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DOCKET NO. AAN-CV17-5012366-S SUPERIOR COURT
JAMES E. BARBARA and JUDICIAL DISTRICT OF
LINA T. BARBARA ANSONIA-MILFORD
Vv. AT MILFORD
COLONIAL SURETY COMPANY APRIL 26, 2018
DEFENDANT COLONIAL SURETY COMPANY’S MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO DISMISS ACTION OR, IN THE ALTERNATIVE,
MOTION TO STAY ACTION
The defendant, Colonial Surety Company (“Colonial”), hereby submits this
memorandum of law in support of its Motion to Dismiss, or, in the Alternative, Motion to Stay
Action, filed in the above-captioned matter. The Court should dismiss this action (the “Instant
Action”) pursuant to the prior pending action doctrine, by reason of an action by Colonial
against the plaintiffs, James E. Barbara and Lina T. Barbara (hereinafter “Plaintiffs” or “the
Barbaras”), titled Colonial Surety Company v. Phoenix Contracting Group, Inc., et al., Docket
No. NNH-CV 10-6015539-S, currently pending in Superior Court for the Judicial District of New
Haven (the “Indemnity Lawsuit”),! in which the Barbaras are defendants, and in which
Colonial is pursuing enforcement of its rights under the General Indemnity A greement between
it, Phoenix Contracting Group, Inc. (““Phoenix”),” and the Barbaras.
In the Indemnity Lawsuit, the Barbaras alleged certain special defenses which were
ultimately stricken by the court, and were denied permission by the court to amend their
operative answer to allege certain special defenses and a counterclaim (the “Counterclaim”)
including breach of the Indemnity Agreement, related bonds and bad faith against Colonial.
In the Instant Action, the allegations, claims, and requests for relief made against Colonial in the
| The docket sheet for Docket No. NNH-CV 10-6015539-S is appended hereto as EXHIBIT 1.
2 In the Indemnity Lawsuit, Phoenix did not appear and has been defaulted.
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Barbaras’ Complaint, dated March 8, 2017 (the “Barbara Complaint”)’ are essentially the same
allegations, claims and requests for relief made by the Barbaras in their stricken defenses and
Counterclaim in the Indemnity Lawsuit. As such, in both the Instant A ction and the Indemnity
Lawsuit the Barbaras have sought to adjudicate the same alleged rights and obligations, based on
the same underlying facts and transactions, including the Indemnity A greement on which
Colonial’s claims in the Indemnity Lawsuit are based. Because, however, their allegations,
claims and requests for relief in the Indemnity Lawsuit were the subject of court rulings which
were unfavorable to the Barbaras, they brought the Instant A ction as a means to circumvent the
enforcement of such rulings, and to collaterally attack and undermine the same, instead of
pursuing a proper appeal in the Indemnity Lawsuit. For these reasons, and as explained in
greater detail herein, the Instant A ction must be dismissed pursuant to the prior pending action
doctrine.
In the alternative, should this Court not dismiss the Instant Action, Colonial respectfully
requests that this Court stay the Instant A ction in its entirety until the full and final adjudication
of both the Indemnity Lawsuit and a virtually identical lawsuit the Barbaras caused to be filed by
Phoenix against Colonial, titled Phoenix Contracting Group, Inc. v. Colonial Surety Company,
Index No. 651271/2017, which is currently pending in the Supreme Court of the State of New
Y ork, County of New Y ork (the “Phoenix Lawsuit”). As explained in greater detail herein, all
the reasons which support dismissal of the Instant A ction pursuant to the prior pending action
3 A copy of the Barbara’s Complaint, dated March 8, 2017, is appended hereto as EXHIBIT 3.
4 For the Court’s ease of reference, a copy of the Barbaras’ Amended Answer to Amended Complaint (with
counterclaim), dated June 20, 2016 which was filed in Indemnity Lawsuit as an attachment to the Barbara’s Request
For Leave to Reopen the Pleadings, Amend Answer to Amended Complaint to Add A ffirmative Defenses and
Counterclaims and Allow Discovery to Take Place, dated June 20, 2016 (Indemnity Lawsuit Docket No. 133.00), is
appended hereto as EXHIBIT 2, as a standalone exhibit. This Exhibit is also included within EX HIBIT 14,
appended hereto.
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doctrine, also, at minimum, warrant a stay of the Instant Action pending final disposition of the
Indemnity Lawsuit. Additionally, the Instant Action should be stayed pending final resolution of
the Phoenix Lawsuit because; both actions were commenced on the same date; the claims alleged
by Phoenix in its complaint (the “Phoenix Complaint”)° in the Phoenix Lawsuit are the same as
those alleged by the Barbaras in the Instant A ction; the Barbaras and Phoenix seek the same or
overlapping judgments for money damages based on the same alleged injury; and concurrent
litigation of both the Instant Action and Phoenix Lawsuit would create a real threat of
inconsistent rulings and outcomes. As such, the Instant Action presents legal and factual issues
which are virtually identical to those that will be resolved in the Phoenix Lawsuit such that the
Instant A ction should be stayed in the interest of judicial economy, consistency and finality and
to avoid needless and wasteful expenditure of judicial resources and the resources of the
litigants. The interests of judicial economy and consistency will be best served by staying this
duplicative action until both the Indemnity Lawsuit and the Phoenix Lawsuit have been fully and
finally adjudicated.
I FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Instant
A ction arises out of the Barbaras’ and Phoenix’s breach of their obligations
pursuant to the Indemnity A greement to indemnify and hold harmless Colonial from any and all
losses incurred by Colonial as a result of having issued, as surety, a construction performance
bond and payment bond (the “Bonds” or the “Gotham Bonds”) on behalf of Phoenix, as bond
principal. The Barbaras and Phoenix executed the Indemnity A greement to induce Colonial, a
5 A copy of the Notice of Commencement of Action Subject to Mandatory Electronic Filing, Summons and
Complaint dated March 10, 2017, filed by Lina Tang on behalf of Phoenix Contracting Group in Phoenix
Contracting Group, Inc. v. Colonial Surety Company, Index No. 651271/2017 (the Phoenix Lawsuit), attached
hereto as EXHIBIT 4.
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surety company, to issue the Bonds on behalf of Phoenix. Phoenix was a subcontractor to
Gotham Greenwich Construction Co., LLC (“Gotham”) on a project for the construction of a
hotel located at 150 Lafayette Street, New Y ork, New Y ork (“Project”). In connection with the
Project, Colonial, as surety, issued the Bonds, naming Gotham as obligee and Phoenix as
principal. The Barbaras and Phoenix executed the Indemnity A greement in favor of Colonial,
under which the Barbaras and Phoenix agreed, jointly and severally, to clear and unambiguous
terms and conditions obligating them to, inter alia, indemnify Colonial against any and all
losses, costs and expenses incurred in connection with Colonial’s issuance of bonds on behalf of
Phoenix and, upon demand, deposit with Colonial cash or other collateral adequate protect
Colonial against any losses, costs or expenses, including attorney’s fees, incurred by Colonial.
Copies of the Indemnity Agreement and the Gotham Bonds are included within EXHIBIT 5,
appended hereto.
A. THE GOTHAM LAWSUIT AND THE INDEMNITY LAWSUIT
By Complaint dated October 25, 2010, Gotham commenced a civil action against
Phoenix and Colonial, asserting a claim against Phoenix for breach of the subcontract between
them (the “Subcontract”), and, as bond-obligee, a claim against Colonial for breach of the
performance bond that Colonial issued in connection with the Project (the “Performance
Bond”). That action was pending in the Commercial Part of the Supreme Court of the State of
New Y ork, County of New Y ork and was titled Gotham Greenwich Construction Co., LLC v.
Phoenix Contracting Group, Inc. and Colonial Surety Company, Index No. 651937/2010 (the
“Gotham Lawsuit”).
Also on October 25, 2010, Colonial, as plaintiff, commenced the Indemnity Lawsuit
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against Phoenix and the Barbaras, by Summons and Complaint dated October 25, 2010.°
Following Colonial’s successful pursuit of a prejudgment remedy against Phoenix and the
Barbaras,’ by Amended Complaint dated September 9, 2011,° Colonial alleged claims for
enforcement of its rights under the Indemnity Agreement, including, inter alia, indemnification
for all costs and expenses incurred by Colonial by reason of having issued the Gotham Bonds on
behalf of Phoenix and the deposit of collateral security by Phoenix and the Barbaras to secure
Colonial against loss arising from such expenses. The cost, expense, loss and damage for which
Colonial seeks recovery in the Indemnity Lawsuit are substantially comprised of, but not limited
to, Colonial’s costs and expenses, including attorney’s fees, incurred in defending itself in the
Gotham Lawsuit and prosecuting the Indemnity Lawsuit. Colonial’s Amended Complaint
remains Colonial’s operative pleading in the Indemnity Lawsuit.
In the Indemnity Lawsuit, on November 22, 2013, the Barbaras filed a Request for Leave
to Amend their Answer to Colonial’s Amended Complaint, together with Defendants’ Amended
Answer to Amended Complaint, with defenses.’ As it pertains to this Motion, the Barbaras
alleged: as a First Defense that Colonial breached the Indemnity A greement and underlying
bonds, and the covenant of good faith, because it incurred costs and expenses relating to the
Gotham Bonds before a claim had been made by Gotham and before Gotham filed the Gotham
Lawsuit, and acted in bad faith by breaching the terms of the Gotham Bonds; as a Second
Defense that Colonial failed to mitigate its damages by pursuing a motion to dismiss or motion
5 A copy of Colonial’s Summons and original Complaint with attached Indemnity Agreement and the Gotham
Bonds, filed in the Indemnity Lawsuit, is appended hereto as EXHIBIT 5.
7 See Memorandum of Decision in the Indemnity Lawsuit at Docket Entry 101.10; See Order dated April 17, 2012 at
Docket Entry 101.20.
® A copy of Colonial’s Amended Complaint in the Indemnity Lawsuit, filed at Docket Entry 103.00, is attached
hereto as EXHIBIT 6.
° A copy of the Barbaras’ Amended Answer to Amdned Complaint dated November 22, 2013, filed at Docket No.
123.00 in the Indemnity Lawsuit, is appended hereto as EXHIBIT 7.
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for summary judgment in the Gotham Lawsuit; as a Third Defense that the Indemnity Lawsuit
was prematurely pursued because Colonial had not yet incurred all damages it would claim in the
Indemnity Lawsuit comprised of Colonial’s costs and expenses incurred in the Gotham Lawsuit;
and as a Fourth Defense that the amount of collateral security sought by Colonial in the
Indemnity Lawsuit was unreasonable. See Ex. 7. Colonial moved to strike each of the four
defenses alleged in the Barbaras’ November 22, 2013 Amended Answer.'° The court granted
Colonial’s Motion to Strike, thereby striking all defenses alleged in the Defendants’
November 22, 2013 Answer to Amended Complaint.!! On April 2, 2014, Colonial filed a
certificate of closed pleadings in the Indemnity Lawsuit.!?
During the pendency of the Indemnity Lawsuit, Gotham was prosecuting its claims
against Colonial and Phoenix in the Gotham Lawsuit, and Colonial was incurring costs and
expenses to defend against the same. Phoenix was represented in the Gotham Lawsuit by Lina
Barbara, as its counsel of record. Discovery in the Gotham Lawsuit was ongoing from
November 2011 through October 2014. In April 2015, after participating in extensive discovery,
Colonial, in good faith, acting pursuant to its rights under the Indemnity A greement to pay,
compromise, defend or prosecute any and all claims, and in accordance with its status as
assignee of Phoenix’s Subcontract rights and Phoenix’s attorney-in-fact, entered into a multi-
party settlement agreement (the “Settlement Agreement”) which was agreed to by all parties in
the Gotham Lawsuit except Phoenix,'? who, through objections raised by the Barbaras on its
10 A copy of Colonial’s December 3, 2013 Motion to Strike and Memorandum of Law In Support of Motion to
Strike directed at the defenses in the Barbaras’ November 22, 2013 Amended Answer to Amended Complaint, filed
in the Indemnity Lawsuit at Docket No. 124.00/125.00, are appended hereto as EXHIBIT 8.
" A copy of the court’s December 2, 2014 order in the Indemnity Lawsuit granting Colonial’s Motion to Strike
(124.00) is appended hereto as EXHIBIT 9.
” See Indemnity Lawsuit Docket Entry 130.00.
13 Other than Gotham, Plaintiff and Phoenix, the parties to the Gotham Lawsuit included Gotham’s parent company,
Gotham Construction Company, LLC, the Project owner Sochin Downtown Realty, LLC, and Travelers Casualty
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behalf, refused consent. In the Settlement Agreement, Colonial agreed to pay Gotham a
settlement sum of $100,000, and all claims alleged by and against all the parties were released
subject to the condition that the court in the Gotham Lawsuit approve the Settlement A greement
and dismiss the Gotham Lawsuit with prejudice.
In the Gotham Lawsuit, Colonial then moved for the court’s approval of the Settlement
Agreement and discontinuance of the Gotham Lawsuit, based, inter alia, on Colonial’s rights
pursuant to the Indemnity A greement, to resolve and settle all claims pending in the Gotham
Lawsuit in its sole discretion, and Colonial’s status as assignee of Phoenix’s rights in any claim
arising in connection with the Subcontract and status as Phoenix’s designated attorney-in-fact.
Phoenix, through affidavit of Lina Barbara, acting as counsel for Phoenix, and affidavit of James
Barbara, acting as Phoenix’s Chief Executive Officer, filed an opposition. They claimed that
Colonial had breached the Indemnity Agreement and the Gotham performance bond, breached
the covenant of good faith, and had acted in bad faith, because Colonial should have moved for a
pre-answer motion to dismiss or for summary judgment on grounds that Gotham did not satisfy
the conditions precedent in the Performance Bond, instead of conducting discovery in and
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litigating the Gotham Lawsuit, and eventually entering into the Settlement A greement.
Colonial responded to those objections, filing legal memoranda and affidavits with the court.!5
In the Gotham Lawsuit, on July 28, 2015, at a hearing before the court Justice Eileen
and Indemnity Company, each of whom Phoenix had cited into the case as third-party defendants to Phoenix’s
claims against them.
4 Copies of Phoenix’s Memorandum of Law in Opposition to Colonial’s Motion for Enforcement of the Parties’
Settlement and Discontinuance of the Gotham Lawsuit, the A ffirmation in Opposition by Defendant Lina Barbara
under the name Lina C. Tang, filed by Phoenix in the Gotham Lawsuit, and the A ffidavit in Opposition by
Defendant James Barbara, filed by Phoenix in the Gotham Lawsuit, are appended hereto together as EXHIBIT 10.
15 Copies of Colonial’s Memorandum of Law In Response to Phoenix’s Opposition to Colonial’s Motion For
Enforcement of the Parties Settlement and Discontinuance of the Action with Prejudice, together with Supplemental
Affidavit of Wayne Nunziata dated June 18, 2015, filed in the Gotham Lawsuit, are appended hereto together as
EXHIBIT 11.
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Bransten), attended by both the Barbaras, the court approved the settlement in the Gotham
Lawsuit, rejected Phoenix’s and the Barbaras’ opposition, and ordered the Gotham
Lawsuit dismissed, with prejudice.!° The court determined that Colonial had every right under
the Indemnity A greement to settle the Gotham Lawsuit for itself and on behalf of Phoenix,
because, among other things, Phoenix had never indemnified C olonial or provided collateral
ecurity when demanded. See Ex. 11, p. 5-6. Furthermore, the court stated:
Phoenix objects to the Settlement A greement on the grounds that it
purportedly had meritorious defenses that were not pursued to
Phoenix’ [sic] liking by Colonial.
However, the language that Phoenix’ [sic] Indemnity Agreement
moots this objection by not posting cash or collateral, Colonial
gained the sole and exclusive right to pay or defend the claims
against Phoenix in this case.
Moreover, consistent with the A greement, Colonial was authorized
to enter into the Settlement Agreement on Phoenix’ [sic] behalf as
its attorney-in-fact. Therefore, Colonial’s ability to negotiate and
execute the instant Settlement A greement is clear.
Ex. 11, p. 5-7. The court dismissed with the Gotham Lawsuit with prejudice, noting that the
court had “found nothing objectionable with the Settlement Agreement.” Ex. 11, p. 7.
Thereafter, on August 20, 2015, the court signed its order approving the Settlement A greement
and discontinuing the Gotham Lawsuit, which was subsequently entered in the office of the New
Y ork County Clerk, thereby disposing of the Gotham Lawsuit.'’ Phoenix filed no appeal.
B. THE BARBARAS’ REQUEST TO AMEND AND APPEAL IN THE INDEMNITY
LAWSUIT
In the Indemnity Lawsuit, on December 17, 2015, Colonial and the Barbaras appeared before
16 A copy of the transcript of the July 28, 2015 hearing in the Gotham Lawsuit is attached hereto as EXHIBIT 12.
TA copy of the court’s Order filed with the New York County Clerk on November 20, 2015 and Notice of Entry of
the Order dated December 3, 2015 filed in the Gotham Lawsuit, is appended together hereto as EXHIBIT 13.
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the court for a pretrial conference, at which time the parties informed the Court of the disposition
of the Gotham Lawsuit. During the pretrial conference, the Barbaras represented to the court
that they intended to and were immediately prepared to file a request to amend their pleading for
the purpose of alleging a counterclaim against Colonial. See Exhibit 15, infra. The court
scheduled another pretrial conference for June 21, 2016, anticipating motion practice and the
potential disposition of issues relating to the counterclaim represented by the Barbaras to be
forthcoming at that time. Thereafter, in the Indemnity Lawsuit the Barbaras did nothing to
advance the pleadings until June 21, 2016, the day of the subsequently scheduled pretrial
conference, at which time Barbaras filed a “Request For Leave To Reopen the Pleadings, Amend
Answer to Amended Complaint To Add Affirmative Defenses And Counterclaims And Allow
Discovery To Take Place” (hereinafter “Request to Amend”).!°
In their Request to Amend, the Barbaras sought permission to amend their operative
Answer to assert defenses and the Counterclaim premised on alleged bad faith by Colonial,
based on the same allegations and claims they made in opposition to enforcement of the
Settlement A greement in the Gotham Lawsuit. As they had alleged in previously stricken
defenses, and asserted in the Gotham Lawsuit, the Counterclaim submitted by the Barbaras
alleged that Colonial breached the Indemnity Agreement because it filed an answer to Gotham’s
claim against Colonial instead of moving for a pre-answer dismissal against Gotham based on
the terms and conditions of the Performance Bond, thereafter conducted discovery in the Gotham
Lawsuit, incurred costs and expenses to defend itself in the Gotham Lawsuit which were not
“necessary or advisable,” and eventually settled the Gotham Lawsuit instead of pursuing
18 A copy of the Barbaras’ Request to Amend, with attached statements by James Barbara and Lina Barbara, and
proposed A mended Answer to Amended Complaint dated June 20, 2016, filed in the Indemnity Lawsuit at Docket
Entry 133.00, are appended hereto as EXHIBIT 14.
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summary judgment; acted in bad faith because Colonial “chose” to stay in the Gotham Lawsuit
because it improperly desired a business relationship with Gotham and settled the Gotham
Lawsuit and released the affirmative claims asserted by Phoenix as part of a “back door” deal for
“future business” between Colonial and Gotham; and that Phoenix would have won a judgment
against Gotham in the Gotham Lawsuit on the affirmative claims it asserted, which Colonial
released on behalf of Phoenix as part of the settlement of that action, and that the Colonial should
be held liable to the Barbaras for the amount Phoenix would have recovered from Gotham if
Colonial had not settled the Gotham Lawsuit. See Ex’s. 14 and 2. As the relief sought through
their proposed counterclaim, the Barbaras requested denial of Colonial’s claims, a declaration
that the Indemnity Agreement is void, and a judgment for money damages. Ex. 2, at p. 7.
In the Indemnity Lawsuit, Colonial filed an objection to the Request to Amend,'® because
the Barbaras were simply attempting to reconfigure and re-allege, as “new” defenses and
counterclaims, their previously stricken defenses which alleged that Colonial breached the
Indemnity A greement, the Gotham Bonds, the covenant of good faith and had acted in bad faith,
because Colonial incurred costs and expenses relating to the Gotham Bonds before bond claims
had been made, and because the Barbaras believe that Colonial should have pursued a pre-
answer motion to dismiss or motion for summary judgment in the Gotham Lawsuit. Colonial
further opposed the Request to Amend on grounds that the request was untimely because the
Barbaras did not seasonably pursue amendment of the pleadings to add defenses and their
purported counterclaim, and because the Request to Amend was merely made for the purpose of
harassing Colonial and delaying the Indemnity Lawsuit from progressing to its conclusion. See
194 copy of Colonial’s Objection, with attachments, filed in the Indemnity Lawsuit at Docket Entry 134.00, is
appended hereto as EXHIBIT 15.
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Ex.15, p. 11-13. Specifically, Colonial argued, inter alia, that:
All the proposed amendments in [the Barbaras’] Proposed Amended
Answer are untimely and if the Court permits such amendments, the
[Barbaras] will doubtlessly claim that the resulting expansion of
issues requires substantial discovery in order to forestall the trial of
this action. [The Barbaras’] past and present practices conceming
its pleadings are negligent at best, and, when viewed cumulatively,
evince the [Barbaras’] true intent forestall the resolution of this
action through dilatory and harassing tactics contrived to needlessly
expand the scope of issues, force [Colonial] to incur the expense of
related discovery, and deprive [Colonial] of its day in court. [The
Barbaras’] Request to Amend should, therefore, be denied in its
entirety so that this matter may finally move forward towards its
resolution.
Ex. 15, p. 11-13. On December 19, 2016, the court in denied the Barbaras’_Request to
Amend, sustained Colonial’s objection thereto, and accordingly, did not permit the
Barbaras to amend the pleadings to add defenses and counterclaims purporting to allege
breach of contract and bad faith against C olonial with attendant claims for relief for
money damages and judicial declaration that the Indemnity Agreement is void.2°
Thereafter, on January 11, 2017, the Barbaras filed an interlocutory appeal of the court’s
decisions which denied their Request to Amend and sustained Colonial’s objection thereto.”! By
Order dated March 22, 2017, upon Colonial’s motion and over an objection filed by the Barbaras
in that appeal,?* the Connecticut A ppellate Court dismissed the appeal for lack of a final
judgment.” In the Barbaras’ Objection to Colonial’s Motion to Dismiss the appeal, the
Barbaras expressly admitted that if the appeal was dismissed, C olonial would be entitled to
summary judgment against the Barbaras in the Indemnity Lawsuit by operation of
20 Copies of the Court’s Orders dated December 19, 2016 in the Indemnity Lawsuit, Docket Entries 133.10 and
134.10, are appended hereto together as EXHIBIT 16.
21 See Appeal Form filed at Docket Entry 138.00 in the Indemnity Lawsuit, appended hereto as EXHIBIT 17.
2 Excerpts from Defendants’ Objection to Motion to Dismiss Defendants’ Appeal, dated February 21, 2017, filed
with the Appellate Court in Docket No. A.C. 40007, are appended hereto as EXHIBIT 18.
*5 See Order dated March 22, 2017 dismissing the Appeal, Docket Entry 140.00 in the Indemnity Lawsuit.
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Colonial’s rights under Paragraph 4.D of the Indemnity Agreement, Indeed, Defendants
stated in relevant part:
In the case at bar, as per the terms of Section 4 (D) of the General
Indemnity Agreement [...] “In any claim or suit hereunder, an
itemized statement of the aforesaid loss and expense, swom to by an
officer of Surety ... shall be prima facie evidence of the fact and
extent of the liability hereunder of Indemnitor.”
As such without any affirmative defenses, all Colonial needs to
prove its case is to provide an itemized statement. Steven Lapp
of plaintiff’s counsel has already indicated he plans on filing a
motion for summary judgment. If this appeal is not hear,
plaintiff's case is won[...]
Ex.18, p. 8-9 (emphasis supplied).
C. THE INSTANT ACTION AND THE PHOENIX LAWSUIT
Before the appeal in the Indemnity Lawsuit was dismissed on March 22, 2017, the
Barbaras initiated the Instant Action and, through Phoenix, the Phoenix Lawsuit against Colonial
in the Supreme Court for the State of New Y ork, New Y ork County. The Instant Action and the
Phoenix Lawsuit were commenced contemporaneously on March 10, 2017, that being the date of
service of the Barbaras’ summons and Complaint in the Instant Action” and the date that Lina
Tang, as attorney for Phoenix, filed the Phoenix Lawsuit in the Supreme Court of the State of
New Y ork, New Y ork County. See Ex. 5. In both the Instant Action and the Phoenix Lawsuit,
the Barbaras make the same breach of contract and bad faith claims which the court in the
Indemnity Lawsuit rejected when it struck the Barbaras’ alleged defenses and when it denied
their Requestto Amend and sustained Colonial’s Objection to thereto. See Ex.’s 2, 3, 4, 7.
Furthermore, the allegations in the Barbara Complaint and Phoenix Complaint are substantially
the same.
*4 See Return of Service filed in the Instant Action at Docket Entry 100.30.
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D. COLONIAL’S PENDING MOTION FOR SUMMARY JUDGMENT IN THE
INDEMNITY LAWSUIT AND THE BARBARAS’ MOTION TO STAY THAT
ACTION.
In the Indemnity Lawsuit, on December 22, 2017, Colonial filed a motion for summary
judgment against the Barbaras, seeking judgment on the First Count of Colonial’s Amended
Complaint which claims that the Phoenix and the Barbaras have breached the clear and
unambiguous terms of the Indemnity A greement through, inter alia, their failure to indemnify
and reimburse Colonial for all of its losses, costs, and expenses, including attorney’s fees,
resulting from Colonial having issued the Gotham Bonds.”° To establish its entitlement to
summary judgment, Colonial submitted the A ffidavit of Plaintiff's president, Wayne Nunziata, in
support of Colonial’s Motion for Summary Judgment, containing a swom itemized statement of
Colonial’s losses and expenses which, pursuant to Paragraph 4.D of the Indemnity Agreement,
constitutes prima facie evidence that the Barbaras are liable to Colonial for breach of the
Indemnity A greement in an amount no less than $1,638,824.39.°
The Barhbaras did not file an opposition to Colonial’s Motion for Summary Judgment.
Instead, and after expiration of the time for the Barbaras to file and serve a response thereto, the
Barbaras filed a Motion to Stay the Indemnity Lawsuit on February 13, 2018, seeking a stay of
that action until a final judgment is entered in the Instant Action.?” The sum and substance of the
Barbaras’ argument for a stay of the Indemnity Lawsuit is their bald assertion that Colonial’s
motion for summary judgment should not be determined so the Barbaras can pursue a judicial
declaration in the Instant A ction that the Indemnity Agreement is void. See Ex. 19, p. 4-5.
?5 See Colonial’s Motion for Summary Judgment and Memorandum of Law in Support of Summary Judgment filed
at Docket Entries 141.00/142.00 in the Indemnity Lawsuit.
26 See Nunziata Aff., {{] 72-78, filed at Docket Entry 142.00 in the Indemnity Lawsuit.
7A copy of the Barbaras’ Motion to Stay dated February 13, 2018, without attachments, filed in the Indemnity
Lawsuit at Docket Entry 143.00, is attached hereto as EXHIBIT 19.
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On March 14, 2018, Colonial filed an objection to the Barbaras’ Motion to Stay the
Indemnity Lawsui t,28 opposing the same on numerous grounds. In their March 28, 2018 Reply
to Colonial’s objection, the Barbaras expressly admit that they commenced the Instant
Action “because the Barbaras were unsuccessful in their attempt to get [the court in the
Indemnity Lawsuit] to reopen the pleadings in [that] matter and allow discovery.””°
Furthermore, the Barbaras openly acknowledge that their primary purpose in pursuing the Instant
Action is to unduly burden Colonial, its attorneys, and non-parties, by aimless conducting
discovery amounting to a classic fishing expedition looking for evidence of bad faith for which
the Barbaras have no good faith basis to believe actually exists.°°°!
Il. ARGUMENT
A. THIS ACTION SHOULD BE STAYED PURSUANT TO THE PRIOR PENDING
ACTION DOCTRINE.
1. Standard of Review
The Instant A ction should be dismissed pursuant to the prior pending action doctrine.
The prior pending action doctrine permits the court to dismiss a
second case that raises issues currently pending before the court.
The pendency of a prior suit of the same character, between the
same parties, brought to obtain the same end or object, is, at
common law, good cause for abatement. It is so, because there
cannot be any reason or necessity for bringing the second, and,
therefore, it must be oppressive and vexatious. This is a mule of
justice and equity, generally applicable, and always, where the two
suits are virtually alike, and in the same jurisdiction .... The policy
behind the prior pending action doctrine is to prevent unnecessary
litigation that places a burden on our state's already crowded court
dockets.
28 See Colonial’s Objection to Defendants’ Motion to Stay Proceedings, dated March 13, 2018, filed in the
Indemnity Lawsuit at Docket Entry No. 144.00
29 See excerpts from the Reply, dated March 28, 2018, filed by the Barbaras in the Indemnity Action at Docket Entry
No. 145.00, appended hereto as EXHIBIT 20.
30 See Ex. 20, p. 10, stating: “There is a plethora of discovery that the Barbaras should be able to explore to find
proof of Colonial’s bad faith behavior.”
31 In the Indemnity Lawsuit, the Barbaras’ Motion to Stay, and Colonial’s Objection thereto, were marked take
papers on the April 9, 2018 short calendar. No decision has been issued.
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Bayer v. Showmotion, Inc., 292 Conn. 381, 395-396 (2009) (Citations omitted; internal quotation
marks omitted); Beaudoin v. Town Oil Co., 207 Conn. 575, 588 (1988). In applying the prior
pending action doctrine:
[T]he trial court must determine in the first instance whether the two
actions are: (1) exactly alike, i.e., for the same matter, cause and
thing, or seeking the same remedy, and in the same jurisdiction; (2)
virtually alike, i.e., brought to adjudicate the same underlying rights
of the parties, but perhaps seeking different remedies; or (3)
insufficiently similarto warrant the doctrine's application. In order
to determine whether the actions are virtually alike, [the court] must
examine the pleadings ... [in both actions] to ascertain whether the
actions are brought to adjudicate the same underlying rights of the
parties.
Bayer, supra, 292 Conn. 397-398 (2009) (Internal citations omitted; internal quotation marks
omitted) “The applicability of the prior pending action doctrine does not turn on whether the two
actions seek the same remedy ... but ... whether they are brought to adjudicate the same
underlying rights." Id., at 399 (Internal citation omitted; internal quotation marks omitted). “If
the two actions are exactly alike ... the trial court has no discretion [and] ... the court must
dismiss the second action ... Where the actions are virtually, but not exactly alike, however, the
trial court exercises discretion in determining whether the circumstances justify dismissal of the
second action.” Id., at 398; Kleinman v. Chapnick, 140 Conn. App. 500, 505-06, 59 A.3d 373
(2013). Dismissal of the second action is warranted if both actions “(1) arise from the same
factual background, (2) include the same parties and (3) seek the same goals or objectives.”
Modzelewski v. William Raveis Real Estate, Inc., 65 Conn. App. 708, 714 (2001). It should be
noted, however, that the prior pending action doctrine does not mandate that all of the parties to
the prior action be parties to the second action for the doctrine to apply. For the purposes of the
prior pending action doctrine, the parties to the second action and the prior action are deemed
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identical if parties to both actions, notwithstanding that in the prior action there are additional
parties who are not parties in the second action. Modzelewski v. William Raveis Real Estate,
Inc., 65 Conn. App. 708, 714 (2001).
Furthermore, the prior pending action doctrine applies where the claims, issues and relief
sought in the second action are the same or virtually alike to claims, issues, and relief sought in
the prior action which were raised in pleadings that were ultimately stricken by the court, or, ina
party’s proposed pleading amendments which were the subject of a motion for permission to
amend the pleadings which was denied by the court in the prior action. Thus, under Connecticut
law, an action should be dismissed pursuant to the prior pending action doctrine where the
plaintiff alleges the same claims and raises the same issues which were stricken and/or not
permitted by way of amended pleadings in a prior pending action between the parties. Beaudoin
v. Town Oil Co., 207 Conn. 575 (1988); Sandvig v. A. Debreuil & Sons, Inc. 53 Conn. App. 466
(1999) cert. denied 250 Conn. 920 (1999).
In Beaudoin v. Town Oil Co., 207 Conn. 575 (1988), the Connecticut Supreme Court
affirmed the trial court’s dismissal of the plaintiff's claims against the defendant under the prior
pending action doctrine, because the plaintiff was attempting to litigate the same claims she had
alleged against the defendant in a prior pending separate action in which such claims had been
stricken, and because that decision was the subject of a separate pending appeal. In Beaudoin, a
residential home-seller was sued by the purchasers of her prior home on claims that she, in
connection with the sale, made false statements relating to the foam insulation within the home
(the original action). In the original action, the seller impleaded the contractor who installed the
foam insulation through a third-party complaint in which the seller alleged the insulation was a
defective product and claimed the contractor was liable to indemnify the seller if found liable to
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the purchaser. The contractor successfully moved to strike the third-party complaint because the
seller’s defective product allegations against the contractor could not support a claim that the
contractor would be liable to indemnify the seller if the seller was found liable to the purchasers
for their alleged misrepresentation claim against the seller. Id., at 577-578. The seller moved for
permission to amend the third-party complaint. Id., at 578. The court denied this motion and
mtered judgment for the contractor. Id., at578. The seller appealed the decision in the
original action which struck the third-party complaint and denied the motion to amend. Id.
In a separate, subsequent action (the second action), the seller, as plaintiff, sued the
contractor as defendant, again alleging claims that the seller had a right to be indemnified by the
contractor if found liable to the purchasers in the original action for misrepresentation. In the
second action, the contractor moved to strike the action arguing, inter alia, that the seller was
collaterally estopped from claiming the contractor was liable to indemnify the seller. Id., at 581.
The court granted the motion, judgment entered for the contractor, and the seller appealed that
decision in the second action.
On the appeal in the second action, the Connecticut Supreme Court affirmed the trial
court’s judgment, holding that the trial court’s decision to dismiss the second action was a proper
application of the prior pending action doctrine (rather than collateral estoppel). The Supreme
Court reasoned that the indemnification claim alleged by seller in the second action was virtually
alike to the seller’s indemnification claim which was stricken by the court in the original action,
and which was the subject of a pending appeal in the original action. Id., 586-88. The Supreme
Court acknowledged that although the seller’s third party complaint in the original action and
complaint in the second action did not contain verbatim allegations, both pleadings “request[ed]
the same relief on the same underlying facts. The only difference [was] the precise wording of
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the theories of liability under which the [contractor] would be liable to the [seller] for her own
potential liability in the action by the [purchasers].” Id., 587. The Supreme Court concluded that
the claims alleged by the seller in the second action were “merely different ways to characterize
how the [contractor’s] actions resulted in liability to the [seller]” and that all the issues raised by
the seller’s complaint in the second action were raised in the third-party complaint which was
stricken in the original action. Id., at 588.
In holding that the trial court’s dismissal of the second action was proper under the prior
pending action doctrine, because the seller was pursuing the same indemnification claims which
had been stricken in the original action, the Connecticut Supreme Court stated:
The policy behind the “prior pending action doctrine” is to prevent
unnecessary litigation that places a burden on our state's already
crowded court dockets. We have described the policy behind the
impleader statute, General Statutes § 52-102a, in a similar fashion:
The purpose of § 52-102a, like that of [Federal] Rule 14 (a), is
clearly to obviate the multiplicity of actions. This court has also
noted: The object of the [impleader] rule was to facilitate litigation,
to save costs, to bring all of the litigants into one proceeding, and to
dispose of an entire matter without the expense of many suits and
many trials. If litigants ignore the benefits of the impleader statute
and courts refuse to encourage its use, the goal of efficient
administration of justice will be injured. Parties cannot _be
permitted to waste the time of courts by the repetition in new
pleadings of claims which have been set up on the record and
overruled at an earlier stage of the proceedings.
Id., at 588-89 (Internal citations omitted; internal quotation marks omitted) (emphasis supplied).
Furthermore, the Court rebuked the seller’s attempt to obtain a “judicial shortcut” by
bringing the second action instead of waiting for conclusion of her appeal in the original
action. The Court noted that such a practice, if permitted by the Court, would send an
‘unfortunate message’ to our state’s litigants such that “[a]ny party that lost a motion in the trial
court would be tempted and encouraged to file separate lawsuits on the same legal theory rather
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than to wait for the orderly process of appeal.” Id., at 590. The Supreme Court specifically
noted that the seller had already preserved for appeal the decision striking the third-party
complaint in the original action; Id., at 588; thereby protecting her rights to pursue
indemnification claims against the contractor, if any. Id., at 589-90. The Supreme Court
concluded that “all the policy reasons for the prior pending action doctrine appl[ied] in the]
case...” Id., at 590.
Similarly, Sandvig v. A. Debreuil & Sons, Inc. 53 Conn. App. 466 (1999) cert. denied
250 Conn. 920 (1999), the Connecticut Appellate Court affirmed the trial court’s dismissal of an
action under the prior pending action doctrine because the second action alleged claims which
the trial court in a separate pending action refused to allow the plaintiff to plead by way of an
amended pleading. In Sandvig, the plaintiffs filed a first action (first action) in which they
alleged negligence in connection with a slip and fall incident. Id., at 467. In the first action, the
trial court denied the plaintiffs’ request for leave to amend their complaint to add claims for
breach of contract and res ipsa loquitor against the defendant, and the plaintiffs appealed the
decision denying them leave to amend. Thereafter, the plaintiffs filed a second action against the
defendant, alleging the same breach of contract claim which the trial court in the first action
refused to allow through amendment to the plaintiffs’ complaint. Id., at 468. In the second
action, the defendant moved to dismiss the action relying on the prior pending action doctrine
because the plaintiffs’ claims in that action were essentially the same as “those that the trial court
had denied them leave to add to the prior pending negligence action.” Id., at 468. The trial court
granted that motion and the plaintiffs appealed. Id., at 468.
On appeal in the second action, the Appellate Court affirmed, holding that trial court
properly applied the prior pending action doctrine in dismissing the second action. Id., at 469.
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Relying on Beaudoin, supra, the Court reasoned that in the two actions the plaintiffs requested
the same relief based on the same underlying facts, and that the pleadings in both action were
virtually identical, specifically, the breach of contract claim alleged in the second action which
the court in the first action refused to allow by way of an amended complaint. Id.; See also
Ackerman v. Sobol, CV 054013285, 2006 Conn. Super. LEXIS 1403 *4-15 (J.D. of Hartford,
May 11, 2006) (dismissing a second action pursuant to the prior pending action doctrine because
the claims alleged were the same as revised and amended complaints which were rejected and/or
stricken by the trial court in a prior pending action between the plaintiff and defendants,
reasoning that the plaintiff “cannot now revive these claims by bringing another suit; doing so
subverts the goal of maintaining orderly, efficient and consistent judicial processes that
underlie the prior pending action doctrine.” (emphasis supplied).)
2. The Instant Action Should Be Dismissed Because the Claims, Issues and Relief
Sought by the Barbaras in the Instant Action Are The Same As the Claims Alleged,
Issues Raised and Relief Sought By the Barbaras In the Indemnity Action.
The facts alleged by the Barbaras in the Barbara Complaint in the Instant A ction are the
same facts underlying the stricken defenses and the claims in the Counterclaim which Barbaras
raised in their pleadings in the Indemnity Lawsuit. The crux of the allegations made and relief
requested in the Barbara Complaint and in the Counterclaim filed with the Barbaras’ Request to
Amend in the Indemnity Lawsuit, are virtually alike. See Ex.’s 2, 3. As noted above, in the
Indemnity Lawsuit the Barbaras raised claims that: Colonial breached the Indemnity A greement
because it filed an answer to Gotham’s claim against Colonial instead of moving for a pre-
answer dismissal against Gotham based on the terms and conditions of the Performance Bond,
thereafter conducted discovery in the Gotham Lawsuit, incurred costs and expenses to defend
itself in the Gotham Lawsuit which were not “necessary or advisable”, and eventually settled the
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Gotham Lawsuit instead of pursuing summary judgment; acted in bad faith because Colonial
“chose” to stay in the Gotham Lawsuit because it improperly desired a business relationship with
Gotham and settled the Gotham Lawsuit and released the affirmative claims asserted by Phoenix
as part ofa “back door” deal for “future business” between Colonial and Gotham; and that
Phoenix would have won a judgment against Gotham in the Gotham Lawsuit on the affirmative
claims it asserted, which Colonial released on behalf of Phoenix as part of the settlement of that
action, and that the Colonial should be held liable to the Barbaras for the amount Phoenix would
have recovered from Gotham if Colonial had not settled the Gotham Lawsuit. See Ex. 2-
Counterclaim. The Barbaras make the same claims in the Instant Action. See Ex. 3-Barbara
Complaint, Ex. 3.
Moreover, in the Indemnity Lawsuit the relief requested by the Barbaras on the
Counterclaim was a declaration that the Indemnity A greement and Gotham Bonds are void, and,
a judgment against Colonial for money damages against Colonial for breach of the Indemnity
Agreement and Performance Bond, and any other relief deemed “just proper and equitable.” See.
Ex. 2, p.5-7. The Barbaras request the same relief in the Instant Action. See Ex. 3, p. 6-9. As
such, the claims and issues raised, and relief sought by the Barbaras in the Instant A ction and in
the Indemnity Lawsuit arise from the same factual background, include the same parties, and
seek the same goals or objectives, rendering the Instant Action properly subject to dismissal
under the prior pending action doctrine.
The Instant A ction is further subject to dismissal because it has been pursued by the
Barbaras as a means to evade, undermine and collaterally attack the court’s orders in the
Indemnity Lawsuit whic
Preview
DOCKET NO. AAN-CV17-5012366-S SUPERIOR COURT JAMES E. BARBARA and JUDICIAL DISTRICT OF LINA T. BARBARA ANSONIA-MILFORD Vv. AT MILFORD COLONIAL SURETY COMPANY APRIL 26, 2018 DEFENDANT COLONIAL SURETY COMPANY’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS ACTION OR, IN THE ALTERNATIVE, MOTION TO STAY ACTION The defendant, Colonial Surety Company (“Colonial”), hereby submits this memorandum of law in support of its Motion to Dismiss, or, in the Alternative, Motion to Stay Action, filed in the above-captioned matter. The Court should dismiss this action (the “Instant Action”) pursuant to the prior pending action doctrine, by reason of an action by Colonial against the plaintiffs, James E. Barbara and Lina T. Barbara (hereinafter “Plaintiffs” or “the Barbaras”), titled Colonial Surety Company v. Phoenix Contracting Group, Inc., et al., Docket No. NNH-CV 10-6015539-S, currently pending in Superior Court for the Judicial District of New Haven (the “Indemnity Lawsuit”),! in which the Barbaras are defendants, and in which Colonial is pursuing enforcement of its rights under the General Indemnity A greement between it, Phoenix Contracting Group, Inc. (““Phoenix”),” and the Barbaras. In the Indemnity Lawsuit, the Barbaras alleged certain special defenses which were ultimately stricken by the court, and were denied permission by the court to amend their operative answer to allege certain special defenses and a counterclaim (the “Counterclaim”) including breach of the Indemnity Agreement, related bonds and bad faith against Colonial. In the Instant Action, the allegations, claims, and requests for relief made against Colonial in the | The docket sheet for Docket No. NNH-CV 10-6015539-S is appended hereto as EXHIBIT 1. 2 In the Indemnity Lawsuit, Phoenix did not appear and has been defaulted. SL/235555/0002/1496248v1 04/26/18-HRT/SL Barbaras’ Complaint, dated March 8, 2017 (the “Barbara Complaint”)’ are essentially the same allegations, claims and requests for relief made by the Barbaras in their stricken defenses and Counterclaim in the Indemnity Lawsuit. As such, in both the Instant A ction and the Indemnity Lawsuit the Barbaras have sought to adjudicate the same alleged rights and obligations, based on the same underlying facts and transactions, including the Indemnity A greement on which Colonial’s claims in the Indemnity Lawsuit are based. Because, however, their allegations, claims and requests for relief in the Indemnity Lawsuit were the subject of court rulings which were unfavorable to the Barbaras, they brought the Instant A ction as a means to circumvent the enforcement of such rulings, and to collaterally attack and undermine the same, instead of pursuing a proper appeal in the Indemnity Lawsuit. For these reasons, and as explained in greater detail herein, the Instant A ction must be dismissed pursuant to the prior pending action doctrine. In the alternative, should this Court not dismiss the Instant Action, Colonial respectfully requests that this Court stay the Instant A ction in its entirety until the full and final adjudication of both the Indemnity Lawsuit and a virtually identical lawsuit the Barbaras caused to be filed by Phoenix against Colonial, titled Phoenix Contracting Group, Inc. v. Colonial Surety Company, Index No. 651271/2017, which is currently pending in the Supreme Court of the State of New Y ork, County of New Y ork (the “Phoenix Lawsuit”). As explained in greater detail herein, all the reasons which support dismissal of the Instant A ction pursuant to the prior pending action 3 A copy of the Barbara’s Complaint, dated March 8, 2017, is appended hereto as EXHIBIT 3. 4 For the Court’s ease of reference, a copy of the Barbaras’ Amended Answer to Amended Complaint (with counterclaim), dated June 20, 2016 which was filed in Indemnity Lawsuit as an attachment to the Barbara’s Request For Leave to Reopen the Pleadings, Amend Answer to Amended Complaint to Add A ffirmative Defenses and Counterclaims and Allow Discovery to Take Place, dated June 20, 2016 (Indemnity Lawsuit Docket No. 133.00), is appended hereto as EXHIBIT 2, as a standalone exhibit. This Exhibit is also included within EX HIBIT 14, appended hereto. 2 SL/235555/0002/1496248v1 04/26/18-HRT/SL doctrine, also, at minimum, warrant a stay of the Instant Action pending final disposition of the Indemnity Lawsuit. Additionally, the Instant Action should be stayed pending final resolution of the Phoenix Lawsuit because; both actions were commenced on the same date; the claims alleged by Phoenix in its complaint (the “Phoenix Complaint”)° in the Phoenix Lawsuit are the same as those alleged by the Barbaras in the Instant A ction; the Barbaras and Phoenix seek the same or overlapping judgments for money damages based on the same alleged injury; and concurrent litigation of both the Instant Action and Phoenix Lawsuit would create a real threat of inconsistent rulings and outcomes. As such, the Instant Action presents legal and factual issues which are virtually identical to those that will be resolved in the Phoenix Lawsuit such that the Instant A ction should be stayed in the interest of judicial economy, consistency and finality and to avoid needless and wasteful expenditure of judicial resources and the resources of the litigants. The interests of judicial economy and consistency will be best served by staying this duplicative action until both the Indemnity Lawsuit and the Phoenix Lawsuit have been fully and finally adjudicated. I FACTUAL BACKGROUND AND PROCEDURAL HISTORY The Instant A ction arises out of the Barbaras’ and Phoenix’s breach of their obligations pursuant to the Indemnity A greement to indemnify and hold harmless Colonial from any and all losses incurred by Colonial as a result of having issued, as surety, a construction performance bond and payment bond (the “Bonds” or the “Gotham Bonds”) on behalf of Phoenix, as bond principal. The Barbaras and Phoenix executed the Indemnity A greement to induce Colonial, a 5 A copy of the Notice of Commencement of Action Subject to Mandatory Electronic Filing, Summons and Complaint dated March 10, 2017, filed by Lina Tang on behalf of Phoenix Contracting Group in Phoenix Contracting Group, Inc. v. Colonial Surety Company, Index No. 651271/2017 (the Phoenix Lawsuit), attached hereto as EXHIBIT 4. 3 SL/235555/0002/1496248v1 04/26/18-HRT/SL surety company, to issue the Bonds on behalf of Phoenix. Phoenix was a subcontractor to Gotham Greenwich Construction Co., LLC (“Gotham”) on a project for the construction of a hotel located at 150 Lafayette Street, New Y ork, New Y ork (“Project”). In connection with the Project, Colonial, as surety, issued the Bonds, naming Gotham as obligee and Phoenix as principal. The Barbaras and Phoenix executed the Indemnity A greement in favor of Colonial, under which the Barbaras and Phoenix agreed, jointly and severally, to clear and unambiguous terms and conditions obligating them to, inter alia, indemnify Colonial against any and all losses, costs and expenses incurred in connection with Colonial’s issuance of bonds on behalf of Phoenix and, upon demand, deposit with Colonial cash or other collateral adequate protect Colonial against any losses, costs or expenses, including attorney’s fees, incurred by Colonial. Copies of the Indemnity Agreement and the Gotham Bonds are included within EXHIBIT 5, appended hereto. A. THE GOTHAM LAWSUIT AND THE INDEMNITY LAWSUIT By Complaint dated October 25, 2010, Gotham commenced a civil action against Phoenix and Colonial, asserting a claim against Phoenix for breach of the subcontract between them (the “Subcontract”), and, as bond-obligee, a claim against Colonial for breach of the performance bond that Colonial issued in connection with the Project (the “Performance Bond”). That action was pending in the Commercial Part of the Supreme Court of the State of New Y ork, County of New Y ork and was titled Gotham Greenwich Construction Co., LLC v. Phoenix Contracting Group, Inc. and Colonial Surety Company, Index No. 651937/2010 (the “Gotham Lawsuit”). Also on October 25, 2010, Colonial, as plaintiff, commenced the Indemnity Lawsuit SL/235555/0002/1496248v1 04/26/18-HRT/SL against Phoenix and the Barbaras, by Summons and Complaint dated October 25, 2010.° Following Colonial’s successful pursuit of a prejudgment remedy against Phoenix and the Barbaras,’ by Amended Complaint dated September 9, 2011,° Colonial alleged claims for enforcement of its rights under the Indemnity Agreement, including, inter alia, indemnification for all costs and expenses incurred by Colonial by reason of having issued the Gotham Bonds on behalf of Phoenix and the deposit of collateral security by Phoenix and the Barbaras to secure Colonial against loss arising from such expenses. The cost, expense, loss and damage for which Colonial seeks recovery in the Indemnity Lawsuit are substantially comprised of, but not limited to, Colonial’s costs and expenses, including attorney’s fees, incurred in defending itself in the Gotham Lawsuit and prosecuting the Indemnity Lawsuit. Colonial’s Amended Complaint remains Colonial’s operative pleading in the Indemnity Lawsuit. In the Indemnity Lawsuit, on November 22, 2013, the Barbaras filed a Request for Leave to Amend their Answer to Colonial’s Amended Complaint, together with Defendants’ Amended Answer to Amended Complaint, with defenses.’ As it pertains to this Motion, the Barbaras alleged: as a First Defense that Colonial breached the Indemnity A greement and underlying bonds, and the covenant of good faith, because it incurred costs and expenses relating to the Gotham Bonds before a claim had been made by Gotham and before Gotham filed the Gotham Lawsuit, and acted in bad faith by breaching the terms of the Gotham Bonds; as a Second Defense that Colonial failed to mitigate its damages by pursuing a motion to dismiss or motion 5 A copy of Colonial’s Summons and original Complaint with attached Indemnity Agreement and the Gotham Bonds, filed in the Indemnity Lawsuit, is appended hereto as EXHIBIT 5. 7 See Memorandum of Decision in the Indemnity Lawsuit at Docket Entry 101.10; See Order dated April 17, 2012 at Docket Entry 101.20. ® A copy of Colonial’s Amended Complaint in the Indemnity Lawsuit, filed at Docket Entry 103.00, is attached hereto as EXHIBIT 6. ° A copy of the Barbaras’ Amended Answer to Amdned Complaint dated November 22, 2013, filed at Docket No. 123.00 in the Indemnity Lawsuit, is appended hereto as EXHIBIT 7. 5 SL/235555/0002/1496248v1 04/26/18-HRT/SL for summary judgment in the Gotham Lawsuit; as a Third Defense that the Indemnity Lawsuit was prematurely pursued because Colonial had not yet incurred all damages it would claim in the Indemnity Lawsuit comprised of Colonial’s costs and expenses incurred in the Gotham Lawsuit; and as a Fourth Defense that the amount of collateral security sought by Colonial in the Indemnity Lawsuit was unreasonable. See Ex. 7. Colonial moved to strike each of the four defenses alleged in the Barbaras’ November 22, 2013 Amended Answer.'° The court granted Colonial’s Motion to Strike, thereby striking all defenses alleged in the Defendants’ November 22, 2013 Answer to Amended Complaint.!! On April 2, 2014, Colonial filed a certificate of closed pleadings in the Indemnity Lawsuit.!? During the pendency of the Indemnity Lawsuit, Gotham was prosecuting its claims against Colonial and Phoenix in the Gotham Lawsuit, and Colonial was incurring costs and expenses to defend against the same. Phoenix was represented in the Gotham Lawsuit by Lina Barbara, as its counsel of record. Discovery in the Gotham Lawsuit was ongoing from November 2011 through October 2014. In April 2015, after participating in extensive discovery, Colonial, in good faith, acting pursuant to its rights under the Indemnity A greement to pay, compromise, defend or prosecute any and all claims, and in accordance with its status as assignee of Phoenix’s Subcontract rights and Phoenix’s attorney-in-fact, entered into a multi- party settlement agreement (the “Settlement Agreement”) which was agreed to by all parties in the Gotham Lawsuit except Phoenix,'? who, through objections raised by the Barbaras on its 10 A copy of Colonial’s December 3, 2013 Motion to Strike and Memorandum of Law In Support of Motion to Strike directed at the defenses in the Barbaras’ November 22, 2013 Amended Answer to Amended Complaint, filed in the Indemnity Lawsuit at Docket No. 124.00/125.00, are appended hereto as EXHIBIT 8. " A copy of the court’s December 2, 2014 order in the Indemnity Lawsuit granting Colonial’s Motion to Strike (124.00) is appended hereto as EXHIBIT 9. ” See Indemnity Lawsuit Docket Entry 130.00. 13 Other than Gotham, Plaintiff and Phoenix, the parties to the Gotham Lawsuit included Gotham’s parent company, Gotham Construction Company, LLC, the Project owner Sochin Downtown Realty, LLC, and Travelers Casualty 6 SL/235555/0002/1496248v1 04/26/18-HRT/SL behalf, refused consent. In the Settlement Agreement, Colonial agreed to pay Gotham a settlement sum of $100,000, and all claims alleged by and against all the parties were released subject to the condition that the court in the Gotham Lawsuit approve the Settlement A greement and dismiss the Gotham Lawsuit with prejudice. In the Gotham Lawsuit, Colonial then moved for the court’s approval of the Settlement Agreement and discontinuance of the Gotham Lawsuit, based, inter alia, on Colonial’s rights pursuant to the Indemnity A greement, to resolve and settle all claims pending in the Gotham Lawsuit in its sole discretion, and Colonial’s status as assignee of Phoenix’s rights in any claim arising in connection with the Subcontract and status as Phoenix’s designated attorney-in-fact. Phoenix, through affidavit of Lina Barbara, acting as counsel for Phoenix, and affidavit of James Barbara, acting as Phoenix’s Chief Executive Officer, filed an opposition. They claimed that Colonial had breached the Indemnity Agreement and the Gotham performance bond, breached the covenant of good faith, and had acted in bad faith, because Colonial should have moved for a pre-answer motion to dismiss or for summary judgment on grounds that Gotham did not satisfy the conditions precedent in the Performance Bond, instead of conducting discovery in and 4 litigating the Gotham Lawsuit, and eventually entering into the Settlement A greement. Colonial responded to those objections, filing legal memoranda and affidavits with the court.!5 In the Gotham Lawsuit, on July 28, 2015, at a hearing before the court Justice Eileen and Indemnity Company, each of whom Phoenix had cited into the case as third-party defendants to Phoenix’s claims against them. 4 Copies of Phoenix’s Memorandum of Law in Opposition to Colonial’s Motion for Enforcement of the Parties’ Settlement and Discontinuance of the Gotham Lawsuit, the A ffirmation in Opposition by Defendant Lina Barbara under the name Lina C. Tang, filed by Phoenix in the Gotham Lawsuit, and the A ffidavit in Opposition by Defendant James Barbara, filed by Phoenix in the Gotham Lawsuit, are appended hereto together as EXHIBIT 10. 15 Copies of Colonial’s Memorandum of Law In Response to Phoenix’s Opposition to Colonial’s Motion For Enforcement of the Parties Settlement and Discontinuance of the Action with Prejudice, together with Supplemental Affidavit of Wayne Nunziata dated June 18, 2015, filed in the Gotham Lawsuit, are appended hereto together as EXHIBIT 11. 7 SL/235555/0002/1496248v1 04/26/18-HRT/SL Bransten), attended by both the Barbaras, the court approved the settlement in the Gotham Lawsuit, rejected Phoenix’s and the Barbaras’ opposition, and ordered the Gotham Lawsuit dismissed, with prejudice.!° The court determined that Colonial had every right under the Indemnity A greement to settle the Gotham Lawsuit for itself and on behalf of Phoenix, because, among other things, Phoenix had never indemnified C olonial or provided collateral ecurity when demanded. See Ex. 11, p. 5-6. Furthermore, the court stated: Phoenix objects to the Settlement A greement on the grounds that it purportedly had meritorious defenses that were not pursued to Phoenix’ [sic] liking by Colonial. However, the language that Phoenix’ [sic] Indemnity Agreement moots this objection by not posting cash or collateral, Colonial gained the sole and exclusive right to pay or defend the claims against Phoenix in this case. Moreover, consistent with the A greement, Colonial was authorized to enter into the Settlement Agreement on Phoenix’ [sic] behalf as its attorney-in-fact. Therefore, Colonial’s ability to negotiate and execute the instant Settlement A greement is clear. Ex. 11, p. 5-7. The court dismissed with the Gotham Lawsuit with prejudice, noting that the court had “found nothing objectionable with the Settlement Agreement.” Ex. 11, p. 7. Thereafter, on August 20, 2015, the court signed its order approving the Settlement A greement and discontinuing the Gotham Lawsuit, which was subsequently entered in the office of the New Y ork County Clerk, thereby disposing of the Gotham Lawsuit.'’ Phoenix filed no appeal. B. THE BARBARAS’ REQUEST TO AMEND AND APPEAL IN THE INDEMNITY LAWSUIT In the Indemnity Lawsuit, on December 17, 2015, Colonial and the Barbaras appeared before 16 A copy of the transcript of the July 28, 2015 hearing in the Gotham Lawsuit is attached hereto as EXHIBIT 12. TA copy of the court’s Order filed with the New York County Clerk on November 20, 2015 and Notice of Entry of the Order dated December 3, 2015 filed in the Gotham Lawsuit, is appended together hereto as EXHIBIT 13. SL/235555/0002/1496248v1 04/26/18-HRT/SL the court for a pretrial conference, at which time the parties informed the Court of the disposition of the Gotham Lawsuit. During the pretrial conference, the Barbaras represented to the court that they intended to and were immediately prepared to file a request to amend their pleading for the purpose of alleging a counterclaim against Colonial. See Exhibit 15, infra. The court scheduled another pretrial conference for June 21, 2016, anticipating motion practice and the potential disposition of issues relating to the counterclaim represented by the Barbaras to be forthcoming at that time. Thereafter, in the Indemnity Lawsuit the Barbaras did nothing to advance the pleadings until June 21, 2016, the day of the subsequently scheduled pretrial conference, at which time Barbaras filed a “Request For Leave To Reopen the Pleadings, Amend Answer to Amended Complaint To Add Affirmative Defenses And Counterclaims And Allow Discovery To Take Place” (hereinafter “Request to Amend”).!° In their Request to Amend, the Barbaras sought permission to amend their operative Answer to assert defenses and the Counterclaim premised on alleged bad faith by Colonial, based on the same allegations and claims they made in opposition to enforcement of the Settlement A greement in the Gotham Lawsuit. As they had alleged in previously stricken defenses, and asserted in the Gotham Lawsuit, the Counterclaim submitted by the Barbaras alleged that Colonial breached the Indemnity Agreement because it filed an answer to Gotham’s claim against Colonial instead of moving for a pre-answer dismissal against Gotham based on the terms and conditions of the Performance Bond, thereafter conducted discovery in the Gotham Lawsuit, incurred costs and expenses to defend itself in the Gotham Lawsuit which were not “necessary or advisable,” and eventually settled the Gotham Lawsuit instead of pursuing 18 A copy of the Barbaras’ Request to Amend, with attached statements by James Barbara and Lina Barbara, and proposed A mended Answer to Amended Complaint dated June 20, 2016, filed in the Indemnity Lawsuit at Docket Entry 133.00, are appended hereto as EXHIBIT 14. 9 SL/235555/0002/1496248v1 04/26/18-HRT/SL summary judgment; acted in bad faith because Colonial “chose” to stay in the Gotham Lawsuit because it improperly desired a business relationship with Gotham and settled the Gotham Lawsuit and released the affirmative claims asserted by Phoenix as part of a “back door” deal for “future business” between Colonial and Gotham; and that Phoenix would have won a judgment against Gotham in the Gotham Lawsuit on the affirmative claims it asserted, which Colonial released on behalf of Phoenix as part of the settlement of that action, and that the Colonial should be held liable to the Barbaras for the amount Phoenix would have recovered from Gotham if Colonial had not settled the Gotham Lawsuit. See Ex’s. 14 and 2. As the relief sought through their proposed counterclaim, the Barbaras requested denial of Colonial’s claims, a declaration that the Indemnity Agreement is void, and a judgment for money damages. Ex. 2, at p. 7. In the Indemnity Lawsuit, Colonial filed an objection to the Request to Amend,'® because the Barbaras were simply attempting to reconfigure and re-allege, as “new” defenses and counterclaims, their previously stricken defenses which alleged that Colonial breached the Indemnity A greement, the Gotham Bonds, the covenant of good faith and had acted in bad faith, because Colonial incurred costs and expenses relating to the Gotham Bonds before bond claims had been made, and because the Barbaras believe that Colonial should have pursued a pre- answer motion to dismiss or motion for summary judgment in the Gotham Lawsuit. Colonial further opposed the Request to Amend on grounds that the request was untimely because the Barbaras did not seasonably pursue amendment of the pleadings to add defenses and their purported counterclaim, and because the Request to Amend was merely made for the purpose of harassing Colonial and delaying the Indemnity Lawsuit from progressing to its conclusion. See 194 copy of Colonial’s Objection, with attachments, filed in the Indemnity Lawsuit at Docket Entry 134.00, is appended hereto as EXHIBIT 15. 10 SL/235555/0002/1496248v1 04/26/18-HRT/SL Ex.15, p. 11-13. Specifically, Colonial argued, inter alia, that: All the proposed amendments in [the Barbaras’] Proposed Amended Answer are untimely and if the Court permits such amendments, the [Barbaras] will doubtlessly claim that the resulting expansion of issues requires substantial discovery in order to forestall the trial of this action. [The Barbaras’] past and present practices conceming its pleadings are negligent at best, and, when viewed cumulatively, evince the [Barbaras’] true intent forestall the resolution of this action through dilatory and harassing tactics contrived to needlessly expand the scope of issues, force [Colonial] to incur the expense of related discovery, and deprive [Colonial] of its day in court. [The Barbaras’] Request to Amend should, therefore, be denied in its entirety so that this matter may finally move forward towards its resolution. Ex. 15, p. 11-13. On December 19, 2016, the court in denied the Barbaras’_Request to Amend, sustained Colonial’s objection thereto, and accordingly, did not permit the Barbaras to amend the pleadings to add defenses and counterclaims purporting to allege breach of contract and bad faith against C olonial with attendant claims for relief for money damages and judicial declaration that the Indemnity Agreement is void.2° Thereafter, on January 11, 2017, the Barbaras filed an interlocutory appeal of the court’s decisions which denied their Request to Amend and sustained Colonial’s objection thereto.”! By Order dated March 22, 2017, upon Colonial’s motion and over an objection filed by the Barbaras in that appeal,?* the Connecticut A ppellate Court dismissed the appeal for lack of a final judgment.” In the Barbaras’ Objection to Colonial’s Motion to Dismiss the appeal, the Barbaras expressly admitted that if the appeal was dismissed, C olonial would be entitled to summary judgment against the Barbaras in the Indemnity Lawsuit by operation of 20 Copies of the Court’s Orders dated December 19, 2016 in the Indemnity Lawsuit, Docket Entries 133.10 and 134.10, are appended hereto together as EXHIBIT 16. 21 See Appeal Form filed at Docket Entry 138.00 in the Indemnity Lawsuit, appended hereto as EXHIBIT 17. 2 Excerpts from Defendants’ Objection to Motion to Dismiss Defendants’ Appeal, dated February 21, 2017, filed with the Appellate Court in Docket No. A.C. 40007, are appended hereto as EXHIBIT 18. *5 See Order dated March 22, 2017 dismissing the Appeal, Docket Entry 140.00 in the Indemnity Lawsuit. 11 SL/235555/0002/1496248v1 04/26/18-HRT/SL Colonial’s rights under Paragraph 4.D of the Indemnity Agreement, Indeed, Defendants stated in relevant part: In the case at bar, as per the terms of Section 4 (D) of the General Indemnity Agreement [...] “In any claim or suit hereunder, an itemized statement of the aforesaid loss and expense, swom to by an officer of Surety ... shall be prima facie evidence of the fact and extent of the liability hereunder of Indemnitor.” As such without any affirmative defenses, all Colonial needs to prove its case is to provide an itemized statement. Steven Lapp of plaintiff’s counsel has already indicated he plans on filing a motion for summary judgment. If this appeal is not hear, plaintiff's case is won[...] Ex.18, p. 8-9 (emphasis supplied). C. THE INSTANT ACTION AND THE PHOENIX LAWSUIT Before the appeal in the Indemnity Lawsuit was dismissed on March 22, 2017, the Barbaras initiated the Instant Action and, through Phoenix, the Phoenix Lawsuit against Colonial in the Supreme Court for the State of New Y ork, New Y ork County. The Instant Action and the Phoenix Lawsuit were commenced contemporaneously on March 10, 2017, that being the date of service of the Barbaras’ summons and Complaint in the Instant Action” and the date that Lina Tang, as attorney for Phoenix, filed the Phoenix Lawsuit in the Supreme Court of the State of New Y ork, New Y ork County. See Ex. 5. In both the Instant Action and the Phoenix Lawsuit, the Barbaras make the same breach of contract and bad faith claims which the court in the Indemnity Lawsuit rejected when it struck the Barbaras’ alleged defenses and when it denied their Requestto Amend and sustained Colonial’s Objection to thereto. See Ex.’s 2, 3, 4, 7. Furthermore, the allegations in the Barbara Complaint and Phoenix Complaint are substantially the same. *4 See Return of Service filed in the Instant Action at Docket Entry 100.30. 12 SL/235555/0002/1496248v1 04/26/18-HRT/SL D. COLONIAL’S PENDING MOTION FOR SUMMARY JUDGMENT IN THE INDEMNITY LAWSUIT AND THE BARBARAS’ MOTION TO STAY THAT ACTION. In the Indemnity Lawsuit, on December 22, 2017, Colonial filed a motion for summary judgment against the Barbaras, seeking judgment on the First Count of Colonial’s Amended Complaint which claims that the Phoenix and the Barbaras have breached the clear and unambiguous terms of the Indemnity A greement through, inter alia, their failure to indemnify and reimburse Colonial for all of its losses, costs, and expenses, including attorney’s fees, resulting from Colonial having issued the Gotham Bonds.”° To establish its entitlement to summary judgment, Colonial submitted the A ffidavit of Plaintiff's president, Wayne Nunziata, in support of Colonial’s Motion for Summary Judgment, containing a swom itemized statement of Colonial’s losses and expenses which, pursuant to Paragraph 4.D of the Indemnity Agreement, constitutes prima facie evidence that the Barbaras are liable to Colonial for breach of the Indemnity A greement in an amount no less than $1,638,824.39.° The Barhbaras did not file an opposition to Colonial’s Motion for Summary Judgment. Instead, and after expiration of the time for the Barbaras to file and serve a response thereto, the Barbaras filed a Motion to Stay the Indemnity Lawsuit on February 13, 2018, seeking a stay of that action until a final judgment is entered in the Instant Action.?” The sum and substance of the Barbaras’ argument for a stay of the Indemnity Lawsuit is their bald assertion that Colonial’s motion for summary judgment should not be determined so the Barbaras can pursue a judicial declaration in the Instant A ction that the Indemnity Agreement is void. See Ex. 19, p. 4-5. ?5 See Colonial’s Motion for Summary Judgment and Memorandum of Law in Support of Summary Judgment filed at Docket Entries 141.00/142.00 in the Indemnity Lawsuit. 26 See Nunziata Aff., {{] 72-78, filed at Docket Entry 142.00 in the Indemnity Lawsuit. 7A copy of the Barbaras’ Motion to Stay dated February 13, 2018, without attachments, filed in the Indemnity Lawsuit at Docket Entry 143.00, is attached hereto as EXHIBIT 19. 13 SL/235555/0002/1496248v1 04/26/18-HRT/SL On March 14, 2018, Colonial filed an objection to the Barbaras’ Motion to Stay the Indemnity Lawsui t,28 opposing the same on numerous grounds. In their March 28, 2018 Reply to Colonial’s objection, the Barbaras expressly admit that they commenced the Instant Action “because the Barbaras were unsuccessful in their attempt to get [the court in the Indemnity Lawsuit] to reopen the pleadings in [that] matter and allow discovery.””° Furthermore, the Barbaras openly acknowledge that their primary purpose in pursuing the Instant Action is to unduly burden Colonial, its attorneys, and non-parties, by aimless conducting discovery amounting to a classic fishing expedition looking for evidence of bad faith for which the Barbaras have no good faith basis to believe actually exists.°°°! Il. ARGUMENT A. THIS ACTION SHOULD BE STAYED PURSUANT TO THE PRIOR PENDING ACTION DOCTRINE. 1. Standard of Review The Instant A ction should be dismissed pursuant to the prior pending action doctrine. The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a mule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction .... The policy behind the prior pending action doctrine is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets. 28 See Colonial’s Objection to Defendants’ Motion to Stay Proceedings, dated March 13, 2018, filed in the Indemnity Lawsuit at Docket Entry No. 144.00 29 See excerpts from the Reply, dated March 28, 2018, filed by the Barbaras in the Indemnity Action at Docket Entry No. 145.00, appended hereto as EXHIBIT 20. 30 See Ex. 20, p. 10, stating: “There is a plethora of discovery that the Barbaras should be able to explore to find proof of Colonial’s bad faith behavior.” 31 In the Indemnity Lawsuit, the Barbaras’ Motion to Stay, and Colonial’s Objection thereto, were marked take papers on the April 9, 2018 short calendar. No decision has been issued. 14 SL/235555/0002/1496248v1 04/26/18-HRT/SL Bayer v. Showmotion, Inc., 292 Conn. 381, 395-396 (2009) (Citations omitted; internal quotation marks omitted); Beaudoin v. Town Oil Co., 207 Conn. 575, 588 (1988). In applying the prior pending action doctrine: [T]he trial court must determine in the first instance whether the two actions are: (1) exactly alike, i.e., for the same matter, cause and thing, or seeking the same remedy, and in the same jurisdiction; (2) virtually alike, i.e., brought to adjudicate the same underlying rights of the parties, but perhaps seeking different remedies; or (3) insufficiently similarto warrant the doctrine's application. In order to determine whether the actions are virtually alike, [the court] must examine the pleadings ... [in both actions] to ascertain whether the actions are brought to adjudicate the same underlying rights of the parties. Bayer, supra, 292 Conn. 397-398 (2009) (Internal citations omitted; internal quotation marks omitted) “The applicability of the prior pending action doctrine does not turn on whether the two actions seek the same remedy ... but ... whether they are brought to adjudicate the same underlying rights." Id., at 399 (Internal citation omitted; internal quotation marks omitted). “If the two actions are exactly alike ... the trial court has no discretion [and] ... the court must dismiss the second action ... Where the actions are virtually, but not exactly alike, however, the trial court exercises discretion in determining whether the circumstances justify dismissal of the second action.” Id., at 398; Kleinman v. Chapnick, 140 Conn. App. 500, 505-06, 59 A.3d 373 (2013). Dismissal of the second action is warranted if both actions “(1) arise from the same factual background, (2) include the same parties and (3) seek the same goals or objectives.” Modzelewski v. William Raveis Real Estate, Inc., 65 Conn. App. 708, 714 (2001). It should be noted, however, that the prior pending action doctrine does not mandate that all of the parties to the prior action be parties to the second action for the doctrine to apply. For the purposes of the prior pending action doctrine, the parties to the second action and the prior action are deemed 15 SL/235555/0002/1496248v1 04/26/18-HRT/SL identical if parties to both actions, notwithstanding that in the prior action there are additional parties who are not parties in the second action. Modzelewski v. William Raveis Real Estate, Inc., 65 Conn. App. 708, 714 (2001). Furthermore, the prior pending action doctrine applies where the claims, issues and relief sought in the second action are the same or virtually alike to claims, issues, and relief sought in the prior action which were raised in pleadings that were ultimately stricken by the court, or, ina party’s proposed pleading amendments which were the subject of a motion for permission to amend the pleadings which was denied by the court in the prior action. Thus, under Connecticut law, an action should be dismissed pursuant to the prior pending action doctrine where the plaintiff alleges the same claims and raises the same issues which were stricken and/or not permitted by way of amended pleadings in a prior pending action between the parties. Beaudoin v. Town Oil Co., 207 Conn. 575 (1988); Sandvig v. A. Debreuil & Sons, Inc. 53 Conn. App. 466 (1999) cert. denied 250 Conn. 920 (1999). In Beaudoin v. Town Oil Co., 207 Conn. 575 (1988), the Connecticut Supreme Court affirmed the trial court’s dismissal of the plaintiff's claims against the defendant under the prior pending action doctrine, because the plaintiff was attempting to litigate the same claims she had alleged against the defendant in a prior pending separate action in which such claims had been stricken, and because that decision was the subject of a separate pending appeal. In Beaudoin, a residential home-seller was sued by the purchasers of her prior home on claims that she, in connection with the sale, made false statements relating to the foam insulation within the home (the original action). In the original action, the seller impleaded the contractor who installed the foam insulation through a third-party complaint in which the seller alleged the insulation was a defective product and claimed the contractor was liable to indemnify the seller if found liable to 16 SL/235555/0002/1496248v1 04/26/18-HRT/SL the purchaser. The contractor successfully moved to strike the third-party complaint because the seller’s defective product allegations against the contractor could not support a claim that the contractor would be liable to indemnify the seller if the seller was found liable to the purchasers for their alleged misrepresentation claim against the seller. Id., at 577-578. The seller moved for permission to amend the third-party complaint. Id., at 578. The court denied this motion and mtered judgment for the contractor. Id., at578. The seller appealed the decision in the original action which struck the third-party complaint and denied the motion to amend. Id. In a separate, subsequent action (the second action), the seller, as plaintiff, sued the contractor as defendant, again alleging claims that the seller had a right to be indemnified by the contractor if found liable to the purchasers in the original action for misrepresentation. In the second action, the contractor moved to strike the action arguing, inter alia, that the seller was collaterally estopped from claiming the contractor was liable to indemnify the seller. Id., at 581. The court granted the motion, judgment entered for the contractor, and the seller appealed that decision in the second action. On the appeal in the second action, the Connecticut Supreme Court affirmed the trial court’s judgment, holding that the trial court’s decision to dismiss the second action was a proper application of the prior pending action doctrine (rather than collateral estoppel). The Supreme Court reasoned that the indemnification claim alleged by seller in the second action was virtually alike to the seller’s indemnification claim which was stricken by the court in the original action, and which was the subject of a pending appeal in the original action. Id., 586-88. The Supreme Court acknowledged that although the seller’s third party complaint in the original action and complaint in the second action did not contain verbatim allegations, both pleadings “request[ed] the same relief on the same underlying facts. The only difference [was] the precise wording of 17 SL/235555/0002/1496248v1 04/26/18-HRT/SL the theories of liability under which the [contractor] would be liable to the [seller] for her own potential liability in the action by the [purchasers].” Id., 587. The Supreme Court concluded that the claims alleged by the seller in the second action were “merely different ways to characterize how the [contractor’s] actions resulted in liability to the [seller]” and that all the issues raised by the seller’s complaint in the second action were raised in the third-party complaint which was stricken in the original action. Id., at 588. In holding that the trial court’s dismissal of the second action was proper under the prior pending action doctrine, because the seller was pursuing the same indemnification claims which had been stricken in the original action, the Connecticut Supreme Court stated: The policy behind the “prior pending action doctrine” is to prevent unnecessary litigation that places a burden on our state's already crowded court dockets. We have described the policy behind the impleader statute, General Statutes § 52-102a, in a similar fashion: The purpose of § 52-102a, like that of [Federal] Rule 14 (a), is clearly to obviate the multiplicity of actions. This court has also noted: The object of the [impleader] rule was to facilitate litigation, to save costs, to bring all of the litigants into one proceeding, and to dispose of an entire matter without the expense of many suits and many trials. If litigants ignore the benefits of the impleader statute and courts refuse to encourage its use, the goal of efficient administration of justice will be injured. Parties cannot _be permitted to waste the time of courts by the repetition in new pleadings of claims which have been set up on the record and overruled at an earlier stage of the proceedings. Id., at 588-89 (Internal citations omitted; internal quotation marks omitted) (emphasis supplied). Furthermore, the Court rebuked the seller’s attempt to obtain a “judicial shortcut” by bringing the second action instead of waiting for conclusion of her appeal in the original action. The Court noted that such a practice, if permitted by the Court, would send an ‘unfortunate message’ to our state’s litigants such that “[a]ny party that lost a motion in the trial court would be tempted and encouraged to file separate lawsuits on the same legal theory rather 18 SL/235555/0002/1496248v1 04/26/18-HRT/SL than to wait for the orderly process of appeal.” Id., at 590. The Supreme Court specifically noted that the seller had already preserved for appeal the decision striking the third-party complaint in the original action; Id., at 588; thereby protecting her rights to pursue indemnification claims against the contractor, if any. Id., at 589-90. The Supreme Court concluded that “all the policy reasons for the prior pending action doctrine appl[ied] in the] case...” Id., at 590. Similarly, Sandvig v. A. Debreuil & Sons, Inc. 53 Conn. App. 466 (1999) cert. denied 250 Conn. 920 (1999), the Connecticut Appellate Court affirmed the trial court’s dismissal of an action under the prior pending action doctrine because the second action alleged claims which the trial court in a separate pending action refused to allow the plaintiff to plead by way of an amended pleading. In Sandvig, the plaintiffs filed a first action (first action) in which they alleged negligence in connection with a slip and fall incident. Id., at 467. In the first action, the trial court denied the plaintiffs’ request for leave to amend their complaint to add claims for breach of contract and res ipsa loquitor against the defendant, and the plaintiffs appealed the decision denying them leave to amend. Thereafter, the plaintiffs filed a second action against the defendant, alleging the same breach of contract claim which the trial court in the first action refused to allow through amendment to the plaintiffs’ complaint. Id., at 468. In the second action, the defendant moved to dismiss the action relying on the prior pending action doctrine because the plaintiffs’ claims in that action were essentially the same as “those that the trial court had denied them leave to add to the prior pending negligence action.” Id., at 468. The trial court granted that motion and the plaintiffs appealed. Id., at 468. On appeal in the second action, the Appellate Court affirmed, holding that trial court properly applied the prior pending action doctrine in dismissing the second action. Id., at 469. 19 SL/235555/0002/1496248v1 04/26/18-HRT/SL Relying on Beaudoin, supra, the Court reasoned that in the two actions the plaintiffs requested the same relief based on the same underlying facts, and that the pleadings in both action were virtually identical, specifically, the breach of contract claim alleged in the second action which the court in the first action refused to allow by way of an amended complaint. Id.; See also Ackerman v. Sobol, CV 054013285, 2006 Conn. Super. LEXIS 1403 *4-15 (J.D. of Hartford, May 11, 2006) (dismissing a second action pursuant to the prior pending action doctrine because the claims alleged were the same as revised and amended complaints which were rejected and/or stricken by the trial court in a prior pending action between the plaintiff and defendants, reasoning that the plaintiff “cannot now revive these claims by bringing another suit; doing so subverts the goal of maintaining orderly, efficient and consistent judicial processes that underlie the prior pending action doctrine.” (emphasis supplied).) 2. The Instant Action Should Be Dismissed Because the Claims, Issues and Relief Sought by the Barbaras in the Instant Action Are The Same As the Claims Alleged, Issues Raised and Relief Sought By the Barbaras In the Indemnity Action. The facts alleged by the Barbaras in the Barbara Complaint in the Instant A ction are the same facts underlying the stricken defenses and the claims in the Counterclaim which Barbaras raised in their pleadings in the Indemnity Lawsuit. The crux of the allegations made and relief requested in the Barbara Complaint and in the Counterclaim filed with the Barbaras’ Request to Amend in the Indemnity Lawsuit, are virtually alike. See Ex.’s 2, 3. As noted above, in the Indemnity Lawsuit the Barbaras raised claims that: Colonial breached the Indemnity A greement because it filed an answer to Gotham’s claim against Colonial instead of moving for a pre- answer dismissal against Gotham based on the terms and conditions of the Performance Bond, thereafter conducted discovery in the Gotham Lawsuit, incurred costs and expenses to defend itself in the Gotham Lawsuit which were not “necessary or advisable”, and eventually settled the 20 SL/235555/0002/1496248v1 04/26/18-HRT/SL Gotham Lawsuit instead of pursuing summary judgment; acted in bad faith because Colonial “chose” to stay in the Gotham Lawsuit because it improperly desired a business relationship with Gotham and settled the Gotham Lawsuit and released the affirmative claims asserted by Phoenix as part ofa “back door” deal for “future business” between Colonial and Gotham; and that Phoenix would have won a judgment against Gotham in the Gotham Lawsuit on the affirmative claims it asserted, which Colonial released on behalf of Phoenix as part of the settlement of that action, and that the Colonial should be held liable to the Barbaras for the amount Phoenix would have recovered from Gotham if Colonial had not settled the Gotham Lawsuit. See Ex. 2- Counterclaim. The Barbaras make the same claims in the Instant Action. See Ex. 3-Barbara Complaint, Ex. 3. Moreover, in the Indemnity Lawsuit the relief requested by the Barbaras on the Counterclaim was a declaration that the Indemnity A greement and Gotham Bonds are void, and, a judgment against Colonial for money damages against Colonial for breach of the Indemnity Agreement and Performance Bond, and any other relief deemed “just proper and equitable.” See. Ex. 2, p.5-7. The Barbaras request the same relief in the Instant Action. See Ex. 3, p. 6-9. As such, the claims and issues raised, and relief sought by the Barbaras in the Instant A ction and in the Indemnity Lawsuit arise from the same factual background, include the same parties, and seek the same goals or objectives, rendering the Instant Action properly subject to dismissal under the prior pending action doctrine. The Instant A ction is further subject to dismissal because it has been pursued by the Barbaras as a means to evade, undermine and collaterally attack the court’s orders in the Indemnity Lawsuit whic