Lucas Stone et al. v. Norman Pattis et al. (2012)

MEMORANDUM OF DECISION MOTION TO STRIKE # 306

INTRODUCTION

By motion dated September 12, 2011, the defendants Norman Pattis and Law Office of Norman Pattis, have requested that the court strike the Fifth, Sixth, and Sixteenth Counts and the additional material in the First, Second, Seventh and Eighth Counts of the Sixth Amended Complaint.   The fifth and sixth counts contain allegations of violation of the Connecticut Unfair Trade Practices Act (CUTPA) as to the defendants Norman Pattis and the Law Office of Norman Pattis.   The sixteenth count is an allegation of statutory theft.   The Sixth Amended Complaint was filed as a result of the court's order striking the fifth and sixth counts that alleged CUTPA violations.  (Blawie, J.)

PROCEDURAL BACKGROUND

A history of the pleadings is necessary in order to understand what is before the court today and the rationale for the ruling.

The plaintiffs, Lucas Stone and Joan Zygmunt, filed this action by way of complaint and summons dated April 29, 2009.   Thereafter, the plaintiffs filed a Substitute complaint on October 19, 2009.   This complaint was the subject of the first motion to Strike dated November 13, 2099.   The motion addressed count one (breach of contract), count three (fraud), count four (conspiracy), count five (CUTPA), count six (CUTPA), and count seven (negligent infliction of emotional distress).   The court granted this motion as to counts three, four, five and six.   Counts five and six were the CUTPA allegations.¹

After this decision the history of this action reveals a long period, up to this motion, of pleading practice including multiple requests to revise, amend and strike which have resulted in the failure to close the pleadings in this action even though the case is approaching three years in this court.   During the early motions to strike, the court granted a motion to strike the counts alleging a CUTPA violation, but the plaintiffs have continued to file amended complaints that include the CUTPA claim and the same causes of action previously stricken including the claims in the present motion.

The plaintiffs filed a Second Amended Complaint on April 30, 2010.   The plaintiffs' Second Amended complaint, which is actually the Revised Complaint, added four new counts including one for statutory theft without the permission of the court.   The Second Amended Complaint also included revised CUTPA counts and added language to other counts without the permission of the court.   The defendants filed a Request to Revise addressing these issues on May 14, 2010 and the court after objection by the plaintiffs order the striking of the four new causes of action including statutory theft on June 7, 2010.  (Mottolese, J.) In response to this ruling the plaintiffs filed a Third Amended Complaint on June 21, 2010, followed by a Request to Amend the Complaint to permit the stricken counts and additional language.   This was denied by the court.   A Fourth Amended Complaint was filed on September 10, 2010 which included the claim for statutory theft.   The defendants filed a Request to Revise this complaint.   The plaintiffs responded by filing a Motion for Leave to Amend and restore the stricken language and statutory theft count.   The defendants submitted an objection.   The court sustained the objection and denied the Request to Amend (Fourth Amended) on December 8, 2010.

The plaintiffs filed a Fifth Amended Complaint on December 15, 2010.   This complaint included two CUTPA counts but did not include the stricken statutory theft count.   The defendants again filed a motion to strike the two CUTPA counts of this complaint and on January 13, 2011 the court granted the motion to strike these counts.

There is presently a Sixth Amended Complaint which is the subject of the Motion to Strike.   The plaintiffs have filed an objection dated September 30, 2011.   The defendants filed a reply dated October 27, 2011.   The court heard argument on November 18, 2011.

FACTUAL BACKGROUND

This action was filed on April 29, 2009 naming as defendants Norman Pattis, (herinafter “Pattis”) The Law Office of Norman Pattis, LLC, John J. Radshaw III, Thomas R. Gerarde, and Howd & Ludorf, LLC. The action stems from a legal action in which the defendant Pattis represented the plaintiffs in federal district court.

On or about December 28, 2003 the plaintiffs retained Attorney Pattis to represent them in prosecuting a federal civil lawsuit against the town of Westport and four of its police officers.   The federal action was filed in January 2004 alleging claims of false arrest, illegal entry, unequal protection, unconstitutional policy (Monell) and excessive force.   The defendants in the federal action were represented by Attorneys John J. Radshaw, III and Thomas R. Gerarde of the firm of Howd & Ludorf, LLC. While the federal matter was pending the firm of Howd & Ludorf, LLC hired a former associate from the Pattis Law firm by the name of Christy Doyle.   During the course of representation in the federal action the plaintiffs became dissatisfied with the representation by Attorney Pattis.   They alleged, among many claims, that Attorney Pattis failed to disclose witnesses, improperly subpoenaed witnesses for depositions, failed to communicate the scheduling and rulings of the federal court, improperly prepared them for depositions and inadequately responded to deadlines and motions filed during the course of the federal action.   When the plaintiffs learned of the hiring of Attorney Doyle by Howd & Ludorf, LLC they alleged there was a conflict of interest with this representation.   Based upon this hiring, the plaintiffs moved for disqualification of defense counsel which was denied by the federal court.   The plaintiffs filed a grievance against Pattis with the Federal Grievance Committee.   This matter came before the committee for a hearing.   As a result of the hearing on the grievance, the matter was referred to Judge Janet Hall. Argument was held but no reprimand was issued by Judge Hall. Attorney Pattis withdrew as counsel from the federal action during the grievance process.   The plaintiffs filed a second grievance in the state court concerning the same alleged conduct of Attorney Pattis.   The state court declined to issue any reprimand.

The plaintiffs chose to continue with their federal action representing themselves.   This action was ultimately withdrawn as to all defendants.   The plaintiffs have now proceeded to commence the present action with claims of breach of contract, breach of fiduciary duty, conspiracy, negligent infliction of emotional distress, malpractice, and the CUTPA and statutory theft counts that are the subject of this motion.

DISCUSSION

GENERAL STANDARD

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[T]he moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)   Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).  “A motion to strike is the proper vehicle ․ to test whether Connecticut is ready to recognize some newly emerging ground of liability.”  (Internal quotation marks omitted.)   Ortiz v. Waterbury Hospital, judicial district of Waterbury, Docket No. CV 99 154112 (March 9, 2000, Pellegrino, J.) (26 Conn. L. Rptr. 547) “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.   The court should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).   Further, our Supreme Court “will not uphold the granting of [a] motion to strike on a ground not alleged in the motion.”  Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).

“In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading].”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., supra, 240 Conn. 580.  “Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the ․ pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied.”  (Citations omitted;  internal quotation marks omitted.)  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).  “It is of no moment that the defendants might prove facts which operate to bar the plaintiff's claim, the sole inquiry at this stage of the pleadings is whether the plaintiff's allegations, if proved, would state a basis for standing ․ [An] argument [that] would require the court to consider facts outside the face of the pleadings ․ would be improper on a motion to strike ․” (Citations omitted.)   Miller v. Insilco Corp., Superior Court, judicial district of New Haven, Docket No. 27 92 67 (May 22, 1990, Schimelman, J.) (1 Conn. L. Rptr. 651).

The defendants have argued that the Sixth Amended complaint not only contains new and revised causes of action but also includes additional facts and paragraphs that were not a part of the previous rulings on the motion to strike and therefore proper revisions.   The plaintiffs argue that the additional factual allegations and causes of action should be permitted and that if necessary they will file a motion to amend to include them within yet another amended complaint.   The superior courts have addressed this issue in a number of opinions which ultimately require the court to determine whether the allowance of such an amendment would be prejudicial to the defendants and to what degree the court believes the striking of the facts or causes of action would be counterproductive in regards to judicial economy.   The court will address this issue separately below as to the issue of a new cause of action and the issue concerning the addition of facts to the Revised Complaint.   The court is now confronted with the Sixth Amended complaint and arguments concerning the cause of action pursuant to CUTPA as well as the new cause of action for statutory theft.

CONNECTICUT UNFAIR TRADE PRACTICES COUNTS (FIFTH COUNT)

The defendants have argued that the counts alleging violations of the Connecticut Unfair Trade Practices Act are insufficient under the law and the court should strike them.   As is noted above this is not the first argument concerning the plaintiffs' inclusion of CUTPA claim against the defendants.   This court has on previous occasions granted the motion to strike the counts as legally insufficient.   After the order of the court striking the CUTPA counts, the plaintiffs have continually filed amended complaints and altered the original pleading.   In amending the claim for a CUTPA violation, the plaintiffs simply incorporated the court's use of entrepreneurial test to include and utilize the words “entrepreneurial” as a description of the events.   However, other than use what may be a buzz word, the plaintiffs do not provide a factual basis to sufficiently allege a cause of action for CUTPA.   The Sixth Amended Complaint provides a different factual description than the previous amended complaints filed by these plaintiffs.   The plaintiffs have submitted in the CUTPA claim in count five a number of new paragraphs outlining a more specific factual scenario of the events leading up to the action.   The prior Amended Complaint consisted of 49 paragraphs of which paragraphs 1 to 46 were an incorporation of the facts from the Second Count and only added paragraphs 47, 48 and 49 for the specific count.   In this complaint the plaintiffs simply alleged that the misconduct was the result of “entrepreneurial aspects of the conduct of law as it relates to the collection of fees, the retaining of clients, payment of their payroll and overhead, referrals of future fees, discharging of associates, the avoidance of ethical reprimands and legal action and the retention of venues for advertising and income.”  (Fifth Amended Complaint, Fifth count, ¶ 49.)   The Sixth Amended Complaint consists of 106 paragraphs which plaintiffs allege “constitutes violations of the Connecticut Unfair Trade Practices Act.” (¶ 105.)   Although the plaintiffs have included within this count a substantial litany of facts, it is not the number of paragraphs or the depth of facts but the relation of those facts to the elements for the underlying claims that would support the cause of action.   Although voluminous in number these factual allegations do not satisfy the legal criteria for a claim of a CUTPA violation as discussed below.

General Stat. § 42–110b(a) provides:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”   In determining whether certain acts constitute a violation of CUTPA, our Supreme Court has adopted the criteria set out in the Federal Trade Commission's cigarette rule:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, common law, otherwise—whether, in other words it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [competitors or other businessmen].”  Williams Ford, Inc. v. Hartford Courant, Co., 232 Conn. 559, 591, 657 A.2d 212 (1995).

The plaintiffs provide within the fifth count allegations of the violation of two Connecticut statutes.   The first is statutory theft, C.G.S. § 52–564, and the second is the contingency fee agreement and limitations established by C.G.S. 52–251c.   The court will first address the plaintiffs' claim that the statutory violations in and of themselves are sufficient allegations to preclude the granting of the motion to strike.

C.G.S § 52–564 provides that:  “[a]ny person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”  “Statutory theft under § 52–564 is synonymous with larceny under General Statutes § 53–119, [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner ․ Statutory theft requires an intent to deprive another of his property ․” (Internal quotation marks omitted;  citations omitted.)  Whitaker v. Taylor, 99 Conn.App. 719, 732, 916 A.2d 834 (2007).   Under Connecticut criminal law, “[b]ecause larceny is a specific intent crime, the state must show that the defendant acted with the subjective desire or knowledge that his actions constituted stealing ․ Larceny involves both taking and retaining.   The criminal intent involved in larceny relates to both aspects.   The taking must be wrongful, that is, without color of right or excuse for the act ․ and without the knowing consent of the owner ․ The requisite intent for retention is permanency.”  (Internal quotation marks omitted.)  State v. Saez, 115 Conn.App. 295, 302, 972 A.2d 277, cert. denied, 293 Conn. 909, 978 A.2d 1113 (2009).   In the Sixth Amended Complaint, the plaintiffs allege as to the CUTPA claim that, “It was also a violation of Connecticut General Statues Sec. 52–564, Statutory Theft.”   (Sixth Amended Complaint, ¶ 9.)   The specific facts as to a claim must be pleaded and the mere allegation that there is a violation of the statute is insufficient.   The plaintiffs provide absolutely no factual support to satisfy the intent requirement of the claim of statutory theft.²  The plaintiffs merely contend that they requested the funds to be returned and the defendant refused.   Count Five of the Sixth Amended Complaint is devoid of any factual assertion that the defendant Pattis acted with the requisite intent to permanently deprive the plaintiffs of their property.   In fact, the payment of a retainer fee for the serving and filing of the complaint and the work performed thereafter, although plaintiff claims it was inadequate, supports a finding that there is no cause of action for statutory theft.   Therefore, this factual claim does not provide a basis to determine there was a violation of public policy for a CUTPA violation.

The plaintiffs also contend that the contingency fee statute, General Stat. § 52–251c applies to create a cause of action for a violation of a public policy.   The plaintiffs attempt to link this statutory claim to the Rules of Professional Conduct, Rule 1.15, regarding the depositing of fees.   Neither the reference to the Rules of Professional Conduct nor the claim of a violation of the contingency statute contain a sufficient factual basis for a cause of action pursuant to CUTPA.  General Stat. § 52–251c provides in part:  “(a) In any claim or civil action to recover damages resulting from personal injury, wrongful death or damage to property the attorney and the claimant may provide by contract, which contract shall comply with all applicable provisions of the rules of professional conduct governing attorneys adopted by the judges of the Superior Court, that the fee for the attorney shall be paid contingent upon ․” The allegations in the Sixth Amended complaint contend that the federal district court complaint filed on behalf of the plaintiffs claimed violations of “unequal protection, unconstitutional policy, illegal entry, false arrest and excessive force.”  (Sixth Amended Complaint, ¶ 13.)   These claims are not the same as are provided for in the statute, C.G.S. § 52–251c.   The statutory language for the contingency fee is to protect the parties from the imposition of unreasonable or excessive fees in the event of a judgment for a claim of personal injury, wrongful death or a damage to property.   Additionally, the plaintiffs' claims as to the statutory violation hinges on the factual allegations that the defendant violated several Rules of Professional conduct in regard to the attorney fees.   In this respect, a claim of a violation of the Rules of Professional Conduct does not give rise to a cause of action for violation of CUTPA.   Jackson v. Truly Green Landscape, Superior Court, J.D. of Stamford–Norwalk at Stamford, D.N. CV 106006476 (November 2, 2011, Jennings, J.T.R.) [52 Conn. L. Rptr. 732].   The preamble to the Rules of Professional Conduct provides the “[v]iolation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached.   The Rules are designed to provide guidance to lawyers and to provide structure for regulating conduct through disciplinary agencies.   They are not designed to be a basis for civil liability.”   In R.S. Silver Enterprise Co. v. Pascarella, Superior Court, J.D. Stamford–Norwalk at Stamford, D.N. CV 065002499 (July 10, 2010, Jennings, J.T.R.), the court reasoned that a violation of the Rules of Professional Conduct does not impose civil liability because there are other remedies such as a grievance to the Statewide Grievance Commission or a legal malpractice claim.³  The instant action does not provide sufficient facts to give rise to a cause of action pursuant to the statute and the incorporation of the alleged violations of the Rules of Professional Conduct likewise does not give rise to a sufficient allegation of a public policy violation for a cause of action pursuant to CUTPA.

The defendants next argue that the CUTPA cause of action is not sustainable because the plaintiffs have failed to properly allege the application of a CUTPA claim to the conduct of attorneys engaged in the practice of law.   The defendants contend that the claims by the plaintiffs are insufficient in accordance with the law.   In Suffield Development Associates Ltd. Partnership v. National Loan Investors, LP, 260 Conn. 766, 781, 802 A.2d 44 (2002) the court reiterated the law.

“This court has stated that, in general, CUTPA applies to the conduct of attorney.  Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 521, 461 A.2d 938 (1983).   The statute's regulation of the conduct of any trade or commerce does not totally exclude all conduct of the profession of law ․ Id. Nevertheless, we have declined to hold that every provision of CUTPA permits regulation of every aspect of the practice of law ․ Id., 520.   We have stated, instead, that, only the entrepreneurial aspects of the practice of law are covered by CUTPA.  Haynes v. Yale–New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997).   Accordingly, as in the health care context, we conclude that professional negligence that is, malpractice does not fall under CUTPA.  Id.” (Internal quotation marks omitted.)  Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998).

In order to satisfy the law for a CUTPA claim for a legal professional, the plaintiffs must present factual allegations that there is an entrepreneurial aspect of the claim or a business claim that would subject the defendants to this cause of action.   The plaintiffs have now incorporated into Count five of the Sixth Amended Complaint some of the allegations in the First Count of the prior Amended Complaints as well as a number of new paragraphs that provide the plaintiff's position of the work performed by the defendant and their opinion as to whether it satisfied professional standards.⁴  In order to determine if the plaintiffs' allegations are legally sufficient the court has reviewed the new paragraphs and factual allegations to determine if the underlying nature of the claims are more akin to legal malpractice, breach of contract, or CUTPA claims.   These paragraphs outline a series of events, and concerns that the plaintiffs had regarding the manner in which the federal case was handled including depositions, settlement conferences, failure to properly and timely respond to court orders, failure to fully communicate and apprise the defendants of ongoing events within the federal case, and a series of allegations that the defendant had violated Rules of Professional Conduct along with the grievances filed and the outcome (See ¶¶ 9–58, 60, 71, 72, 73, 74, 75, 76, 77, 79, 80, 81, and 82), as well as claims of conspiracy with other counsel and concealment claims (See ¶¶ 83, 84, 85, 86, 87, 88, 89, 90, 96, 97, 98, 99, and 100).   Many of the paragraphs in the Fifth Count contain the same or similar facts as are alleged in the First Count of the Sixth Amended Complaint and are a repeat of the facts relating to the breach of contract claims.   In paragraph 101 of the new allegations the plaintiffs contend that the defendant took on too many cases and received fees to cover the costs of his practice but goes on to state that “In an effort to juggle his caseload, he allowed claims to be lost to summary judgment, or withdrew from the cases, or made settlement decisions without the clients' consent.   Rather than diligently working on his cases he spent a good deal of his time giving his opinions in online web logs, or in making television and radio appearances, weighing in on newsworthy cases that were not his own.   This was aimed at attracting more clients and more fees to run his law office.   His practice was to put his own interest above his clients' interest.”   These allegations refer to the fees that the defendants received but the underlying claim is not entrepreneurial but is clearly related to the alleged improper professional conduct of the defendant which is precisely what is outside of the scope of CUTPA.   The court in Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra., 260 Conn. 783, addressed a similar argument in which the plaintiff attempted to utilize the attorneys attempt to profit by stating:  “Many decisions made by attorneys eventually involve personal profit as a factor, but are not considered part of the entrepreneurial aspect of practicing law.   The commentary to rule 1.7 of the Rules of Professional Conduct implicitly recognizes that fact by stating that consideration of a lawyer's interest should not be permitted to have an adverse effect on the representation of a client.”  Id. 783.   The claim in paragraph 101 is exactly what the Suffield court discussed and determined was not a basis for a CUTPA claim.   The court recognized that “Using an attorney's financial considerations as a screening mechanism for separating professional actions from entrepreneurial ones would dissolve the distinction between the two, subjecting attorneys to CUTPA claims for any decision in which profit conceivable could have been a factor.”  Id. 783.   Thus the court rejected the arguments.   The plaintiffs allegations in the Fifth Count fall exactly into the category as described by the Suffield court and are not entrepreneurial.   Therefore, none of these allegations rise to the level of the entrepreneurial aspect which would form a basis for a claim of a CUTPA violation.

The plaintiffs have failed to allege sufficient facts to address the cause of action for a CUTPA violation and failed to allege facts that the conduct was related to entrepreneurial aspects of the practice of law and thus, the motion to strike count five is granted.

CONNCECTICUT UNFAIR TRADE PRACTICES (COUNT SIX)

The defendants further argue that no factual basis exists for the plaintiffs' CUTPA claim for punitive damages in count six of the Sixth Amended Complaint.   This count incorporates the same allegations in the Fifth Count and then adds as Paragraph 107 that:  “The conduct of the Defendants Pattis and The Law Firm of Norman Pattis, LLC alleged in this count constitutes an intentional and wanton violation of our rights and was done with a reckless indifference to those rights, in that the defendants knew their misrepresentations to us, their unfair and deceitful acts and their intentional failure to act on our behalf were false, misleading and harmful to us.”   Plaintiffs then seek punitive damages.  (Sixth Count ¶ 108.)

The court has ruled above that the plaintiffs have failed to sufficiently allege a cause of action for CUTPA in the Fifth Count.   The claims in this count are reliant upon the allegations which have already been determined by this court as insufficient.   Therefore, this decision impacts this count which not only incorporates all of the facts of the fifth count but which adds language of a very generic form alleging that the conduct of the defendant was intentional or reckless.   In order to justify punitive damages, the underlying tort or tortous conduct must constitute “wanton and malicious injury, evil motive and violence, [because] punitive damages may be awarded only for outrageous conduct, that is, for acts done with bad motive or with a reckless indifference to the interests of others ․” L.F. Pace & Sons, Inc. v. Travelers Indem.   Co., 9 Conn.App. 30, 48, cert. denied, 201 Conn. 811 (1986).  (Internal citations omitted;  internal quotation marks omitted.)   The plaintiffs must show that “the [defendant] behavior evidenced a reckless indifference to the rights of others or intentional and wanton violation of those rights.”  Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008).   The instant count simply makes a conclusory statement without supporting facts as to this claim.   Thus, the court grants the motion to strike the Sixth Count based upon the failure to provide sufficient facts and the court's ruling on the motion to strike the underlying CUTPA claim.

STATUTORY THEFT (COUNT SIXTEEN)

The defendants contend that Count Sixteen which is a claim for statutory theft should be stricken because it was added to the Amended Complaint without a Request for Leave to Amend.   The defendants correctly note that this cause of action was not included in the Fifth Amended Complaint and thus was not stricken by the court order as to the court rulings on the Fifth Amended Complaint.   The defendant argues that this is not a proper revision pursuant to Practice Book § 10–44.   The plaintiffs contend that there is no prohibition from adding new causes of action when revising the complaint after a motion to strike is granted.

The plaintiffs cite to Adler v. Snoddy, Superior Court, J.D. Stamford–Norwalk at Stamford, D.N. CV 02 0200492 (September 15, 2004 Adams, J.) (2004 CT.Sup. 13941) in support of their argument that it is not necessary to file a Request for Leave to Amend when filing an amended complaint in response to the court order on a motion to strike.   The plaintiffs contend that the decision in Adler gives the court the discretion to permit the addition of a new cause of action because of the liberal approach to amendments as well as the concern for judicial economy.   Neither of these concerns are applicable in the instant case to permit the addition of a new cause of action without the permission of the court.   The plaintiffs attempt to link this action to the court's position in Adler but the procedural and factual background of this action set it apart from the Adler decision.   Adler did not involve a multitude of revisions or amendments and prior decisions of the court denying the addition of the exact cause of action which was added without the permission of the court.   The procedural history of this action changes the court's view as to the discretion afforded it so that judicial economy will be served by denying the opportunity to include a new cause of action.

In the instant complaint, the plaintiffs have consistently received rulings that have denied the inclusion of this very same claim.   After the ruling of the court granting a motion to strike on the First Amended Complaint on April 10, 2011, the plaintiffs filed a Second Amended Complaint that included a statutory theft cause of action.   The defendants filed a Request to Revise which was granted striking the Statutory Theft claim because it had not been a claim in the First Amended Complaint and therefore had not been stricken so as to require a revision.   The defendants argued that a Request for Leave to Amend was the proper procedure.   The plaintiffs responded to the ruling by filing a Third Amended Complaint that did not include a count for statutory theft.   The plaintiffs then filed a Motion to Amend to add this count but again it was denied by the court.   The plaintiffs filed a Fourth Amended Complaint with a motion to amend to permit a claim for statutory theft which was again denied.   The plaintiffs in response to the denial of the amendment filed a Fifth Amended Complaint that did not contain a count for statutory theft.   This complaint was the subject of another motion to strike the CUTPA claims.   The court granted the motion to strike the CUTPA claims.   The plaintiffs filed this Sixth Amended Complaint in response to the court order on the fifth amended complaint and added a count for statutory theft.  (Count Sixteen.)   This procedural history provides a unique background which is unlike any of the cases that the court has determined require a liberal interpretation to provide fairness and judicial economy to the parties.   The plaintiffs contentions lose sight of the fact that the Practice Book § 10–44 has not been interpreted by all courts to permit the addition of a new cause of action.   In 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), struck allegations and causes of action that were not contained in the original complaint and were unrelated to the stricken counts.   The court reasoned as to the application of the practice book 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 re-plead 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 days after the motion is granted.   (Citations omitted;  internal quotation marks omitted.)  Id. See also:  State v. Ten Companies, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 07 5008921 (February 6, 2008, Langenback, J.) (45 Conn. L. Rptr. 40, 41).

The cases in which the court has permitted the addition of a new cause of action do not have a lengthy history of repleading a cause of action that has been the subject of previous court actions that have denied the amendment of the complaint to add the same cause of action.   The plaintiffs' position ignores the Practice Book and its place in promoting the orderly progression of pleadings.   Their position creates not only an inherent unfairness to a party seeking a motion to strike but also, if followed, nullifies the procedure of requiring court approved amendments pursuant to Practice Book § 10–60.   The approval of this position would result in a practice that places any party filing a motion to strike in a position of questioning not only the motion but the impact of now allowing the uncontrolled filing of new causes of action without an opportunity to argue the legal basis.   This practice would usurp Practice Book § 10–60 regarding amendments to the pleadings.

Therefore, the motion to strike the Sixteenth Count is granted.

ADDITIONAL FACTUAL PARAGRAPHS AND INFORMATION

The defendants have requested that the Court strike the inclusion of additional paragraphs with additional information in the First, Second, Seventh and Eighth counts of the complaint because they were not the subject of the court ruling of the Motion to Strike in the Fifth Amended Complaint.   The defendants argument is the same as the argument related to the addition of a count for statutory theft.   The plaintiffs contend the additional paragraphs should be permitted in accordance with the same basis as the addition of the claim for statutory theft.   While the defendants are correct that the additional facts would not be permitted unless they were related to the changes necessitated by the ruling on the motion to strike, this court does not view the factual additions in the same light as an additional cause of action unrelated to the motion to strike.   In this respect the court is of the opinion that the concern for judicial economy and concern for the effects upon a self-represented party weigh more heavily in the decision as to whether the additional factual allegations should be permitted.   The court recognizes that “[i]t is the established policy of the Connecticut courts to be solicitious 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 prose party.”  (Internal quotation marks omitted.)  Orcutt v. Commissioner of Correction, 284 Conn. 724, 740 n.26 (2007).

The court has reviewed the numerous additional paragraphs that were included without permission in the Sixth Amended Complaint.   The added factual allegations are very detailed in the description by the plaintiffs of their background of contact with the defendants.   For example, paragraph 21 of the First Count consists of five pages that includes approximately three pages of new facts.⁵  However, a review of the factual allegations does not lend any credence to the belief that the addition of such facts is prejudicial to the defendants because the discovery phase of this action is just beginning.   The same information may be provided by the plaintiffs during the course of their depositions or responses to other discovery.   Therefore, the allowance of the additional information is not so prejudicial when weighed against the liberal allowance of the court to self-represented parties.   Striking these paragraphs or additional facts will not serve any useful purpose to the parties to this action.   For this reason, the motion to strike the additional facts is denied.

CONCLUSION

Based upon the above, the court grants the motion to strike Counts five, six and sixteen of the Sixth Amended Complaint and denies the motion to strike the additional information or new paragraphs in each of the remaining counts.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. This motion was decided by this court, Brazzel–Massaro, as a motion on the short calendar docket prior to the case being assigned to the complex litigation docket..  FN1. This motion was decided by this court, Brazzel–Massaro, as a motion on the short calendar docket prior to the case being assigned to the complex litigation docket.

FN2. It should be noted that plaintiffs have included a count for statutory theft without permission of the court which is also the subject of the motion to strike but even if this court were to consider the statutory theft count, which it does not for purposes of this CUTPA violation, it does not provide a sufficient factual basis..  FN2. It should be noted that plaintiffs have included a count for statutory theft without permission of the court which is also the subject of the motion to strike but even if this court were to consider the statutory theft count, which it does not for purposes of this CUTPA violation, it does not provide a sufficient factual basis.

FN3. The plaintiffs in this action have pursued two grievances against the defendant Pattis and presently make claims of legal malpractice as well as a breach of contract and a breach of fiduciary duty..  FN3. The plaintiffs in this action have pursued two grievances against the defendant Pattis and presently make claims of legal malpractice as well as a breach of contract and a breach of fiduciary duty.

FN4. The allegations that are set forth in the Fifth Count also consist of claims which are improper opinions or legal conclusions by the plaintiffs that are improper allegations.  (For example, ¶¶ 9, 39, 55, 56, 101.).  FN4. The allegations that are set forth in the Fifth Count also consist of claims which are improper opinions or legal conclusions by the plaintiffs that are improper allegations.  (For example, ¶¶ 9, 39, 55, 56, 101.)

FN5. The court recognizes that other than paragraph 21 the plaintiffs have added to paragraphs 33, 34, 40, 42, 43, 44, 47, 59, 60 in part, 66, 67, 68, and 69 as well as other paragraphs in the following counts..  FN5. The court recognizes that other than paragraph 21 the plaintiffs have added to paragraphs 33, 34, 40, 42, 43, 44, 47, 59, 60 in part, 66, 67, 68, and 69 as well as other paragraphs in the following counts.

Brazzel–Massaro, Barbara, J.