Connecticut’s Prejudgment Remedy Problem
Connecticut has a prejudgment remedy problem.
The statutes do not make it clear as to whether or not a plaintiff can commence an action at the same time that it commences a prejudgment remedy.
I know from experience that some Connecticut court clerks allow this to happen while at least one won’t. I found this out the hard way.
Here’s my argument as to why a plaintiff should be allowed to commence an action at the same time it files a PJR.
The filing of a prejudgment remedy does not prevent a plaintiff from commencing a civil action. There is not statute or case that holds the filing of a prejudgment remedy bars a plaintiff from commencing a civil action at the same time.
The required process of obtaining a prejudgment remedy is different from commencing a civil action. Bernhard-Thomas Building Systems, LLC v. Duncan, 286 Conn. 548, 558 (2008). Individuals seeking a prejudgment remedy must attach an unsigned writ, summons, and complaint to the following documents: (1) a prejudgment remedy application; (2) an affidavit stating facts sufficient to show that probable cause exists that a judgment will be rendered in the action in favor of the plaintiff; (3) a form of order that a hearing be held; and (4) a form of summons for the prejudgment remedy hearing. Conn. Gen. Stat. § 52-278c(a).
Our Supreme Court has made it clear that applications for prejudgment remedies and civil actions are separate and distinct proceedings. Bernhard-Thomas Building Systems, LLC v. Duncan, 286 Conn. 560 (2008). A prejudgment remedy can be brought at anytime: before an action, while an action is pending and even while a judgment is being appealed.
There is no statute that restricts a Plaintiff from filing a complaint. Ruling that an action cannot be brought while a prejudgment remedy application is pending enjoins a plaintiff from commencing an action which is clearly not the requirements of Connecticut’s statutes.
Commencing an action at the same a prejudgment remedy is filed is both common and preferred practice in Connecticut. How To Get Your Clients Paid: The Use of Pre-And Post Judgment Tactics, Materials from Connecticut Bar Association CLE on March 26, 2007.
There are a number of good reasons for a Plaintiff to commence a civil action at the same time it files a prejudgment remedy application:
- The filing of prejudgment remedy application does not commence an action for statute of limitations purposes;
- Service of process on any documents can be difficult and having the documents served at the same time deprives the defendant of an opportunity to willfully avoid service; and
- Doing so provides parties with the opportunity to resolve the underlying dispute and eliminate the need for a prejudgment remedy hearing at all.
Whether or not I’m right is an open question. I think I am but there should be uniformity across Connecticut courts as to whether or not filing a PJR at the same time as an action is acceptable.
Perhaps this is an issue for the legislature or perhaps it can be resolved with a change to the practice book.
In the meantime, before filing a PJR, call and ask the clerk in the Judicial District whether or not you can file a PJR at the sametime you commence an action.