Pellecchia v. Conn. Light & Power Co.

• Decision Date: 04 August 2011
• Docket Number: No. X04–CV–09–6004337–S.,X04–CV–09–6004337–S.
• Citation: 54 A.3d 1080,52 Conn.Supp. 435
• Court: Connecticut Superior Court
• Parties: Anthony J. PELLECCHIA, Administrator (Estate of Anthony E. Pellecchia) v. CONNECTICUT LIGHT AND POWER COMPANY et al.

52 Conn.Supp. 435

54 A.3d 1080

Anthony J. PELLECCHIA, Administrator (Estate of Anthony E. Pellecchia)

v.CONNECTICUT LIGHT AND POWER COMPANY et al.^*

No. X04–CV–09–6004337–S.

Superior Court of Connecticut,

Complex Litigation Docket at Hartford.

Aug. 4, 2011.

Jason L. McCoy, Vernon, for the plaintiff.

Richard L. Street and Lauren J. Taylor, Waterbury, for the defendants.

SHAPIRO, J.

This matter is before the court concerning the defendants Connecticut Light and Power Company, Northeast Utilities, and Northeast Utilities Service Company's (collectively, CL & P defendants) motion to dismiss for lack of subject matter jurisdiction. The court heard oral argument concerning the motion on June 27, 2011. After considering the parties' submissions and arguments, the court issues this memorandum of decision. For the reasons stated below, the motion is granted.

IBACKGROUND

The CL & P defendants seek dismissal of the claims asserted against them in the plaintiff's complaint. They assert that the court is without subject matter jurisdiction over the plaintiff's claims since this action was not commenced within the two year statute of limitations period for wrongful death claims provided in General Statutes § 52–555. As discussed below, this matter arises from an alleged July 29, 2006 incident involving the death of the plaintiff's decedent. According to the return of service, as to the CL & P defendants, this matter was commenced on July 28, 2009, nearly three years later.

The CL & P defendants also argue that, in this matter (2009 action), the plaintiff may not avail himself of the “accidental failure of suit statute,” General Statutes § 52–592,¹ since a prior action commenced by the plaintiff, Docket No. X04–CV–08–6003273 (2008 action), concerning the same incident, resulted in a disciplinary dismissal for wilful failure to follow clear orders of the court, and therefore did not fail for reasons of mistake, inadvertence or excusable neglect.

In response, the plaintiff asserts that the court has subject matter jurisdiction, since a disciplinary dismissal is not categorically excluded from the meaning of “for any matter of form” for the purposes of obtaining relief under § 52–592. He contends that, in view of the policy preference for bringing about a trial on the merits, the circumstances in the 2008 action do not warrant precluding him from proceeding anew against the CL & P defendants in this action.

For ease of reference, the court repeats its summary of the procedural background in the 2008 action from its May 13, 2009 memorandum of decision (May, 2009 decision) in that matter, in which the court granted the CL & P defendants' motion seeking the entry of a nonsuit against the plaintiff, pages 2–4: “The plaintiff commenced this action with the service of his complaint, dated May 30, 2008. In the complaint, the plaintiff, as administrator of the estate of Anthony E. Pellecchia (decedent), seeks to recover damages, as the result of a July 28, 2006 incident in which the decedent allegedly suffered serious personal injuries, from which he died, as a result of a motorcycle which he was operating coming into contact with an energized electrical line on or near the roadway.

“On August 18, 2008, the movants filed a request to revise the complaint (# 105) (CL & P request to revise). The plaintiff moved for a thirty day extension of time to respond to the CL & P request to revise (# 110). The plaintiff also moved for an extension of time, until September 25, 2008, to respond to a request to revise the complaint, which was filed by the defendants town of Killingly, Anthony Shippee, and David Sabourin (town defendants) on June 19, 2008 (# 102). The court ( Sferrazza, J.) granted this second motion for extension of time on September 8, 2008 (# 111).

“Arguably, if the plaintiff's motion for an extension of time as to the CL & P request to revise had been granted, a thirty day extension of time would have extended the plaintiff's deadline to respond to that request to revise until October 17, 2008. The plaintiff did not file objections to the CL & P request to revise or a revised complaint by October 17, 2008.

“On October 28, 2008, the movants filed a motion for nonsuit against the plaintiff for his failure to file a revised complaint in accordance with their request to revise (# 133) (motion for nonsuit). No objection to the motion for nonsuit was filed by the plaintiff.² On November 18, 2008, the plaintiff filed untimely objections to the CL & P request to revise (# 146).

“On November 20, 2008, the court issued an order concerning the motion for nonsuit, as follows: ‘Pursuant to P.B. § 10–37,³ the time by which the plaintiff was to file any objections to the defendants CL & P, NU, and NUSC's requests to revise elapsed. The plaintiff's objections, dated November 18, 2008 (# 146) are untimely. Accordingly, the requests are deemed to have been automatically granted. See P.B. § 10–37. Plaintiff shall file a revised complaint within fifteen days of the date of this order.’ See # 133. Thus, instead of ordering a nonsuit at that time, the court afforded the plaintiff an additional extension of fifteen days, until December 5, 2008, to file a revised complaint in compliance with the CL & P request to revise.

“Rather than filing such a revised complaint in compliance with the court's order, on December 4, 2005, the plaintiff filed a request for leave to amend complaint (# 157), with an amended complaint. The CL & P defendants filed an objection to the request for leave to amend on December 19, 2008 (# 159), since the amended complaint did not incorporate most of the revisions sought in the CL & P request to revise. The court sustained this objection by order dated January 20, 2009. More than a month later, on February 23, 2009, the plaintiff filed an ‘objection’ to the defendants' objection to the request for leave to amend (# 186), which ignored the court's January 20, 2009 order, and asserted that the amended complaint complied with the court's November 20, 2008 order, which had directed the plaintiff to file a revised complaint in accordance with the CL & P request to revise. By order dated February 27, 2009, the court found the plaintiff's belated ‘objection’ to be moot, since the court had sustained the CL & P defendants' objection to the plaintiff's request for leave to amend complaint on January 20, 2009. See # 159.”

At page 5 of court's May, 2009 decision, the court stated, “There is no reasonable basis for the plaintiff to assert either that the court's order was unclear or that it did not direct him to revise his complaint in compliance with the CL & P request to revise.”

At page 8 of the May, 2009 decision, the court stated, “The plaintiff also argues that he did not intend to not comply with the court's orders. As explained above, his excuses for failing to do so are not well-founded. Although the plaintiff was afforded extensions of time to file an appropriately revised complaint, he did not do so. The plaintiff's continued failure to comply with the court's clear orders evidences a wilful failure to do so.”

Further, at page 10 of the May, 2009 decision, the court stated, “Here, as stated above, the court's November 20, 2008 order was clear. The plaintiff violated it by not filing a revised complaint in compliance therewith by December 5, 2008. The court's order, in effect, was reiterated when the court sustained the objection to the plaintiff's request for leave to amend on January 20, 2009. Even then the plaintiff failed to comply by filing a revised complaint in compliance with the court's orders. See Practice Book § 10–8 (pleadings shall advance within fifteen days of the filing of a decision by the judicial authority).”

At page 12 of the May, 2009 decision, the court stated, “Here, the plaintiff's continued failure to properly revise his complaint in compliance with the Practice Book evidences a lack of due regard to necessary rules of procedure. See Millbrook Owners Assn., Inc. v. Hamilton Standard, [257 Conn. 1, 16, 776 A.2d 1115 (2001) ]. The plaintiff may not be permitted to ignore and not comply with the court's orders and the Practice Book. In so doing, the progress of the pleadings has been inexcusably delayed for months. The return day in this matter was June 17, 2008. Nearly eleven months later, as a result of the plaintiff's noncompliance, there is no operative complaint, let alone progress toward closing the pleadings. Allowing this noncompliance would negate Practice Book § 10–37.

“The plaintiff had ample, and extended, time to properly revise his complaint, but did not so. The plaintiff has not complied with the court's orders. See, in contrast, Blinkoff v. O & G Industries, Inc., [89 Conn.App. 251, 259, 873 A.2d 1009, cert. denied, 275 Conn. 907, 882 A.2d 668 (2005) ] (plaintiff later complied with discovery requests after prior lack of diligence and lack of adherence to court orders). In the exercise of its discretion, the court finds that a nonsuit is an appropriate sanction for the plaintiff's failure to file a revised complaint in violation of the court's orders and Practice Book § 10–37.”

Thus, in the May, 2009 decision, a nonsuit was ordered as to the CL & P defendants as a result of the plaintiff's wilful failure to comply with court orders.

On September 30, 2009, the court issued another memorandum of decision in the 2008 action (September, 2009 decision), in which it denied the plaintiffs motion to open the nonsuit. At pages 6–7, the court stated, “the plaintiff wilfully failed to comply, after the court found that the requests [to revise] were deemed to be automatically granted, and after the plaintiff was ordered to file a revised complaint in compliance with the requests, and the plaintiff did not do so. The record here does not evidence a reasonable mistake or misunderstanding. Accordingly, the plaintiff has not shown that he ‘was prevented by mistake, accident or other...