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John Roman v. Naugatuck Valley Savings & Loan et al.
MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 147)
This action arises out of an employment dispute between the plaintiff, John Roman, and the defendants, Naugatuck Valley Savings and Loan (the “bank”), Naugatuck Valley Financial Corporation, Carlos Batista, James Mengacci, Richard Famiglietti, Jane Walsh, Frederick Dlugokecki, William Calderara, and Kevin Kennedy (collectively “the defendants”). Specifically, the plaintiff alleges that he was improperly removed from his position as a member of the board of directors of the bank, and in seeking legal redress for this removal, the plaintiff seeks indemnification pursuant to the bank's by-laws.
The plaintiff filed his summons and complaint on November 8, 2012. On March 6, 2013, the defendants filed their answer. On June 17, 2013, the plaintiff filed a request to amend his complaint. The defendants' objection to the motion to amend was then denied by the court (Cobb, J.) on July 16, 2013. On July 30, 2013, the defendants moved to strike the plaintiff's claim for indemnification in the operative amended complaint arguing, in general, that the indemnification clause at issue allows for indemnification only in the context of a third-party claim—not in the present context of a direct claim. Pursuant to an extension of time in which to respond, the plaintiff filed an objection to the motion to strike on September 18, 2013. The matter was heard on the September 23, 2013 short calendar.
As a threshold matter, the plaintiff argues that the defendants' motion to strike is procedurally improper. Specifically, the plaintiff cites to Cavaliere v. Yaworski, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04–CV–06–4034586–S (January 3, 2011, Shapiro, J.), which states that “[w]hile a party has the right to plead further in the event of an amended complaint, there is a ten-day limitation. See Practice Book § 10–61 1 ․ [W]here an answer to the original complaint has been filed and where an amendment does not alter the counts previously answered, courts have found that the defendant has waived his right to move to strike the answered counts.” (Citation omitted; internal quotation marks omitted.) In response, the defendants argue that courts have sustained objections on timeliness grounds under § 10–61 only when the motions at issue were very untimely, in the order of six months to a year.
It is well established that the court has discretion as to whether it will consider the merits of an untimely motion. See, Langer v. Nationwide Mutual Ins. Co., Superior Court, judicial District of Ansonia–Milford, Docket No. CV–02–0077564–S (March 1, 2004, Upson, J.) (exercising court's discretion to overlook the untimeliness of a motion to strike).
However, whether the ten-day limitation contained in Practice Book § 10–61 should be applied in this case is a separate issue from whether the defendants may move to strike counts in a complaint which they previously have answered. Where an answer to the original complaint has been filed and where an amendment does not alter the counts previously answered, courts have found that the defendant has waived his right to move to strike the answered counts. See, e.g., Liss v. Milford Partners, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07–CV–04–4025123–S (September 29, 2008, Berger, J.) (46 Conn. L. Rptr. 439, 440), citing Ainsworth v. Lexington Partners, LLC, Superior Court, judicial district of New Britain, Docket No. CV–98–0489701 (June 29, 2008, Shortall, J.) (collecting cases).
In the present case, the plaintiff has consistently alleged, both in his original complaint and in the amended complaint, that he is entitled to indemnification pursuant to the bank's by-laws. The defendants answered these indemnification claims on March 6, 2013; (Answer, 3/6/13, ¶¶ 69–82); and, moreover, waited more than ten days after the amended complaint to file the present motion to strike. Accordingly, the defendants have waived their right to move to strike the indemnification claims, and the motion to strike is denied.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike is denied.
BY THE COURT
Gleeson, J.
FOOTNOTES
FN1. Practice Book § 10–61 provides, “When any pleading is amended the adverse party may plead thereto within the time provided by [§ ]10–8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”. FN1. Practice Book § 10–61 provides, “When any pleading is amended the adverse party may plead thereto within the time provided by [§ ]10–8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”
Gleeson, Marcia J., J.
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Docket No: CV126018357
Decided: November 07, 2013
Court: Superior Court of Connecticut.
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