Motion to Strike in Connecticut

What Is a Motion to Strike?

Background

The function of a motion to strike is to test the legal sufficiency of a pleading; it admits all facts well pleaded. (See Practice Book § 152.) The role of the trial court [is] to examine the complaints, construed in favor of the plaintiffs, to determine whether the plaintiffs have stated a legally sufficient cause of action. (See Sheets v. Teddy's Frosted Foods, Inc. (1980) 179 Conn. 471, 472.)

The governing legal principles on motions to strike are very well established. “[A]fter a court has granted a motion to strike, [a party] may either amend his pleading [pursuant to Practice Book § 10-44] or, on the rendering of judgment, file an appeal.... The choices are mutually exclusive [as the] filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike ] the original pleading....” (Lund v. Milford Hosp., Inc., SC 19834, at *3-4 [Conn. App. Ct. Sep. 26, 2017] citing Ed Lally & Associates, Inc. v. DSBNC, LLC (2013) 145 Conn. App. 718, 745-46; see also Royce v. Westport (1981) 183 Conn. 177, 178-79; Caltabiano v. L & L Real Estate Holdings II, LLC (2011) 128 Conn. App. 84, 90; Wilson v. Hryniewicz (1995) 38 Conn. App. 715, 719.)

“Stated another way: When an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment, and previous rulings on the original pleading cannot be made the subject of appeal.” (Lund, supra, id.)

General Information for Complaints and Motions

Importantly, “under [Connecticut] rules of practice, the filing of a responsive pleading waives the right to file a motion to strike. (American Progressive Life & Health Insurance Co. of New York v. Better Benefits, LLC (2009) 292 Conn. 111, 120 [holding that “by filing its answer to the counterclaim, the plaintiff waived its right to test the legal sufficiency of that pleading by way of a motion to strike.”]; Practice Book §§ 10-6 and 10-7; see, e.g., Daley v. Gaitor (1988) 16 Conn. App. 379, 389.)

Motion to Strike and Non-Joinder

Practice Book § 10-39 (b) provides in relevant part:

“A motion to strike on the ground of nonjoinder of a necessary party ... must give the name and residence of the missing party or interested person or such information as the moving party has as to the identity and residence of the missing party or interested person and must state the missing party's or interested person's interest in the cause of action."

(Bloom v. Miklovich (2008) 111 Conn. App. 323, 332 n.6 [“The defendants satisfied these requirements in its motion to strike.”])

Further, “[n]aming an improper person as a party in a legal action constitutes misjoinder..... The exclusive remedy for misjoinder of parties is by motion to strike.” (Bloom v. Miklovich (2008) 111 Conn. App. 323, 329 quoting Zanoni v. Hudson (1996) 42 Conn. App. 70, 73.)

Standard of Review and Burdens of Proof

There is “a well established standard of review in an appeal from the granting of a motion to strike. ‘Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling ... is plenary.... [The reviewing court] take[s] the facts to be those alleged in the [pleading] that has been stricken and construes the [pleading] in the manner most favorable to sustaining its legal sufficiency....’” (R.S. Silver Enters., Inc. v. Pascarella (2014) 86 A.3d 471, 474 quoting Violano v. Fernandez (2006) 280 Conn. 310, 317–18.)

The Court’s Decision

“If facts provable in the [pleading ] would support a [special defense], the motion to strike must be denied.... Moreover, ... [w]hat is necessarily implied [in an allegation] need not be expressly alleged.... It is fundamental that in determining the sufficiency of a [pleading ] challenged by a ... motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Id.)

“In Sheiman v. Sheiman, [72 Conn. App. 193, 804 A.2d 983 (2002)] the defendant father filed a motion to strike the plaintiff's postjudgment motion to modify custody. [The Appellate Court] agreed with the trial court that “a motion to strike does not apply to a motion to modify custody.” (Zirinsky v. Zirinsky (2005) 87 Conn. App. 257, 269-70 quoting and citing id., at 200.) The Court of Appeals elaborated by stating that “Practice Book § 10-39 (a) provides that a party wanting to contest the legal sufficiency of a complaint, counterclaim, cross claim or any counts contained therein or a prayer for relief, the joining of two or more causes of action or the legal sufficiency of an answer may file a motion to strike. A motion for modification of custody does not fall within the ambit of Practice Book § 10-39.” (Zirinsky v. Zirinsky (2005) 87 Conn. App. 257, 269-70 quoting and citing Sheiman v. Sheiman, supra, at 200.)

Documents for Motion to Strike in Connecticut

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MCCURRY, ALEXANDER Et Al v. KIMMEL, ESQ, EUGENE M, EXECUTOR OF ESTATE OF JANET Et Al document preview

OBJECTION TO REQUEST TO REVISE

8 pages

AAN-CV-24-6054502-S : SUPERIOR COURT ALEXANDER MCCURRY, ET AL : J.D. OF ANSONIA-MILFORD VS. : AT MILFORD EUGENE M. KIMMELL, EXECUTOR OF ESTATE OF JANET MOULTIS : MAY 10 , 2024 OBJECTION TO REQUEST TO REVISE I. PORTION OF PLEADING TO BE REVISED Paragraph 6 of the First Count, wh…

Case Name MCCURRY, ALEXANDER Et Al v. KIMMEL, ESQ, EUGENE M, EXECUTOR OF ESTATE OF J…