ABLE PLUMBING, INC. v. ROBYN SANDAK ET AL.

2004 Ct. Sup. 14072
No. CV 03-0193854Connecticut Superior Court, Judicial District of Stamford-Norwalk at Stamford
September 20, 2004

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION FOR ORDERS
JENNINGS, JUDGE.

By motion of May 7, 2004 the defendants have moved pursuant to Practice Book Section 13-14
for orders of sanctions for the plaintiff’s failure to respond to interrogatories and production requests served on February 13, 2004. Plaintiff’s counsel defending the counterclaims in this matter[1] did request a 30-day extension to comply pursuant to Practice Book Section 13-10(a)(2) which would have expired on or about April 13, 2004. Defendants claim in the instant motion that there was no compliance as of May 7, 2004, the date of the instant motion. There is no doubt that the plaintiff is in default of its obligation to comply with discovery requests. The only issue is the appropriate sanction(s) to be applied.

Section 13-14, of the Practice Book contains a non-exclusive list of five appropriate sanctions, which are to applied “as the ends of justice require.” The factors to be considered by the court in determining the appropriate sanction(s) under section 13-14 were set forth by the Supreme Court in Millbrook Owners’ Association, Inc. v. Hamilton Standard, 257 Conn. 1, 776 A.2d 1115 (2001), as follows:

The factors to be considered by the court include:(1) whether noncompliance was caused by inability, rather than wilfullness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party’s case; and (3) which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party’s conduct. Millbrook, supra, at p. 15

The court feels that a default is an appropriate remedy for the plaintiff’s failure to comply with a court rule for providing discovery. Accordingly, a default is hereby entered against the plaintiff on the defendant’s counterclaim. CT Page 14073

The defendants have asked for an award of costs in the amount of $185, under Practice Book Section 14-14(b)(2), but no verification or specification of that dollar amount has been submitted. If that figure represents a claim for counsel fees for presenting the instant motion, under the procedures of this court an affidavit of hours expended and hourly rates applied should have been submitted. Smith v. Snyder, 267 Conn. 456, 479 (2004).

The defendants also ask for an order that facts sought to be discovered shall be taken as established, an order prohibiting the plaintiff from introducing evidence, and a judgment of dismissal against the plaintiff. A judgment of dismissal would be inappropriate because the plaintiff has apparently not defaulted on any obligation with respect to its affirmative claim for a judgment of foreclosure of a mechanic’s lien and other relief. As to other requests, the court has not been presented with any facts or circumstances as to the information sought by the discovery requests of February 13, 2004, or any other information which would enable the court to apply the Millbrook criteria.

Therefore, the court grants the defendant’s motion for orders by entering a default against the plaintiff on the defendant’s counterclaim pursuant to Practice Book section 13-14(b)(1) and denies the motion as all other relief requested.

BY THE COURT:

Alfred J. Jennings, Jr., Judge

[1] And therefore, in the absence of any other indication as to the subjects of the requested discovery, the court must presume that it related to issues raised by the counterclaims.

CT Page 14074