Rajanikant Patel v. Flexo Converters et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 191)

On November 7, 2011, the intervening plaintiff, Flexo Converters U.S.A., Inc. (Flexo USA), filed a motion to strike the revised counterclaim of the defendant, Hi–Tek Solutions, LLC (Hi–Tek), dated August 12, 2011, on three grounds:  (1) it is barred by the statute of limitations set forth under General Statutes § 52–584;  (2) it is barred by the exclusivity provision set forth under the Workers' Compensation Act, General Statutes § 31–175 et seq.;   and (3) it was not filed in an answer in accordance with Practice Book § 10–54.

At the outset, the court recognizes that Hi–Tek's revised counterclaim was not filed in an answer pursuant to Practice Book § 10–54.   The Appellate Court has indicated that an argument attacking the technical propriety of a counterclaim under Practice Book § 10–54 is properly raised in a motion to strike.   See Mulcahy v. Mossa, 89 Conn.App. 115, 128, 872 A.2d 453, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005).

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.”   Therefore,”[a] counterclaim is properly filed in the answer.”  Avis Rent–A–Car System, Inc. v. Crown High Corp., 165 Conn. 608, 614, 345 A.2d 1 (1973).   A number of decisions of the Superior Court have granted a motion to strike where a party failed to file its counterclaim in an answer.   Sunshine v. Zeeman, Superior Court, judicial district of New London, Docket No. CV 09 4009590 (February 17, 2010, Parker, J.T.R.);   Holland v. East Coast Tile & Marble Co., Superior Court, judicial district of Fairfield, Docket No. CV 91 0282208 (June 22, 1993, Leheny, J.).

Accordingly, the motion to strike is granted on the ground that Hi–Tek has failed to file its revised counterclaim in an answer and the court need not address the other two arguments raised by the intervening plaintiff.

BY THE COURT

Denise D. Markle, Judge

Markle, Denise D., J.