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NO: (X06) UWY CV 21 5028294S : SUPERIOR COURT
NANCY BURTON : COMPLEX LITIGATION DOCKET
v. : AT WATERBURY
DAVID PHILIP MASON, ET AL : MARCH 28, 2023
OBJECTION TO PLAINTIFF’S MOTION (#415.00) TO FILE LATE OBJECTION
TO DEFENDANTS’ MOTION FOR JUDGMENT AS TO STRICKEN COUNTS
The defendants, Elinore Carmody and Dennis Gibbon, hereby object to the
plaintiff’s “Motion to File Objection to Carmody/Gibbons Motion for Judgment as to
Stricken Counts (Entry #399.00) Nunc Pro Tunc” filed on March 10, 2023 [Dkt. #415.00].
By way of background, the court granted the defendants’ motion to strike Counts
Two, Three, Four, Six, Seven, Eight, Ten and Eleven of plaintiff’s Fifth Amended
Complaint on November 29, 2022. [Dkt. #387.00]. Although Ms. Burton filed a
document entitled “Substitute Fifth Amended Complaint” on December 13, 2022 [Dkt.
#392.00], the substitute complaint fails to comply with the requirements of Practice Book
§ 10-44, which provides:
Sec. 10-44. —Substitute Pleading; Judgment Within fifteen days after the
granting of any motion to strike, the party whose pleading has been stricken
may file a new pleading; provided that in those instances where an entire
complaint, counterclaim or cross complaint, or any count in a complaint,
counterclaim or cross complaint has been stricken, and the party whose
pleading or a count thereof has been so stricken fails to file a new pleading
within that fifteen day period, the judicial authority may, upon motion, enter
judgment against said party on said stricken complaint, counterclaim or
cross complaint, or count thereof. Any 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. Nothing in this section shall
dispense with the requirements of Section 61-3 or 61-4 of the appellate
rules. (Emphasis added).
As is apparent from the language of the rule, the requirement that the substitute
pleading be accompanied by a separate document showing the changes from the
previous complaint is mandatory. See Morera v. Thurber, 162 Conn.App. 261, 267–68,
131 A.3d 1155 (2016) (“The use of word must usually connotes a command or
requirement. . . . We have held other rules of practice that employ the term ‘must’ or a
similar term to be mandatory. . . . Accordingly, [a]bsent an indication to the contrary, the
[drafter's] choice of the mandatory term shall rather than the permissive term may
indicates that the . . . directive is mandatory.” (Citations and internal quotation marks
omitted.)) Clearly, the plaintiff did not comply with the rule.1
Moreover, counsel for the defendants immediately sent e-mails to Ms. Burton
advising her that she needed to comply with the requirements of § 10-44. (See e-mail
chain dated December 13, 2022, attached as Exhibit A). Despite stating that she would
comply with the rule, she failed to do so. The plaintiff filed a second Substitute Fifth
Amended Complaint on January 9, 2023 [Dkt. #398.00], ostensibly to correct the
formatting errors of the Substitute Fifth Amended Complaint filed on December 13,
2022. However, the second Substitute Fifth Amended Complaint, even if it somehow
relates back to the original filing, still fails to comply with the provisions of Practice Book
§ 10-44.
1 While the defendants are not unmindful of the fact that the plaintiff is pro se,
she is not thereby excused from complying with the rules of civil procedure set forth in
the Connecticut Practice Book.
2
The defendants filed their motion for judgment as to the stricken counts on
January 12, 2023. [Dkt. #399.00]. It was only after the defendants filed their Motion for
Judgment, that the plaintiff filed another version of her Substitute Fifth Amended
Complaint showing the changes from her prior complaint. [See Dkt. #402.00, filed on
January 13, 2023]. Therefore, there is no basis for her to object to the defendants’
motion for judgment, and she should not be permitted to file a late objection to the
motion.2
At the status conference held on February 8, 2023, Ms. Burton requested that
she be given until March 3, 2023, to file her objection to the defendants’ motion for
judgment, and the court granted her request. [Dkt. #399.10]. However, that date came
and went and no objection was filed by the plaintiff. Accordingly, the court granted the
defendants’ motion for judgment on March 5, 2023. [Dkt. #399.20].
In her motion, the plaintiff suggests that she missed the deadline to object to the
defendants’ motion for judgment because she has vision problems and cannot
“distinguish the number ‘3’ from ‘10’ and thereby miss a filing deadline”. However, the
deadline of March 3, 2023, was a date that she specifically requested. It was not a date
that was unilaterally imposed upon her by the court.
2 Ironically, the plaintiff accuses the defendants of “disingenuously” failing to
inform the court in their motion for judgment that the plaintiff filed her “Section 10-44-
compliant pleadings” on January 13, 2023. However, that was one day after the
defendants filed their motion for judgment. Therefore, absent prescience, the
defendants could not have informed the court of the plaintiff’s January 13, 2023, filings
when they filed their motion on January 12, 2023.
3
WHEREFORE, it is respectfully requested that the defendants’ Objection To
Plaintiff’s Motion (#415.00) To File Late Objection To Defendants’ Motion For Judgment
As To Stricken Counts of the fifth amended complaint be granted.
DEFENDANTS,
ELINORE CARMODY AND DENNIS
GIBBONS
By_/s/ Philip T. Newbury, Jr. _________
Philip T. Newbury, Jr.
Howd & Ludorf, LLC
100 Great Meadow Road, Suite 201
Wethersfield, CT 06109
(860) 249-1361
(860) 249-7665 (Fax)
Juris No.: 28228
E-mail: pnewbury@hl-law.com
4
CERTIFICATION
This is to certify that a copy of the foregoing Objection To Plaintiff’s Motion
(#415.00) To File Late Objection To Defendants’ Motion For Judgment As To
Stricken Counts was or will immediately be mailed or delivered electronically or non-
electronically on March 28, 2023, to all parties and pro se parties of record and that
written consent for electronic delivery was received from all attorneys and self-
represented parties receiving electronic delivery.
Nancy Burton
154 Highland Ave. Steven J. Stafstrom, Jr., Esq.
Rowayton, CT 06853 Pullman & Comley, LLC
NancyBurtonCT@aol.com 850 Main Street, P.O. Box 7006
Bridgeport, CT 06601
Kimberly Bosse, Esquire sstafstrom@pullcom.com
James N. Tallberg, Esquire
Karsten & Tallberg, LLC
500 Enterprise Drive, Suite 4 Michael D. Riseberg, Esquire
Rocky Hill, CT 06067 Christine Parise, Esquire
kbosse@ktlawfirm.com David B. Stanhill, Esquire
jtallberg@kt-lawfirm.com Rubin and Rudman, LLP
53 State Street
Daniel Salton, Esq. Boston, MA 02109
Matthew I Levine, Esq. mriseberg@rubinrudman.com
AG-Environment cparise@rubinrudman.com
165 Capitol Ave., 5th Floor dstanhill@rubinrudman.com
Hartford, CT 06106
Jonathan.harding@ct.gov
Matthew.levine@ct.gov
_/s/ Philip T. Newbury, Jr. ____________
Philip T. Newbury, Jr.
5
Philip T. Newbury
From: nancyburtonct@aol.com
Sent: Tuesday, December 13, 2022 4:11 PM
To: Philip T. Newbury; mriseberg@rubinrudman.com; cparise@rubinrudman.com;
dstanhill@rubinrudman.com; kbosse@kt-lawfirm.com; jtallberg@kt-lawfirm.com;
aahrens@melicklaw.com; sstafstrom@pullcom.com; matthew.levine@ct.gov;
jonathan.harding@ct.gov
Subject: Re: Burton v. Mason
Certainly!
-----Original Message-----
From: Philip T. Newbury
To: 'Harding, Jonathan' ; nancyburtonct ; Michael D. Riseberg
; James Tallberg ; Kimberly Bosse ; Steven J. Stafstrom ; Levine, Matthew ;
cparise@rubinrudman.com ; dstanhill@rubinrudman.com
Sent: Tue, Dec 13, 2022 3:44 pm
Subject: RE: Burton v. Mason
Ms. Burton,
I would echo Attorney Harding’s request that you highlight the changes from the prior iteration of your fifth amended
complaint.
Thank you.
Very truly yours,
Philip T. Newbury, Jr.
pnewbury@hl-law.com
HOWD & LUDORF, LLC
Serving Southern New England Since 1979
Connecticut Office:
65 Wethersfield Avenue
H Hartford, CT 06114-1121
(860) 249-1361
(860) 249-7665 (fax)
Massachusetts Office:
40 Washington Street
L Suite 220
Wellesley, MA 02481
(781) 235-5594
(781) 235-5596 (fax)
www.hl-law.com
*****************************************************************************************************************************
1
EXHIBIT A
The information contained in this message is confidential and privileged information from the law firm of Howd & Ludorf,
LLC. This information is intended for the use of the person named and is to be read only by the person to whom it is
addressed. If you are not the intended recipient, any disclosure, copying, distribution or use of the contents of this
information is prohibited. If you have received this message in error, please notify the sender immediately.
From: Harding, Jonathan
Sent: Tuesday, December 13, 2022 3:25 PM
To: nancyburtonct ; Michael D. Riseberg ; James Tallberg
; Kimberly Bosse ; Philip T. Newbury ;
Steven J. Stafstrom ; Levine, Matthew ; Harding, Jonathan
; cparise@rubinrudman.com; dstanhill@rubinrudman.com
Subject: RE: Burton v. Mason
Ms. Burton,
Presumably, your notice will indicate that it is your intention to re-file this complaint when you are able to correct the
formatting. That’s fine.
If that is your intention, I ask that you please indicate the changes to your complaint by way of brackets, underlines,
strikethroughs, bold font or any other means to indicate what changes you are making to the complaint. It is very tedious
and unfair to all parties to continue to have to review these complaints, line by line, to determine what changes you are
making. You may, and should, identify these changes pursuant to the Practice book. Please see CT Practice Book Sec.
10-44 and Sec. 10-59.
Lastly, I would remind you that you agreed you would be closing the pleadings on this by December 1, 2022. See
Scheduling Order, Entry No. 284.00. I also note that this complaint still includes the Department of Agriculture as a party
to this action despite the action being dismissed as to this party over a year ago. This complaint does not address any of
the issues I raised in my Request to Revise and will still be subject to further revision. While I understand that this timeline
is subject to changes, it is not clear to me that we are any closer to closing the pleadings than we were in January, nearly
a year ago.
Jonathan
JONATHAN HARDING
Assistant Attorney General
Office of the Attorney General
165 Capitol Ave, Hartford, CT 06106
Office: +1 860-808-5250 | Direct: +1 860-808-5172 | Fax: +1 860-808-5386 | URL: https://ct.gov/ag/
Confidential Information: The information contained in this e-mail is confidential and protected from general disclosure. If the recipient or the reader of
this e-mail is not the intended recipient, or person responsible to receive this e-mail, you are requested to delete this e-mail immediately and do not
disseminate or distribute or copy. If you have received this e-mail by mistake, please notify us immediately by replying to the message so that we can
take appropriate action immediately and see to it that this mistake is rectified.
From: nancyburtonct@aol.com
Sent: Tuesday, December 13, 2022 3:02 PM
To: mriseberg@rubinrudman.com; cparise@rubinrudman.com; dstanhill@rubinrudman.com; kbosse@kt-lawfirm.com;
jtallberg@kt-lawfirm.com; pnewbury@hl-law.com; aahrens@melicklaw.com; sstafstrom@pullcom.com; Levine, Matthew
; Harding, Jonathan
Subject: Burton v. Mason
EXTERNAL EMAIL: This email originated from outside of the organization. Do not click any links or open any attachments
unless you trust the sender and know the content is safe.
Please see attached Substitute Fifth Amended Complaint, as e-filed today.
Please await my soon-to-be-filed "Notice" regarding formatting of this document.
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NO: (X06) UWY CV 21 5028294S : SUPERIOR COURT NANCY BURTON : COMPLEX LITIGATION DOCKET v. : AT WATERBURY DAVID PHILIP MASON, ET AL : MARCH 28, 2023 OBJECTION TO PLAINTIFF’S MOTION (#415.00) TO FILE LATE OBJECTION TO DEFENDANTS’ MOTION FOR JUDGMENT AS TO STRICKEN COUNTS The defendants, Elinore Carmody and Dennis Gibbon, hereby object to the plaintiff’s “Motion to File Objection to Carmody/Gibbons Motion for Judgment as to Stricken Counts (Entry #399.00) Nunc Pro Tunc” filed on March 10, 2023 [Dkt. #415.00]. By way of background, the court granted the defendants’ motion to strike Counts Two, Three, Four, Six, Seven, Eight, Ten and Eleven of plaintiff’s Fifth Amended Complaint on November 29, 2022. [Dkt. #387.00]. Although Ms. Burton filed a document entitled “Substitute Fifth Amended Complaint” on December 13, 2022 [Dkt. #392.00], the substitute complaint fails to comply with the requirements of Practice Book § 10-44, which provides: Sec. 10-44. —Substitute Pleading; Judgment Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint, or any count in a complaint, counterclaim or cross complaint has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint, counterclaim or cross complaint, or count thereof. Any 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. Nothing in this section shall dispense with the requirements of Section 61-3 or 61-4 of the appellate rules. (Emphasis added). As is apparent from the language of the rule, the requirement that the substitute pleading be accompanied by a separate document showing the changes from the previous complaint is mandatory. See Morera v. Thurber, 162 Conn.App. 261, 267–68, 131 A.3d 1155 (2016) (“The use of word must usually connotes a command or requirement. . . . We have held other rules of practice that employ the term ‘must’ or a similar term to be mandatory. . . . Accordingly, [a]bsent an indication to the contrary, the [drafter's] choice of the mandatory term shall rather than the permissive term may indicates that the . . . directive is mandatory.” (Citations and internal quotation marks omitted.)) Clearly, the plaintiff did not comply with the rule.1 Moreover, counsel for the defendants immediately sent e-mails to Ms. Burton advising her that she needed to comply with the requirements of § 10-44. (See e-mail chain dated December 13, 2022, attached as Exhibit A). Despite stating that she would comply with the rule, she failed to do so. The plaintiff filed a second Substitute Fifth Amended Complaint on January 9, 2023 [Dkt. #398.00], ostensibly to correct the formatting errors of the Substitute Fifth Amended Complaint filed on December 13, 2022. However, the second Substitute Fifth Amended Complaint, even if it somehow relates back to the original filing, still fails to comply with the provisions of Practice Book § 10-44. 1 While the defendants are not unmindful of the fact that the plaintiff is pro se, she is not thereby excused from complying with the rules of civil procedure set forth in the Connecticut Practice Book. 2 The defendants filed their motion for judgment as to the stricken counts on January 12, 2023. [Dkt. #399.00]. It was only after the defendants filed their Motion for Judgment, that the plaintiff filed another version of her Substitute Fifth Amended Complaint showing the changes from her prior complaint. [See Dkt. #402.00, filed on January 13, 2023]. Therefore, there is no basis for her to object to the defendants’ motion for judgment, and she should not be permitted to file a late objection to the motion.2 At the status conference held on February 8, 2023, Ms. Burton requested that she be given until March 3, 2023, to file her objection to the defendants’ motion for judgment, and the court granted her request. [Dkt. #399.10]. However, that date came and went and no objection was filed by the plaintiff. Accordingly, the court granted the defendants’ motion for judgment on March 5, 2023. [Dkt. #399.20]. In her motion, the plaintiff suggests that she missed the deadline to object to the defendants’ motion for judgment because she has vision problems and cannot “distinguish the number ‘3’ from ‘10’ and thereby miss a filing deadline”. However, the deadline of March 3, 2023, was a date that she specifically requested. It was not a date that was unilaterally imposed upon her by the court. 2 Ironically, the plaintiff accuses the defendants of “disingenuously” failing to inform the court in their motion for judgment that the plaintiff filed her “Section 10-44- compliant pleadings” on January 13, 2023. However, that was one day after the defendants filed their motion for judgment. Therefore, absent prescience, the defendants could not have informed the court of the plaintiff’s January 13, 2023, filings when they filed their motion on January 12, 2023. 3 WHEREFORE, it is respectfully requested that the defendants’ Objection To Plaintiff’s Motion (#415.00) To File Late Objection To Defendants’ Motion For Judgment As To Stricken Counts of the fifth amended complaint be granted. DEFENDANTS, ELINORE CARMODY AND DENNIS GIBBONS By_/s/ Philip T. Newbury, Jr. _________ Philip T. Newbury, Jr. Howd & Ludorf, LLC 100 Great Meadow Road, Suite 201 Wethersfield, CT 06109 (860) 249-1361 (860) 249-7665 (Fax) Juris No.: 28228 E-mail: pnewbury@hl-law.com 4 CERTIFICATION This is to certify that a copy of the foregoing Objection To Plaintiff’s Motion (#415.00) To File Late Objection To Defendants’ Motion For Judgment As To Stricken Counts was or will immediately be mailed or delivered electronically or non- electronically on March 28, 2023, to all parties and pro se parties of record and that written consent for electronic delivery was received from all attorneys and self- represented parties receiving electronic delivery. Nancy Burton 154 Highland Ave. Steven J. Stafstrom, Jr., Esq. Rowayton, CT 06853 Pullman & Comley, LLC NancyBurtonCT@aol.com 850 Main Street, P.O. Box 7006 Bridgeport, CT 06601 Kimberly Bosse, Esquire sstafstrom@pullcom.com James N. Tallberg, Esquire Karsten & Tallberg, LLC 500 Enterprise Drive, Suite 4 Michael D. Riseberg, Esquire Rocky Hill, CT 06067 Christine Parise, Esquire kbosse@ktlawfirm.com David B. Stanhill, Esquire jtallberg@kt-lawfirm.com Rubin and Rudman, LLP 53 State Street Daniel Salton, Esq. Boston, MA 02109 Matthew I Levine, Esq. mriseberg@rubinrudman.com AG-Environment cparise@rubinrudman.com 165 Capitol Ave., 5th Floor dstanhill@rubinrudman.com Hartford, CT 06106 Jonathan.harding@ct.gov Matthew.levine@ct.gov _/s/ Philip T. Newbury, Jr. ____________ Philip T. Newbury, Jr. 5 Philip T. Newbury From: nancyburtonct@aol.com Sent: Tuesday, December 13, 2022 4:11 PM To: Philip T. Newbury; mriseberg@rubinrudman.com; cparise@rubinrudman.com; dstanhill@rubinrudman.com; kbosse@kt-lawfirm.com; jtallberg@kt-lawfirm.com; aahrens@melicklaw.com; sstafstrom@pullcom.com; matthew.levine@ct.gov; jonathan.harding@ct.gov Subject: Re: Burton v. Mason Certainly! -----Original Message----- From: Philip T. Newbury To: 'Harding, Jonathan' ; nancyburtonct ; Michael D. Riseberg ; James Tallberg ; Kimberly Bosse ; Steven J. Stafstrom ; Levine, Matthew ; cparise@rubinrudman.com ; dstanhill@rubinrudman.com Sent: Tue, Dec 13, 2022 3:44 pm Subject: RE: Burton v. Mason Ms. Burton, I would echo Attorney Harding’s request that you highlight the changes from the prior iteration of your fifth amended complaint. Thank you. Very truly yours, Philip T. Newbury, Jr. pnewbury@hl-law.com HOWD & LUDORF, LLC Serving Southern New England Since 1979 Connecticut Office: 65 Wethersfield Avenue H Hartford, CT 06114-1121 (860) 249-1361 (860) 249-7665 (fax) Massachusetts Office: 40 Washington Street L Suite 220 Wellesley, MA 02481 (781) 235-5594 (781) 235-5596 (fax) www.hl-law.com ***************************************************************************************************************************** 1 EXHIBIT A The information contained in this message is confidential and privileged information from the law firm of Howd & Ludorf, LLC. This information is intended for the use of the person named and is to be read only by the person to whom it is addressed. If you are not the intended recipient, any disclosure, copying, distribution or use of the contents of this information is prohibited. If you have received this message in error, please notify the sender immediately. From: Harding, Jonathan Sent: Tuesday, December 13, 2022 3:25 PM To: nancyburtonct ; Michael D. Riseberg ; James Tallberg ; Kimberly Bosse ; Philip T. Newbury ; Steven J. Stafstrom ; Levine, Matthew ; Harding, Jonathan ; cparise@rubinrudman.com; dstanhill@rubinrudman.com Subject: RE: Burton v. Mason Ms. Burton, Presumably, your notice will indicate that it is your intention to re-file this complaint when you are able to correct the formatting. That’s fine. If that is your intention, I ask that you please indicate the changes to your complaint by way of brackets, underlines, strikethroughs, bold font or any other means to indicate what changes you are making to the complaint. It is very tedious and unfair to all parties to continue to have to review these complaints, line by line, to determine what changes you are making. You may, and should, identify these changes pursuant to the Practice book. Please see CT Practice Book Sec. 10-44 and Sec. 10-59. Lastly, I would remind you that you agreed you would be closing the pleadings on this by December 1, 2022. See Scheduling Order, Entry No. 284.00. I also note that this complaint still includes the Department of Agriculture as a party to this action despite the action being dismissed as to this party over a year ago. This complaint does not address any of the issues I raised in my Request to Revise and will still be subject to further revision. While I understand that this timeline is subject to changes, it is not clear to me that we are any closer to closing the pleadings than we were in January, nearly a year ago. Jonathan JONATHAN HARDING Assistant Attorney General Office of the Attorney General 165 Capitol Ave, Hartford, CT 06106 Office: +1 860-808-5250 | Direct: +1 860-808-5172 | Fax: +1 860-808-5386 | URL: https://ct.gov/ag/ Confidential Information: The information contained in this e-mail is confidential and protected from general disclosure. If the recipient or the reader of this e-mail is not the intended recipient, or person responsible to receive this e-mail, you are requested to delete this e-mail immediately and do not disseminate or distribute or copy. If you have received this e-mail by mistake, please notify us immediately by replying to the message so that we can take appropriate action immediately and see to it that this mistake is rectified. From: nancyburtonct@aol.com Sent: Tuesday, December 13, 2022 3:02 PM To: mriseberg@rubinrudman.com; cparise@rubinrudman.com; dstanhill@rubinrudman.com; kbosse@kt-lawfirm.com; jtallberg@kt-lawfirm.com; pnewbury@hl-law.com; aahrens@melicklaw.com; sstafstrom@pullcom.com; Levine, Matthew ; Harding, Jonathan Subject: Burton v. Mason EXTERNAL EMAIL: This email originated from outside of the organization. Do not click any links or open any attachments unless you trust the sender and know the content is safe. Please see attached Substitute Fifth Amended Complaint, as e-filed today. Please await my soon-to-be-filed "Notice" regarding formatting of this document. This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com 2 This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com 3