Norma Ortega v. Catherine Sutch et al. (2012)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The defendants, Catherine and Phillip Sutch (the “defendants”), have moved to dismiss Counts One, Two and Five of the plaintiff's amended complaint (# 130) filed on December 30, 2011 pursuant to the prior pending action doctrine.   The defendants claim that the issues presented in those counts are the same issues that are already pending in the action of Ortega v. Sutch et al, Docket No. MMX CV 11 6006439.

Factual and Procedural Background

The plaintiff, Norma Ortega, attempted to commence the above-captioned action against the defendants in February of 2011.   Counts One, Two and Five of the original complaint filed on February 16, 2011 were directed against the defendants and arose out of a motor vehicle collision that allegedly occurred on February 21, 2009.   Counts Three and Four were directed against the codefendant, John Distacio (“co-defendant”).   The defendants filed a motion to dismiss for lack of personal jurisdiction on April 11, 2011.   That motion was granted by this court, Wiese J. on October 12, 2011.   The two counts against the co-defendant remained pending.

On November 16, 2011, the plaintiff commenced a separate cause of action against the defendants.   That action is presently pending as Ortega v. Sutch et al, Docket No. MMX CV 11 6006439.   The three-count complaint asserts claims virtually identical to those asserted in Count One, Two and Five in this action.

On December 1, 2011, the co-defendant served the defendants with an apportionment complaint in this action.   On December 30, 2011, the plaintiff filed an amended complaint, which added Counts One, Two and Five against the defendants.

Discussion of the Law and Ruling

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  Upson v. State, 190 Conn. 622, 624, 461 A.d 991 (1983).  “[I]n ruling on a motion to dismiss, the trial court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn 423, 432–33, 829 A.2d 801 (2003).   The motion to dismiss is the proper device by which to request that the trial court dismiss the second action.  Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985).

“The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement.   It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious.”   (Internal quotation marks omitted.)  Solomon v. Alberman, 196 Conn. 359, 383, 493 A.2d 193 (1985).   The prior pending action doctrine is a rule of justice and equity, applicable where two suits are virtually alike and in the same jurisdiction.  Bayer v. Showmotion, Inc., 292 Conn. 381, 973 A.2d 1229 (2009).

The plaintiff argues that the amended complaint should not be dismissed under the prior pending action doctrine because it falls within an exception to that doctrine.   However, the exception applies only to limited cases in which the dismissal of the second action would deny the plaintiff a right to bring a separate, but related cause of action.

The plaintiff relies on Mola v. Home Depot, judicial district of Stamford–Norwalk, Docket No. CV 98 0167635 (April 7, 2000, Karazin, J.) [27 Conn. L. Rptr. 60] and Ayles v. Krygier, judicial district of New Haven, Docket No. CV 09 5030876, (January 15, 2010, Zoarski, J.) [49 Conn. L. Rptr. 218].   In Mola, the court declined to dismiss the second action because it involved a different cause of action for recklessness, while the prior pending action alleged negligence.   In Ayles the court allowed a second action to stand because it involved additional parties and additional causes of action.

In this case the two cases against the defendants do not involve separate causes of action or separate parties.   The pending action against the defendants is virtually identical to Count One, Two and Five in this action.   Therefore, those counts are dismissed.

By the Court,

Aurigemma, J.

Aurigemma, Julia L., J.