plaintiff further argues that am action may commence once a party has notice of the filing, which the defendant had as of October 2010, when the plaintiff filed a complaint with the CHRO. Finally, the plaintiff argues that the rules of practice allow a party to serve pleadings subsequent to the complaint through electronic delivery, which the plaintiff did by emailing the defendant a copy of the amended complaint on September 20, 2011.

“[F]or almost one half century this court has seen no distinction between ‘commencing’ and ‘bringing’ an action.”  Lacasse v. Burns, 214 Conn. 464, 475–76, 572 A.2d 357 (1990).  “[A]n action is commenced not when the writ is returned but when it is served upon the defendant.”  (Internal quotation marks omitted.)  Rocco v. Garrison, 268 Conn. 541, 549, 848 A.2d 352 (2004).   The case law discussing the interchangeability of the terms “bring” and “commence,” however, deals with the issue of when a case is deemed to have commenced and not how a plaintiff may assert a cause of action against a defendant.   See Lacasse v. Burns, supra, 214 Conn. 464, Rocco v. Garrison, supra, 268 Conn. 541.   There is no appellate authority specifically addressing whether the statutory language of § 46a–101(e) means that a plaintiff cannot amend a complaint to bring a statutory claim of discrimination after receiving a release from the CHRO.

A thorough review of our case law reveals only one decision analyzing a similar situation.   In Infurchia v. Marlin Controls, Inc., Superior Court, judicial district of Danbury, Docket No. 317373 (September 17, 1996, Stodolink, J.) (17 Conn. L. Rptr. 545), Infurchia commenced an action on June 7, 1994, alleging violation of Connecticut's wage statute, breach of contract, wrongful termination and breach of the implied covenant of good faith and fair dealing.   Infurchia then filed a complaint with the CHRO on September 1, 1994.   Subsequently, on April 24, 1996, “the CHRO released jurisdiction over the matter” and “[o]n May 22, 1996, Infurchia filed a request for leave to amend the complaint to add a new cause of action alleging that he was fired as a result of age discrimination in violation of General Statutes § 46a–60(1).”  Id. The defendant objected to the additional count, arguing that “ § 46a–101 does not permit a plaintiff to add a cause of action to an existing action once the plaintiff obtains a release of jurisdiction statement ․” Id., 546.   Overruling the defendant's objection, the court noted that the defendant had “cited no authority for this proposition, nor ha [d] the court's independent research revealed any such authority.”  Id. Additionally, in Martin v. Westport, 558 F.Sup.2d 228 (D.Conn.2008), the court, in determining the plaintiff's discrimination claims were barred under the doctrine of res judicata, noted that the CHRO had released the plaintiff's claim while the state action was still pending, and, therefore, he could have amended his complaint to add a statutory claim of discrimination pursuant to Practice Book § 10–60.

It is clear that a plaintiff may not initiate a discrimination claim in Superior Court until the plaintiff has obtained a release from the CHRO. It is not clear, however, that this prevents a plaintiff from bringing a cause of action that is not within the CHRO's jurisdiction prior to obtaining a release to bring discrimination claims ² and then amending the complaint to add discrimination claims once a release of jurisdiction has been received.   Following the reasoning of Martin and Infurchia, this court is persuaded that a plaintiff may properly amend a complaint to add statutory discrimination claims so long as the plaintiff has received a release of jurisdiction from the CHRO prior to filing the request to amend the complaint.

C

Exhaustion

“Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed.”  (Internal quotation marks omitted.)  D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).   “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ Whether the trial court has subject matter jurisdiction is a question of law over which we exercise a plenary standard of review.”  (Internal quotation marks omitted.)  Wright v. Teamsters Local 559, 123 Conn.App. 1, 4–5, 1 A.3d 207 (2010).

General Statutes § 46a–100 provides, in part, that “[a]ny person who has timely filed a complaint with the Commission on Human Rights and Opportunities ․ alleging a violation of section 46a–60 and who has obtained a release from the commission ․ may also bring an action in the superior court ․” The court only has jurisdiction over cases brought after the plaintiff has received a release from the CHRO. See General Statutes § 46a–101(a).³  Section 46a–101(e) further provides that “[a]ny action brought by the complainant in accordance with section 46a–100 shall be brought within ninety days of the receipt of the release from the commission.”   The failure to obtain a release from the CHRO prior to bringing an action deprives the court of subject matter jurisdiction over a plaintiff's statutory claims of discrimination.   See Hayes v. Yale–New Haven Hospital, 82 Conn.App. 58, 59 n.2, 842 A.2d 616 (2004).

The plaintiff alleges in paragraph twenty of count three and paragraph nineteen of count four of the operative complaint that the defendant's conduct violated § 46a–60.   The plaintiff fails to allege, however, any facts demonstrating that he has exhausted the relevant administrative remedies.   The plaintiff does not allege that he filed a complaint with the CHRO alleging age and disability discrimination, or that he has received a release of jurisdiction from the CHRO. The defendant, however, has provided the court with the release of jurisdiction and has submitted the affidavit of Emily Gianquinto, the defendant's attorney, authenticating that the attached release of jurisdiction is genuine and that it was e-mailed to the parties on June 24, 2011.   Therefore, based on the record before the court, the plaintiff has exhausted his administrative remedies and filed his request to file an amended complaint within the ninety-day period required by § 46a–101(e).   This court has jurisdiction over the discrimination claims and the motion to dismiss is denied.

Cosgrove, J.

FOOTNOTES

FN1. As these two additional counts are the subject of the present motion and are brought solely against PCNL, the court will hereinafter refer to PCNL as “the defendant.”.  FN1. As these two additional counts are the subject of the present motion and are brought solely against PCNL, the court will hereinafter refer to PCNL as “the defendant.”

FN2. “Previously, there had been a split of authority in among trial courts as to whether or not exhaustion of remedies is required if the relief sought goes beyond that which an agency can give ․ The appellate court decision in [Hayes v. Yale–New Haven Hospital, 82 Conn.App. 58, 842 A.2d 616 (2004) ], resolved the split among the trial courts and made clear that a claimant must first file a complaint with the commission before initiating a private action.”  (Citations omitted.)   Li v. Canberra Industries, Superior Court, judicial district of New Haven, Docket No. CV 04 0489573 (July 23, 2010, Robinson, J.).   The split of authority, however, dealt with “whether a trial court has jurisdiction over an unexhausted claim seeking relief (such as attorneys fees and punitive damages) that the CHRO is not empowered to grant.”   Milne v. Filene's, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4018766 (February 21, 2007, Wiese, J.).   The ruling in Hayes, therefore, has no bearing on the present situation as the private action previously brought was not seeking relief the CHRO is not empowered to grant but rather brought claims the CHRO has no jurisdiction over generally..  FN2. “Previously, there had been a split of authority in among trial courts as to whether or not exhaustion of remedies is required if the relief sought goes beyond that which an agency can give ․ The appellate court decision in [Hayes v. Yale–New Haven Hospital, 82 Conn.App. 58, 842 A.2d 616 (2004) ], resolved the split among the trial courts and made clear that a claimant must first file a complaint with the commission before initiating a private action.”  (Citations omitted.)   Li v. Canberra Industries, Superior Court, judicial district of New Haven, Docket No. CV 04 0489573 (July 23, 2010, Robinson, J.).   The split of authority, however, dealt with “whether a trial court has jurisdiction over an unexhausted claim seeking relief (such as attorneys fees and punitive damages) that the CHRO is not empowered to grant.”   Milne v. Filene's, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4018766 (February 21, 2007, Wiese, J.).   The ruling in Hayes, therefore, has no bearing on the present situation as the private action previously brought was not seeking relief the CHRO is not empowered to grant but rather brought claims the CHRO has no jurisdiction over generally.

FN3. General Statutes § 46a–101(a) provides:  “No action may be brought in accordance with section 46a–100 unless the complainant has received a release from the commission in accordance with the provisions of this section.”.  FN3. General Statutes § 46a–101(a) provides:  “No action may be brought in accordance with section 46a–100 unless the complainant has received a release from the commission in accordance with the provisions of this section.”

Cosgrove, Emmet L., J.