The Volokh Conspiracy

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Volokh Conspiracy

"Inexplicably, [plaintiff's counsel] was not struck by lightning during the course of his denial"


From Capasso v. Christmann (Conn. Super. Ct. Sept. 15, 2014):

The Motion For Summary Judgment now before the Court is granted for the failure of its counseled opponents to submit an adequate brief following specific instructions to do so.

The Motion, filed by the defendants on March 3, 2012, originally came before the Court on July 7, 2014. Plaintiff's counsel was politely informed in chambers that his Memorandum In Opposition was completely inadequate. The Court then placed on the record the following order in the presence of counsel:

I need specific citation to record evidence on this Motion for Summary Judgment, otherwise I'll be floundering.

Second, I think that your response needs to state with precision what the cause of action in the first count of your second revised complaint is.

Plaintiff's counsel submitted a Supplemental Memorandum on August 17, 2014. That Memorandum fails to comply with either requirement of the Court's July 7, 2014 order.

The Motion was heard on September 15, 2014. At the hearing, Plaintiff's counsel admitted his failure to comply with the second requirement of the Court's order, although this took some time since counsel had not thought it necessary to bring a copy of his own Supplemental Memorandum with him to Court and had to consult the Court's own copy of his document.

Counsel did not admit his failure to comply with the first requirement of the Court's order. Inexplicably, he was not struck by lightning during the course of his denial. His failure to comply is manifest.

The Supplemental Memorandum lists "ten explicit and implied defamatory statements or threats" on which the action is purportedly based. Not one of the "statements or threats" is quoted, which presumably means that all of them are "implied" rather than "explicit." But from what, exactly, are these "statements or threats" to be "implied"? We don't know, because not one of them is accompanied by a citation to the record.

"To make a legal argument is to advance one's contentions by connecting law to facts, yet there is not one fact … properly cited to the record" in the Supplemental Memorandum. Sioson v. Knights of Columbus, 303 F.3d 458, 460 (2d. Cir.2002).

Perhaps counsel for the plaintiff intends that the Court should look into the voluminous record to document the "facts" asserted in the Supplemental Memorandum. "But that is simply not our job, at least in a counseled case." Indeed, the Supplemental Memorandum "is tantamount to an invitation … to scour the record, research any legal theory that comes to mind, and serve generally as an advocate." This invitation is declined.

Counsel's failure properly to present an issue, even defiance of a judicial order to do so, may be overlooked in unusual circumstances where manifest injustice would otherwise result. No such manifest injustice will result here…. [The First Amendment] protects the type of comments allegedly made by the defendants without regard to the particular cause of action. (As mentioned, there remains considerable uncertainty as to just what the plaintiffs' cause of action is in the first place.)

It is evident, moreover, that the comments attributed to the defendants here involved matters of public importance and, insofar as they have been subjected to administrative and judicial scrutiny, have been found to be accurate. See City of New Haven v. G.L. Capasso, Inc., 151 Conn.App. 368 (2014) (involving the very same plaintiffs represented by the very same counsel).

The Motion For Summary Judgment is granted.