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

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 367

INTRODUCTION

The Plaintiffs, Lucas Stone and Joan Zygmunt (“Plaintiffs”) have filed a motion to strike portions of the answer and the first, second, third and fourth special defenses of Norman Pattis and the Law Offices of Norman Pattis, LLC (“Defendants).   The defendants filed an objection to the motion to strike dated April, 17, 2012.   The court heard argument on the motion and objection on April 24, 2012.

BACKGROUND

The factual background of this action is set forth in the memorandum of this court dated January 27, 2012 addressing the motion to strike portions of the Sixth Amended Complaint.   The court granted portions of the motion and the plaintiffs chose not to submit a Revised Complaint.   The defendants filed an answer and special defenses on March 19, 2012.   The plaintiffs contend that the court should strike certain paragraphs of the answer because they were not properly answered, deem admitted responses that involve the federal grievance committee and strike the special defenses because they are not legally deficient.   The plaintiffs also request that the court find the defendants are in default because the pleading was not timely filed.   The defendants have argued that the motion to strike as a whole should be denied because the plaintiff's motion fails to set forth sufficient reasons within the motion in accordance with the Practice Book for a motion to strike.

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).  “If facts provable in the complaint [answer or special defenses] 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).   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).

TIMELINESS

The plaintiff's first argument to strike the answer and special defenses entirely because of timeliness is not supported by the law nor the facts of the instant action.   The Practice Book does not address the granting of a motion to strike because of untimely filing.   This argument is more properly addressed as a motion for default.   The plaintiffs include within their argument a review of the default provisions, but even this argument is not supportive of the motion to strike.   The plaintiffs misunderstand the application and the intent of the Practice Book as it relates to a default.   The plaintiff cites § 17–32 of the Practice Book for the proposition that this section requires the entering of a default but provides no argument as to the application of these sections to the facts of this action.   The court has an obligation to liberally interpret the rules to advance justice.  Practice Book § 1–8.   In so doing, the court interprets the Practice Book to create a minimum waiting period before a default can be entered but there is no strict unyielding time period.   Additionally, the plaintiffs have referred to the Practice Book which permits the setting aside of a default if the answer is filed after the entering of a default and before judgment.  Practice Book § 17–32(b).  During the course of the argument on this motion the defendants referred to this section of the Practice Book to highlight the inefficiency of granting a default if the answer is filed or could be filed prior to entering a judgment.   These sections support the defendants' argument that a motion to strike is not the appropriate pleading to address timeliness and as such the motion is denied on this basis as well as the factual determination that the pleading was timely filed.¹

LEGAL SUFFICIENCY

The plaintiffs have requested that the court strike certain responses in the defendants answers to the First, Second, Seventh and Eighth Counts of the Sixth Amended Complaint as well as to strike the First, Second, Third and Fourth Special Defenses.   The defendants argue that the motion should be denied for the failure to “distinctly specify the reason or reasons for each such claimed insufficiency.”   The defendants rely upon Stuart v. Freiberg, 102 Conn.App. 857, 861 (2007), for their argument that the plaintiff's motion must be denied because they did not state the specific legal insufficiency of each claim.   In viewing the motion filed by the plaintiffs provide distinct reasons for the striking the various portions of the pleading as conclusory, “untimely filed,” “not properly answered” and “legally insufficient in that they are not pleaded with specificity.”   The defendants rely upon the Stuart court which found that the defendant failed to satisfy the practice book when he simply stated that the counts were legally insufficient in his motion but also found that inclusion of reasons in the memorandum of law that are not contained in the motion does not dispense with the requirement of [Practice Book § 10–41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”  (Citations omitted;  internal quotation marks omitted.)  Stuart, supra, 102 Conn.App. 861, citing Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13–14, 779 A.2d 198 (2001).   The inclusion of reasons in the memorandum “does not save the motion from being considered fatally defective.”  Stuart, supra, 862.   The plaintiffs in this action however, have provided more than simply saying as to all portions to strike that they are insufficient.   They distinguish the various reasons for the paragraphs versus the special defenses.   Although this separation is bare bones in so far as the basis it does indicate a distinction.   The finding of a procedural flaw in this matter will not aide in moving the pleadings forward especially given the history of this action.   Additionally, in the objection to the motion to strike the defendants indicate to the court that they are well aware that a portion of their responses were not complete and require a re-pleading.   The defendants state that they intend to correct the answers to make them complete.   Therefore, although the motion does not provide an abundance of information, the amount of information included within the motion provides a clearer understanding of the plaintiff's allegation and there is no doubt that the defendants are informed of the basis for the special defenses.   Therefore, the court will not deny the motion on this procedural basis.

The court therefore takes this opportunity to address the argument as to claimed insufficiency of the allegations in a number of the paragraphs and the special defenses.   The plaintiffs are first seeking to strike individual paragraphs within the answer.   An individual paragraph contained in a complaint is not the proper subject of a motion to strike unless it embodies an entire cause of action.  Depray v. St. Francis Hospital, 2 CSCR 691 (June 9, 1987), Dorsey, J.).   Therefore, the motion addressed to individual paragraphs is another procedural basis which supports the decision to deny the motion to strike.   Although the motion as to the individual paragraphs is procedurally deficient, the court has viewed the paragraphs for purposes of the merits.   The various paragraphs incorporated into the motion have substantial overlap in the argument set forth in the memorandum.   The defendants admit a scribner's error as to the paragraphs to which the defendants have responded that they have insufficient information to form a belief.   Although not required to modify the answers to these paragraphs, the defendants have agreed to do so and in the interest of judicial economy will revise these response to clarify the responses.

The plaintiffs again address issues of the claim regarding a federal grievance committee and the defendants refusal to respond.   This court and Judge Blawie have already addressed the legal criteria surrounding a federal grievance and the unavailability of the proceedings (including transcript or testimony recitation) based upon the confidentiality of such proceedings.   The plaintiff's utilization of the motion to strike to have these paragraphs admitted is a misuse of the purpose of a motion to strike.   There is no provision within the practice book that addresses the admitting of these paragraphs.   The plaintiffs' argument is yet another effort to obtain information which this court has stated it has no jurisdiction to order the defendant to disclose.²

SPECIAL DEFENSES

A motion to strike is an appropriate vehicle for challenging the legal sufficiency of a special defense.   In this action the plaintiffs contend that the First, Second, Third and Fourth Special Defenses are insufficient.   The Practice Book permits a motion to strike as to a special defense.

Each of the four special defenses address the statute of limitations but each applies to a specific count within the complaint.   The special defenses are as follows:  First Special Defense, “The Plaintiff's Second cause of action against the defendants for breach of fiduciary duty is time-barred by applicable statute of limitations Conn. Gen.Stat. § 52–584 since the acts or omissions complained of occurred more than two years prior to the institution of this lawsuit.   As a result, the claim is time barred”;  Second Special Defense, “To the extent the statute of limitations set forth in the First Special Defense does not apply to the plaintiff's Second Count, breach of fiduciary duty, the claim is time barred by the three year statute of limitations set forth in Conn.Gen.Stat. § 52–577, since the acts or omissions complained of occurred more than three years prior to this lawsuit.   As a result the claim is time barred”;  Third Special Defense, “Plaintiff's Seventh Count for negligent infliction of emotional distress is barred by Conn.Gen.Stat. § 52–584, since the acts or omissions complained of occurred more than two years prior to the institution of the lawsuit.   As a result, the claim is time barred”;  and the Fourth Special Defense, “Plaintiff's Eighth Count for malpractice is barred by Conn.Gen.Stat. § 52–577 in so far as the acts or omissions complained of occurred more than two years prior to the institution of the lawsuit.   As a result, the claim is time barred.”   As is clear, each of the special defenses is similarly pleaded and each refers to the acts or omissions of the particular count.   The defendants contend that this is sufficient and rely upon the decision of East Greyrock, LLC v. OBC Assoc., Inc. 2008 Conn.Super.   LEXIS 1489 (Conn.Super. June 6, 2008) [45 Conn. L. Rptr. 753].   The plaintiffs contend that the special defenses are not specific enough and the defendants should refer to each paragraph relied upon and provide subordinate facts.   The plaintiffs rely upon the case of Larobina v. First Union National Bank, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 99 0170845 (January 14, 2004, Hiller, J.), in which the court determined that the special defense related to a breach of contract claim for legal insufficiency was improper because the court had already determined that the plaintiff had stated a claim for breach of contract.   This finding does not offer any guidance to the court for this motion.   The four special defenses do refer to the acts or omissions in each count as noted in the quote from the East Greyrock decision.   However, since the decision in East Greyrock, the same court has ruled on an action that is more closely aligned to the special defenses in the instant action.   In Fusaro v. Malik, et al., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 08–5008479 (July 8, 2011, Jennings, J.), the court looked to the complaint and in particular to each claim for which there was a special defense of statute of limitations and laches.   The court found that the laches defense required more facts to address the essential elements of the claim.   The court also addressed the East Greyrock case in stating that because the complaint alleged acts from 2001 until 2008 with a complaint being filed in 2008 obviously not all of the claims would be time barred.   In the instant action, in viewing each of the counts to which the defendants claim a statute of limitations claim, there are facts which begin in 2001 and carry forward to a time period in July 2007.   The complaint was dated April 29, 2009.   Given the expansive time period there could be a time period that is time barred and possibly acts that fall outside of the statutory time.   The plaintiff has also included within the first count that is incorporated into many of the following counts that “10.   The events related herein constitute a continuing course of misconduct.”   This claim along with others may impact the statute of limitations defense but without specific factual allegations this court cannot find that the special defenses are legally sufficient.

For all of the above reasons, the motion to strike is denied as to the initial argument of timeliness and procedural argument in addition to the claim as to the answers to each paragraph and the responses regarding the Federal Grievance matter.   The motion to strike is granted as to the each of the four special defenses.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. See court decision on Motion for Default..  FN1. See court decision on Motion for Default.

FN2. The defendants also correctly note that the plaintiffs have included exhibits outside of the pleadings for purposes of the argument on the motion to strike.   This is an improper speaking motion.  Liljedhal Bros, Inc. v. Grigsby, 215 Conn. 345, 348 (1990)..  FN2. The defendants also correctly note that the plaintiffs have included exhibits outside of the pleadings for purposes of the argument on the motion to strike.   This is an improper speaking motion.  Liljedhal Bros, Inc. v. Grigsby, 215 Conn. 345, 348 (1990).

Brazzel–Massaro, Barbara, J.