Robert Giannaccio et al. v. PC (2013)

MEMORANDUM OF DECISION MOTION TO STRIKE (# 171)

FACTS

On May 16, 2012, the plaintiffs, Robert and Alene Giannaccio, filed a six-count complaint against the defendants, Jansen & Rogan Consulting Engineers, PC (Jansen & Rogan) and Antinozzi Associates, PC (Antinozzi Associates).   The plaintiffs have alleged the following facts.   Between December 1995 and March 1996, Jansen & Rogan designed and supervised the construction of a suspended metal catwalk around a cooling tower on top of a building.   On May 17, 2010, Robert Giannaccio was making repairs to the tower when a section of the suspended catwalk gave way beneath him, which caused him to fall fifteen feet and sustain serious injuries.   As a result, he has lost income, has incurred medical expenses, will likely require medical treatment in the future, and is unable to return to his normal activities.

In count one, the plaintiffs allege, inter alia, that Jansen & Rogan was negligent in that it failed to properly design the catwalk, failed to properly supervise the catwalk's construction, failed to inspect the catwalk after it was erected, failed to properly maintain the catwalk, knew or should have known that the catwalk was defective and dangerous, breached its warranties of merchantability and fitness, failed to alert anyone of the latent defect it created when it designed a catwalk without metal fasteners, and failed to remedy the defective condition of the catwalk.   The plaintiffs also allege that Jansen & Rogan had a continuous and ongoing legal obligation to remedy the defect.   The second count is a claim of fraudulent concealment and includes allegations that Jansen & Rogan knew that it failed to properly design the catwalk, and thus, that it was unsafe for use, but intentionally concealed the catwalk's defective condition in order to shield itself from liability.   The third count is Alene Giannaccio's claim for loss of consortium as to Jansen & Rogan, which is premised on the allegation that the harms and losses sustained by her husband, Robert Giannaccio, have resulted, inter alia, in the loss of financial support and companionship.   Counts four, five, and six of the plaintiffs' complaint are directed toward Antinozzi Associates and repeat the allegations set forth in counts one, two, and three, respectively.   On September 27, 2012 and September 28, 2012, the defendants filed two separate motions to strike the counts directed toward them (Docket Entry Nos. # 118, 120).   By way of two November 19, 2012 orders, the court, Zemetis, J., granted the defendants' motions with regard to counts two and five of the plaintiffs' complaint—the counts alleging that the defendants fraudulently concealed a defect in the subject catwalk—on the ground that fraudulent concealment in avoidance of the statute of repose must be specially pleaded in a reply, rather than as a separate cause of action.¹

The defendants subsequently filed answers to the plaintiffs' complaint (Docket Entry Nos. # 129, 134) on November 21, 2012 and January 8, 2013.   In their answers, the defendants deny the substantive allegations of the plaintiffs' complaint with regard to the remaining counts and assert, as a special defense, that the plaintiff's claims are barred by General Statutes § 52–584a, which is a seven-year statute of repose that applies to actions against design professionals.   In replies filed on November 27, 2012 and January 11, 2013 (Docket Entry Nos. # 130, 136), the plaintiffs denied each allegation contained in the defendants' special defenses.²

On June 24, 2013, the plaintiffs filed amended replies (Docket Entry Nos. # 167, 168) to the defendants' special defenses in order to include the following statement in each reply:  “The defendant is barred from defeating the plaintiffs' claims pursuant to the statute of limitations by the [d]octrine of [f]raudulent [c]oncealment.   The defendant ․ was aware of the defective catwalk prior to the time ․ [Robert Giannaccio] was injured, yet the defendant intentionally concealed the existence of the defect from the plaintiff and failed to properly remedy same.”   Pls.' Am. Reply to Defs.' Spec. Defenses.   In so doing, the plaintiffs argue that counts two and five were originally stricken because the court “advised that the [plaintiffs'] claim[s] for fraudulent concealment w[ere] more properly [pleaded] as a reply to the defendants' [s]pecial [d]efense.”   Pls.' Req. to File Am. Reply 1.

On July 1, 2013, the defendants filed the instant motion to strike the plaintiffs' amended reply in avoidance of the defendants' statute of repose special defense.   The defendants argue that the doctrine of fraudulent concealment—which the plaintiffs rely on to rebut the defendants' special defense—is inapplicable because the statute of repose elapsed in March 2003, which is approximately seven years before Robert Giannaccio could have even accrued a cause of action.   Thus, the defendants argue that § 52–584a bars the plaintiffs' instant cause of action.   The defendants also assert that applying the doctrine of fraudulent concealment to § 52–584a would contradict the purpose of § 52–584a as a statute of repose, and that while the fraudulent concealment of a cause of action may toll a statute of repose, the fraudulent concealment of a design defect does not toll a statute of repose.   Moreover, the defendants assert that the plaintiffs have not alleged affirmative acts of concealment that were undertaken by the defendants.   On July 1, 2013, the defendants filed a supplemental memorandum in support of their motion to strike in which they reiterate that the plaintiffs have attempted to avoid the defendants' statute of repose defense by alleging that it is barred by the doctrine of fraudulent concealment and reassert the arguments that were stated in their initial memorandum in support of the motion.

On September 9, 2013, the plaintiffs filed an objection (Docket Entry No. # 183) to the defendants' motion to strike, arguing that their reply is legally sufficient.   The plaintiffs assert that the defendants have marked March 1996, as the time of completion of the defendants' work on the catwalk because the plaintiffs have alleged in their complaint that the defendants continued to work on the catwalk through March 1996.   Nevertheless, the plaintiffs argue, the defendants have ignored their allegation “that the defendants are liable for their failure to inspect and maintain the catwalk after it was erected ․” (Emphasis in original.)   Pls.' Obj. to Defs.' Mot. to Strike 1. The plaintiffs claim that they did not merely allege that the defendants' negligent behavior occurred only between 1995–1996.   Rather, the plaintiffs assert that because they have alleged that the defendants had a continuous and ongoing obligation to inspect and maintain the catwalk, they were not limited to the seven-year time period between March 1996, and March 2003, in order to successfully initiate an action against the defendants.   The plaintiffs argue that the defendants' motion relies on a contested issue of material fact—whether the defendants were involved with the subject premises after 1996—and this issue is more appropriately resolved at the conclusion of evidence.

This matter was heard at short calendar on September 9, 2013.

DISCUSSION

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted, ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “[A] defendant may [also] seek motions to test the matter set forth in the reply [to a defendant's answer and special defenses] ․ See W. Horton & K. Knox, 1 Connecticut Practice Series:  Connecticut Superior Court Civil Rules (2010) § 10–58, p. 558 (Author's comments).”   DiCrosta v. Friendly Ice Cream, Superior Court, judicial district of Litchfield, Docket No. CV–07–5002280–S (April 15, 2010, Roche, J.) (49 Conn. L. Rptr. 603, 604).

“In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion”;  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980);  and alternate grounds for consideration of a party's motion to strike will not be considered.   See Lestorti v. DeLeo, 298 Conn. 466, 487, 4 A.3d 269 (2010).  “[The] motion ․ must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged ․” (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268–69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   A pleading is “construe [d] ․ in the manner most favorable to sustaining its legal sufficiency”;  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012) (internal quotation marks omitted);  and “[i]f any facts provable under the express and implied allegations support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

As previously discussed, the defendants argue that the plaintiffs have alleged the defendants last performed work on the catwalk in March 1996;  see Compl.   Count I ¶ 3, Count IV ¶ 3;  and Robert Giannaccio was injured when the catwalk collapsed on May 17, 2010.   The defendants assert, therefore, that § 52–584a prevents the initiation of actions against design professionals more than seven years past the date of a project's completion, and that the repose period ended in March 2003, which is well before the plaintiffs' initiation of the present action in 2012.   Additionally, the defendants contest the legal sufficiency of the plaintiffs' fraudulent concealment reply on the ground that it does not extend the statute of repose.   The plaintiffs argue that the court should deny the defendants' motion because the matter is not ripe for adjudication, as discovery has not yet revealed whether the defendants had a continuing and ongoing role in the project as alleged in the complaint.

The following issues will be discussed seriatim:  (1) the § 52–584a time bar and legislative policy behind the enactment of this statute of repose for design professionals;  and (2) whether fraudulent concealment and the continuing course of conduct doctrine may be used to toll the § 52–584a limitations period.

I

CONNECTICUT GENERAL STATUTES § 52–584a:  LEGISLATURE'S INTENT

Section 52–584a, which is entitled “Limitation of action against architect, professional engineer or land surveyor,” provides, in relevant part:  “(a) No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with, an improvement to real property;  (B) for injury to property, real or personal, arising out of any such deficiency;  (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect, professional engineer or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction of, or land surveying in connection with, such improvement more than seven years after substantial completion of such improvement.”

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401–02, 920 A.2d 1000 (2007).  “The clear mandate of ․ § 52–584a was to create a seven year absolute maximum on actions against architects and engineers, based upon the finite barrier of substantial completion, regardless of the nature of the claim while leaving any other lesser limitations in effect.”  (Internal quotation marks omitted.)  Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988).

“[U]nlike statutes of limitation, statutes of repose operate as a grant of immunity serving primarily to relieve potential defendants from anxiety over liability for acts committed long ago ․ [S]tatutes of repose reflect legislative decisions that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability ․” (Citation omitted;  internal quotation marks omitted.)  State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 441–42, 54 A.3d 1005 (2012).   Also, “[u]nlike a statute of limitations, ․ [a][s]tatute of [r]epose does not bar a cause of action;  its effect, rather, is to prevent what might otherwise be a cause of [action] from ever arising ․ For that reason, injury occurring [after the expiration of the applicable repose period] forms no basis for recovery ․ The starkness of its application is intended:  The injured party literally has no cause of action.   The harm that has been done is damnum absque injuria—a wrong for which the law affords no redress.   The function of the statute [of repose] is thus rather to define substantive rights than to alter or modify a remedy.”  (Internal quotation marks omitted.)  Id., 442.   Nevertheless, “[w]hether seen as a sanction imposed on plaintiffs who sleep on their rights or as a benefit conferred [on] defendants to reduce the risk and uncertainty of liability, statutes of limitation and statutes of repose serve the same public policy of avoiding the litigation of stale claims.”  (Internal quotation marks omitted.)  Id., 443.

“There are two principal reasons generally given for the enactment of a statute of repose:  (1) it reflects a policy of law as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and further the public policy of allowing people after the lapse of reasonable time, to plan their affairs with a degree of certainty free from the disruptive burden of protracted and unknown potential liability ․ and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose ․ [T]he policy of statutes of limitations includes promoting repose by giving security and stability to human affairs ․ [W]e will not deprive ․ defendants of the finality, repose and avoidance of stale claims and stall evidence for which the statute of limitations was designed.”  (Internal quotation marks omitted.)  Haggerty v. Williams, 84 Conn.App. 675, 679–80, 855 A.2d 264 (2004).

Generally, “the policy goal of statutes of repose is solely to relieve potential defendants from anxiety over liability for acts committed long ago.   Such types of statutes offer no exceptions for good excuses and, therefore, any justifications for delay are irrelevant.”   Stamford Hospital v. Keogh, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–10–6004007–S (January 5, 2012, Adams J.T.R.) (53 Conn. L. Rptr. 254, 255).  “Statutes of repose are based on considerations of the economic best interests of the public as a whole and are substantive grants of immunity based on a legislative balance of the respective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists ․ [L]egislatures, fearing that certain economically valuable classes of potential defendants would be crippled by the lack of a guarantee of freedom from liability after a given point, pass statutes of repose in order to encourage them to continue to do business and to lower insurance rates.   These legislatures determine that statutes of limitations do not adequately serve this goal of protecting defendants because of the potential for accommodation of tardy plaintiffs, and thus completely remove any relevance of the plaintiff's reasons for delay.”  (Citations omitted;  internal quotation marks omitted.)  State v. Lombardo Bros. Mason Contractors, Inc., 51 Conn.Sup. 265, 290–91, 980 A.2d 983 [47 Conn. L. Rptr. 375] (2009), rev'd on other grounds, 307 Conn. 412, 54 A.3d 1005 (2012).

II

TOLLING DOCTRINES:  FRAUDULENT CONCEALMENT AND CONTINUING COURSE OF CONDUCTAFraudulent Concealment

The plaintiffs' amended reply to the defendants' special defenses state that the defendants are “barred from defeating the plaintiffs' claims pursuant to the statute of limitations by the doctrine of fraudulent concealment.”   Pls.' Am. Reply to Defs.' Spec. Defenses.   Specifically, they assert that the defendants were aware of the defective catwalk, but intentionally concealed the existence of the defect from the plaintiffs and failed to properly remedy the defect.

General Statutes § 52–595, entitled “Fraudulent concealment of cause of action,” provides:  “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”  (Emphasis added.)  “Under our case law, to prove fraudulent concealment, the plaintiff is required to show:  (1) the defendants' actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs cause of action;  (2) the defendants' intentional concealment of these facts from the plaintiff;  and (3) the defendants' concealment of these facts was for the purpose of obtaining delay on the plaintiff's part in filing a complaint on his cause of action.”  (Emphasis added.)  Macellaio v. Newington Police Dept., 145 Conn.App. 426, 432 (2013), citing Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995).   Based on both the plain language of § 52–595 and our court's interpretation of the statute, it is clear that fraudulent concealment of a cause of action may toll a statute of limitations, but not fraudulent concealment of a particular defect.

This principle was applied in Williams v. Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV–10–6014962–S (July 19, 2013, Sommer, J.) [56 Conn. L. Rptr. 666], where the court addressed a claim of negligence that was made against an architectural firm, Kasper Group, Inc., and its alleged shareholders.   That case arose from a November 13, 2009 incident in which four individuals died in a fire at a public housing project where, in 1991, the Kasper defendants “were allegedly hired ․ to provide architectural and construction monitoring servicing ․” Id. The defendants moved for summary judgment with regard to claims of negligence on the ground “that the seven-year statute of limitations applicable to architects, engineers and land surveyors, General Statutes § 52–584a, expired before ․ [the plaintiff's] action was commenced.”  Id. In support of the motion, the defendants submitted evidence that showed the project commenced on November 1, 1991, and was substantially completed on November 3, 1994, the date upon which the certificate of occupancy was issued.  Id.

“[T]he plaintiff claim[ed] that there [we]re genuine issues of material fact as to whether the doctrines of fraudulent concealment and/or equitable estoppel toll[ed] the statute of limitations.   Specifically ․ [the plaintiff] assert [ed] that material issues of fact exist[ed] as to whether the ․ defendants fraudulently concealed the design and installation of the smoke detectors so as not to reveal that they did not comply with the Connecticut building code and fire safety code.”  (Internal quotation marks omitted.)  Id. In assessing this argument, the court stated:  “[T]he legislature has chosen to limit causes of action against architects to seven years from the time of substantial completion of an improvement to real property, regardless of the time that the defect should reasonably have been discovered, or the date of injury.   This limitation applies to all suits against architects, regardless of whether the alleged defect is hidden.”  (Emphasis added.)  Id. The court concluded, therefore, that there were no genuine issues of material fact as to whether the doctrine of fraudulent concealment tolls the seven-year statute of limitations set forth in § 52–584a, as the alleged concealment of a defect in the smoke detectors or installation of an alarm system did not “[evince] fraudulent concealment for tolling purposes.”  Id.

Similarly, in the present case, the plaintiffs' allegation that the defendants fraudulently concealed a defect, and not a cause of action, with regard to the catwalk's construction does not evince fraudulent concealment for tolling purposes.   Specifically, the plaintiffs assert that “[t]he defendant[s are] barred from defeating the plaintiffs' claims pursuant to the statute of limitations by the [d]octrine of [f]raudulent [c]oncealment.   The defendant[s], through the actions of [their] agents and/or employees, [were] aware of the defective catwalk prior to the time the plaintiff was injured, yet the defendant[s] intentionally concealed the existence of the defect from the plaintiff and failed to properly remedy same.”  (Emphasis added.)   Pls.' Am. Reply to Defs.' Spec. Defenses.   The plaintiffs do not, however, assert that the defendants fraudulently concealed any causes of action.   As previously discussed, while the fraudulent concealment of a cause of action may toll a statute of repose, the fraudulent concealment of a defect does not.  Id. Moreover, the seven-year limit that is imposed by § 52–584a is applicable “regardless of whether the alleged defect is hidden,” which is a principle that is aligned with the legislature's intent to clarify the limits of liability for design professionals, such as the defendants in the present case.   See Williams v. Housing Authority, supra, Docket No. CV–10–6014962–S.   Accordingly, the plaintiffs' fraudulent concealment reply to the defendants' special defenses is insufficient to toll the seven-year statute of repose.

B

Continuing Course of Conduct

“A statute of limitations or repose can be tolled by the continuing course of conduct doctrine.”   SNET Information Services, Inc. v. Burr Roofing, Siding & Windows, Inc., Superior Court, judicial district of New Haven, Docket No. CV–08–5022977–S (April 17, 2013, Zemetis, J.).  “[W]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.”  (Internal quotation marks omitted.)  Stuart v. Snyder, 125 Conn.App. 506, 510, 8 A.3d 1126 (2010), cert. denied, 300 Conn. 921, 14 A.3d 1005 (2011).  “The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and yet be remedied.”  (Internal quotation marks omitted.)  Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 525, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 590 (2001).   Thus, “[t]he gravamen of the continuing course of conduct doctrine is that a duty continues after the original wrong is committed.”  Id.

“[B]efore the doctrine can be applied, a duty must first be found to have existed.”  (Emphasis omitted.)  Id., 526.  “[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of ․ [that] duty that remained in existence after commission of the original wrong related thereto.   That duty must not have terminated prior to the commencement of the period allowed for bringing an action for such a wrong ․ Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.”  (Internal quotation marks omitted.)  Id., 525.  “The point is that there is a legally significant difference between an initial duty and a continuing duty, and the existence of the latter in particular must be guided by and cannot be divorced from the underlying purposes of the repose statutes ․ Thus, in evaluating whether a continuing duty exists that extends a statute of repose, emphasis is placed on the legislative policies underpinning the statute.”  Saperstein v. Danbury Hospital, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Nos. X06–CV–07–5007185–S, X06–CV–08–5011032–S (January 27, 2010, Stevens, J.).

Our Supreme Court has stated that “the application of the continuing course of conduct doctrine in th[e] context [of General Statutes § 52–584, the three-year statute of repose that applies to medical professionals] ․ effectively would nullify the repose portion of the statute of limitations contained in § 52–584.   The purpose of a statute of limitation or of repose ․ is to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise ․ This timing restriction with respect to [§ 52–584 and] claims of malpractice against a health care provider represents a valid policy choice by the legislature that should be respected in all but the most exceptional circumstances ․ because any tolling of the statute of limitations may compromise the goals of the statute itself.”  (Citations omitted;  internal quotation marks omitted.)  Neuhaus v. DeCholnoky, 280 Conn. 190, 206–07, 905 A.2d 1135 (2006).   Based on this decision, the court in Saperstein v. Danbury Hospital, supra, Docket Nos. X06–CV–07–5007185–S, X06–CV–08–5011032–S, stated that “the application of appellate precedent may mean that certain malpractice claims, including those involving serious injuries or even death ․ may be time barred and precluded from seeking legal redress.   Such a result ․ is the consequence of the statutes of repose and the policy considerations on which they are based.”

The same may be said with regard to § 52–584a—tolling the seven-year statute of repose would compromise the goal of the statute itself.   Again, “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.”  (Internal quotation marks omitted.)  Alvord Investment, LLC v. Zoning Board of Appeals, supra, 282 Conn. 401–02.   The seven-year statute of repose that was placed on claims made against architects is a legislative choice that should be respected, just like the timing restriction placed on claims for medical malpractice.   See Neuhaus v. DeCholnoky, supra, 280 Conn. 206–07.   Similar to our Supreme Court's recognition that a continuing duty may not extend a statute of repose with regard to § 52–584, as such an extension would frustrate the purpose and meaning of the statute, the same principle should apply to § 52–584a.   Accordingly, the plaintiffs may not extend the statute of repose based on this theory.

In any event, the plaintiffs' amended reply to the defendants' special defenses raises only the fraudulent concealment argument.   Nowhere in the amended reply do the plaintiffs even mention a continuing course of conduct.   Although the plaintiffs argue in their opposition memorandum that they alleged in the complaint that the defendants had an ongoing and continuous obligation to inspect and maintain the catwalk, the defendants' instant motion to strike is directed towards the plaintiffs' amended reply, which does not assert that the statute of repose should be extended based on a continuing course of conduct.

CONCLUSION

For the foregoing reasons, the defendants' motion to strike the plaintiffs' reply to the defendants' statute of repose special defense is granted.

Wilson, J.

FOOTNOTES

FN1. The doctrine of fraudulent concealment is a matter that must be pleaded in avoidance pursuant to Practice Book § 10–57.  Macellaio v. Newington Police Dept., 145 Conn.App. 426, 430 (2013)..  FN1. The doctrine of fraudulent concealment is a matter that must be pleaded in avoidance pursuant to Practice Book § 10–57.  Macellaio v. Newington Police Dept., 145 Conn.App. 426, 430 (2013).

FN2. On May 13, 2013, the court, Robinson, J., granted the defendants permission to file a motion for summary judgment with regard to the remaining counts (Docket Entry No. # 151, 151.50)..  FN2. On May 13, 2013, the court, Robinson, J., granted the defendants permission to file a motion for summary judgment with regard to the remaining counts (Docket Entry No. # 151, 151.50).

Wilson, Robin L., J.