LLC v. LLC (2014)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE SPECIAL DEFENSES

On January 4, 2012, the plaintiffs, Quality Sales, LLC and Lawrence Gianatti, filed this five-count complaint against the defendants, Gitlincampise, LLC, Joseph Campise and Salvatore Giuliano, alleging professional negligence, negligent misrepresentation, innocent misrepresentation, breach of fiduciary duty and breach of contract.   On February 22, 2013, the defendants filed an answer and asserted four special defenses—comparative negligence, in pari delecto, failure to mitigate and unclean hands.   On May 13, 2013, the plaintiffs filed this motion to strike the defendants' special defenses.

-I-

The defendants object to the motion to strike on the ground that it is untimely, under Practice Book § 10–8, as it was filed more than fifteen days after the court's ruling on the request to revise.   However, the court, in its discretion may overlook the fact that a motion to strike is untimely where both parties have submitted arguments on the merits of the motion.   Kuo v. MIP Lessee, L.P., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10–CV–05–5001409–S (March 31, 2008, Scholl, J.) (45 Conn. L. Rptr. 287, 288);  see Maldonado v. Fontanez, Superior Court, judicial district of New Haven, Docket No. CV–09–5028140–S (May 19, 2011, Woods, J.).   Furthermore, effective January 1, 2014, Practice Book § 10–8 was revised to allow parties thirty days for such filings.   The parties have submitted detailed memoranda of law on the motion to strike and this objection will not avoid consideration of the motion.

The defendants also contend that the plaintiffs' motion is improper as the plaintiffs did not submit a supporting memorandum of law.   Pursuant to Practice Book § 10–39(c), “[e]ach motion to strike must be accompanied by a memorandum of law citing the legal authorities upon which the motion relies.”   The plaintiffs submitted a single pleading, entitled “Plaintiffs' Motion to Strike Special Defenses.”   Although the plaintiffs did not technically meet the Practice Book requirements, the plaintiffs' pleading is seven pages in length and contains legal analysis and citations to legal authority in support of each of their claimed grounds for the motion.   Accordingly, the court will not follow strict adherence to the Practice Book rule and will address the merits of the motion.

-II-

The plaintiffs move to strike each of the defendants' four special defenses on the grounds that the defendants did not specify to which counts each special defense applies, and the special defenses do not allege any supporting facts.   The defendants argue that the special defenses are legally sufficient because the plaintiffs are “well aware as to which counts each special defense applies” and because the plaintiffs' complaint contains sufficient factual allegations to support the defendants' special defenses.

Practice Book § 10–51 provides in relevant part that “[w]here several matters of defense are pleaded, each must refer to the cause of action which it is intended to answer, and be separately stated and designated as a separate defense.”

The defendants failed to comply with the requirements of Practice Book § 10–51, as the special defenses do not have headings designating to which counts of the complaint the special defenses correspond.   This perhaps leaves the question which of the plaintiffs' five causes of action the defendants' four special defenses correspond.   While there is Superior Court authority indicating that a failure to adhere to the requirements of § 10–51 is a sufficient reason to grant a motion to strike some Superior Court judges have taken a more nuanced approach and ruled that § 10–51 is not violated when it can be inferred from the language of the special defense which counts in the complaint it is attacking.   Benoit v. Edington, Superior Court, judicial district of Fairfield, Docket No. CV–06–5006056–S (March 13, 2009, Bellis, J.);   compare Spencer v. Star Steel Structures, Inc., Superior Court, judicial district of Windham, Docket No. CV–01–0064902–S (May 24, 2002, Foley, J.) (motion to strike granted for failure to designate to which specific count each special defense corresponded where complaint contained seven counts and defendants asserted five special defenses) with Clock Tower, LLC v. Dinardo, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–02–0191069–S (May 8, 2003, Karazin, J.) (motion to strike denied because “[t]he plain language of the special defense clearly indicates that the defendant intends ․ [to apply the special defense to] the entire complaint and avoid restricting the special defense to just one or two counts”);  Shuckra v. Blanchette, Superior Court, judicial district of New Britain, Docket No. CV–01–0508168–5 (February 4, 2002, Quinn, J.) (motion to strike denied because it was apparent that defense was directed at entire complaint).

In the present case, the defendants acknowledge that each of their four special defenses are not directed at each of the plaintiffs' five counts and that the special defenses do not apply to those counts for which they are legally inapplicable.   They argue that the plaintiffs are undoubtedly well aware of which special defenses apply to which counts and that all of the special defenses cannot apply to all of the plaintiffs' allegations does not render them legally insufficient.   Notably, in their memorandum of law, the defendants do not even attempt to identify for the court which special defenses apply to which counts of the plaintiffs' complaint.   This court cannot accept the defendants' position and finds that the failure to comply with Practice Book § 10–51 is, under the circumstances of this case, a major insufficiency.

The defendants also argue that, in effect, the plaintiffs are seeking to reargue the issues already decided by this court when it denied the plaintiffs' request to revise.   However, this court's decision regarding the request to revise did not address the legal sufficiency of the special defenses.   Practice Book § 10–35.

The special defenses are legally insufficient as a result of the defendants' failure to comply with the requirements of Practice Book § 10–51 in a manner that leaves the plaintiffs, and the court, unable to determine to which of the plaintiffs' five causes of action the defendants' four special defenses correspond.   Accordingly, the motion to strike the special defenses is granted.

Wagner, J.T.R.

Wagner, Jerry, J.T.R.