Arciuolo v. Tomtec, Inc., CV166066564S

Thomas Arciuolo v. Tomtec, Inc. et al.

No. CV166066564S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

January 19, 2018

UNPUBLISHED OPINION

Caption Date: January 18, 2018

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wahla, M. Nawaz, J.

MEMORANDUM OF DECISION IN RE MOTION FOR SUMMARY JUDGMENT #110

Wahla J.

ISSUE

The issues presented to the court are, in light of the statutory requirements for filing an action, state and federal statutes of limitations, and the nature of the employment agreement between the defendants and the plaintiffs, whether the claims of the complaint in the present case should be dismissed or whether summary judgment should be entered in favor of the defendant. As each count alleged in the complaint fails for one of the reasons set forth below, the motions to dismiss and for summary judgment is granted as to all counts.

FACTS

On March 27, 2017, the plaintiffs in the present action, Thomas Arciulo, William J. Harris, George F. Mancini, and Howard Tomlin filed a revised complaint (complaint) against the defendants, Tomtec, Inc. (Tomtec) and Thomas W. Astle. The complaint alleges the plaintiffs were terminated from employment by the defendants on November 29, 2012, in retaliation against the plaintiffs and in violation of existing employment contracts between the plaintiffs and the defendants. The complaint includes counts of breach of contract, promissory estoppel, the maintenance of a hostile work environment in violation of General Statutes § 46a-60 (Connecticut Fair Employment Practices Act, or CFEPA) ^[1] intentional infliction of emotional distress, and wrongful discharge in violation of General Statutes § 31-51q.^[2] Additional facts will be provided as necessary.

On May 5, 2017, the defendants filed an answer denying the core features of the plaintiffs’ complaint and issued a series of special defenses, alleging that a variety of statutes of limitations bar each of the claims, that the employment agreements between the plaintiffs and the defendants were at-will, that equitable estoppel should apply to the plaintiffs’ claims, and that the plaintiffs failed to mitigate their damages. On June 28, 2017, the plaintiffs filed a reply generally denying the defendants’ special defenses. On July 7, 2017, the defendants filed a motion to dismiss and for summary judgment, followed by a memorandum of law in support on July 10, 2017, arguing that the plaintiff’s claims are time barred by several statutes of limitations and that there is no genuine issue of material fact that the employment agreements between the plaintiffs and the defendants were oral and at-will, and, therefore, that the defendants could not have violated any duty in terminating the plaintiffs. On October 2, 2017, the plaintiffs filed an objection to the defendants’ motion, arguing, in part, that federal tolling provisions save their claims and that there exists a genuine issue of material fact as to the written and at-will nature of the employment agreements. The defendants filed a memorandum in reply to the plaintiffs’ objection on October 13, 2017, arguing the objection is untimely, that the plaintiffs’ failure to plead reliance on tolling provisions bars their argument now, that the plaintiffs’ interpretation of the federal tolling provision is untenable, and reiterating that there is no genuine issue of material fact as to the oral and at-will nature of the employment agreement. Oral argument on the defendants’ motion was heard on October 16, 2017.

DISCUSSION

I. Preliminary Matters in Considering the Plaintiffs’ Objection

In their reply brief to the plaintiffs’ objection, the defendants argue that the objection should not be considered by the court because it was untimely filed. Practice Book § 17-45(b) provides, in relevant part, that " any adverse party shall file and serve a response to the motion for summary judgment within forty-five days of the filing of the motion, including opposing affidavits and other available documentary evidence." The present motion was filed on July 7, 2017. On August 18, 2017, the plaintiffs requested an extension of the filing period until September 25, 2017. The defendants did not object to the motion, and the motion was not ruled on by the court. The defendants reclaimed their motion for summary judgment on October 3, 2017, and the plaintiffs filed their objection to the motion on October 13, 2017. Oral argument was heard on the motion on October 16, 2017. This record shows the plaintiffs’ objection was not submitted in compliance with the requirements of Practice Book § 17-45 and, therefore, the court is empowered to reject the objection and grant the defendants’ motion for summary judgment. The court, however, may exercise discretion in the application of § 17-45; Martinez v. Zovich, 87 Conn.App. 766, 770 n.3, 867 A.2d 149 (2005). Because the objection was submitted shortly after the defendants reclaimed their motion, hence, the court sees no particular prejudice worked by the plaintiffs’ late submission and will address the merits of the arguments.

As to the defendants’ contention that the plaintiffs’ failure to properly plead reliance on tolling provisions must lead to summary judgment in the defendants’ favor, the court is unpersuaded. The defendants rely on Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 689-91, 974 A.2d 764 (2009), for the proposition that a trial court must rule against a plaintiff who has failed to specifically plead the applicability of a tolling of a statute when the defendant has pleaded a statute of limitations special defense and has raised a timely objection to the plaintiff’s failure to so plead.

Our Supreme Court has found that reading too narrow. " Beckenstein Enterprises-Prestige Park, LLC, does not ... stand for the proposition that the pleading requirements are so rigid as to require that potentially meritorious claims in avoidance of the statute of limitations be categorically barred in all cases because of pleading lapses. Beyond the trial courts’ discretion to overlook violations of the rules of practice in the absence of a timely objection from the opposing party ... it may be just to reach the merits of a plaintiff’s claim to a toll of the statute of limitations, even when not properly pleaded pursuant to Practice Book § 10-57, if the issue is otherwise put before the trial court and no party is prejudiced by the lapse in pleading." (Citation omitted.) Flannery v. Singer Asset Finance Co., 312 Conn. 286, 301, 94 A.3d 553 (2014). " In the statute of limitations context in particular, the Appellate Court has deemed nonjurisdictional statute of limitations defenses to be waived only when the record demonstrates that a party has been prejudicially confused by its adversary’s failure to comply with the direction of Practice Book § 10-3(a) ... Thus, we conclude that the plaintiff’s failure to plead specifically his entitlement to a particular tolling doctrine pursuant to Practice Book § 10-57, while not a good practice, does not operate as a bar or waiver of that doctrine if the record demonstrates that the defendant, nevertheless, was sufficiently apprised of the plaintiff’s intention to rely on that doctrine and that the defendant has not been prejudiced by the plaintiff’s lapse in pleading." (Citations omitted.) Id., 302-03. Ultimately, the court in Flannery found that the plaintiff in that case had sufficiently described its intent to rely on a matter that required specific pleading so as to prevent any prejudice against the defendant. The court similarly finds that, in the present case, the plaintiffs have made it sufficiently clear that they intend to rely on the tolling provisions provided by 28 U.S.C. § 1367(d) (2017)^[3] and that the failure to specifically plead reliance on the tolling statute works no prejudice for the defendant.

II. Motion to Dismiss on the Defendants’ Challenge to the Court’s Subject Matter Jurisdiction Regarding CFEPA Claims

Turning now to the substance of the parties’ arguments in the present motion, the court must consider first the defendants’ contention that the court lacks subject matter jurisdiction over the plaintiffs’ CFEPA claims (counts three, seven, eleven, and fifteen), which are time barred, being initially brought after the running of the limitations period.^[4] " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " In general, a motion to dismiss is the proper procedural vehicle to raise a claim that the court lacks subject matter jurisdiction over the action." Bellman v. West Hartford, 96 Conn.App. 387, 392, 900 A.2d 82 (2006). Ordinarily, a statute of limitations defense " must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, when " a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation ... but rather is a limitation on the liability itself, and not of the remedy alone ... [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time ... and may not be waived." (Internal quotation marks omitted.) State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012).

According to General Statutes § § 46a-82, 46a-100, and...