Superior Court of Connecticut, Judicial District of Stamford-Norwalk, Stamford
Meredith Post et al.
James Lettera, M.D
MEMORANDUM OF DECISION RE MOTION TO STRIKE
R. KARAZIN, JR., JUDGE.
medical malpractice action was originally commenced in April
2011 by the plaintiffs, Meredith Post and Frank Post. On
March 2, 2017, the plaintiffs filed the operative fourth
amended complaint against the defendants, Dr. James Lettera,
and Connecticut Vascular and Thoracic Surgical Associates,
PC. On January 25, 2017, the plaintiffs filed a motion to
substitute the plaintiff in this action. The plaintiffs'
motion represented that on April 8, 2016, the plaintiffs
filed an application for Chapter 7 bankruptcy in the United
States Bankruptcy Court for the District of Connecticut. See
In re Post, Case No. 16-50487 (AST). The
plaintiffs' motion also represents that Attorney Coan was
appointed as trustee of the plaintiffs' bankruptcy
estate. The motion also states that on August 2, 2016,
plaintiffs' counsel was appointed special counsel for the
bankruptcy estate for the purposes of the instant litigation.
On January 26, 2017, the plaintiffs withdrew their motion to
substitute for the reason that " the United States
Bankruptcy Court granted a partial exception to the
plaintiffs with regard to the outcome of the instant
litigation. Therefore, plaintiffs continue to have an
interest in the outcome of the litigation."
March 9, 2017, the defendants filed the present motion to
strike the fourth amended complaint in its entirety,
accompanied by a memorandum of law in support. The defendants
challenge the plaintiffs' standing to pursue this action
because they have filed a petition for bankruptcy and, as a
result, their interest in this lawsuit " has been
reassigned to the bankruptcy estate." The defendants
also submit, as an exhibit, the application filed by the
bankruptcy trustee in the bankruptcy court to employ special
counsel on behalf of the estate to pursue the plaintiffs'
interest in the present action. On March 20, 2017, the
plaintiffs, in response, filed a memorandum of law in
opposition to the defendants' motion to strike, with a
copy of 11 U.S.C. § 522 (2016) attached. The matter was
heard at short calendar on April 24, 2017, and May 1,
the defendants challenge the court's subject matter
jurisdiction through a motion to strike, the court treats the
motion to strike as a motion to dismiss. " [O]nce the
question of lack of jurisdiction of a court is raised, [it]
must be disposed of no matter in what form it is presented .
. . and the court must fully resolve it before proceeding
further with the case." (Internal quotation marks
omitted.) Bongiorno v. J& G Realty, LLC, 162
Conn.App. 430, 436, 131 A.3d 1230, cert. denied, 320 Conn.
924, 133 A.3d 878 (2016); see Bruno v. The Travelers
Companies, 172 Conn.App. 717, 723 (2017) (determining
that the trial court should have treated the motion to strike
implicating the court's subject matter jurisdiction as a
motion to dismiss).
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 .
. . The 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."
(Internal quotation marks omitted.) Sousa v. Sousa,
322 Conn. 757, 770, 143 A.3d 578 (2016). " It is
axiomatic that 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.)
Scarfo v. Snow, 168 Conn.App. 482, 497, 146 A.3d
1006 (2016). " 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 . . . Where
a party is found to lack standing, the court is consequently
without subject matter jurisdiction to determine the
cause." (Internal quotation marks omitted.) 21st
Mortg. Corp. v. Schumacher, 171 Conn.App. 470, 484-85,
157 A.3d 714 (2017). " Because standing implicates the
court's subject matter jurisdiction, the plaintiff bears
the burden of establishing standing." (Internal
quotation marks omitted.) Heinonen v. Gupton, 173
Conn.App. 54, 59 (2017). " If . . . the plaintiff's
standing does not adequately appear from all materials of
record, the complaint must be dismissed." (Internal
quotation marks omitted.) Burton v. Dominion Nuclear
Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176
(2011). " [I]n determining whether a court has subject
matter jurisdiction, every presumption favoring jurisdiction
should be indulged." (Internal quotation marks omitted.)
Financial Consulting, LLC v. Commissioner of
Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
support of their motion, the defendants argue that the court
lacks subject matter jurisdiction over this case because the
plaintiffs, as bankruptcy debtors, do not have standing to
pursue causes of action that are the rightful property of the
bankruptcy estate. The defendants contend that the
plaintiffs' interest in the present action was divested
when they petitioned for bankruptcy and listed the potential
damage award from this lawsuit as an asset. Thus, the
defendants argue that the court lacks subject matter
jurisdiction because this cause of action belongs to the
trustee of the bankruptcy estate, who has not been made a
party to this action. In opposition to the motion, the
plaintiffs argue that they do have standing because they are
the real parties in interest since they are the victims of
the defendants' negligence. The plaintiffs also assert
that they have an interest in this case with regard to a
damage award that exceeds the amount of unsecured debt
discharged through bankruptcy and that they enjoy two
statutory exceptions that exempt the potential damage award
from the bankruptcy estate.
can be no dispute that the plaintiffs lack standing to bring
a claim based upon a potential damage award that is part of
the bankruptcy estate; instead, the legal right to pursue
such an action belongs to the bankruptcy trustee. " When
a debtor files for bankruptcy protection, a bankruptcy estate
is created . . . Title 11 of the United States Code, §
541, prescribes the property interests of the debtor that
comprise the bankruptcy estate. Subject to a few
exceptions, such property is defined as 'all legal
or equitable interests of the debtor in property as of the
commencement of the case.' . . . 11 U.S.C. §
541(a)(1) (2016). It is well settled that such property
includes causes of action possessed by the debtor at that
time . . . A bankruptcy debtor does not have standing to
pursue claims that constitute property of a bankruptcy
estate." (Citations omitted; emphasis altered; internal
quotation marks omitted.) Weiss v. Smulders, 313
Conn. 227, 239-40, 96 A.3d 1175 (2014); see Manning v.
Feltman, 149 Conn.App. 224, 232-33, 91 A.3d 466 (2014).
Consequently, " once a trustee is appointed to
administer the bankruptcy estate, the trustee takes control
of all the assets in the estate . . . including the ability
to pursue, abandon, and make decisions in legal
actions." (Citation omitted.) Gladstein v.
Goldfield, 163 Conn.App. 579, 581 n.1, 137 A.3d 60
(2016), cert. dismissed, 325 Conn. 418, (2017).
the totality of the plaintiffs' assets do not
unconditionally become part of the bankruptcy estate; rather,
a portion of the assets may be excluded from the estate
pursuant to several exemptions enumerated in 11 U.S.C. §
522 (2016). Specifically, § 522(b) provides in relevant
part: " Notwithstanding section 541 of this title . . .
an individual debtor may exempt from property of the estate
the property . . . (2) that is specified under [§
522(d)]." Section 522(d) provides a list of twelve
different types of exemptions that may exclude certain types
of property from the bankruptcy estate. In particular, the
plaintiffs claim that the exemptions in § §
522(d)(5) and 522(d)(11)(D) exclude the potential recovery of
damages in the present action from the bankruptcy estate.
Section 522(d)(5) is a broad exemption that provides that the
debtor may exempt his or her " aggregate interest in any
property, not to exceed in value $1, 250 plus up to $11, 850
of any unused amount of the [the residence exemption]
provided under paragraph (1) of this subsection."
Section 522(d)(11)(D) exempts from the bankruptcy estate
" the debtor's right to receive, or property that is
traceable to . . . a payment, not to exceed $23, 675, on
account of bodily injury, not including pain and suffering or
compensation for actual pecuniary loss, of the debtor . .
present case, both of the claimed exemptions are clearly set
forth in the plaintiffs' memorandum, and are applicable
to the plaintiffs' interest in the present action.
Pursuant to § 522(d)(5), any potential damage award that
the plaintiffs would receive may be partially exempt because
this subsection is a catchall for " any property."
Pursuant to § 522(d)(11)(D), the plaintiffs'
interest may also be partially exempt because their medical
malpractice claim is for bodily injury. Neither party has
presented evidence to shed light on the status and/or
validity of these claimed exemptions. Nevertheless, the
defendants do attach the application filed by the bankruptcy
trustee with the bankruptcy court to employ special counsel
on behalf of the estate to pursue the plaintiffs'
interest in the present action. This application fails to
establish that the plaintiffs lack standing for several
reasons. First, it does not indicate that the bankruptcy
trustee is the proper party; rather, it simply appoints the
plaintiffs' current appearing counsel to pursue this
action on behalf of the bankruptcy estate. Second, the
application contains a " NOTICE TO DEBTOR, " which
is entirely in bold typeface at the top of the first page of
the application, and provides a disclaimer that a conflict of
interest may arise when the appointed special counsel
allocates the potential damage award. This disclaimer
provides in relevant part: " SECTION 522(d)(11)(D) OF
THE BANKRUPTCY CODE ALLOWS A DEBTOR TO CLAIM EXEMPT A PAYMENT
ON BEHALF OF A PERSONAL INJURY WHICH DOES NOT
INCLUDE PAIN AND SUFFERING . . ." It cannot be inferred
from this disclaimer that the plaintiffs lack standing;
rather, it further evidences that the plaintiffs would
potentially be entitled to this exemption. Third, the
application does not require the plaintiffs' counsel to
substitute the bankruptcy trustee as the proper party in this
current lawsuit. Therefore, indulging every presumption
favoring jurisdiction, the court determines, for the purposes
of the present motion, that the potential damage award of the
present lawsuit is partially exempt from the bankruptcy
the determination of whether the court has subject matter
jurisdiction over this claim is directly dependent upon
whether the plaintiffs have standing to pursue a potential
damage award that is partially exempt from the bankruptcy
estate. Although our appellate courts have frequently
considered the standing of bankruptcy debtors as opposed to
bankruptcy trustees, they have not specifically ruled as to
whether a bankruptcy debtor has standing to pursue a cause of
action that would belong to the trustee of the bankruptcy
estate, but for a potential exemption. In the absence of any
direct guidance, the court is faced with conflicting
hand, several courts have determined that a debtor does not
have standing to pursue claims that are exempt from the
bankruptcy estate. For instance, the court in DiLieto v.
County Obstetrics & Gynecology Group, Superior Court,
judicial district of Waterbury, Complex Litigation Docket,
Docket No. X02-CV-97-0150435-S (January 31, 2000, Sheldon,
J.) (26 Conn.L.Rptr. 345, ), rev'd on other grounds, 265
Conn. 79, 828 A.2d 31 (2003), considered whether the
plaintiff had standing to pursue a medical malpractice claim
after she and her husband had claimed that the potential
damage award may be exempt in their Chapter 7 bankruptcy
petition. Partially relying upon In re Snyder, 61
B.R. 268 (Bankr.S.D.Ohio 1986), the court concluded "
that neither any possible exemption that the Bankruptcy Court
may grant the plaintiff for a portion of the pending claims
nor any possible recovery of a judgment in excess of her
indebtedness to her creditors gives the plaintiff standing to
prosecute this case on her own behalf."  DiLieto
v. County Obstetrics and Gynecology Group, supra, 26
Conn.L.Rptr. 347, ; see Lee v. Mariani, Superior
Court, judicial district of Stamford-Norwalk, Docket No.
CV-09-4015581-S, (November 9, 2010, Jennings, J.T.R.) (also
relying upon In re Snyder ).
other hand, several courts have held that bankruptcy debtors
have standing to pursue claims that are exempt from the
bankruptcy estate. " If a cause of action that
preexisted the filing of the bankruptcy petition is exempted
from the estate . . . then it is property of the debtor and
the debtor will have standing to pursue the cause of action
in his or her own name." Ball v. Nationscredit
Financial Services Corp., 207 B.R. 869, 872 (N.D.Ill.
1997); see Rowland v. Novus Financial Corp., 949
F.Supp. 1447, 1453-54 (D.Haw. 1996) (" [I]f a Chapter 7
debtor claims his . . . cause of action under the bankruptcy
exemption, then the debtor has standing to bring the . . .
action"); Wissman v. Pittsburgh Nat. Bank, 942
F.2d 867, 872 (4th Cir. 1991) (an exemption for a potential
lawsuit " represents a present, substantial interest and
provides the necessary standing for [the debtors] to pursue
court is more persuaded by the decisions that hold that
bankruptcy debtors have standing to pursue claims that are
exempt from the bankruptcy estate. Although it is undisputed
that the bankruptcy estate does have an interest in this
present action, the plaintiffs still maintain an interest
because of their partial exemption. Consequently, the court
determines that it does have subject matter jurisdiction over
this case because the plaintiffs have standing to pursue this
action for the reason that their interest in the present
lawsuit is potentially exempt from the bankruptcy estate.
the court denies the defendants' motion to strike the
entirety of the plaintiffs' complaint because the
plaintiffs do have standing to pursue this action as ...