Roadmap to Connecticut Procedure

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 83 Pg. 271
Pages271
Connecticut Bar Journal
Volume 83.

83 CBJ 271. ROADMAP TO CONNECTICUT PROCEDURE

Connecticut Bar Journal
Volume 83, No. 4, Pg. 271
DECEMBER 2009

ROADMAP TO CONNECTICUT PROCEDURE

By Corey M. Dennis (fn*)

I recently completed a judicial clerkship for the Judges of the Connecticut Superior Court. As a Superior Court law clerk, I had the opportunity to research a variety of sophisticated and challenging issues, many of which were procedural in nature. Through wrestling with these issues, I was able to develop a solid understanding of Connecticut procedure.

The following article presents an overview of Connecticut procedure, highlighting some of the issues that arise most frequently and focusing on the three primary dispositive pretrial motions: the motion to dismiss, the motion to strike, and the motion for summary judgment. Given that those who are unfamiliar with Connecticut procedure typically have at least a basic understanding of federal procedure, this article also explains the most significant distinctions between Connecticut and federal procedure. Finally, the article points out several practical tips for those practicing in the Connecticut Superior Court.

This article should prove to be useful to both Connecticut practitioners and out-of-state practitioners litigating in Connecticut. It is, however, likely to be most helpful to those with a minimal understanding of Connecticut procedure, such as out-of-state practitioners and recent law graduates litigating in Connecticut.

I. The Practice Book

Although the majority of jurisdictions have adopted the Federal Rules of Civil Procedure, Connecticut has not done so.(fn1)Practitioners must comply with procedural rules set forth in the Connecticut Practice Book when practicing in the Connecticut Superior Court.(fn2)

II. Fact Pleading

The Federal Rules of Civil Procedure and the procedural rules of the vast majority of states have long required that pleadings need only comply with the liberal standard known as "notice pleading,"(fn3) under which "[a] pleading ...must contain ...a short and plain statement of the claim showing that the pleader is entitled to relief."(fn4) Despite this, Connecticut has been a "code pleading" state since 1879.(fn5 )"Code pleading," which is synonymous with "fact pleading,"(fn6) has traditionally required "a more specific statement of facts" than "notice pleading" under the Federal Rules.(fn7) The Practice Book provides that pleadings must "contain a plain and concise statement of the material facts on which the pleader relies."(fn8) A recent United States Supreme Court decision (discussed below), however, has raised the pleading requirements under the Federal Rules, bringing the standards closer together.

III. Motion To Dismiss

A motion to dismiss in Connecticut "essentially assert[s] that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court."(fn9) In most states and under the Federal Rules, a preanswer motion to dismiss may be based upon the following seven grounds: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.(fn10)

In Connecticut, however, a "motion to dismiss" may only be based upon five of the seven grounds mentioned above: "(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue,(fn11) (4) insufficiency of process, and (5) insufficiency of service of process."(fn12 )The grounds of insufficient process and insufficient service of process are said to implicate the personal jurisdiction of the court.(fn13) The motion may also be based upon several other grounds that are said to implicate the subject matter jurisdiction of the court: standing,(fn14) sovereign immunity,(fn15) failure to exhaust administrative remedies,(fn16) and mootness.(fn17)

Although a motion to dismiss generally "attacks the jurisdiction of the court,"(fn18) the Connecticut Appellate Court explained in a recent decision that "motions to dismiss are not limited to jurisdictional challenges."(fn19) Other permissible grounds, which do not implicate the court's jurisdiction, include forum non conveniens,(fn20) a prior pending action between the same parties,(fn21) and failure to file a written opinion of a health care provider in medical malpractice action.(fn22)

In Conboy v. State,(fn23) a recent Connecticut Supreme Court decision, Chief Justice Rogers prudently clarified the standards courts must employ when faced with a jurisdictional issue raised by a motion to dismiss.(fn24) First, "[w]hen a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must ...take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader."(fn25 )Second, "if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ...other types of undisputed evidence ... and/or public records of which judicial notice may be taken," the "allegations are tempered by the light shed on them by the [supplementary undisputed facts]."(fn26)

Third, "where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts."(fn27 )Although Conboy involved an issue of subject matter jurisdiction, it seems clear that its principles apply equally to cases involving the other grounds upon which a motion to dismiss may be based, including personal jurisdiction,(fn28) venue,(fn29) and exhaustion of administrative remedies.(fn30)

Both federal and state rules provide that a defect in subject matter jurisdiction can be raised at any time.(fn31) By contrast, other proper subjects of a motion to dismiss in state or federal court may be waived if not timely or properly raised.(fn32)

IV. Motion to Strike

Under the Federal Rules, a defendant may file a Rule 12(b)(6) motion to dismiss for "failure to state a claim upon which relief can be granted," which "test[s] the legal sufficiency of the complaint."(fn33) The Connecticut analogue of a Rule 12(b)(6) motion to dismiss is the "motion to strike," which "challenges the legal sufficiency of a pleading."(fn34) This should not be confused with a Rule 12(f) "motion to strike," a "disfavored and infrequently granted" motion in the federal courts.(fn35)

In Connecticut, "[f]or the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted,"(fn36) and the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency."(fn37) Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied."(fn38) The federal standard is similar, but the terminology used is different. Under the Federal Rules, "a judge ruling on a defendant's motion to dismiss a complaint must accept as true all of the factual allegations contained in the complaint"; the motion to dismiss will be denied if the plaintiff has pled "enough facts to state a claim to relief that is plausible on its face."(fn39)

Until recently, federal courts embraced the well-established and liberal standard of Conley v. Gibson,(fn40) where the U.S. Supreme Court held that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."(fn41) In Bell Atlantic Corp. v. Twombly,(fn42) however, "the U.S. Supreme Court retired Conley v. Gibson's once 'accepted rule' ...and "established a 'plausibility standard' that requires plaintiffs to 'nudge their claims across the line from conceivable to plausible' in order to survive."(fn43)

Following Twombly, which was an antitrust case involving the Sherman Act, scholars debated whether its holding applied outside the antitrust context.(fn44) In Ashcroft v. Iqbal,(fn45) however, a more recent U.S. Supreme Court decision, the Court "made clear that Twombly's 'plausibility standard' applies to pleadings in civil actions generally, rejecting the ...suggestion that the holding [is] limited to the antitrust context."(fn46 )Nevertheless, federal courts have held that the federal standard continues to require less specificity than fact pleading.(fn47)

A Connecticut state court motion to strike a portion of a pleading will generally be denied unless that portion purports to state a distinct cause of action.(fn48) A request to revise pursuant to Practice Book § 10-35 may be used to try to separate claims, to obtain a more complete or particular statement of allegations, or to delete impertinent allegations in order to properly challenge the legal sufficiency of the adverse party's claims by motion to strike.(fn49)

It should be noted that, in Connecticut, "[w]ithin fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may" replead.(fn50) In addition, practitioners should be aware that the court will rule only on the grounds raised in the motion to strike and that such grounds should be specified on the face of the motion.(fn51)

V. Motion for Summary Judgment

In Connecticut, a court will grant summary judgment in favor of the moving party "when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."(fn52)...

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