Opinion
No. 01-0558621
August 8, 2006
MEMORANDUM OF DECISION
Pending before the court is the defendant New London Development Corporation's (NLDC) motion to dismiss the plaintiff's, Fort Trumbull Conservancy, LLC, second amended complaint. The ground upon which the defendant bases its motion is that the court does not have subject matter jurisdiction because the plaintiff does not have standing. Specifically, the defendant states that the plaintiff is neither "classically nor statutorily aggrieved because it has failed to allege a colorable claim that the defendants' conduct is likely to cause unreasonable pollution to the air, water or other natural resources of the state under General Statutes § 22a-16."
The codefendant, the City of New London, moves to dismiss on the same ground and adopts the New London Development Corporation's memorandum of law in support of the motion to dismiss as its own. See Motion to Dismiss filed March 31, 2006.
The procedural history of the present case is as follows. On May 1, 2001, the plaintiff initially filed its complaint against the defendants: Antonio H. Alves, a city of New London building official; the City of New London (city); and NLDC. By motions dated May 29, 2001, the defendants moved to dismiss the plaintiff's complaint on the ground of lack of subject matter jurisdiction in that the plaintiff lacked standing to bring this action pursuant to the Connecticut Environmental Protection Act (CEPA) and was neither classically nor statutorily aggrieved in the present action. By memorandum of decision dated June 19, 2001, this court granted the motions to dismiss finding that the defendant lacked standing to bring this suit and, therefore, the court lacked subject matter jurisdiction. The defendant appealed this court's decision to the Appellate Court. Thereafter, the Supreme Court, pursuant to Practice Book § 65-1, transferred the appeal to itself for adjudication. The Supreme Court reversed this court's judgment in part and remanded the case with direction to deny the motions to dismiss as to the claims against NLDC and the city under § 22a-220, and for further proceedings according to law. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 510, 815 A.2d 118 (2003) (Borden, J., concurring and dissenting).
Thereafter, on April 25, 2003, NLDC filed a request to revise the plaintiff's complaint which sought, inter alia, to separate the single-count complaint against the remaining defendants, the city and NLDC. The request stated that it was impossible to tell which allegations were directed at the city and which were directed at NLDC. The plaintiff filed an objection to the request to revise on June 2, 2003. On June 24, 2003, this court overruled the plaintiff's objection ordering that the entire complaint be revised to separate the counts against the various defendants. On July 14, 2003, the plaintiff filed a motion for articulation of this court's order of June 24, 2003, which the court denied. On August 14, 2003, the plaintiff filed a notice of compliance with this court's order of June 24, 2003, and requested leave to amend its complaint. In response, the defendants filed an objection to the request for leave to amend on the ground that, inter alia, the plaintiff commingled allegations against the city and NLDC and failed to separate the counts appropriately as to each defendant. Additionally, the defendants argued that the plaintiff's allegations were vague and conclusory. On September 16, 2003, this court sustained the defendants' objections. On October 6, 2003, this court articulated its ruling of September 16, 2003 by stating that the plaintiff failed to comply with the defendants' request to revise.
On August 27, 2003, NLDC filed its objection to the plaintiff's request for leave to amend its complaint. Alves and the city, on August 29, 2003 and September 2, 2003, respectively, filed objections to the plaintiff's request for leave to amend, adopting NLDC's objection and grounds as their own.
On March 2, 2006, the plaintiff filed a second amended complaint containing two counts. The first count is against the defendant NLDC. The second count is against the city, and incorporates the entire allegations of the first count as being fully set forth therein. On March 21, 2006, NLDC filed a motion to dismiss the plaintiff's second amended complaint on the ground that the court lacks subject matter jurisdiction because the plaintiff does not have standing and is not classically nor statutorily aggrieved. On March 31, 2006, the city filed a motion to dismiss asserting identical grounds and adopting NLDC's supporting memorandum of law as its own. This motion is presently before the court.
DISCUSSION
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . Accordingly, [t]he subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." (Citations omitted; internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116-17, 891 A.2d 106 (2006).
"Although subject matter jurisdiction may be challenged at any stage of the proceedings, it has been addressed almost exclusively through a motion to dismiss. 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 . . . 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.) Id., 117.
"[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim." (Internal quotation marks omitted.) American States Ins. Co. v. Allstate Ins. Co., 94 Conn.App. 79, 83, 891 A.2d 75 (2006). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 11 (2006).
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 154, 851 A.2d 1113 (2004). "Classical aggrievement requires a two part showing. First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share . . . Second, the party must also show that the agency's decision has specially and injuriously affected that specific personal or legal interest . . . Aggrievement does not demand certainty, only the possibility of an adverse effect on a legally protected interest." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 486-87, 815 A.2d 1188 (2003).
"Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Id., 487.
In Alves, supra, the Supreme Court stated that "all that is required to invoke the jurisdiction of the Superior Court under § 22a-16 is a colorable claim, by `any person' against `any person,' of conduct resulting in harm to one or more of the natural resources of this state." Id., 496. Moreover, the Alves court found that the plaintiff had alleged conduct by NLDC such that its demolition activities would result in unreasonable harm to the natural resources of this state. Id., 502-03. Likewise, the Alves court found that the plaintiff's complaint contained sufficient allegations against the city that, if proven, could establish a violation of CEPA. Id., 502.
However, the initial complaint that was under judicial scrutiny by the Supreme Court in Alves has now been altered from its original form and content; the current and operative complaint is the plaintiff's second amended complaint which was filed without objection on March 2, 2006. An amended complaint, which is complete in itself, entirely supersedes the original complaint. Wesley v. DeFonce Contracting Corp., 153 Conn. 400, 404, 216 A.2d 811 (1966); see also Devivo v. Devivo, Superior Court, judicial district of Hartford, Docket No. CV98 0581020 (January 19, 1999, Hale, J.) ( 24 Conn. L. Rptr. 42), citing Marrinan v. Hamer, 5 Conn.App. 101, 103, 497 A.2d 67 (1985). The filing of the amended complaint operates as a withdrawal of the original complaint and renders the original complaint as part of the history of the case. Id. "[I]n ruling on a motion to dismiss, the trial 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." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). Considering the allegations in the second amended complaint, this court finds that the plaintiff has not alleged sufficient facts to demonstrate that it is statutorily or classically aggrieved to establish standing to bring this suit. Moreover, the factual allegations as currently pleaded provide no basis for the court to infer harm from the defendants' conduct.
If there is no objection by the defendants within fifteen days of the filing of the proposed amendment, the amendment is deemed to be filed with consent of the defendants and the trial court, absent extraordinary circumstances, has no discretion to disallow it. See Darling v. Waterford, 7 Conn.App. 485, 487, 508 A.2d 839 (1986).
The second amended complaint alleges that the plaintiff has standing pursuant to General Statutes § 22a-16 and § 22a-20 and Article I, § 10 of the Connecticut Constitution. The amended complaint further alleges, inter alia, that NLDC is in the process of demolishing many structures in the Fort Trumbull peninsula, and that NLDC has filed applications for the demolition of many buildings and structures. The plaintiff alleges that the city has not now, or in the past, met recycling and source reduction goals established by General Statutes § 22a-220, and that the defendants have violated or will violate their individual and collective duties, obligations and responsibilities. Although the plaintiff does allege that a public trust exists in the air, water, land, housing and energy resources, and that it is entitled by law to protection, preservation and enhancement of the natural resources in Connecticut, there are no clear allegations as to how the defendants' conduct in violating § 22a-220 — and the demolition of structures — violates § 22a-16.
As our Supreme Court has found, in order to state a cause of action pursuant to § 22a-16, all that is required is for the plaintiff to state a colorable claim that alleges activities or conduct resulting in harm to one or more of the natural resources of this state. Fort Trumbull Conservancy v. Alves, supra, 262 Conn. 496. As currently pleaded, the second amended complaint fails to allege that the defendants' conduct in violating § 22a-220 will result in unreasonable harm to the natural resources of this state. Therefore, because the plaintiff fails to allege facts in its amended complaint to establish aggrievement, the plaintiff lacks standing to bring this suit as currently pleaded.
The plaintiff argues that the second amended complaint "exists in its current form as a direct result of this court's ruling granting the defendants' request to revise [the complaint] in its entirety over the [plaintiff's] objections and the subsequent denial of the [plaintiff's] motion for leave to file an amended complaint." However, a review of the file reveals that this court did not order the plaintiff to alter the material allegations of its complaint to the extent that it could not claim unreasonable harm to one or more of the natural resources of this state, as is required under § 22a-16. Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 496, 502. Therefore, the plaintiff's argument is without merit.
The plaintiff also argues that the doctrine of the law of the case should apply in the present case because the Supreme Court determined that the plaintiff had standing under the allegations of the original complaint. "It is axiomatic that on remand for further proceedings after decision by an appellate court, the trial court must proceed with the mandate and the law of the case as established on appeal. A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces." Martinez v. State Department of Public Safety, Superior Court, judicial district of Fairfield, Docket No. CV 00 377191 (January 30, 2004, Dewey, J.) ( 36 Conn. L. Rptr. 503). The plaintiff, however, has omitted allegations in its amended complaint in such a way as to change the circumstances and factual predicate upon which the Supreme Court rendered its decision. As noted above, the second amended complaint is now the operative complaint for purposes of judicial review. Wesley v. DeFonce Contracting Corp., supra, 153 Conn. 404. Therefore, in light of the allegations of the second amended complaint, this court finds that the plaintiff has failed to allege statutory or classical aggrievement and, therefore, lacks standing. The motions to dismiss are granted.
CONCLUSION
For the foregoing reasons, the motions to dismiss the plaintiff's second amended complaint are granted.