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DOCKET NO.: WWM-CV21-6022016-S : SUPERIOR COURT
:
IRONHORSE AUTO, LLC d/b/a : J.D. OF WINDHAM
CENTRAL HYUNDAI :
:
VS. : AT PUTNAM
:
BRENT MATTSON : JANUARY 13, 2023
OBJECTION TO DEFENDANT’S MOTION RE: SANCTIONS
The Plaintiff, Ironhorse Auto, LLC d/b/a Central Hyundai, respectfully objects to the
Defendant’s memorandum in support of his proposed order of compliance, filed on January 11,
2023. The Defendant’s memorandum is nothing more than a rehash of the arguments that have
already been made in his earlier memos to this Court, filed on July 29 and September 16, 2022.
Nevertheless, in an exercise of caution, the Plaintiff will respond to the Defendant’s repetitive,
vacuous missive.
The Defendant’s proposed order of compliance lists three bullet points. The first of these
bullet points is that the Plaintiff should be allowed to enter into evidence testimony and
documents related to lost business from AB Transportation, LLC, which has been provided to the
Defendant prior to November 7, 2022. This is essentially the same as the Plaintiff’s proposed
order, filed on November 14, 2022, and the Plaintiff does not object to this bullet point.
However, the Defendant’s second bullet point is completely unreasonable, and should be
rejected by this Court. That bullet point suggests that this Court should prevent any evidence of
lost profit from AB Transportation unless the Plaintiff makes additional disclosures to the
1
Defendant. The Defendant suggests that this sanction is consistent “under the standard set forth
in American Diamond Exchange, Inc. v. Alpert, 203 Conn. 494 (2011).” Memo. at 4. 1
The Defendant is wrong. In Alpert, our Supreme Court held that during a trial on its
claim for tortious interference with business expectancies, the plaintiff did not prove its damages
for lost profits with reasonable certainty. Am. Diamond Exch., Inc., 302 Conn. at 496. The
Court’s holding in that case did not review a trial court’s award of sanctions in a discovery
dispute. Nor did the Court hold that the plaintiff was not able to produce any evidence of lost
profits at trial as a discovery sanction because such evidence was insufficient to prove such
damages with reasonable certainty. See id.
In addition, the Defendant’s argument that the Plaintiff has not produced enough
evidence to prove that it was damaged by the Defendant’s tortious conduct is better suited to a
motion for summary judgment, or at trial. In essence, the Defendant is asking this Court to make
a factual finding on the sufficiency of the Plaintiff’s evidence on damages long before a trial on
the merits in this case; indeed, a trial in this matter has not even been scheduled at this time.
Under Connecticut law, the trial court may not make a factual finding regarding an ultimate issue
in this case prior to trial, in a motion for discovery sanctions.
In fact, the Defendant ignores the only relevant authority, which was cited in the
Plaintiff’s earlier memorandum to this Court. In Millbrook Owners Ass’n, Inc. v. Hamilton
Standard, 257 Conn. 1, 17 (2001) the Court held that, in order for a trial court’s order of
sanctions for violation of a discovery order to withstand scrutiny, three distinct requirements
must be satisfied: (1) the order to be complied with must be reasonably clear; (2) the record must
1
The Defendant has the citation wrong. The correct citation for the case is
American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494 (2011).
2
establish that the order was in fact violated; and (3) the sanction imposed must be proportional to
the violation.
Here, the Defendant’s request that the Plaintiff not be allowed to enter any evidence of
lost profits from AB Transportation is not proportional to the purported violation in this case.
See Millbrook Owners Ass’n, Inc., 257 Conn. at 17. Indeed, such an order would essentially
make it impossible for the Plaintiff to prove its damages in this case. See id.
In addition, the Plaintiff did not violate this Court’s discovery order. See id. The
Defendant’s memorandum suggests that the Plaintiff should be required to provide a “detailed
explanation of its calculation of the claimed lost profit.” Memo. at 4. But this Court’s August
15, 2022 order did not require the Plaintiff to produce any such information. Instead, that order
merely required the Plaintiff to produce a “calculation of [its] alleged damages.” Defendant’s
9/16/22 Second Memo. at 6. The Plaintiff has produced its calculation. The Defendant is free to
challenge the adequacy of that calculation at trial, but there is no authority for his theory that all
of the Plaintiff’s evidence on damages may be excluded from trial because the Defendant is not
happy with that calculation.
There is no merit to the Defendant’s latest memorandum. As Gertrude Stein famously
remarked about Oakland, California (her hometown), “there is no there there.” Gertrude Stein,
Everybody’s Autobiography (1937); see United States v. Menendez, 291 F. Supp. 3d 606, 633 (D.
N.J. 2018). The Plaintiff has complied with this Court’s orders, and produced all of the evidence
of damages that is within its custody and control. The Defendant is free to test that evidence at
trial. But the Defendant may not preclude the Plaintiff from introducing such evidence at trial
because it claims, prior to trial, that such evidence does not meet the standard for proving
damages with reasonable certainty. The Defendant has not identified a single case in which any
3
court has ever precluded admission of damages evidence for this reason, and he cannot do so,
because no such case exists.
CONCLUSION
WHEREFORE, for all of the foregoing reasons, and for all of the reasons in the
Plaintiff’s prior submissions, the Defendant’s motion for sanctions should be denied.
THE PLAINTIFF -
IRONHORSE AUTO, LLC d/b/a
CENTRAL HYUNDAI
By /s/ 103001
John M. Wolfson
Benjamin M. Wattenmaker
FEINER WOLFSON LLC
One Constitution Plaza, Suite 900
Hartford, CT 06103
Tel. : (860) 713-8900
Fax. : (860) 713-8905
jwolfson@feinerwolfson.com
Juris # 415049
Its Attorneys
4
CERTIFICATION
I hereby certify that on January 13, 2023, a copy of the foregoing was emailed or
delivered electronically or non-electronically to the following counsel of record and that
written consent for electronic delivery was received from the same.
William J. O’Sullivan, Esq.
O’SULLIVAN McCORMACK JENSEN & BLISS, PC
180 Glastonbury Boulevard, Suite 210
Glastonbury, CT 06033
Phone: (860) 258-1993
Fax: (860) 258-1991
wosullivan@omjblaw.com
103001
John M. Wolfson
5
Preview
DOCKET NO.: WWM-CV21-6022016-S : SUPERIOR COURT : IRONHORSE AUTO, LLC d/b/a : J.D. OF WINDHAM CENTRAL HYUNDAI : : VS. : AT PUTNAM : BRENT MATTSON : JANUARY 13, 2023 OBJECTION TO DEFENDANT’S MOTION RE: SANCTIONS The Plaintiff, Ironhorse Auto, LLC d/b/a Central Hyundai, respectfully objects to the Defendant’s memorandum in support of his proposed order of compliance, filed on January 11, 2023. The Defendant’s memorandum is nothing more than a rehash of the arguments that have already been made in his earlier memos to this Court, filed on July 29 and September 16, 2022. Nevertheless, in an exercise of caution, the Plaintiff will respond to the Defendant’s repetitive, vacuous missive. The Defendant’s proposed order of compliance lists three bullet points. The first of these bullet points is that the Plaintiff should be allowed to enter into evidence testimony and documents related to lost business from AB Transportation, LLC, which has been provided to the Defendant prior to November 7, 2022. This is essentially the same as the Plaintiff’s proposed order, filed on November 14, 2022, and the Plaintiff does not object to this bullet point. However, the Defendant’s second bullet point is completely unreasonable, and should be rejected by this Court. That bullet point suggests that this Court should prevent any evidence of lost profit from AB Transportation unless the Plaintiff makes additional disclosures to the 1 Defendant. The Defendant suggests that this sanction is consistent “under the standard set forth in American Diamond Exchange, Inc. v. Alpert, 203 Conn. 494 (2011).” Memo. at 4. 1 The Defendant is wrong. In Alpert, our Supreme Court held that during a trial on its claim for tortious interference with business expectancies, the plaintiff did not prove its damages for lost profits with reasonable certainty. Am. Diamond Exch., Inc., 302 Conn. at 496. The Court’s holding in that case did not review a trial court’s award of sanctions in a discovery dispute. Nor did the Court hold that the plaintiff was not able to produce any evidence of lost profits at trial as a discovery sanction because such evidence was insufficient to prove such damages with reasonable certainty. See id. In addition, the Defendant’s argument that the Plaintiff has not produced enough evidence to prove that it was damaged by the Defendant’s tortious conduct is better suited to a motion for summary judgment, or at trial. In essence, the Defendant is asking this Court to make a factual finding on the sufficiency of the Plaintiff’s evidence on damages long before a trial on the merits in this case; indeed, a trial in this matter has not even been scheduled at this time. Under Connecticut law, the trial court may not make a factual finding regarding an ultimate issue in this case prior to trial, in a motion for discovery sanctions. In fact, the Defendant ignores the only relevant authority, which was cited in the Plaintiff’s earlier memorandum to this Court. In Millbrook Owners Ass’n, Inc. v. Hamilton Standard, 257 Conn. 1, 17 (2001) the Court held that, in order for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three distinct requirements must be satisfied: (1) the order to be complied with must be reasonably clear; (2) the record must 1 The Defendant has the citation wrong. The correct citation for the case is American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494 (2011). 2 establish that the order was in fact violated; and (3) the sanction imposed must be proportional to the violation. Here, the Defendant’s request that the Plaintiff not be allowed to enter any evidence of lost profits from AB Transportation is not proportional to the purported violation in this case. See Millbrook Owners Ass’n, Inc., 257 Conn. at 17. Indeed, such an order would essentially make it impossible for the Plaintiff to prove its damages in this case. See id. In addition, the Plaintiff did not violate this Court’s discovery order. See id. The Defendant’s memorandum suggests that the Plaintiff should be required to provide a “detailed explanation of its calculation of the claimed lost profit.” Memo. at 4. But this Court’s August 15, 2022 order did not require the Plaintiff to produce any such information. Instead, that order merely required the Plaintiff to produce a “calculation of [its] alleged damages.” Defendant’s 9/16/22 Second Memo. at 6. The Plaintiff has produced its calculation. The Defendant is free to challenge the adequacy of that calculation at trial, but there is no authority for his theory that all of the Plaintiff’s evidence on damages may be excluded from trial because the Defendant is not happy with that calculation. There is no merit to the Defendant’s latest memorandum. As Gertrude Stein famously remarked about Oakland, California (her hometown), “there is no there there.” Gertrude Stein, Everybody’s Autobiography (1937); see United States v. Menendez, 291 F. Supp. 3d 606, 633 (D. N.J. 2018). The Plaintiff has complied with this Court’s orders, and produced all of the evidence of damages that is within its custody and control. The Defendant is free to test that evidence at trial. But the Defendant may not preclude the Plaintiff from introducing such evidence at trial because it claims, prior to trial, that such evidence does not meet the standard for proving damages with reasonable certainty. The Defendant has not identified a single case in which any 3 court has ever precluded admission of damages evidence for this reason, and he cannot do so, because no such case exists. CONCLUSION WHEREFORE, for all of the foregoing reasons, and for all of the reasons in the Plaintiff’s prior submissions, the Defendant’s motion for sanctions should be denied. THE PLAINTIFF - IRONHORSE AUTO, LLC d/b/a CENTRAL HYUNDAI By /s/ 103001 John M. Wolfson Benjamin M. Wattenmaker FEINER WOLFSON LLC One Constitution Plaza, Suite 900 Hartford, CT 06103 Tel. : (860) 713-8900 Fax. : (860) 713-8905 jwolfson@feinerwolfson.com Juris # 415049 Its Attorneys 4 CERTIFICATION I hereby certify that on January 13, 2023, a copy of the foregoing was emailed or delivered electronically or non-electronically to the following counsel of record and that written consent for electronic delivery was received from the same. William J. O’Sullivan, Esq. O’SULLIVAN McCORMACK JENSEN & BLISS, PC 180 Glastonbury Boulevard, Suite 210 Glastonbury, CT 06033 Phone: (860) 258-1993 Fax: (860) 258-1991 wosullivan@omjblaw.com 103001 John M. Wolfson 5