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DOCKET NO: AAN-CV23-6049643-S : SUPERIOR COURT
:
CRYSTAL THOMAS : JUDICIAL DISTRICT OF
Plaintiff, : MILFORD
:
v. : AT MILFORD
:
EDER BROS, INC, and :
CHRISTOPHER EMANUEL, : AUGUST 18, 2023
Defendants. :
SUPPLEMENTAL BRIEF IN SUPPORT
OF DEFENDANTS’ MOTION TO STRIKE
Defendants Eder Bros. Inc. (“Eder”) and Christopher Emanuel (“Emanuel”)
(collectively “Defendants”) previously filed a motion to strike all of the claims directed to
Emanuel individually in Count One and Count Four. Count One is asserted against both Eder
and Emanuel. At oral argument, the Court raised the issue of whether it is appropriate for the
Court to strike a claim against only one defendant, when the claim can survive a motion to
strike against the other defendant in that count. Put another way, can the Court strike Count
One against Emanuel, and leave it pending against Eder Bros? The answer to that question is
yes. Accordingly, the Court should grant the motion to strike Emanuel from Counts One and
Four.
In Rowe v. Godou, 209 Conn. 273, 279 (1988), the plaintiff filed a complaint against
Raymond Godou and the city of Bridgeport, seeking compensation for property damage to his
motor vehicle allegedly caused by Godou's negligent operation of a fire truck owned by the
city. As the Supreme Court noted, the complaint was “confusing because it combines, in a
single count, separate causes of action against the individual defendant and the municipality.”
Id. In regard to moving to strike a count against a single defendant, the Court then noted:
SG-20454197.1
We are aware that the trial court file reveals that the defendants made a request
to revise in 1984 and that the request was objected to by the plaintiff and denied
by the trial court. Despite the denial of the motion to revise, the city still had the
opportunity to move to strike the allegations of the complaint insofar as they
purported to state a cause of action against it.
Id. at n.9. As Judge Povodador aptly stated, in this footnote “the Supreme Court explicitly
recognized the ability of one of two defendants to attack the sufficiency of a cause of action
alleged in a single count.” Drozdowski v. Smile Sensations, LLC, 2013 WL 3958244, at *3
(Conn. Super. Ct. July 9, 2013). Based on this footnote, Judge Povodador also rejected
plaintiff’s claim that defendants should have filed a request to revise seeking to have the claims
separated against the defendants, stating “the court rejects plaintiff's contention that a
necessary prerequisite to the court's review of the legal sufficiency of any count is that all
defendants named in the count must be moving to strike it. The court will not exalt form over
substance in such a manner. (See, also, Practice Book § 1–8.).” Id. Judge Povodador’s
reasoning has been adopted and followed by other judges in the Superior Court. See Nelson v.
Sweeney Excavation, 2019 WL 6249400, at *1 (Conn. Super. Ct. Oct. 29, 2019)(Ozalis,
J.)(“The court concludes that the reasoning set forth in Drozdowski is persuasive. Moreover,
the court notes that a failure to allege a sufficient claim against the Town would not impact the
potential liability of the other defendants. Thus, it is appropriate to analyze the merits of the
present motion to strike, despite the fact that it was brought by one defendant as to a count
directed at multiple defendants.”); Kriwinsky v. Tuthill Fin., LLC, 2015 WL 9920562, at *4
(Conn. Super. Ct. Dec. 30, 2015)(Wenzel, J.)(“The only objection to the motion on this count
is that a motion to strike cannot be asserted by less than all defendants who are the subject of a
single count. Each side has cited relevant case law as to this question. The court is persuaded
2
SG-20454197.1
that Drozdowski v. Smile Sensations, LLC, 56 Conn. L. Rptr. 483 (2013) reaches the correct
decision on this question which the court adopts and follows. Accordingly, the motion to strike
Count Two is granted as to Defendant Wain only.”).
Although the other Superior Court cases reaching a contrary conclusion; see, e.g., JFS
Landscaping, LLC v. Gen. Motors, LLC, 2012 WL 4466321, at *3 (Conn. Super. Ct. Sept.
10, 2012)(Richards, J.); respectfully those decisions misread Rowe, fail to address footnote 9
from Rowe, and impede the orderly progress of litigation. Put more simply, they are not
persuasive, the Court should follow the reasoning set forth by Judge Povodador and that line of
cases.
DEFENDANTS,
EDER BROS. INC., and
CHRISTOPHER EMANUEL
By: /s/ Peter J. Murphy
Peter J. Murphy
Shipman & Goodwin LLP
Juris No. 57385
One Constitution Plaza
Hartford, CT 06103-1919
Telephone: 860-251-5000
Facsimile: 860-251-5316
pjmurphy@goodwin.com
Their Attorney
3
SG-20454197.1
CERTIFICATION
This is to certify that on this 18th day of August 2023, a copy of the foregoing was
served by email upon:
Michael C. McMinn
The McMinn Employment Law Firm, LLC
1000 Lafayette Boulevard, Suite 1100
Bridgeport, CT 06604
michael@mcminnemploymentlaw.com
/s/ Peter J. Murphy
Peter J. Murphy
4
SG-20454197.1
Preview
DOCKET NO: AAN-CV23-6049643-S : SUPERIOR COURT : CRYSTAL THOMAS : JUDICIAL DISTRICT OF Plaintiff, : MILFORD : v. : AT MILFORD : EDER BROS, INC, and : CHRISTOPHER EMANUEL, : AUGUST 18, 2023 Defendants. : SUPPLEMENTAL BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE Defendants Eder Bros. Inc. (“Eder”) and Christopher Emanuel (“Emanuel”) (collectively “Defendants”) previously filed a motion to strike all of the claims directed to Emanuel individually in Count One and Count Four. Count One is asserted against both Eder and Emanuel. At oral argument, the Court raised the issue of whether it is appropriate for the Court to strike a claim against only one defendant, when the claim can survive a motion to strike against the other defendant in that count. Put another way, can the Court strike Count One against Emanuel, and leave it pending against Eder Bros? The answer to that question is yes. Accordingly, the Court should grant the motion to strike Emanuel from Counts One and Four. In Rowe v. Godou, 209 Conn. 273, 279 (1988), the plaintiff filed a complaint against Raymond Godou and the city of Bridgeport, seeking compensation for property damage to his motor vehicle allegedly caused by Godou's negligent operation of a fire truck owned by the city. As the Supreme Court noted, the complaint was “confusing because it combines, in a single count, separate causes of action against the individual defendant and the municipality.” Id. In regard to moving to strike a count against a single defendant, the Court then noted: SG-20454197.1 We are aware that the trial court file reveals that the defendants made a request to revise in 1984 and that the request was objected to by the plaintiff and denied by the trial court. Despite the denial of the motion to revise, the city still had the opportunity to move to strike the allegations of the complaint insofar as they purported to state a cause of action against it. Id. at n.9. As Judge Povodador aptly stated, in this footnote “the Supreme Court explicitly recognized the ability of one of two defendants to attack the sufficiency of a cause of action alleged in a single count.” Drozdowski v. Smile Sensations, LLC, 2013 WL 3958244, at *3 (Conn. Super. Ct. July 9, 2013). Based on this footnote, Judge Povodador also rejected plaintiff’s claim that defendants should have filed a request to revise seeking to have the claims separated against the defendants, stating “the court rejects plaintiff's contention that a necessary prerequisite to the court's review of the legal sufficiency of any count is that all defendants named in the count must be moving to strike it. The court will not exalt form over substance in such a manner. (See, also, Practice Book § 1–8.).” Id. Judge Povodador’s reasoning has been adopted and followed by other judges in the Superior Court. See Nelson v. Sweeney Excavation, 2019 WL 6249400, at *1 (Conn. Super. Ct. Oct. 29, 2019)(Ozalis, J.)(“The court concludes that the reasoning set forth in Drozdowski is persuasive. Moreover, the court notes that a failure to allege a sufficient claim against the Town would not impact the potential liability of the other defendants. Thus, it is appropriate to analyze the merits of the present motion to strike, despite the fact that it was brought by one defendant as to a count directed at multiple defendants.”); Kriwinsky v. Tuthill Fin., LLC, 2015 WL 9920562, at *4 (Conn. Super. Ct. Dec. 30, 2015)(Wenzel, J.)(“The only objection to the motion on this count is that a motion to strike cannot be asserted by less than all defendants who are the subject of a single count. Each side has cited relevant case law as to this question. The court is persuaded 2 SG-20454197.1 that Drozdowski v. Smile Sensations, LLC, 56 Conn. L. Rptr. 483 (2013) reaches the correct decision on this question which the court adopts and follows. Accordingly, the motion to strike Count Two is granted as to Defendant Wain only.”). Although the other Superior Court cases reaching a contrary conclusion; see, e.g., JFS Landscaping, LLC v. Gen. Motors, LLC, 2012 WL 4466321, at *3 (Conn. Super. Ct. Sept. 10, 2012)(Richards, J.); respectfully those decisions misread Rowe, fail to address footnote 9 from Rowe, and impede the orderly progress of litigation. Put more simply, they are not persuasive, the Court should follow the reasoning set forth by Judge Povodador and that line of cases. DEFENDANTS, EDER BROS. INC., and CHRISTOPHER EMANUEL By: /s/ Peter J. Murphy Peter J. Murphy Shipman & Goodwin LLP Juris No. 57385 One Constitution Plaza Hartford, CT 06103-1919 Telephone: 860-251-5000 Facsimile: 860-251-5316 pjmurphy@goodwin.com Their Attorney 3 SG-20454197.1 CERTIFICATION This is to certify that on this 18th day of August 2023, a copy of the foregoing was served by email upon: Michael C. McMinn The McMinn Employment Law Firm, LLC 1000 Lafayette Boulevard, Suite 1100 Bridgeport, CT 06604 michael@mcminnemploymentlaw.com /s/ Peter J. Murphy Peter J. Murphy 4 SG-20454197.1