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STATE OF CONNECTICUT
CIVIL ACTION NO. FST-CV23-6059829-S
:
VINCENT P. LAROBINA, :
: SUPERIOR COURT
Plaintiff, :
: J.D. OF STAMFORD
v. :
: AT STAMFORD
KIA AMERICA INC. :
:
Defendant :
APRIL 22, 2024
KIA AMERICA, INC.’S OBJECTION TO
PLAINTIFF’S MOTION FOR ORDER PURSUANT TO PRACTICE BOOK §17-47
Defendant, Kia America, Inc. (“KA”), by and through its undersigned counsel, respectfully
submits this Objection to Plaintiff’s Motion for Order Pursuant to Practice Book §17-47 (the
“Motion”). Dkt. 149.00. Plaintiff’s Motion is deficient on its face and fails to comply with the
basic requirements for a motion pursuant to P.B. §17-47, including supporting affidavits and the
contents of those affidavits, and as such, the Court must deny the Motion. Even if the Court should
review beyond Plaintiff’s procedural noncompliance, the Motion also fails on its merits.
Plaintiff files the Motion to cry foul for allegedly being unable to adequately oppose KA’s
Motion for Summary Judgment (Dkt. 144.00) because of a lack of documents or information, but
conveniently omits that (1) Plaintiff is responsible, pursuant to the Practice Book, to secure a copy
of any deposition transcript at Plaintiff’s expense; (2) Plaintiff never re-noticed the deposition of
Plaintiff, despite agreeing to scheduling order deadlines for the completion of this deposition; (3)
Plaintiff never deposed any representative of KA; (4) Plaintiff never retained an expert or deposed
KA’s expert; (5) Plaintiff never propounded any third-party discovery or noticed any third-party
depositions; and (6) Plaintiff failed to review KA’s document production for over ten (10) months
after service on May 22, 2023.
In addition, Plaintiff continues to bounce between documents served in this litigation and
documents served by a party in an entirely separate litigation 1 as the basis for alleging that KA has
somehow failed to meet its discovery obligations to Plaintiff’s detriment. In short, despite
suggesting otherwise, the Motion is merely an effort by Plaintiff to disguise numerous shortfalls
his investigation in this matter, exacerbated by fundamentally incorrect interpretations of the
Practice Book and discovery rules, and continued attempts to impose duties of separate entities on
KA. 2
RELEVANT BACKGROUND
This is a vehicle warranty action filed by Plaintiff, Vincent P. Larobina (“Plaintiff”) on or
about February 1, 2023. This action concerns one specific vehicle, a 2022 Kia Forte GT Line,
bearing VIN: 3KPF54AD5NE498716 (the “Subject Vehicle”). On or about July 19, 2022,
Plaintiff purchased the Subject Vehicle from an authorized Kia dealership, GGL, LLC d/b/a Kia
of Stamford. Since the filing of the action, the parties were afforded twenty (20) months to
complete written discovery, as well as fact and party depositions (closed October 31, 2023), and
nearly two (2) years to complete expert discovery. The close of all fact and party discovery was
agreed upon by the parties (Dkt. 124.00), and the close of expert discovery made pursuant to a
motion filed by KA (and granted by this Court), to which Plaintiff did not object or propose counter
deadlines. Dkt. 139.00-139.01.
1
Vincent P. Larobina v. GGL, LLC d/b/a Kia of Stamford, Judicial District of Stamford, FST-CV23-
6063545-S.
2
KA appreciates that Plaintiff is proceeding pro se in this matter. However, the Motion marks the second
time that Plaintiff has alleged, with no rational basis, improper conduct by KA or counsel. Dkt. 134.00. Plaintiff’s
unfamiliarity with Connecticut procedure is no basis for these continued allegations.
2
ARGUMENT
A. Standard of Review.
The Motion limits the legal requirements for a motion pursuant to P.B. §17-47 to a
recitation of strictly the Practice Book language, but omits the abundancy of case law in
Connecticut that defines the burden on, and requirements of, a party seeking denial of judgment
on the basis of allegedly being unable to obtain the necessary information to oppose summary
judgment papers. “[The Connecticut] Supreme Court in Peerless Ins. Co. v. Gonzalez, 241 Conn.
476, 489 (1997), discussed the burden that Practice Book § 17–47 puts on a party opposing a
summary judgment motion: ‘A party opposing a summary judgment motion pursuant to [§ 17–47]
on the ground that more time is needed to conduct discovery bears the burden of establishing a
valid reason why the motion should be denied or its resolution postponed, including some
indication as to what steps that party has taken to secure facts necessary to defeat the motion.’”
Bank of Am., N.A. v. Briarwood Connecticut, LLC, 135 Conn. App. 670, 675 (2012).
In addition, pursuant to P.B. § 17–47, “the opposing party must show by affidavit precisely
what facts are within the exclusive knowledge of the moving party and what steps he has taken
to attempt to acquire these facts.” Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 230, 253
A.2d 22 (1968) (emphasis added). “A party cannot successfully oppose a motion for summary
judgment by merely averring that the opposing party has exclusive knowledge about certain facts
or that affidavits based on personal knowledge are difficult to obtain.” Id.
B. Plaintiff’s Motion Must Be Denied For Plaintiff’s Failure to Comply with the
Requirements of Motion Pursuant to P.B. §17-47.
The Motion fails on its face to comply with the above requirements and binding case law.
As an initial matter, the Motion does not even attach an affidavit, but rather incorporates by
reference an affidavit that is attached to Plaintiff’s Opposition to KA’s Motion for Summary
3
Judgment. Dkt. 151.00. This issue aside, this affidavit does not provide a single description of
the alleged “facts [] within the exclusive knowledge of [KA] and what steps he has taken to
attempt to acquire these facts” as P.B. 17-47 requires (emphasis added). Instead, the twenty-two
(22) paragraph affidavit is devoted to a recitation of the timeline of the dispute and litigation, a
summary of documents and Plaintiff’s theories of those documents, and then concludes with the
bald assertion that KA has not been forthcoming about the issues with the Subject Vehicle and as
a result, Plaintiff cannot present complete facts in opposition to KA’s Motion for Summary
Judgment.
This is a far cry from the strict affidavit requirements imposed by P.B. § 17-47 and requires
denial of the Motion. See Stratford Bd. of Educ. v. Bridgeport Bd. of Educ., 2019 WL 2514795,
at *6 (Conn. Super. Ct. May 14, 2019) (finding deficient a supporting affidavit, made pursuant to
P.B. 17-47, which only “baldly assert[ed]” that some information remains with a party). However,
Plaintiff’s failure to identify the steps taken to secure the information he alleges he cannot obtain
is unsurprising given the glaring deficiencies in Plaintiff’s discovery efforts in this matter. To
date 3 Plaintiff’s discovery “efforts” consistent of the following:
• Failure to obtain a copy of Plaintiff’s deposition transcript (dated June 30, 2023)
at Plaintiff’s expense, as required by P.B. 13-30(j) for remote depositions;
• Failure to depose KA, or any representative of KA;
• Failure to depose the Kia dealership or any individuals known to perform work on
the Subject Vehicle;
• Failure to retain an expert or depose KA’s expert;
• Failure to propound any third-party discovery;
3
Fact discovery closed on October 31, 2023. Dkt. 124.00. Expert discovery closed on January 26, 2024.
Dkt. 139.01 (granted, Dkt. 139.01).
4
• Failure to attempt to review KA’s document production for over ten (10) months
post-service on May 22, 2023. 4
It is irrational in the face of the above failures and delays for Plaintiff to now posit that he
has been somehow obstructed from receiving information he believes necessary to overcome
summary judgment because of improprieties by KA. Connecticut courts make clear that denial of
a continuance request pursuant to P.B. §17-47 is proper when a party has had ample opportunity
to obtain the information sought. See Great Country Bank v. Pastore, 241 Conn. 423, 438 (1997)
(“If a party opposing summary judgment has had ample opportunity to procure the information
necessary to defeat the motion, a trial court properly may deny a continuance”); see also Altfeter
v. Naugatuck, 53 Conn. App. 791, 805–807 (1999) (concluding trial court did not abuse its
discretion in denying a continuance when plaintiff failed to gather information despite knowing of
the future need to oppose summary judgment); see also Seaside Nat'l Bank & Tr. v. Lussier, 185
Conn. App. 498, 511 (2018) (denying continuance where party “had over a year and a half to
conduct discovery”).
Frankly, Plaintiff’s failure to acknowledge the above in the Motion is misleading to the
Court. Having failed to comply with the clear requirements to identify for the Court, by affidavit,
the efforts made by Plaintiff to obtain the facts believed to be in KA’s possession, coupled with
Plaintiff’s failure to explore the multiple discovery avenues available to him throughout the case
to investigate his allegations, leaves the Court with no other option but to deny the Motion.
4
See email chain between Plaintiff and undersigned counsel, a true and accurate copy of which is attached
hereto as Exhibit B. KA served its document production on Plaintiff on May 22, 2023 by secure, ShareFile link.
On March 28, 2024, over ten (10) months later, Plaintiff requested the production be sent in a different form. This
was the first effort by Plaintiff to even attempt to review KA’s document production.
5
C. The Motion Fails on the Merits.
1. Plaintiff’s issues with the deposition are the result of his own delays and
shortcomings, and are not grounds to provide Plaintiff with any relief.
Plaintiff alleges, with no rational basis, improper deposition procedure because Plaintiff
never asked questions at his deposition or even ordered a copy of the deposition transcript. The
Practice Book makes clear that, for remote depositions, “the party on whose behalf a deposition is
taken shall bear the cost of the original transcript, and any permanent electronic record including
audio or videotape. Any party or the deponent may obtain a copy of the deposition transcript
and permanent electronic record including audio or videotape at its own expense.” P.B. 13-
30(j) (emphasis added). Plaintiff conveniently omits this responsibility from the Motion, and
instead asserts allegations against KA and undersigned counsel for alleged improper deposition
procedures. In the face of the clear Practice Book requirements, Plaintiff’s argument borders on
frivolous.
As aforementioned (supra, at fn 3), this is not the first time Plaintiff raises this issue. On
September 12, 2023, KA moved the Court for permission to inspection the Subject Vehicle (Dkt.
129.00), relying, in part, on deposition testimony of Plaintiff. In response, Plaintiff opposed this
motion, alleging wrongful use of a deposition transcript and requesting sanctions. Dkt. 134.00.
The Court granted KA’s motion on this issue and denied any relief to Plaintiff. Dkt. 129.00. As
such, Plaintiff has been on notice of the availability of the deposition transcript since, at the latest,
September 12, 2023. Over the course of the last six (6) months, rather than obtain a copy in
compliance with the Practice Book rules, Plaintiff instead chooses to fight this battle in Court
filings and alleges that he is hindered from adequately opposing summary judgment by confusingly
questioning the veracity of the deposition to which he has full access.
6
Plaintiff’s lack of effort is further exposed by the Joint Scheduling Order from the parties,
as well as the prior motion by KA to modify the scheduling order. On July 31, 2023, one (1) month
after Plaintiff’s deposition, the parties agreed on all remaining case deadlines. Specifically, the
parties agreed on an October 31, 2023 deadline for the completion of all non-expert depositions.
Dkt. 124.00. Following the submission of that Joint Scheduling Order, Plaintiff made no attempts
to re-notice his deposition, or communicate with undersigned counsel in any fashion about the
deposition. In addition, on or about November 15, 2023, KA filed a Motion to Amend Scheduling
Order, requesting an extension of expert and dispositive motion deadlines following the
completion of the inspection of the Subject Vehicle shortly beforehand, which the Court previously
permitted move forward. Dkt. 139 (granted, Dkt. 139.01). Plaintiff, despite full knowledge of the
scope of KA’s motion regarding the scheduling order, did not object to the motion, or raise in any
fashion an issue with the need for additional fact discovery before the Court approved new
deadlines, limited to expert discovery and dispositive motion practice. In sum, not only did
Plaintiff not take any action to obtain information during the discovery period, but also took no
action to ever request extensions of the deadlines, and therefore Plaintiff’s gripe with the
deposition is not grounds for granting Plaintiff any relief sought in the Motion.
2. Plaintiff’s allegations of contradictory evidence represents Plaintiff’s
conflation of two, separate litigations, and are wholly irrelevant to any
§17-47 issue.
Plaintiff’s arguments regarding contradictory affidavits and/or documents concern
Plaintiff’s individual legal and factual case theories and are entirely irrelevant for purposes of a
motion pursuant to P.B. §17-47, which is limited to determining whether the affidavit-attested
efforts of a party to procure information are sufficient to warrant denial of a summary judgment
motion, or a continuance of discovery. A P.B. §17-47 motion is not the appropriate forum for
7
these arguments by Plaintiff. Rather than devote any of this section of the Motion to P.B. §17-47
relevant arguments, Plaintiff instead just recites the timeline of the dispute and summarizes
documents, including documents not even at issue in this litigation.
Multiple exhibits upon which Plaintiff relies to assert “contradictions” were produced by a
separate entity in a completely separate litigation. This is indicated by the “GGL” bates number
on multiple exhibits, which presumably indicates production by the Kia dealership (GGL, LLC
d/b/a Kia of Stamford) in the separate action filed by Plaintiff. See Motion, Exhibit B and E.
Plaintiff’s conflation of the two litigations, as well as conflation of the Kia dealership and KA, the
strictly corporate entity, continues to be an ongoing theme in this litigation. Plaintiff continues to
refer interchangeably to the dealership and corporate KA, jumping back and forth through the
litigation (and even within this Motion) as to the responsibilities and alleged liability of each.
However, Plaintiff’s conflation aside, the arguments in the Motion are nothing more than
Plaintiff’s unilateral summary of how the lawsuit came to be, along with own interpretation of
documents produced in either this litigation or the dealership litigation. A motion pursuant to P.B.
§17-47 seeks grounds for a continuance. It is not an invitation to create an additional forum within
which to present the merits of a case. As Plaintiff’s “contradiction” arguments only compound the
procedural defects in the Motion, it must be denied.
3. The relief sought by Plaintiff is unfounded, inappropriate, and would only serve
to delay a litigation scheduled for trial in October 2024.
While KA is confident the above presents the Court with adequate grounds to deny the
Motion, KA believes it necessary to, given the extreme nature of Plaintiff’s requests for relief,
address each such request, in turn.
8
a. There are no grounds for re-convening Plaintiff’s deposition six months
after the agreed-upon close of discovery, nor imposing a sanction that KA
be prohibited from using it at trial.
Plaintiff has had ample opportunity to obtain a copy of the deposition transcript, and
pursuant to the agreement of the parties at deposition, review it for accuracy. It is unjust to now
re-open depositions six months after the close of party discovery, and to the detriment of KA’s
pending summary judgment papers based on a closed evidentiary record established by agreed-
upon case deadlines. As aforementioned, at the absolute latest, Plaintiff has been on notice of the
availability of the deposition transcript since September 12, 2023. Instead, despite receipt of the
court reporter name, telephone contact, and email address, Plaintiff has devoted the last six (6)
months not to obtaining the transcript, but rather to alleging improper conduct, while fittingly
ignoring Connecticut Practice Book requirements. Plaintiff has no different access to the
deposition transcript than KA, and basic disregard for the proper procedures for obtaining a
transcript for a remote deposition is simply not grounds for granting any relief requested by
Plaintiff.
In addition, let the Court not forget that Plaintiff was afforded four (4) months post-
deposition (pursuant to the negotiated and agreed-upon close of party discovery) to obtain the
transcript, re-notice the deposition should he wish to re-open it for the purpose of asking questions,
or at even a fundamental minimum, communicate with undersigned counsel in any fashion
regarding the deposition, and if necessary, request additional time to complete the deposition.
Plaintiff took no such action. These pitfalls by Plaintiff are simply no grounds for now re-opening
the deposition or imposing sanctions on KA prohibiting its use at trial. Any re-opening of
discovery serves only to delay a matter now nearly through the dispositive motion phase and
scheduled for trial in October 2024.
9
b. There are no grounds for permitting Plaintiff to convene the deposition of
a new fact witnesses, six months after the after the agreed-upon close of
discovery.
A review of the docket in the separate litigation filed against the Kia dealership
demonstrates that on or about March 4, 2024, the parties agreed on a joint scheduling order which
imposes a deadline of August 1, 2024 for the completion of fact discovery. 5 The individual who
Plaintiff now seeks to depose is not a representative or employee of KA, but rather one of the Kia
dealership against which Plaintiff is separately litigating. It makes little sense for Plaintiff to
propose re-opening discovery in this matter, six months after its close, to depose a witness wholly
unrelated to KA, rather than follow the timely discovery process in the separate litigation and
notice the deposition of the witness who is a direct party employee. Given discovery remains open
in the separate litigation, and the proposed deponent is directly tied to that litigation, re-opening
discovery in this matter for this purpose is nonsensical.
c. There are no grounds for sanctions against KA for failure to produce a
document not within its possession, custody, or control, or for ordering
Kia to produce additional documents.
Consistent with his taking of procedural liberties, Plaintiff’s request for sanctions attempts
to morph the Motion into a summary judgment opposition, motion for continuance of discovery,
and motion to compel documents hybrid. Specifically, Plaintiff requests sanctions pursuant to
P.B. §13-14. On its face, Plaintiff’s request is procedurally improper, as any relief pursuant to
P.B. §13-14 must be made by separate Motion for Order of Compliance. Regardless, Plaintiff’s
request is inappropriate and fails on the merits. Plaintiff’s basis for sanctions is not even a
document produced in this litigation, but rather one produced by the dealership in the separate
litigation. This document on its face clearly derived not from KA, but rather directly from the
5
Vincent P. Larobina v. GGL, LLC d/b/a Kia of Stamford, Judicial District of Stamford, FST-CV23-
6063545-S, Dkt. 116.00.
10
dealership, which is again, a separate entity wholly distinct from KA. See Motion at Exhibit E
(document title, website, and all contact information related to “Kia of Stamford,” and concerning
work exclusively performed at Kia of Stamford).
In addition, any efforts to now compel additional documents are not based on any concrete
information, but rather Plaintiff’s individualized “belief.” Plaintiff merely states that documents
“likely…derive[]” from other documents or Plaintiffs “believes there had to have been further
communications.” Discovery obligations are not imposed on a party based on the theoretical.
Further undermining of Plaintiff’s argument is the failure to identify any specific requests to which
any alleged additional documents are responsive. In totality, these arguments from Plaintiff are
not only unintelligible, but also fall woefully short of any burden Plaintiff must meet to make a
credible claim for sanctions, and as such, this Court should grant no relief to Plaintiff on this issue.6
CONCLUSION
Given the glaring procedural deficiencies, most notably an affidavit that provides the Court
with not a scintilla of the information required pursuant to P.B. §17-47, there is no just result for
the Motion other than denial. Even setting aside these deficiencies, on the merits, Plaintiff cannot
be permitted to escape the consequences of his own failure to adequately investigate his allegations
or make efficient use of the collection of avenues available to him to obtain more information prior
the close of discovery. This matter proceeds to trial in October 2024. Until then, the Court should
maintain the current case schedule, including a determination of KA’s Motion for Summary
6
It is further astounding Plaintiff’s sudden display of urgency with the discovery process, given that Plaintiff
took no interest in reviewing a single document produced by KA for over ten (10) months. See Exhibit A (identify
original date of production by KA (May 22, 2023), and Plaintiff’s first attempt to access the production (March 28,
2024).
11
Judgment based on the closed evidentiary record. 7 To uphold the status quo, KA respectfully
requests the Court deny the Motion.
Respectfully Submitted,
Trevin C. Schmidt (Juris No. 440531)
Eckert Seamans Cherin & Mellott LLC
Two International Place, 16th Floor
Boston, MA 02110
Tel: (617) 342-6800
Fax: (617) 342-6899
tschmidt@eckertseamans.com
Dated: April 22, 2024 Attorney for Defendant
CERTIFICATE OF SERVICE
I, Trevin Schmidt, hereby certify that on April 22, 2024, I served the foregoing document
upon the following via electronic mail as follows:
Vincent P Larobina
113 Grove Street
Stamford, CT 06901
vin-pro-se@snet.net
Trevin C. Schmidt (440531)
7
On April 8, 2024, Plaintiff served an Opposition to KA’s Motion for Summary Judgment. KA will submit
a separate Reply Brief, by the deadline set forth in the Practice Book, which addresses the arguments raised by
Plaintiff in that filing.
12
Exhibit A
Trevin C. Schmidt
From: VIN
Sent: Thursday, March 28, 2024 3:12 PM
To: Trevin C. Schmidt
Subject: [EXTERNAL] Re: Larobina v. Kia /Kia's Discovery Responses
Mr. Schmidt,
I've tried to access Kia's production but cannot do so. Please serve the same electronically.
Thank you.
On Monday, May 22, 2023 at 04:11:04 PM EDT, Trevin C. Schmidt wrote:
Mr. Larobina –
I hope you had a nice weekend. I am attaching a copy of Kia’s Objections to Plaintiff’s Requests for Production of
Documents, filed with the Court today. In addition, I am serving a copy of Kia’s Objections and Responses to Plaintiff’s
Requests for Production of Documents.
Kia is also producing documents in tandem with the written responses. I will submit a ShareFile link to your attention
which will provide you access to the documents. Should you encounter any issues with the link, please let me know.
Thank you,
Trevin C. Schmidt
Associate
Eckert Seamans Cherin & Mellott, LLC
Two International Place, 16th Floor | Boston, MA 02110
617-342-6814 | 617-342-6899 | 774-254-3120
1
tschmidt@eckertseamans.com
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Preview
STATE OF CONNECTICUT CIVIL ACTION NO. FST-CV23-6059829-S : VINCENT P. LAROBINA, : : SUPERIOR COURT Plaintiff, : : J.D. OF STAMFORD v. : : AT STAMFORD KIA AMERICA INC. : : Defendant : APRIL 22, 2024 KIA AMERICA, INC.’S OBJECTION TO PLAINTIFF’S MOTION FOR ORDER PURSUANT TO PRACTICE BOOK §17-47 Defendant, Kia America, Inc. (“KA”), by and through its undersigned counsel, respectfully submits this Objection to Plaintiff’s Motion for Order Pursuant to Practice Book §17-47 (the “Motion”). Dkt. 149.00. Plaintiff’s Motion is deficient on its face and fails to comply with the basic requirements for a motion pursuant to P.B. §17-47, including supporting affidavits and the contents of those affidavits, and as such, the Court must deny the Motion. Even if the Court should review beyond Plaintiff’s procedural noncompliance, the Motion also fails on its merits. Plaintiff files the Motion to cry foul for allegedly being unable to adequately oppose KA’s Motion for Summary Judgment (Dkt. 144.00) because of a lack of documents or information, but conveniently omits that (1) Plaintiff is responsible, pursuant to the Practice Book, to secure a copy of any deposition transcript at Plaintiff’s expense; (2) Plaintiff never re-noticed the deposition of Plaintiff, despite agreeing to scheduling order deadlines for the completion of this deposition; (3) Plaintiff never deposed any representative of KA; (4) Plaintiff never retained an expert or deposed KA’s expert; (5) Plaintiff never propounded any third-party discovery or noticed any third-party depositions; and (6) Plaintiff failed to review KA’s document production for over ten (10) months after service on May 22, 2023. In addition, Plaintiff continues to bounce between documents served in this litigation and documents served by a party in an entirely separate litigation 1 as the basis for alleging that KA has somehow failed to meet its discovery obligations to Plaintiff’s detriment. In short, despite suggesting otherwise, the Motion is merely an effort by Plaintiff to disguise numerous shortfalls his investigation in this matter, exacerbated by fundamentally incorrect interpretations of the Practice Book and discovery rules, and continued attempts to impose duties of separate entities on KA. 2 RELEVANT BACKGROUND This is a vehicle warranty action filed by Plaintiff, Vincent P. Larobina (“Plaintiff”) on or about February 1, 2023. This action concerns one specific vehicle, a 2022 Kia Forte GT Line, bearing VIN: 3KPF54AD5NE498716 (the “Subject Vehicle”). On or about July 19, 2022, Plaintiff purchased the Subject Vehicle from an authorized Kia dealership, GGL, LLC d/b/a Kia of Stamford. Since the filing of the action, the parties were afforded twenty (20) months to complete written discovery, as well as fact and party depositions (closed October 31, 2023), and nearly two (2) years to complete expert discovery. The close of all fact and party discovery was agreed upon by the parties (Dkt. 124.00), and the close of expert discovery made pursuant to a motion filed by KA (and granted by this Court), to which Plaintiff did not object or propose counter deadlines. Dkt. 139.00-139.01. 1 Vincent P. Larobina v. GGL, LLC d/b/a Kia of Stamford, Judicial District of Stamford, FST-CV23- 6063545-S. 2 KA appreciates that Plaintiff is proceeding pro se in this matter. However, the Motion marks the second time that Plaintiff has alleged, with no rational basis, improper conduct by KA or counsel. Dkt. 134.00. Plaintiff’s unfamiliarity with Connecticut procedure is no basis for these continued allegations. 2 ARGUMENT A. Standard of Review. The Motion limits the legal requirements for a motion pursuant to P.B. §17-47 to a recitation of strictly the Practice Book language, but omits the abundancy of case law in Connecticut that defines the burden on, and requirements of, a party seeking denial of judgment on the basis of allegedly being unable to obtain the necessary information to oppose summary judgment papers. “[The Connecticut] Supreme Court in Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 489 (1997), discussed the burden that Practice Book § 17–47 puts on a party opposing a summary judgment motion: ‘A party opposing a summary judgment motion pursuant to [§ 17–47] on the ground that more time is needed to conduct discovery bears the burden of establishing a valid reason why the motion should be denied or its resolution postponed, including some indication as to what steps that party has taken to secure facts necessary to defeat the motion.’” Bank of Am., N.A. v. Briarwood Connecticut, LLC, 135 Conn. App. 670, 675 (2012). In addition, pursuant to P.B. § 17–47, “the opposing party must show by affidavit precisely what facts are within the exclusive knowledge of the moving party and what steps he has taken to attempt to acquire these facts.” Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 230, 253 A.2d 22 (1968) (emphasis added). “A party cannot successfully oppose a motion for summary judgment by merely averring that the opposing party has exclusive knowledge about certain facts or that affidavits based on personal knowledge are difficult to obtain.” Id. B. Plaintiff’s Motion Must Be Denied For Plaintiff’s Failure to Comply with the Requirements of Motion Pursuant to P.B. §17-47. The Motion fails on its face to comply with the above requirements and binding case law. As an initial matter, the Motion does not even attach an affidavit, but rather incorporates by reference an affidavit that is attached to Plaintiff’s Opposition to KA’s Motion for Summary 3 Judgment. Dkt. 151.00. This issue aside, this affidavit does not provide a single description of the alleged “facts [] within the exclusive knowledge of [KA] and what steps he has taken to attempt to acquire these facts” as P.B. 17-47 requires (emphasis added). Instead, the twenty-two (22) paragraph affidavit is devoted to a recitation of the timeline of the dispute and litigation, a summary of documents and Plaintiff’s theories of those documents, and then concludes with the bald assertion that KA has not been forthcoming about the issues with the Subject Vehicle and as a result, Plaintiff cannot present complete facts in opposition to KA’s Motion for Summary Judgment. This is a far cry from the strict affidavit requirements imposed by P.B. § 17-47 and requires denial of the Motion. See Stratford Bd. of Educ. v. Bridgeport Bd. of Educ., 2019 WL 2514795, at *6 (Conn. Super. Ct. May 14, 2019) (finding deficient a supporting affidavit, made pursuant to P.B. 17-47, which only “baldly assert[ed]” that some information remains with a party). However, Plaintiff’s failure to identify the steps taken to secure the information he alleges he cannot obtain is unsurprising given the glaring deficiencies in Plaintiff’s discovery efforts in this matter. To date 3 Plaintiff’s discovery “efforts” consistent of the following: • Failure to obtain a copy of Plaintiff’s deposition transcript (dated June 30, 2023) at Plaintiff’s expense, as required by P.B. 13-30(j) for remote depositions; • Failure to depose KA, or any representative of KA; • Failure to depose the Kia dealership or any individuals known to perform work on the Subject Vehicle; • Failure to retain an expert or depose KA’s expert; • Failure to propound any third-party discovery; 3 Fact discovery closed on October 31, 2023. Dkt. 124.00. Expert discovery closed on January 26, 2024. Dkt. 139.01 (granted, Dkt. 139.01). 4 • Failure to attempt to review KA’s document production for over ten (10) months post-service on May 22, 2023. 4 It is irrational in the face of the above failures and delays for Plaintiff to now posit that he has been somehow obstructed from receiving information he believes necessary to overcome summary judgment because of improprieties by KA. Connecticut courts make clear that denial of a continuance request pursuant to P.B. §17-47 is proper when a party has had ample opportunity to obtain the information sought. See Great Country Bank v. Pastore, 241 Conn. 423, 438 (1997) (“If a party opposing summary judgment has had ample opportunity to procure the information necessary to defeat the motion, a trial court properly may deny a continuance”); see also Altfeter v. Naugatuck, 53 Conn. App. 791, 805–807 (1999) (concluding trial court did not abuse its discretion in denying a continuance when plaintiff failed to gather information despite knowing of the future need to oppose summary judgment); see also Seaside Nat'l Bank & Tr. v. Lussier, 185 Conn. App. 498, 511 (2018) (denying continuance where party “had over a year and a half to conduct discovery”). Frankly, Plaintiff’s failure to acknowledge the above in the Motion is misleading to the Court. Having failed to comply with the clear requirements to identify for the Court, by affidavit, the efforts made by Plaintiff to obtain the facts believed to be in KA’s possession, coupled with Plaintiff’s failure to explore the multiple discovery avenues available to him throughout the case to investigate his allegations, leaves the Court with no other option but to deny the Motion. 4 See email chain between Plaintiff and undersigned counsel, a true and accurate copy of which is attached hereto as Exhibit B. KA served its document production on Plaintiff on May 22, 2023 by secure, ShareFile link. On March 28, 2024, over ten (10) months later, Plaintiff requested the production be sent in a different form. This was the first effort by Plaintiff to even attempt to review KA’s document production. 5 C. The Motion Fails on the Merits. 1. Plaintiff’s issues with the deposition are the result of his own delays and shortcomings, and are not grounds to provide Plaintiff with any relief. Plaintiff alleges, with no rational basis, improper deposition procedure because Plaintiff never asked questions at his deposition or even ordered a copy of the deposition transcript. The Practice Book makes clear that, for remote depositions, “the party on whose behalf a deposition is taken shall bear the cost of the original transcript, and any permanent electronic record including audio or videotape. Any party or the deponent may obtain a copy of the deposition transcript and permanent electronic record including audio or videotape at its own expense.” P.B. 13- 30(j) (emphasis added). Plaintiff conveniently omits this responsibility from the Motion, and instead asserts allegations against KA and undersigned counsel for alleged improper deposition procedures. In the face of the clear Practice Book requirements, Plaintiff’s argument borders on frivolous. As aforementioned (supra, at fn 3), this is not the first time Plaintiff raises this issue. On September 12, 2023, KA moved the Court for permission to inspection the Subject Vehicle (Dkt. 129.00), relying, in part, on deposition testimony of Plaintiff. In response, Plaintiff opposed this motion, alleging wrongful use of a deposition transcript and requesting sanctions. Dkt. 134.00. The Court granted KA’s motion on this issue and denied any relief to Plaintiff. Dkt. 129.00. As such, Plaintiff has been on notice of the availability of the deposition transcript since, at the latest, September 12, 2023. Over the course of the last six (6) months, rather than obtain a copy in compliance with the Practice Book rules, Plaintiff instead chooses to fight this battle in Court filings and alleges that he is hindered from adequately opposing summary judgment by confusingly questioning the veracity of the deposition to which he has full access. 6 Plaintiff’s lack of effort is further exposed by the Joint Scheduling Order from the parties, as well as the prior motion by KA to modify the scheduling order. On July 31, 2023, one (1) month after Plaintiff’s deposition, the parties agreed on all remaining case deadlines. Specifically, the parties agreed on an October 31, 2023 deadline for the completion of all non-expert depositions. Dkt. 124.00. Following the submission of that Joint Scheduling Order, Plaintiff made no attempts to re-notice his deposition, or communicate with undersigned counsel in any fashion about the deposition. In addition, on or about November 15, 2023, KA filed a Motion to Amend Scheduling Order, requesting an extension of expert and dispositive motion deadlines following the completion of the inspection of the Subject Vehicle shortly beforehand, which the Court previously permitted move forward. Dkt. 139 (granted, Dkt. 139.01). Plaintiff, despite full knowledge of the scope of KA’s motion regarding the scheduling order, did not object to the motion, or raise in any fashion an issue with the need for additional fact discovery before the Court approved new deadlines, limited to expert discovery and dispositive motion practice. In sum, not only did Plaintiff not take any action to obtain information during the discovery period, but also took no action to ever request extensions of the deadlines, and therefore Plaintiff’s gripe with the deposition is not grounds for granting Plaintiff any relief sought in the Motion. 2. Plaintiff’s allegations of contradictory evidence represents Plaintiff’s conflation of two, separate litigations, and are wholly irrelevant to any §17-47 issue. Plaintiff’s arguments regarding contradictory affidavits and/or documents concern Plaintiff’s individual legal and factual case theories and are entirely irrelevant for purposes of a motion pursuant to P.B. §17-47, which is limited to determining whether the affidavit-attested efforts of a party to procure information are sufficient to warrant denial of a summary judgment motion, or a continuance of discovery. A P.B. §17-47 motion is not the appropriate forum for 7 these arguments by Plaintiff. Rather than devote any of this section of the Motion to P.B. §17-47 relevant arguments, Plaintiff instead just recites the timeline of the dispute and summarizes documents, including documents not even at issue in this litigation. Multiple exhibits upon which Plaintiff relies to assert “contradictions” were produced by a separate entity in a completely separate litigation. This is indicated by the “GGL” bates number on multiple exhibits, which presumably indicates production by the Kia dealership (GGL, LLC d/b/a Kia of Stamford) in the separate action filed by Plaintiff. See Motion, Exhibit B and E. Plaintiff’s conflation of the two litigations, as well as conflation of the Kia dealership and KA, the strictly corporate entity, continues to be an ongoing theme in this litigation. Plaintiff continues to refer interchangeably to the dealership and corporate KA, jumping back and forth through the litigation (and even within this Motion) as to the responsibilities and alleged liability of each. However, Plaintiff’s conflation aside, the arguments in the Motion are nothing more than Plaintiff’s unilateral summary of how the lawsuit came to be, along with own interpretation of documents produced in either this litigation or the dealership litigation. A motion pursuant to P.B. §17-47 seeks grounds for a continuance. It is not an invitation to create an additional forum within which to present the merits of a case. As Plaintiff’s “contradiction” arguments only compound the procedural defects in the Motion, it must be denied. 3. The relief sought by Plaintiff is unfounded, inappropriate, and would only serve to delay a litigation scheduled for trial in October 2024. While KA is confident the above presents the Court with adequate grounds to deny the Motion, KA believes it necessary to, given the extreme nature of Plaintiff’s requests for relief, address each such request, in turn. 8 a. There are no grounds for re-convening Plaintiff’s deposition six months after the agreed-upon close of discovery, nor imposing a sanction that KA be prohibited from using it at trial. Plaintiff has had ample opportunity to obtain a copy of the deposition transcript, and pursuant to the agreement of the parties at deposition, review it for accuracy. It is unjust to now re-open depositions six months after the close of party discovery, and to the detriment of KA’s pending summary judgment papers based on a closed evidentiary record established by agreed- upon case deadlines. As aforementioned, at the absolute latest, Plaintiff has been on notice of the availability of the deposition transcript since September 12, 2023. Instead, despite receipt of the court reporter name, telephone contact, and email address, Plaintiff has devoted the last six (6) months not to obtaining the transcript, but rather to alleging improper conduct, while fittingly ignoring Connecticut Practice Book requirements. Plaintiff has no different access to the deposition transcript than KA, and basic disregard for the proper procedures for obtaining a transcript for a remote deposition is simply not grounds for granting any relief requested by Plaintiff. In addition, let the Court not forget that Plaintiff was afforded four (4) months post- deposition (pursuant to the negotiated and agreed-upon close of party discovery) to obtain the transcript, re-notice the deposition should he wish to re-open it for the purpose of asking questions, or at even a fundamental minimum, communicate with undersigned counsel in any fashion regarding the deposition, and if necessary, request additional time to complete the deposition. Plaintiff took no such action. These pitfalls by Plaintiff are simply no grounds for now re-opening the deposition or imposing sanctions on KA prohibiting its use at trial. Any re-opening of discovery serves only to delay a matter now nearly through the dispositive motion phase and scheduled for trial in October 2024. 9 b. There are no grounds for permitting Plaintiff to convene the deposition of a new fact witnesses, six months after the after the agreed-upon close of discovery. A review of the docket in the separate litigation filed against the Kia dealership demonstrates that on or about March 4, 2024, the parties agreed on a joint scheduling order which imposes a deadline of August 1, 2024 for the completion of fact discovery. 5 The individual who Plaintiff now seeks to depose is not a representative or employee of KA, but rather one of the Kia dealership against which Plaintiff is separately litigating. It makes little sense for Plaintiff to propose re-opening discovery in this matter, six months after its close, to depose a witness wholly unrelated to KA, rather than follow the timely discovery process in the separate litigation and notice the deposition of the witness who is a direct party employee. Given discovery remains open in the separate litigation, and the proposed deponent is directly tied to that litigation, re-opening discovery in this matter for this purpose is nonsensical. c. There are no grounds for sanctions against KA for failure to produce a document not within its possession, custody, or control, or for ordering Kia to produce additional documents. Consistent with his taking of procedural liberties, Plaintiff’s request for sanctions attempts to morph the Motion into a summary judgment opposition, motion for continuance of discovery, and motion to compel documents hybrid. Specifically, Plaintiff requests sanctions pursuant to P.B. §13-14. On its face, Plaintiff’s request is procedurally improper, as any relief pursuant to P.B. §13-14 must be made by separate Motion for Order of Compliance. Regardless, Plaintiff’s request is inappropriate and fails on the merits. Plaintiff’s basis for sanctions is not even a document produced in this litigation, but rather one produced by the dealership in the separate litigation. This document on its face clearly derived not from KA, but rather directly from the 5 Vincent P. Larobina v. GGL, LLC d/b/a Kia of Stamford, Judicial District of Stamford, FST-CV23- 6063545-S, Dkt. 116.00. 10 dealership, which is again, a separate entity wholly distinct from KA. See Motion at Exhibit E (document title, website, and all contact information related to “Kia of Stamford,” and concerning work exclusively performed at Kia of Stamford). In addition, any efforts to now compel additional documents are not based on any concrete information, but rather Plaintiff’s individualized “belief.” Plaintiff merely states that documents “likely…derive[]” from other documents or Plaintiffs “believes there had to have been further communications.” Discovery obligations are not imposed on a party based on the theoretical. Further undermining of Plaintiff’s argument is the failure to identify any specific requests to which any alleged additional documents are responsive. In totality, these arguments from Plaintiff are not only unintelligible, but also fall woefully short of any burden Plaintiff must meet to make a credible claim for sanctions, and as such, this Court should grant no relief to Plaintiff on this issue.6 CONCLUSION Given the glaring procedural deficiencies, most notably an affidavit that provides the Court with not a scintilla of the information required pursuant to P.B. §17-47, there is no just result for the Motion other than denial. Even setting aside these deficiencies, on the merits, Plaintiff cannot be permitted to escape the consequences of his own failure to adequately investigate his allegations or make efficient use of the collection of avenues available to him to obtain more information prior the close of discovery. This matter proceeds to trial in October 2024. Until then, the Court should maintain the current case schedule, including a determination of KA’s Motion for Summary 6 It is further astounding Plaintiff’s sudden display of urgency with the discovery process, given that Plaintiff took no interest in reviewing a single document produced by KA for over ten (10) months. See Exhibit A (identify original date of production by KA (May 22, 2023), and Plaintiff’s first attempt to access the production (March 28, 2024). 11 Judgment based on the closed evidentiary record. 7 To uphold the status quo, KA respectfully requests the Court deny the Motion. Respectfully Submitted, Trevin C. Schmidt (Juris No. 440531) Eckert Seamans Cherin & Mellott LLC Two International Place, 16th Floor Boston, MA 02110 Tel: (617) 342-6800 Fax: (617) 342-6899 tschmidt@eckertseamans.com Dated: April 22, 2024 Attorney for Defendant CERTIFICATE OF SERVICE I, Trevin Schmidt, hereby certify that on April 22, 2024, I served the foregoing document upon the following via electronic mail as follows: Vincent P Larobina 113 Grove Street Stamford, CT 06901 vin-pro-se@snet.net Trevin C. Schmidt (440531) 7 On April 8, 2024, Plaintiff served an Opposition to KA’s Motion for Summary Judgment. KA will submit a separate Reply Brief, by the deadline set forth in the Practice Book, which addresses the arguments raised by Plaintiff in that filing. 12 Exhibit A Trevin C. Schmidt From: VIN Sent: Thursday, March 28, 2024 3:12 PM To: Trevin C. Schmidt Subject: [EXTERNAL] Re: Larobina v. Kia /Kia's Discovery Responses Mr. Schmidt, I've tried to access Kia's production but cannot do so. Please serve the same electronically. Thank you. On Monday, May 22, 2023 at 04:11:04 PM EDT, Trevin C. Schmidt wrote: Mr. Larobina – I hope you had a nice weekend. I am attaching a copy of Kia’s Objections to Plaintiff’s Requests for Production of Documents, filed with the Court today. In addition, I am serving a copy of Kia’s Objections and Responses to Plaintiff’s Requests for Production of Documents. Kia is also producing documents in tandem with the written responses. I will submit a ShareFile link to your attention which will provide you access to the documents. Should you encounter any issues with the link, please let me know. Thank you, Trevin C. 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