On April 21, 2021 a
Motion,Ex Parte
was filed
involving a dispute between
Nancy Burton,
and
Bryan Hurlburt,Commissioner,Ct Dept Of Agriculture,
Building Department, Town Of Redding Ct,
Charles Dellarocco, Animal Control Officer,Ct Dept. Of Agriculture,
David Philip Mason,
Dennis Gibbon,
Department Of Agriculture,State Of Connecticut,
Elinore Carmody,
Health Department,Town Of Redding Ct Town Hall,Redding,
Julia Pemberton First Selectman,Town Or Redding,
Mark O'Donnell Chief Of Police,
Police Department,Town Of Redding Ct Town Hall,
Susan Winters,
Town Of Redding,Connecticut C O Town Clerk,
for M00 - Misc - Injunction
in the District Court of New Haven County.
Preview
NO.: (X06) UWY-CV21-5028294-S : SUPERIOR COURT
NANCY BURTON : COMPLEX LITIGATION DOCKET
v. : AT WATERBURY
DAVID PHILIP MASON, ET AL : OCTOBER 26, 2021
OBJECTION TO PLAINTIFF’S MOTION FOR LEAVE
TO FILE THIRD AMENDED COMPLAINT (#234.00)
The defendants, Elinore Carmody and Dennis Gibbons, pursuant to Practice
Book § 10-60, hereby object to the plaintiff’s motion for leave to file a third amended
complaint filed on October 13, 2021 (#234.00).
At the outset, the defendants note that the plaintiff’s request to amend her
complaint fails to comply with the requirements of Practice Book § 10-60(a)(3). She
has failed to attach “an additional document showing the portion or portions of the
original pleading . . . with the added language underlined and the deleted language
stricken through or bracketed.”
More importantly, allowing the plaintiff to amended complaint at this stage will
cause the defendants undue prejudice. As the court is aware, the defendants have
filed a special motion to dismiss the current complaint based on the Anti-SLAPP
statute, Conn. Gen. Stat. § 52-196a. The Anti-SLAPP statute provides that: “The
court shall conduct an expedited hearing on a special motion to dismiss. The
expedited hearing shall be held not later than sixty days after the date of filing of such
special motion to dismiss, unless, (A) the court orders specified and limited discovery
pursuant to subsection (d) of this section. . . .” (Emphasis added). Conn. Gen. Stat.
§ 52-196a(e)(1). The court has allowed Ms. Burton to conduct limited discovery as to
the defendants’ complaints to governmental authorities concerning her abuse and
neglect of her goats. The defendants responded to the discovery on September 17,
2021. They produced 35 e-mails to various governmental authorities, and 46
complaints to the Redding Police Department, complaining of Ms. Burton’s abuse and
neglect of her goats. These documents unequivocally establish, as a matter of law,
that this lawsuit is based on the defendants’ exercise of their right to petition the
government on a matter of public concern in violation of § 52-196a. Kaufmann v.
Synnott, 2021 WL 4295356 (Conn.Super. 2021). The court has scheduled the hearing
on the defendants’ special motion to dismiss for November 8, 2021.
The decision to permit an amendment to the pleadings rests with sound
discretion of the court. As the Connecticut Appellate Court has noted:
Our standard of review of the plaintiff’s claim is well settled. While our
courts have been liberal in permitting amendments ... this liberality has
limitations. Amendments should be made seasonably. Factors to be
considered in passing on a motion to amend are the length of the delay,
fairness to the opposing parties and the negligence, if any, of the party
offering the amendment. . . . The motion to amend is addressed to the
trial court’s discretion which may be exercised to restrain the amendment
of pleadings so far as necessary to prevent unreasonable delay of the
2
trial. . . . Whether to allow an amendment is a matter left to the sound
discretion of the trial court. This court will not disturb a trial court’s ruling
on a proposed amendment unless there has been a clear abuse of that
discretion. . . . It is the [plaintiff’s] burden in this case to demonstrate that
the trial court clearly abused its discretion. (Citations omitted; internal
quotation marks omitted.)
Perugini v. Guiliano, 148 Conn.App. 861, 871-72, 89 A.3d 358 (2014), quoting Wagner
v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002).
In light the pending special motion to dismiss, the plaintiff’s motion is untimely
and inappropriate. If the court permits the plaintiff to amend her complaint at this
stage, it will cause undue prejudice to the defendants.
Wherefore, it is respectfully requested that the defendants’ objection to the
plaintiff’s motion for leave to file a third amended complaint be sustained. 1
1 Additionally, the defendants incorporate and adopt all of the arguments put
forth by the co-defendants in their respective objections to Ms. Burton’s motion for
stay.
3
DEFENDANTS,
ELINORE CARMODY AND DENNIS
GIBBONS
By_/s/ Philip T. Newbury, Jr. _________
Philip T. Newbury, Jr.
Howd & Ludorf, LLC
65 Wethersfield Avenue
Hartford, CT 06114-1121
(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 for
Leave to File Third Amended Complaint (#234.00) was or will immediately be
mailed or delivered electronically or non-electronically on October 26, 2021 to all
parties and self-represented parties of record and that written consent for electronic
delivery was received from all attorneys and self-represented parties receiving
electronic delivery.
Nancy Burton Robert S. Hillson, II, Esquire
154 Highland Avenue Michael D. Riseberg, Esquire
Rowayton, CT 06853 Rubin and Rudman, LLP
NancyBurtonCT@aol.com 53 State Street
Boston, MA 02109
rhillson@rubinrudman.com
mriseberg@rubinrudman.com
James N. Tallberg, Esquire Steven J. Stafstrom, Jr., Esquire
Karsten & Tallberg, LLC Pullman & Comley, LLC
500 Enterprise Drive, Suite 4B 850 Main Street, P.O. Box 7006
Rocky Hill, CT 06067 Bridgeport, CT 06601
jtallberg@kt-lawfirm.com sstafstrom@pullcom.com
Jonathan E. Harding, Esquire Alexander W. Ahrens, Esquire
Matthew I. Levine, Esquire Melick & Porter
AG-Environment 900 Main Street South
165 Capitol Ave., 5th Floor Suite 102
Hartford, CT 06106 Southbury, CT 06488
Jonathan.harding@ct.gov aahrens@melicklaw.com
matthew.levine@ct.gov
/s/ Philip T. Newbury, Jr. ______________
Philip T. Newbury, Jr.
5
Related Content
in New Haven County
Preview
NO.: (X06) UWY-CV21-5028294-S : SUPERIOR COURT NANCY BURTON : COMPLEX LITIGATION DOCKET v. : AT WATERBURY DAVID PHILIP MASON, ET AL : OCTOBER 26, 2021 OBJECTION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT (#234.00) The defendants, Elinore Carmody and Dennis Gibbons, pursuant to Practice Book § 10-60, hereby object to the plaintiff’s motion for leave to file a third amended complaint filed on October 13, 2021 (#234.00). At the outset, the defendants note that the plaintiff’s request to amend her complaint fails to comply with the requirements of Practice Book § 10-60(a)(3). She has failed to attach “an additional document showing the portion or portions of the original pleading . . . with the added language underlined and the deleted language stricken through or bracketed.” More importantly, allowing the plaintiff to amended complaint at this stage will cause the defendants undue prejudice. As the court is aware, the defendants have filed a special motion to dismiss the current complaint based on the Anti-SLAPP statute, Conn. Gen. Stat. § 52-196a. The Anti-SLAPP statute provides that: “The court shall conduct an expedited hearing on a special motion to dismiss. The expedited hearing shall be held not later than sixty days after the date of filing of such special motion to dismiss, unless, (A) the court orders specified and limited discovery pursuant to subsection (d) of this section. . . .” (Emphasis added). Conn. Gen. Stat. § 52-196a(e)(1). The court has allowed Ms. Burton to conduct limited discovery as to the defendants’ complaints to governmental authorities concerning her abuse and neglect of her goats. The defendants responded to the discovery on September 17, 2021. They produced 35 e-mails to various governmental authorities, and 46 complaints to the Redding Police Department, complaining of Ms. Burton’s abuse and neglect of her goats. These documents unequivocally establish, as a matter of law, that this lawsuit is based on the defendants’ exercise of their right to petition the government on a matter of public concern in violation of § 52-196a. Kaufmann v. Synnott, 2021 WL 4295356 (Conn.Super. 2021). The court has scheduled the hearing on the defendants’ special motion to dismiss for November 8, 2021. The decision to permit an amendment to the pleadings rests with sound discretion of the court. As the Connecticut Appellate Court has noted: Our standard of review of the plaintiff’s claim is well settled. While our courts have been liberal in permitting amendments ... this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the 2 trial. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. . . . It is the [plaintiff’s] burden in this case to demonstrate that the trial court clearly abused its discretion. (Citations omitted; internal quotation marks omitted.) Perugini v. Guiliano, 148 Conn.App. 861, 871-72, 89 A.3d 358 (2014), quoting Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002). In light the pending special motion to dismiss, the plaintiff’s motion is untimely and inappropriate. If the court permits the plaintiff to amend her complaint at this stage, it will cause undue prejudice to the defendants. Wherefore, it is respectfully requested that the defendants’ objection to the plaintiff’s motion for leave to file a third amended complaint be sustained. 1 1 Additionally, the defendants incorporate and adopt all of the arguments put forth by the co-defendants in their respective objections to Ms. Burton’s motion for stay. 3 DEFENDANTS, ELINORE CARMODY AND DENNIS GIBBONS By_/s/ Philip T. Newbury, Jr. _________ Philip T. Newbury, Jr. Howd & Ludorf, LLC 65 Wethersfield Avenue Hartford, CT 06114-1121 (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 for Leave to File Third Amended Complaint (#234.00) was or will immediately be mailed or delivered electronically or non-electronically on October 26, 2021 to all parties and self-represented parties of record and that written consent for electronic delivery was received from all attorneys and self-represented parties receiving electronic delivery. Nancy Burton Robert S. Hillson, II, Esquire 154 Highland Avenue Michael D. Riseberg, Esquire Rowayton, CT 06853 Rubin and Rudman, LLP NancyBurtonCT@aol.com 53 State Street Boston, MA 02109 rhillson@rubinrudman.com mriseberg@rubinrudman.com James N. Tallberg, Esquire Steven J. Stafstrom, Jr., Esquire Karsten & Tallberg, LLC Pullman & Comley, LLC 500 Enterprise Drive, Suite 4B 850 Main Street, P.O. Box 7006 Rocky Hill, CT 06067 Bridgeport, CT 06601 jtallberg@kt-lawfirm.com sstafstrom@pullcom.com Jonathan E. Harding, Esquire Alexander W. Ahrens, Esquire Matthew I. Levine, Esquire Melick & Porter AG-Environment 900 Main Street South 165 Capitol Ave., 5th Floor Suite 102 Hartford, CT 06106 Southbury, CT 06488 Jonathan.harding@ct.gov aahrens@melicklaw.com matthew.levine@ct.gov /s/ Philip T. Newbury, Jr. ______________ Philip T. Newbury, Jr. 5