Debra Crider v. James Snelgrove et al. (2015)

MEMORANDUM OF DECISION RE DENIAL OF REQUEST TO REVISE

The defendants have requested that the plaintiff revise Counts 9, 10 and 12 of her complaint.  Specifically the defendants seek to have those counts eliminated, because they contend that the named defendant in those counts, Grotto Café, Inc., d/b/a Christophers Café, is a non-existent entity.  In support of their requests, the defendants have attached to their pleading computer printouts from the Office of the Secretary of State for the State of Connecticut, indicating that according to its records, neither Grotto Café, Inc., nor Grotto Café, Inc., d/b/a Christopers Café exists.

The plaintiff objects to the request, contending that a request to revise is not intended to test substantial rights, such as whether a party has been properly identified or is amenable to suit.  The plaintiff contends that if discovery and investigation in the course of the proceeding reveal that this defendant is a legal non-entity, the counts can be withdrawn, or the defendants can seek summary judgment.

A request to revise authorizes a party to “․ request ‘․ the deletion of any unnecessary, repetitive, scandalous, impertinent or otherwise improper allegations in an adverse party's pleading ․’ Ct. P.B. Sec. 10–35.”  Horton and Knox in Connecticut Practice Series, Connecticut Superior Court Civil Rules, 2015–15 ed., Sec. 10.35, observe, “While this section, unlike its 1963 predecessor, does not explicitly state that this section cannot be used to test substantial rights, the authors' opinion is that the provision survives subsilento.”  P. 564.  In support of this interpretation, they cite Axis Capital, Inc. v. Continental Garage, 2010 WL 3259873 Sup.Ct., New Haven (2010), which holds, “․ this section may not be used to test substantial rights ․ Thus the testing of a legal claim under the guise of seeking the deletion of unnecessary allegations is not permitted.”  To test such substantial rights, the court held the proper vehicle was a Motion to Strike.

The request in this case seeks to eliminate three counts as being legally insufficient and without factual foundation.  Such a request should be made as a motion for summary judgment or a motion to strike.  See J.P. Morgan Chase Bank Trustee v. Rodrigues, 109 Conn.App. 125, 130–31 (2008).

The request to revise is denied.

Bates, J.

Bates, Timothy, J.