DocketNumber: No. CV 90-0372243
Citation Numbers: 1994 Conn. Super. Ct. 7220
Judges: CORRADINO, J.
Filed Date: 7/7/1994
Status: Non-Precedential
Modified Date: 7/5/2016
An amendment will be allowed unless it would cause unreasonable delay, mislead opposing counsel or confuse the issues, Crowell v. Middletown Savings Bank,
But the plaintiffs point out that the defendant failed to appear when the action was commenced, a default for failure to appear was granted and a hearing in damages scheduled which the plaintiffs claim was continued "repeatedly" at defense counsel and defendant's request. The matter was only opened by agreement in August of 1993, present defense counsel appeared and an answer was finally filed in September 1993. This amendment request was filed in February 1994.
Under these circumstances the court will certainly not exercise any discretionary power it has to prevent the amendment.
The second grounds for the objection to the amendment is that it is barred by the statute of limitations. There is no dispute that the CUPTA claim would be time barred unless it were held to relate back to the original complaint.
The defendants argue that a conflict of interest claim is added to the CUPTA claim which are a "new set of facts" CT Page 7221 and a different theory of recovery so the CUPTA claim cannot be held to relate back to the date of the original complaint.
Given our traditional liberal policy as to amendments, it is not surprising that Connecticut in effect decided to follow the liberal relation back doctrine set forth in Rule 15c the Federal Rules of Civil Procedure, see generally Federal Practice and Procedure, Wright, Miller
Kane, Vol. 6A, see Giglio v. Conn. Light Power,
The mere fact that a party changes its claim for relief or theory of recovery will not prevent the new claim from relating back, Tiller v. Atlantic Coast Line RailroadCo.,
The question remains whether a new factual basis is alleged on which the claim is based and of which the defendant had no fair warning. If the original complaint and the proposed amended complaint are read together, it seems fairly clear that the original complaint sets forth facts upon which a conflict of interest claim could have been made, cf paragraphs 2, 4, 5, 6, 7 and 8 of original complaint. The "conflict of interest" claim in the proposed amended complaint is based on the factual allegations that the defendant already had notice of in the first complaint. As said in the early case of Barthel v.Stamm,
"Limitation is suspended by the filing of a suit because the suit warns the defendant to collect CT Page 7222 and preserve his evidence in reference to it. When a suit is filed in federal court under the rules the defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be, and that the form of action or the relief played or the law relied in will not be confined to their first statement."
The objection to the amendment is overruled.
Corradino, J.
robert-siegel-on-behalf-of-himself-and-all-other-stockholders-of , 714 F.2d 213 ( 1983 )
Barthel v. Stamm , 145 F.2d 487 ( 1944 )
Tiller v. Atlantic Coast Line Railroad , 65 S. Ct. 421 ( 1945 )
Crowell v. Middletown Savings Bank , 122 Conn. 362 ( 1937 )
Giglio v. Connecticut Light & Power Co. , 180 Conn. 230 ( 1980 )