Preview
DOCKET NO. – NNH-CV22-6123753-S : SUPERIOR COURT
:
NEAL LUSTIG : J.D. OF NEW HAVEN AT
: NEW HAVEN
VS. :
:
POMPERAUG DISTRICT DEPARTMENT OF :
HEALTH; HOUSATONIC VALLEY HEALTH :
DISTRICT;TOWN OF SOUTHBURY; TOWN OF :
OXFORD; TOWN OF WOODBURY; TOWN OF :
WASHINGTON; TOWN OF NEW MILFORD; :
And LISA MORRISSEY : SEPTEMBER 25, 2023
PLAINTIFF’S MOTION FOR RECONSIDERATION TO STAY DISCOVERY
AND PRETRIAL PROCESSES PENDING RESOLUTION
OF CRIMINAL MATTER DKT. #123.00.
By motion dated May 22, 2023, the Plaintiff moved to stay discovery and pretrial
proceedings pending the resolution of his criminal matter which is directly related to the claims
made in the complaint and counterclaim of the current proceeding (See Dkt. # 123.00). The
Defendants filed objections to the motion in a timely manner and the court issued its order
denying the motion and sustaining the objections on September 5, 2023. (Dkt. # 131.10).
While the motion and objections were pending, the Plaintiff did not engage in discovery
nor additional pretrial advocacy or pleading practice as he awaited the outcome of the motion,
and any such discovery or pretrial processing would have run counter to the relief which the
Plaintiff was seeking by his motion, and possibly been deemed a waiver of the motion and relief
sought.
As set forth in the attached affidavit (Ex. A), the Plaintiff did not file his motion in order
to delay the matter. Rather the Plaintiff’s counsel sought to delay filing the motion in the hopes
that the underlying criminal matter would be resolved expeditiously and the civil matter could
then proceed according to the “proposed” scheduling order that was filed but never issued by the
1
court on September 26, 2022 (Dkt. # 105.00) 1. By that Proposed Order, the parties had agreed to
exchange discovery by May 31, 2023 with responses due by July 31, 2023. The Plaintiff filed his
Motion for Stay on May 22.
As of this date, the pleadings have not been closed, again as a result of the Plaintiff’s
motion to stay pretrial processes. The Plaintiff filed his Request to Revise the Defendants’
PDDH and HVHD counterclaim on February 14, 2023 (Dkt. # 119.00) and that motion was
granted in part following a motion for reconsideration on April 11, 2023 (Dkt. # 121.10). The
Defendants still have not revised their counterclaim, but no additional motions were filed relative
to the revision while the Motion for Stay was pending – again to remain consistent with the
motion and the relief sought.
Upon closure of the pleadings, the Plaintiff is likely to claim the matter for a jury trial.
By denying the Plaintiff’s Motion to Stay Discovery, the Court has effectively denied the
Plaintiff the opportunity to obtain evidence from the Defendant HVHD and PDDH relative to its
counterclaim against the Plaintiff. The Plaintiff had a good-faith reason to seek to stay the
proceedings of this matter in order to avoid jeopardizing his criminal defense and ensuring his
Constitutional rights to avoid self-incrimination in the connected criminal matter that shares the
same underlying facts as this civil matter.
The Plaintiff has been neither neglectful nor casual in his pursuit of his case in this
matter, but rather has sought to protect his interests in both this case and the criminal case while
seeking timely court intervention to resolve a clear Constitutional issue which he faced. The
court properly took its time to consider the motion and objections for stay and its decision was
1According to the Docket Sheet, the Scheduling Order found at #105.00 is titled as a “Proposed Order” and there is
no subsequent order or agreement from the court issuing the Order as an Order of the Court. As of this filing, no
Scheduling Order has been approved by the Court although the matter has been scheduled for trial on December 28,
2023.
2
issued more than ninety days after the motion for stay was filed. Respectfully, the Plaintiff has
no quarrel with court’s intentional deliberation relative to the motion but he believes that he is
now facing a penalty with respect to discovery because he sought to have a legitimate
Constitutional concern resolved by the court before the expiration of the “proposed” deadlines to
filing and completing discovery.
The plaintiff has no interest in delaying the trial of this matter beyond an additional
ninety days so that he may be able to obtain the discovery he requires to properly defend the
counterclaim brought by the Defendants HVHD and PDDH. The Plaintiff does not require any
discovery with respect to the other municipal defendants as they have not pursued a counterclaim
and he has gathered all evidence necessary relative to his claims against the municipal
defendants.
Inasmuch as the health department Defendants still have not revised their counterclaim
the Plaintiff has never been in a position to properly formulate his discovery requests because
until the counterclaim is revised, he does not have a full understanding of the contours of that
counterclaim.
The Plaintiff also respectfully asks the court to consider that this matter has a return date
of June 28, 2022 and remains a relatively young case in this venue. Providing the parties with
ninety days to complete discovery would not cause any prejudice to any of the parties nor to the
proper functioning of the court. The likelihood of a trial proceeding during the week between
Christmas and New Year’s also is remote based on Plaintiff’s counsel’s knowledge of the history
of the judicial system.
“Connecticut law repeatedly has expressed a policy preference to bring about a trial on
the merits of a dispute whenever possible and to secure for the litigant his or her day in court....”
3
R.C. Equity Group, LLC v. Zoning Comm'n of Bourough of Newtown, 285 Conn. 240, 272
(2008).
The effect of the court’s denial of the motion to stay, coupled with the court’s subsequent
denial of the Plaintiff’s motion to revise the scheduling order (Dkt. # 134.10), is to sanction the
Plaintiff by eliminating the opportunity to discover and understand the contours of the Defendant
health departments’ counterclaims.
“In order for a trial court's order of sanctions for violation of a discovery order to
withstand scrutiny, three requirements must be met. First, the order to be complied with must be
reasonably clear.... This requirement poses a legal question that we will review de novo. Second,
the record must establish that the order was in fact violated. This requirement poses a question of
fact that we will review using a clearly erroneous standard of review. Third, the sanction
imposed must be proportional to the violation. This requirement poses a question of the
discretion of the trial court that we will review for abuse of that discretion.” Usowski v.
Jacobson, 267 Conn. 73, 85 (2003).
While the Court has not issued an order of sanctions in this matter, the effect of its denial
of the motion to stay and its subsequent denial of the motion to modify the scheduling order has
resulted in a sanction prohibiting discovery even though the Plaintiff has acted in good faith and
is not at fault for the delays in conducting discovery.
With respect to the test, while it is true that the Plaintiff was proceeding as if the
“proposed” scheduling order were in place, it is also true that the scheduling order was never
issued by the court, and it is therefore questionable whether the scheduling order was reasonably
clear. Indeed, Plaintiff’s counsel had not calendared the proposed order in his internal
calendaring system as he was awaiting an order of the court to do so. He was reacquainted with
4
the “proposed” scheduling order when the defendants filed a motion to modify the order on May
11, 2023 (Dkt. # 122) and that motion was granted the following day. (Dkt. #122.10). The
underlying motion for stay followed ten days later. (See Ex. A – Counsel’s affidavit).
Because of the aforementioned effects of the Court’s denials of the motion for stay and
the motion for modification, this motion for reconsideration and reargument should be
considered in light of the caselaw involving discovery sanctions.
“[T]he primary purpose of a sanction for violation of a discovery order is to ensure that
the defendant's rights are protected, not to exact punishment on the [plaintiff] for its allegedly
improper conduct.” Usowski v. Jacobson, 267 Conn. 73, 85 (2003). Here the Plaintiff did not act
improperly. He filed a timely motion to seek to preserve his rights without jeopardizing his
criminal defense and he awaited the court’s decision. Once that decision was made, it could not
have been the intent of the court to punish the Plaintiff for improper conduct because there is no
record that he proceeded improperly, nor is there a record that his motions were filed in bad-faith
or to delay the court’s proceedings.
Indeed, aware of the court’s intention to move this matter to trial expeditiously, the
Plaintiff proposed a modified scheduling order that would only result in a delay of trial equal to
the time it took for the court to render a decision on the motion for stay.
The Plaintiff is not seeking to delay the trial nor to prejudice the defendants in this
matter. He is simply seeking a fair opportunity to maintain his defense in the related criminal
matter while also pursuing his contractual claim and defending the counterclaims against him.
He requires discovery to do so and therefore seeks leave from this court to allow discovery to
proceed expeditiously in order to get to trial expeditiously.
5
Wherefore, based on the foregoing, the Plaintiff requests that discovery in the matter be
stayed through the entry of the court’s order denying the stay and that the Plaintiff be given 90
days from that date through and including December 5, 2023 to conclude discovery.
THE PLAINTIFF,
NEAL LUSTIG
/s/ 408630
By: Eric R. Brown, Esq.
His Counsel
Law Office of Attorney Eric R. Brown
P.O. Box 615
Watertown, CT 06795
888-579-4222
eric@thelaborlawyer.com
Juris 436049
6
CERTIFICATION
I certify that a copy of this document was or will immediately be mailed or delivered
electronically or non-electronically on 9/25/23 to all attorneys and self-represented parties of
record and to all parties who have not appeared in this matter and that written consent for
electronic delivery was received from all attorneys and self-represented parties receiving
electronic delivery.
___/s/ 408630_______________________
Eric R. Brown, Esq.
Anthony R. Minchella, Esq. Graham Moller
Minchella & Associates, LLC Cramer & Anderson, LLP
984 Southford Road, Suite 14 51 Main Street
Middlebury, CT 06762 New Milford, CT 06776
eservice@minchellalaw.com gmoller@crameranderson.com
Thomas A. Kaelin, Esq.
Slavin Stauffacher & Scott LLC
P.O. Box 9
Watertown, CT 06795
tkaelin@kaelinlaw.com
Kevin W. Condon, Esq.
Condon & Savitt
223 Wakelee Avenue
P.O. Box 570
Ansonia, CT 06401
condonsavitt@comcast.net
Attorney Thomas Anthony Kaelin
Slavin, Stauffacher & Scott, LLC
P.O. Box 9
Watertown, CT 06795
tkaelin@kaelinlaw.com
7
EXHIBIT A
AFFIDAVIT OF COUNSEL
Preview
DOCKET NO. – NNH-CV22-6123753-S : SUPERIOR COURT : NEAL LUSTIG : J.D. OF NEW HAVEN AT : NEW HAVEN VS. : : POMPERAUG DISTRICT DEPARTMENT OF : HEALTH; HOUSATONIC VALLEY HEALTH : DISTRICT;TOWN OF SOUTHBURY; TOWN OF : OXFORD; TOWN OF WOODBURY; TOWN OF : WASHINGTON; TOWN OF NEW MILFORD; : And LISA MORRISSEY : SEPTEMBER 25, 2023 PLAINTIFF’S MOTION FOR RECONSIDERATION TO STAY DISCOVERY AND PRETRIAL PROCESSES PENDING RESOLUTION OF CRIMINAL MATTER DKT. #123.00. By motion dated May 22, 2023, the Plaintiff moved to stay discovery and pretrial proceedings pending the resolution of his criminal matter which is directly related to the claims made in the complaint and counterclaim of the current proceeding (See Dkt. # 123.00). The Defendants filed objections to the motion in a timely manner and the court issued its order denying the motion and sustaining the objections on September 5, 2023. (Dkt. # 131.10). While the motion and objections were pending, the Plaintiff did not engage in discovery nor additional pretrial advocacy or pleading practice as he awaited the outcome of the motion, and any such discovery or pretrial processing would have run counter to the relief which the Plaintiff was seeking by his motion, and possibly been deemed a waiver of the motion and relief sought. As set forth in the attached affidavit (Ex. A), the Plaintiff did not file his motion in order to delay the matter. Rather the Plaintiff’s counsel sought to delay filing the motion in the hopes that the underlying criminal matter would be resolved expeditiously and the civil matter could then proceed according to the “proposed” scheduling order that was filed but never issued by the 1 court on September 26, 2022 (Dkt. # 105.00) 1. By that Proposed Order, the parties had agreed to exchange discovery by May 31, 2023 with responses due by July 31, 2023. The Plaintiff filed his Motion for Stay on May 22. As of this date, the pleadings have not been closed, again as a result of the Plaintiff’s motion to stay pretrial processes. The Plaintiff filed his Request to Revise the Defendants’ PDDH and HVHD counterclaim on February 14, 2023 (Dkt. # 119.00) and that motion was granted in part following a motion for reconsideration on April 11, 2023 (Dkt. # 121.10). The Defendants still have not revised their counterclaim, but no additional motions were filed relative to the revision while the Motion for Stay was pending – again to remain consistent with the motion and the relief sought. Upon closure of the pleadings, the Plaintiff is likely to claim the matter for a jury trial. By denying the Plaintiff’s Motion to Stay Discovery, the Court has effectively denied the Plaintiff the opportunity to obtain evidence from the Defendant HVHD and PDDH relative to its counterclaim against the Plaintiff. The Plaintiff had a good-faith reason to seek to stay the proceedings of this matter in order to avoid jeopardizing his criminal defense and ensuring his Constitutional rights to avoid self-incrimination in the connected criminal matter that shares the same underlying facts as this civil matter. The Plaintiff has been neither neglectful nor casual in his pursuit of his case in this matter, but rather has sought to protect his interests in both this case and the criminal case while seeking timely court intervention to resolve a clear Constitutional issue which he faced. The court properly took its time to consider the motion and objections for stay and its decision was 1According to the Docket Sheet, the Scheduling Order found at #105.00 is titled as a “Proposed Order” and there is no subsequent order or agreement from the court issuing the Order as an Order of the Court. As of this filing, no Scheduling Order has been approved by the Court although the matter has been scheduled for trial on December 28, 2023. 2 issued more than ninety days after the motion for stay was filed. Respectfully, the Plaintiff has no quarrel with court’s intentional deliberation relative to the motion but he believes that he is now facing a penalty with respect to discovery because he sought to have a legitimate Constitutional concern resolved by the court before the expiration of the “proposed” deadlines to filing and completing discovery. The plaintiff has no interest in delaying the trial of this matter beyond an additional ninety days so that he may be able to obtain the discovery he requires to properly defend the counterclaim brought by the Defendants HVHD and PDDH. The Plaintiff does not require any discovery with respect to the other municipal defendants as they have not pursued a counterclaim and he has gathered all evidence necessary relative to his claims against the municipal defendants. Inasmuch as the health department Defendants still have not revised their counterclaim the Plaintiff has never been in a position to properly formulate his discovery requests because until the counterclaim is revised, he does not have a full understanding of the contours of that counterclaim. The Plaintiff also respectfully asks the court to consider that this matter has a return date of June 28, 2022 and remains a relatively young case in this venue. Providing the parties with ninety days to complete discovery would not cause any prejudice to any of the parties nor to the proper functioning of the court. The likelihood of a trial proceeding during the week between Christmas and New Year’s also is remote based on Plaintiff’s counsel’s knowledge of the history of the judicial system. “Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court....” 3 R.C. Equity Group, LLC v. Zoning Comm'n of Bourough of Newtown, 285 Conn. 240, 272 (2008). The effect of the court’s denial of the motion to stay, coupled with the court’s subsequent denial of the Plaintiff’s motion to revise the scheduling order (Dkt. # 134.10), is to sanction the Plaintiff by eliminating the opportunity to discover and understand the contours of the Defendant health departments’ counterclaims. “In order for a trial court's order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear.... This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.” Usowski v. Jacobson, 267 Conn. 73, 85 (2003). While the Court has not issued an order of sanctions in this matter, the effect of its denial of the motion to stay and its subsequent denial of the motion to modify the scheduling order has resulted in a sanction prohibiting discovery even though the Plaintiff has acted in good faith and is not at fault for the delays in conducting discovery. With respect to the test, while it is true that the Plaintiff was proceeding as if the “proposed” scheduling order were in place, it is also true that the scheduling order was never issued by the court, and it is therefore questionable whether the scheduling order was reasonably clear. Indeed, Plaintiff’s counsel had not calendared the proposed order in his internal calendaring system as he was awaiting an order of the court to do so. He was reacquainted with 4 the “proposed” scheduling order when the defendants filed a motion to modify the order on May 11, 2023 (Dkt. # 122) and that motion was granted the following day. (Dkt. #122.10). The underlying motion for stay followed ten days later. (See Ex. A – Counsel’s affidavit). Because of the aforementioned effects of the Court’s denials of the motion for stay and the motion for modification, this motion for reconsideration and reargument should be considered in light of the caselaw involving discovery sanctions. “[T]he primary purpose of a sanction for violation of a discovery order is to ensure that the defendant's rights are protected, not to exact punishment on the [plaintiff] for its allegedly improper conduct.” Usowski v. Jacobson, 267 Conn. 73, 85 (2003). Here the Plaintiff did not act improperly. He filed a timely motion to seek to preserve his rights without jeopardizing his criminal defense and he awaited the court’s decision. Once that decision was made, it could not have been the intent of the court to punish the Plaintiff for improper conduct because there is no record that he proceeded improperly, nor is there a record that his motions were filed in bad-faith or to delay the court’s proceedings. Indeed, aware of the court’s intention to move this matter to trial expeditiously, the Plaintiff proposed a modified scheduling order that would only result in a delay of trial equal to the time it took for the court to render a decision on the motion for stay. The Plaintiff is not seeking to delay the trial nor to prejudice the defendants in this matter. He is simply seeking a fair opportunity to maintain his defense in the related criminal matter while also pursuing his contractual claim and defending the counterclaims against him. He requires discovery to do so and therefore seeks leave from this court to allow discovery to proceed expeditiously in order to get to trial expeditiously. 5 Wherefore, based on the foregoing, the Plaintiff requests that discovery in the matter be stayed through the entry of the court’s order denying the stay and that the Plaintiff be given 90 days from that date through and including December 5, 2023 to conclude discovery. THE PLAINTIFF, NEAL LUSTIG /s/ 408630 By: Eric R. Brown, Esq. His Counsel Law Office of Attorney Eric R. Brown P.O. Box 615 Watertown, CT 06795 888-579-4222 eric@thelaborlawyer.com Juris 436049 6 CERTIFICATION I certify that a copy of this document was or will immediately be mailed or delivered electronically or non-electronically on 9/25/23 to all attorneys and self-represented parties of record and to all parties who have not appeared in this matter and that written consent for electronic delivery was received from all attorneys and self-represented parties receiving electronic delivery. ___/s/ 408630_______________________ Eric R. Brown, Esq. Anthony R. Minchella, Esq. Graham Moller Minchella & Associates, LLC Cramer & Anderson, LLP 984 Southford Road, Suite 14 51 Main Street Middlebury, CT 06762 New Milford, CT 06776 eservice@minchellalaw.com gmoller@crameranderson.com Thomas A. Kaelin, Esq. Slavin Stauffacher & Scott LLC P.O. Box 9 Watertown, CT 06795 tkaelin@kaelinlaw.com Kevin W. Condon, Esq. Condon & Savitt 223 Wakelee Avenue P.O. Box 570 Ansonia, CT 06401 condonsavitt@comcast.net Attorney Thomas Anthony Kaelin Slavin, Stauffacher & Scott, LLC P.O. Box 9 Watertown, CT 06795 tkaelin@kaelinlaw.com 7 EXHIBIT A AFFIDAVIT OF COUNSEL