YOUNG PHARM. v. N.V. PERRICONE, LLC, No. CV 08 5007126 S (Aug. 1, 2008)

GILLIGAN, J.

The plaintiff, Young Pharmaceuticals, Inc ("Young"), filed a complaint on February 20, 2008, alleging that the defendants, N.V. Perricone, LLC ("Perricone") and Clinical Creations, LLC ("Clinical Creations") have breached a written agreement between Young and Clinical Creations dated June 21, 2001. Young alleges that it was engaged by Clinical Creations to develop a formula for several skin creams and lotions or to reformulate existing creams, which would be marketed and sold under the brand name "N.V. Perricone, M.D. Cosmeceuticals." Young further alleges that Clinical Creations and Perricone, as successor to Clinical Creations, have breached their obligations under the agreement to: (1) perform studies required by the agreement, (2) obtain adequate products liability insurance and (3) add Young as an additional insured on a products liability insurance policy. Young also alleges that Perricone and Clinical Creations have acted outrageously, in bad faith, maliciously, with reckless indifference, and/or willful disregard of Young's rights under the terms of the agreement, breached an implied covenant of good faith and fair dealing and violated the Connecticut Unfair Trade Practices Act (CUTPA).

On February 28, 2008, the defendants appeared and filed an answer and several affirmative defenses and counterclaims. On March 31, 2008, the defendants filed a motion to dismiss the plaintiff's complaint on the ground that the present case is duplicative of action between the parties (or their subsidiaries or successors in interest) which is currently pending in the United State District Court for the District of Connecticut, Young Pharmaceuticals, Inc. v. N.V. Perricone, LLC et al., Civil Action No. 3:07CV1568 (PJD). The defendants argue that under the prior pending action doctrine, the case should be dismissed since both matters are of the same character and will achieve the same end result.

On June 6, 2008, the plaintiff filed an objection to the defendants' motion to dismiss on the grounds that the defendants' motion was filed CT Page 12663 more than thirty days after the defendants filed their appearance and that is was filed out of sequence since it was filed after their answer, affirmative defenses and counterclaims. The plaintiff argues that, pursuant to Practice Book § 10-6, a motion to dismiss must be the first responsive pleading to a complaint and under Practice Book § 10-30, must be filed within thirty days following the filing of an appearance. The plaintiff also argues that the pending prior action doctrine does not implicate the court's subject matter jurisdiction.

"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).

"It has long been the rule that when two separate lawsuits are `virtually alike' the second action is amenable to dismissal by the court . . . The prior pending action doctrine has evolved as a `rule of justice and equity' . . . and retains its vitality in this state, in which joinder of claims and of remedies is permissive rather than mandatory . . .

"We have explicated the prior pending action doctrine as follows: [t]he pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where two suits are virtually alike, and in the same jurisdiction . . . The rule forbidding the second action is not, however, one of unbending rigor, nor of universal application, nor a principle of absolute law." (Citations omitted; internal quotation marks omitted.) Halpern v. Board of Education, 196 Conn. 647, 652-53, CT Page 12664 495 A.2d 264 (1985).

"As the invocation of the prior pending action doctrine does not implicate subject matter jurisdiction, the time limitations imposed by Practice Book § 10-30 may not be waived . . ." Haydu v. Jay's Custom Masonry, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 03 0102562 (May 6, 2004, Silbert, J.) (37 Conn. L. Rptr. 23). "Although a motion to dismiss is the proper vehicle to raise the issue of prior pending action, the doctrine does not truly implicate subject matter jurisdiction . . . It may not, therefore, as is true in the case of classic subject matter jurisdiction, always be raised at any time." Gaudio v. Gaudio, 23 Conn.App. 287, 294-95, 580 A.2d 1212 (1990).

"Practice Book § [10-6] sets forth the order in which pleadings are to be filed. It states that a motion to dismiss is to be filed before a motion to strike. Practice Book § [10-7] states that `[i]n all cases, when the court does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section.' . . . Thus, generally, pleadings are not to be filed out of the order specified in § [10-6], and the filing of a pleading listed later in the order set out by § [10-6] waives the right to be heard on a pleading that appears earlier on the list." (Internal quotation marks omitted.) Sabino v. Ruffolo, 19 Conn.App. 402, 404, 562 A.2d 1134 (1989).

"While a motion to dismiss is the proper method for asserting the existence of a prior pending action . . . it must be filed before any other motion or pleading addressed to the complaint. Practice Book § 113 [now Practice Book (1998 Rev.) § 10-7]." Hughes v. Budny, supra, Superior Court, Docket No. 070449 18 Conn. L. Rptr. 187. Casper v. Green, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144205 (November 19, 1998, Leheny, J.) (23 Conn. L. Rptr. 413). "The filing of an answer waives the right to file a motion to dismiss." Hughes v. Budny, Superior Court, Judicial District of Litchfield, Docket No. CV 96 0070449 (November 18, 1996, Pickett, J.) [18 Conn. L. Rptr. 187].

"Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, `[a]ny [defendants], wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.' CT Page 12665 Practice Book § 10-30." Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002).

The prior pending action doctrine is inapplicable to the present case because the two matters are dissimilar. For an action to be abatable under the prior pending action doctrine, the actions must be of the same character, involve the same issues and be between the same parties. The defendants attached a copy of the federal court complaint as Exhibit 1 to their memorandum of law in support of their motion to dismiss. Although the complaint filed in federal court includes a breach of contract count, the complaint essentially seeks damages for violations of the Trademark Act of 1946 (the "Lanham Act"). Moreover, the federal complaint names three additional entities as defendants.

The prior pending action doctrine is also inapplicable in the present case because the cases are pending in different jurisdictions. "[W]hen one action is in a state court and the other is in the federal court sitting in the same jurisdiction . . . [n]either is abatable because of the pendency of the other, except possibly when the first action is in a federal court because of removal from the state court." Otero v. Housing Authority of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0366854 (April 27, 2000, Skolnick, J.) (26 Conn. L. Rptr. 569). See also O'Connor v. Wethersfield Board of Education, Superior Court, judicial district of Hartford, Docket No. CV 01 0808376 (May 20, 2003, Booth, J.) (34 Conn. L. Rptr. 621) and Daly Electrical Contractor, Inc. v. Conte, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0155499 (November 26, 1997, Lewis, J.).

The present action is not duplicative of the action pending in federal court and does not implicate the prior pending action doctrine because the actions are dissimilar and are pending in different jurisdictions. Moreover, the defendants have not only failed to file their motion to dismiss within thirty days of filing their appearance as required by Practice Book § 10-30, but also failed to adhere to the order of pleadings as required by the Practice Book § 10-6. In accordance with the foregoing, the defendants' motion to dismiss is denied.