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STATE OF CONNECTICUT
Docket NO.: (X06) UWY-CV21-5028294-S
NANCY BURTON, SUPERIOR COURT
Plaintiff,
COMPLEX LITIGATION DOCKET
v.
AT WATERBURY
DAVID PHILIP MASON, ET AL.
Defendants.
JANUARY 20, 2023
DEFENDANT DAVID PHILIP MASON’S MOTION FOR JUDGMENT
Pursuant to Practice Book §10-44, Defendant David Mason (“Mason”), hereby moves for
judgment in the above-captioned matter. Following the Court’s Order (“Order”) and
Memorandum of Decision (“Memorandum of Decision”) dated November 29, 2022 (Dkt. #s
343.20 and 386.00), striking all counts against Mason, plaintiff, Nancy Burton (“Plaintiff”) has
failed to file a substitute complaint in compliance with Practice Book §10-44 in a timely manner.
As a result, there are no remaining counts in the action that apply to Mason. Mason therefore
respectfully requests that judgment enter on the action in his favor. In support of his Motion,
Defendant Mason states the following:
1. This case arises from an extensively litigated and highly contested dispute
between the parties concerning the contested seizure of sixty-five (65) goats from the Plaintiff’s
property in accordance with Conn. Gen. Stat. §22-329a. On November 29, 2022, the Court
(Bellis, J.) issued its Order striking all counts against Mason contained in the Plaintiff’s Fifth
Amended Complaint. The Court’s Order and Memorandum of Decision specifically addressed
the Plaintiff’s Fifth Amended Complaint, filed on April 12, 2022 (Dkt. # 328.00).
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2. On December 13, 2022, fourteen (14) days after the Court’s Order, the Plaintiff
filed a “Substitute Fifth Amended Complaint.” (Dkt. # 392.00.)
3. Substitution of complaints following a motion to strike is guided by Practice
Book §10-44, which specifies that a party must substitute their complaint with a new pleading
“within fifteen days after the granting of any motion to strike . . . .” Practice Book §10-44. If the
party fails to do so, §10-44 specifies that “the judicial authority may, upon motion, enter
judgment against [the party] on said stricken complaint . . . or count thereof.” Id. Section 10-44
mandates that “[a]ny new pleading filed pursuant to this section shall be accompanied by a
separate document which shows the differences between the previous pleading and the new
pleading by using underlining to indicate new language and by using either brackets or
strikethrough to indicate deleted language.” Practice Book §10-44 (emphasis added). See also
Morera v. Thurber, 162 Conn. App. 261, 267-68 (2016) (rules of practice that employ the term,
“must” denote a mandatory requirement). The Plaintiff’s Substitute Fifth Amended Complaint
was not in compliance with Practice Book §10-44 because it was not accompanied by such a
document.
4. On December 13, 2022, the Plaintiff also filed a “Notice” (the “Notice”). (Dkt. #
393.00.) The Plaintiff’s Notice stated that she intended to correct multiple “formatting errors,
blank spaces, computer-generated spelling errors and other formatting errors,” but did not
address the fact that the Plaintiff’s Substitute Fifth Amended Complaint did not comply with the
second paragraph of Practice Book §10-44.
5. Mason provided the Plaintiff the opportunity to correct her non-compliant
Substitute Fifth Amended Complaint.
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6. On January 9, 2023, the Plaintiff filed yet another “Substitute Fifth Amended
Complaint.” The Plaintiff’s filing on January 9, 2023, while it addressed the formatting issues
referenced in her December 13, 2022 Notice, again failed to comply with Practice Book §10-44.
7. On January 13, 2023, the Plaintiff filed a “Notice” attached to which were two
documents purporting to comply with Practice Book §10-44. The Plaintiff’s “Notice” dated
January 13, 2023 refers to a Substitute Complaint filed on August 22, 2022. However, the
Substitute Complaint dated August 22, 2022 is not identical to the Fifth Amended Complaint,
filed on April 12, 2022 (Dkt. # 328.00), that was stricken by this Court’s Order dated November
29, 2022. See e.g., Notice dated January 13, 2023, Attachment “A,” Count Four, at paras 93-101
(directed at all defendants and purporting to delete phrases and allegations not included in the
Plaintiff’s Fifth Amended Complaint).
8. The Plaintiff has failed to comply with Practice Book §10-44 in a timely manner.
9. Although Connecticut courts “allow [self-represented] litigants some latitude, the
right of self-representation provides no attendant license not to comply with relevant rules of
procedural and substantive law.” Darin v. Cais, 161 Conn. App. 475, 481 (2015) (quotations
omitted) (emphasis added).
10. Practice Book §10-44 provides a procedural legal rule affording a right to
defendants to gain finality when a struck complaint is not substituted for one with sufficient
factual allegations. Cf Nelson v. Dettmer, 305 Conn. 654, 679 (2012) (noting judgment pursuant
to Practice Book §10-44 constitutes final judgment).
11. That finality is important not only from the perspective of the defendant’s rights,
but also because it affects the appealability of a decision on a motion to strike, and begins the
clock on the appeal period. See Caltabiano v. L&L Real Estate Holdings II, LLC, 128 Conn.
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App. 84, 87-89 (2011) (discussing the nature of substitute complaints and effects on appeals
from motions to strike).
12. Despite Defendant Mason providing the Plaintiff with ample opportunity, the
Plaintiff has failed to file a substitute complaint that complies with Practice Book §10-44 in a
timely manner.
WHEREFORE, for the following reasons, Defendant Mason respectfully requests that
this Court grant his Motion and enter judgment on behalf of Defendant Mason in conformity
with the Court’s Memorandum of Decision.
Respectfully submitted,
Defendant,
DAVID PHILIP MASON,
By his attorneys,
/s/ Christine N. Parise
Christine N. Parise, Esq., Juris No.: 423626
Michael D. Riseberg, Esq., Juris No.: 431023
David B. Stanhill, Esq., Juris No.: 443350
Rubin and Rudman LLP
53 State Street, 15th Floor
Boston, MA 02109
Tel: 617-330-7000
cparise@rubinrudman.com
mriseberg@rubinrudman.com
dstanhill@rubinrudman.com
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CERTIFICATE OF SERVICE
I, Christine N. Parise, Esq., counsel for Defendant David Philip Mason, do hereby certify
that on this 20th day of January 2023, I caused to be served a true copy of the foregoing
document(s) via electronic mail to the following counsel and pro se parties of record.
Nancy Burton Steven J. Stafstrom, Jr., Esq.
154 Highland Avenue Pullman & Comley, LLC
Rowayton, CT 06853 850 Main Street, P.O. Box 7006
(203) 313-1510 Bridgeport, CT 06601
nancyburtonct@aol.com Sstafstrom@pullcom.com
James N. Tallberg, Esq. Alexander W. Ahrens
Kimberly Bosse, Esq. Melick & Porter, LLP
Karsten & Tallberg, LLC 900 Main Street South
500 Enterprise Drive, Suite 4B Southbury, CT 06488
Rocky Hill, CT 06067 aahrens@melicklaw.com
jtallberg@kt-lawfirm.com
kbosse@kt-lawfirm.com
Philip T. Newbury, Jr., Esq. Matthew I. Levine, Esq.
Kristan M. Jakiela, Esq. AG-Environmental
Howd & Ludorf, LLC 165 Capitol Ave., 5th Floor
65 Wethersfield Avenue Hartford, CT 06106
Hartford, CT 06114-1121 Jonathan.harding@ct.gov
pnewbury@hl-law.com Matthew.levine@ct.gov
kjakiela@hl-law.com
/s/ Christine N. Parise
Christine N. Parise
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STATE OF CONNECTICUT Docket NO.: (X06) UWY-CV21-5028294-S NANCY BURTON, SUPERIOR COURT Plaintiff, COMPLEX LITIGATION DOCKET v. AT WATERBURY DAVID PHILIP MASON, ET AL. Defendants. JANUARY 20, 2023 DEFENDANT DAVID PHILIP MASON’S MOTION FOR JUDGMENT Pursuant to Practice Book §10-44, Defendant David Mason (“Mason”), hereby moves for judgment in the above-captioned matter. Following the Court’s Order (“Order”) and Memorandum of Decision (“Memorandum of Decision”) dated November 29, 2022 (Dkt. #s 343.20 and 386.00), striking all counts against Mason, plaintiff, Nancy Burton (“Plaintiff”) has failed to file a substitute complaint in compliance with Practice Book §10-44 in a timely manner. As a result, there are no remaining counts in the action that apply to Mason. Mason therefore respectfully requests that judgment enter on the action in his favor. In support of his Motion, Defendant Mason states the following: 1. This case arises from an extensively litigated and highly contested dispute between the parties concerning the contested seizure of sixty-five (65) goats from the Plaintiff’s property in accordance with Conn. Gen. Stat. §22-329a. On November 29, 2022, the Court (Bellis, J.) issued its Order striking all counts against Mason contained in the Plaintiff’s Fifth Amended Complaint. The Court’s Order and Memorandum of Decision specifically addressed the Plaintiff’s Fifth Amended Complaint, filed on April 12, 2022 (Dkt. # 328.00). 3335007_1 2. On December 13, 2022, fourteen (14) days after the Court’s Order, the Plaintiff filed a “Substitute Fifth Amended Complaint.” (Dkt. # 392.00.) 3. Substitution of complaints following a motion to strike is guided by Practice Book §10-44, which specifies that a party must substitute their complaint with a new pleading “within fifteen days after the granting of any motion to strike . . . .” Practice Book §10-44. If the party fails to do so, §10-44 specifies that “the judicial authority may, upon motion, enter judgment against [the party] on said stricken complaint . . . or count thereof.” Id. Section 10-44 mandates that “[a]ny new pleading filed pursuant to this section shall be accompanied by a separate document which shows the differences between the previous pleading and the new pleading by using underlining to indicate new language and by using either brackets or strikethrough to indicate deleted language.” Practice Book §10-44 (emphasis added). See also Morera v. Thurber, 162 Conn. App. 261, 267-68 (2016) (rules of practice that employ the term, “must” denote a mandatory requirement). The Plaintiff’s Substitute Fifth Amended Complaint was not in compliance with Practice Book §10-44 because it was not accompanied by such a document. 4. On December 13, 2022, the Plaintiff also filed a “Notice” (the “Notice”). (Dkt. # 393.00.) The Plaintiff’s Notice stated that she intended to correct multiple “formatting errors, blank spaces, computer-generated spelling errors and other formatting errors,” but did not address the fact that the Plaintiff’s Substitute Fifth Amended Complaint did not comply with the second paragraph of Practice Book §10-44. 5. Mason provided the Plaintiff the opportunity to correct her non-compliant Substitute Fifth Amended Complaint. 2 3335007_1 6. On January 9, 2023, the Plaintiff filed yet another “Substitute Fifth Amended Complaint.” The Plaintiff’s filing on January 9, 2023, while it addressed the formatting issues referenced in her December 13, 2022 Notice, again failed to comply with Practice Book §10-44. 7. On January 13, 2023, the Plaintiff filed a “Notice” attached to which were two documents purporting to comply with Practice Book §10-44. The Plaintiff’s “Notice” dated January 13, 2023 refers to a Substitute Complaint filed on August 22, 2022. However, the Substitute Complaint dated August 22, 2022 is not identical to the Fifth Amended Complaint, filed on April 12, 2022 (Dkt. # 328.00), that was stricken by this Court’s Order dated November 29, 2022. See e.g., Notice dated January 13, 2023, Attachment “A,” Count Four, at paras 93-101 (directed at all defendants and purporting to delete phrases and allegations not included in the Plaintiff’s Fifth Amended Complaint). 8. The Plaintiff has failed to comply with Practice Book §10-44 in a timely manner. 9. Although Connecticut courts “allow [self-represented] litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” Darin v. Cais, 161 Conn. App. 475, 481 (2015) (quotations omitted) (emphasis added). 10. Practice Book §10-44 provides a procedural legal rule affording a right to defendants to gain finality when a struck complaint is not substituted for one with sufficient factual allegations. Cf Nelson v. Dettmer, 305 Conn. 654, 679 (2012) (noting judgment pursuant to Practice Book §10-44 constitutes final judgment). 11. That finality is important not only from the perspective of the defendant’s rights, but also because it affects the appealability of a decision on a motion to strike, and begins the clock on the appeal period. See Caltabiano v. L&L Real Estate Holdings II, LLC, 128 Conn. 3 3335007_1 App. 84, 87-89 (2011) (discussing the nature of substitute complaints and effects on appeals from motions to strike). 12. Despite Defendant Mason providing the Plaintiff with ample opportunity, the Plaintiff has failed to file a substitute complaint that complies with Practice Book §10-44 in a timely manner. WHEREFORE, for the following reasons, Defendant Mason respectfully requests that this Court grant his Motion and enter judgment on behalf of Defendant Mason in conformity with the Court’s Memorandum of Decision. Respectfully submitted, Defendant, DAVID PHILIP MASON, By his attorneys, /s/ Christine N. Parise Christine N. Parise, Esq., Juris No.: 423626 Michael D. Riseberg, Esq., Juris No.: 431023 David B. Stanhill, Esq., Juris No.: 443350 Rubin and Rudman LLP 53 State Street, 15th Floor Boston, MA 02109 Tel: 617-330-7000 cparise@rubinrudman.com mriseberg@rubinrudman.com dstanhill@rubinrudman.com 4 3335007_1 CERTIFICATE OF SERVICE I, Christine N. Parise, Esq., counsel for Defendant David Philip Mason, do hereby certify that on this 20th day of January 2023, I caused to be served a true copy of the foregoing document(s) via electronic mail to the following counsel and pro se parties of record. Nancy Burton Steven J. Stafstrom, Jr., Esq. 154 Highland Avenue Pullman & Comley, LLC Rowayton, CT 06853 850 Main Street, P.O. Box 7006 (203) 313-1510 Bridgeport, CT 06601 nancyburtonct@aol.com Sstafstrom@pullcom.com James N. Tallberg, Esq. Alexander W. Ahrens Kimberly Bosse, Esq. Melick & Porter, LLP Karsten & Tallberg, LLC 900 Main Street South 500 Enterprise Drive, Suite 4B Southbury, CT 06488 Rocky Hill, CT 06067 aahrens@melicklaw.com jtallberg@kt-lawfirm.com kbosse@kt-lawfirm.com Philip T. Newbury, Jr., Esq. Matthew I. Levine, Esq. Kristan M. Jakiela, Esq. AG-Environmental Howd & Ludorf, LLC 165 Capitol Ave., 5th Floor 65 Wethersfield Avenue Hartford, CT 06106 Hartford, CT 06114-1121 Jonathan.harding@ct.gov pnewbury@hl-law.com Matthew.levine@ct.gov kjakiela@hl-law.com /s/ Christine N. Parise Christine N. Parise 5 3335007_1