D.N.

FST-FA17-5016797-S SUPERIOR COURT

JENNIFER DULOS J.D. OF STAMFORD/NORWALK

VS. AT STAMFORD

FOTIS DULOS DECEMBER 31, 2019

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO THE DEFENDANT'S

MOTION TO DISMISS, PENDENTE LITE

The Plaintiff, Jennifer Dulos, by and through her attorney, hereby files a response to the

Defendant's Motion to Dismiss dated December 26, 2019.

For the reasons hereinafter set forth, the Defendant's motion should be denied in its entirety.

I. PRELIMINARY OBSERVATIONS AS TO DEFENDANT'S MOTION TO DISMISS

The Defendant's Motion to Dismiss expressly states that it is brought pursuant to P.B. §14-3 of the

Connecticut Practice Book. The Plaintiff submits that the P.B. §14-3 would be an inappropriate basis

upon which to seek dismissal of the pending action for dissolution of marriage under the specific facts and

circumstances of this case; and, dismissal of this action would be an abuse of the Court's discretion.

In evaluating and considering the Plaintiff's Motion to Dismiss, it must be recalled that the

Plaintiff is missing and there presently is no civil presumption under the law that she is dead, as would

require the Court to dismiss the action for lack of jurisdiction, in rem, over the marital res. The Defendant

fails to even address the foregoing fact but instead argues that the Court should exercise its judicial

discretion to dismiss the action.

 As a result, the Defendant in bringing his "Motion to Dismiss" claiming a lack of diligent

prosecution, does so by combining a hodgepodge of different legal theories, and irrelevant facts, while

failing to even acknowledge that he and Ms. Michelle Traconis appear to be prime suspects in the

Plaintiff's disappearance. The failure to even acknowledge that he is the prime suspect in his wife's

disappearance can only be described as being akin to the Defendant having a "factual lobotomy" as to the

inconvenient facts as to his apparent involvement in the Plaintiff's disappearance. Concomitantly, he also

appears to have no memory of his role in delaying this case, both prior and subsequent to, the Plaintiff's

disappearance. Relevant facts are not analyzed or discussed. Instead we have legal claims that vary from

an inconvenient forum, judicial economy, and "the potential for inconsistent rulings and orders" (See the

Defendant's Motion to Dismiss, Entry # 539.00 and the Memorandum in Support of his Motion, Entry #

540.00). The Plaintiff submits that none of the Defendant's claims support the dismissal of the present

action for dissolution of marriage and that dismissal of the action would be an abuse of judicial discretion.

As an action for dissolution of marriage is essentially an equitable action where a party seeking

justice must do justice, the Defendant must not come into court seeking relief with unclean hands.

As the business of the Courts is to dispense justice, artificial time constraints unilaterally sought to

be imposed by the Defendant do not form a reasonable basis for the exercise by this Court of its judicial

discretion, so as to aid the Defendant in his pursuit to benefit from his actions.

With the foregoing in mind the Plaintiff submits the following analysis and arguments against the

Defendant's Motion to Dismiss for lack of diligent prosecution.

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II. P.B. §14-3 DOES NOT REQUIRE THIS COURT TO DISMISS THE ABOVE
CAPTIONED ACTION

P. B. §14-3 states:

"Sec. 14-3. Dismissal for Lack of Diligence

(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial
authority may, after hearing, on motion by any party to the action pursuant to Section 11-1,
or on its own motion, render a judgment dismissing the action with costs. At least two
weeks' notice shall be required except in cases appearing on an assignment list for final
adjudication. Judgment files shall not be drawn except where an appeal is taken or where
any party so requests.

(b) If a case appears on a docket management calendar pursuant to the docket management
program administered under the direction of the chief court administrator, and a motion for
default for failure to plead is filed pursuant to Section 10-18, only those papers which close
the pleadings by joining issues, or raise a special defense, may be filed by any party, unless
the judicial authority otherwise orders.

(P.B. 1978-1997, Sec. 251.) (Amended June 24, 2002, to take effect Jan. 1, 2003; amended
June 20, 2011, to take effect Jan. 1, 2012.)"

With respect to P:B. §14-3, the Defendant does not claim that this action appears on a" dormancy

or "docket management calendar".

Thus, the Defendant's claim that the Plaintiff has not diligently prosecuted the pending action for

dissolution of marriage must be supported by facts which would warrant such a conclusion by this Court.

Apparently from an examination of the Memorandum of Law in Support of the Defendant's

Motion to Dismiss, the central facts upon which the Defendant seeks dismissal of the action are that on

May 24, 2019, the Plaintiff was, at a minimum, the victim of an assault and apparently suffered

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substantial injuries resulting in her loss of blood, along with her disappearance. The assault apparently

occurred in the home which she rented in New Canaan, CT.

At the time of the Plaintiff's disappearance, the matter was actively being litigated as to issues

concerning child custody. As of May 24, 2019, there were four hundred and ninety-seven (497) docket

entries. After May 24, 2019 there were an additional fifty (50) court entries prior to the date that the

Defendant filed his Motion to Dismiss on December 26, 2019.

The Court is aware of the number of days of hearings and court appearances from the date of the

case's inception to May 24, 2019, and is asked to take judicial notice thereof. The Plaintiff asserts that

during the pendency of this action from June 2017 there were at least forty-eight (48) hearing dates and

court appearances dealing with substantive issues. There were also depositions. The Defendant's own

claims concerning visitation and custody consumed substantial judicial time and resources. The

Defendant's actions throughout this case must be considered in analyzing the Defendant's Motion to

Dismiss. Thus, in considering the "totality of the circumstances" and issues of "proportionality", the

Court should also recall and consider, among other facts, the time consumed by the Defendant's action on

or about May 30, 2018, and the issues concerning his alleged medical problem in the midst of a contested

hearing; and the multiple in and out appearances of counsel for the Defendant.

At the time of the Plaintiff's disappearance, the parties were engaged in contested custody

proceedings initiated by the Defendant, which proceedings were clearly not going well with respect to the

Defendant's claims.

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 Subsequent to the Plaintiff's disappearance, the Defendant through his attorneys filed on June 28,

2019, a Motion for Stay of All Proceedings. See Entry # 521.00. Thereafter, on July 29, 2019, (31 days

after its filing) the Defendant filed a withdrawal of his Motion for Stay. (See entry # 526.00). It is of note

how the Defendant, in said motion for stay, sought to prevent the Plaintiffs counsel from continued

representation of the Plaintiff's interests by claiming that his rights to due process of law were being

violated by the Plaintiff's absence when he appeared to be the prime suspect in the Plaintiff's

disappearance. In addition, the Plaintiffs Mother filed a Motion to Intervene which was actively being

litigated in this court. See Entry #s. 502.00, 502.01, 503.01, 519.00, 524.01, & 514.02.

The Defendant's Motion for Stay, during its relatively brief existence, cited no legal authority in

support of the relief which it sought except for bald conclusory statements regarding the right to due

process of law. The Plaintiff submits that in essence what the Defendant sought to do was eliminate from

the case the Plaintiffs legal representative, who was most familiar with the factual and legal issues in the

case. It was a tactical maneuver presented without proper citation to facts or legal authority.

The Defendant's present Motion to Dismiss should be viewed in a similar vein. For counsel, while

bringing to the Court's attention the cases of Fleischer v. Fleischer, 192 Conn. App. 540, 217 A.3d 1028

(2019) and Bobbin v. SAIL THE SOUNDS, LLC, 153 Conn. 716, 107 A.3d 420 (2014), he fails to engage

in any legal analysis of the doctrines established in those cases; nor, does he apply relevant facts to a

proper legal analysis of those principles. Also, to be noted is the fact that the Defendant's continuing

contempt of this Court's orders and authority, as has been demonstrated on the record. By way of

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examples, the Defendant has never complied with this court's order that he account for all copies of the

Court ordered evaluation, which has been sealed and suppressed. Both the GAL and counsel for the

Plaintiff complied with this Court's order — the Defendant has not. Also, to be noted is the fact that the

Defendant's prior attorney was reported, by counsel, to have accused the Defendant of taking the

evaluation from his possession and custody. Additionally, the Defendant has not paid the GAL as ordered

by this Court, despite his apparent ability to pay his cadre of attorneys in pending civil actions and his

criminal defense. The Defendant alludes to his belief that the GAL, Michael T. Meehan, Esq. may have

been removed from this case, but there is no order of record doing so.

Furthermore, it is submitted that the Defendant has also been caught in misrepresenting facts

during his testimony in hearings before this Court when he denied he had violated court orders prohibiting

contact between Ms. Traconis and the minor children. However, when subsequently confronted in court

with the evidence he recanted his testimony and had a purported excuse. The foregoing should not be

construed as "mudslinging". Rather, the foregoing recitation of facts is intended to set forth the

background and facts — "the totality of the circumstance" which the Court should consider in determining

whether to exercise its judicial discretion in considering the Defendant's Motion to Dismiss for the

alleged lack of diligent prosecution.

The facts clearly demonstrate that this case has been hotly and continuously contested; that any

asserted delays in moving the case forward after the Plaintiff's disappearance were attributable to the

actions of the Defendant; and, that the Defendant's present motion is little more than an attempt to create

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a hollow facade behind which he could appear to be the aggrieved party and publicize his agenda.

In Bobbin v. SAIL THE SOUNDS, LLC, 153 Conn. 716, 727-28, 107 A.3d 420-21 (2014) the

Appellate Court noted:

"Practice Book § 14-3(a) permits a trial court to dismiss an action with costs if a party fails
to prosecute the action with reasonable diligence. "The ultimate determination regarding a
motion to dismiss for lack of diligence is within the sound discretion of the court."
Nickerson v. Gachim, 183 Conn. 413, 415, 439 A.2d 379 (1981), overruled in part on other
grounds by Morelli v. Manpower, Inc., 226 Conn. 831, 834, 628 A.2d 1311 (1993). "Under
[§ 14-3], the trial court is confronted with endless gradations of diligence, and in its sound
discretion, the court must determine whether the party's diligence falls within the
`reasonable' section of the diligence spectrum." Jaconski v. AMF, Inc., 208 Conn. 230,
234, 543 A.2d 728 (1988). Courts must remain mindful, however, that "[i]t is the policy of
the law to bring *727 about a trial on the merits of a dispute whenever possible"; Snow v.
Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978); and that "[o]ur practice does not favor
the termination of proceedings without a determination of the merits of the controversy
where that can be brought about with due regard to necessary rules of procedure." (Internal
quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn.
1, 16, 776 A.2d 1115 (2001)....

In determining whether there has been an abuse of discretion, the ultimate issue is whether
the court could reasonably conclude as it did.... The trial court's discretion imports
something more than leeway in decision making and should be exercised in conformity
with the spirit of the law and should not impede or defeat the ends of substantial justice."
(Internal quotation marks omitted.) Przekopski v. Zoning Board of Appeals, 131 Conn.
App. 178, 192-93, 26 A.3d 657, cert. denied, 302 Conn. 946, 30 A.3d 1 (2011).

A trial court properly exercises its discretion to dismiss for failure to prosecute" if the case
has been on the docket for an unduly protracted period or the court is satisfied from
the record or otherwise that there is no real intent to prosecute ...." Nickerson v.
Gachim, supra, 183 Conn. at 415, 439 A.2d 379; see, e.g., id., at 414-15, 439 A.2d 379 (no
abuse *728 of discretion when trial court dismissed case after two years of inactivity,
numerous appearances of case on trial list, and party's failure to answer call regarding case
on dormancy list); see also Gionfrido v. Wharf Realty, Inc., supra, 193 Conn. at 31, 34, 474
A.2d 787 (no abuse of discretion when trial court dismissed case following party's failure

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 to return to court following recess); Kalb v. Aventis Cropscience, USA, Inc., 144
Conn.App. 600, 604, 74 A.3d 470 (2013) (no abuse of discretion when trial court
determined plaintiff lacked diligence on ground that, inter alia, plaintiff took no action in
case for three and one-half years), cert. denied, 310 Conn. 932, 78 A.3d 858 (2013);
Pereira v. Blau, 2 Conn.App. 377, 378-79, 478 A.2d 1044 (1984) (affirming dismissal and
denial of motion to open judgment for failure to prosecute where counsel failed to appear
at final jury assignment list), cert. denied, 194 Conn. 810, 484 A.2d 943 (1984)."
(Emphasis Added)

The Plaintiff submits that there is no factual basis upon which this Court could support an exercise

of its judicial discretion dismissing this action for failure to diligently prosecute.

There has been no inordinate delay. There is no basis for the Court to find that the Plaintiff had or

has no intent to diligently prosecute. Counsel for the Plaintiff can still proceed with the case pursuant to

the authority granted under Rule 1.14 of the Rules of Professional Conduct. There is a need to protect the

Plaintiff's interests both as to the custody of her children, child support, alimony and an equitable division

of property. The Plaintiff would also have an interest in preventing the dissipation of marital assets. See

Plaintiffs numerous motions for contempt against the Defendant, which motions were filed prior to her

disappearance; and which were delayed as the Court primarily focused on custody and visitation issues.

These pending motions are relevant to the Court's consideration of the Defendant's Motion to Dismiss.

Furthermore, in considering the sanction for an alleged failure to diligently prosecute, the

Appellate Court recently stated that in considering a Motion to Dismiss for Lack of Diligent Prosecution

the trial court must "...determine whether the party's diligence falls within the "reasonable" section of the

diligence spectrum." See Fleischer v. Fleischer, 192 Conn. App. 540, 217 A.3d 1028 (2019) Furthermore,

8
the sanction imposed upon a litigant for an alleged failure to diligently prosecute must be proportionate in

light of the facts of the case. For "disciplinary dismissals for failure to diligently prosecute are not

favored."

"Although dismissal of an action is not an abuse of discretion if a party shows a

deliberate, contumacious, or unwarranted disregard for the court's authority, the
court should be reluctant to employ the sanction of dismissal except as a last resort,
and if it would be the only reasonable remedy available to vindicate the legitimate
interests of the other party and the court." Fleischer v. Fleischer, 192 Conn. App.
540, 548, 217 A.3d 1028, 1034 (2019)."

The Plaintiff, through counsel, submits that the Plaintiff's disappearance under circumstances

which indicate that the Defendant and others played a role in the Plaintiff's disappearance is just as

significant and persuasive as the diagnosis of Parkinson's Disease raised by counsel for the Party in

Fleischer v. Fleischer, 192 Conn. App. 540, 543, and n.12, 217 A.3d 1028, 1031 (2019).

Considerations of the reasons for any delay is relevant, not only to the court's determination of

whether there was any "delay" or "unreasonable delay"; but, also as to the issue of proportionality of the

imposition of the sanction of dismissal; the issue of notice; and the totality of the circumstances" of the

case. Fleischer v. Fleischer, 192 Conn. App. 540-549-556, 217 A.3d 1028, 1035-40 (2019).

The Defendant's Motion to Dismiss fails to even contain any proper analysis of the issues which

must be properly considered by this Court under Fleischer v. Fleischer, 192 Conn. App. 540, 217 A.3d

1028 (2019) and Bobbin v. SAIL THE SOUNDS, LLC, 153 Conn. 716, 107 A.3d 420 (2014). Instead the

9
Defendant sets forth citations without analysis and one is hard pressed to see any assertion of facts that

would support the Defendant's Motion to Dismiss.

Thus, normally the Court's consideration of the Defendant's Motion to Dismiss would require an

evidentiary hearing before the Court could act. However, the failure of the Defendant to properly present

his claim and support it with any proper legal analysis of the issues, requires that the Motion to Dismiss

for the Failure to Diligently Prosecute be denied. See Nahlawi v. Nahlawi, 189 Conn. App. 269 (2019);

Mountain v. Mountain, 189 Conn. App. 233 (2019); Packard v. Packard, 181 Conn. App. 250 (2018).

The failure to adequately set forth facts and a proper analysis of the law would allow the Defendant to

engage in a trial by ambush by not setting forth the relevant factual considerations and legal principles

which must be addressed with respect to his Motion to Dismiss for Failure to Diligently Prosecute.

III. THE DEFENDANT'S ASSERTIONS OF POTENTIAL INCONSISTENT ORDERS

OR DUAL PROCEEDNGS IN DIFFERENT COURTS ARE IRREEVANT TO THE
MOTION TO DISMISS FOR LACK OF DILIGENT PROSECUTION

No legal analysis or in-depth factual discussion is necessary for this Court to consider the fact that

many of the conclusory arguments made by counsel for the Defendant in his Motion to Dismiss for Lack

of Diligent Prosecution are irrelevant to and cannot support "dismissal of the action" for failure to

diligently prosecute.

Counsel for the Defendant gratuitously inserts those conclusory claims or arguments for some

purpose other than supporting a Motion to Dismiss for Failure to Diligently Prosecute. The gratuitous

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insertion of such claims should be considered by this Court as relevant to the lack of "good faith" on the

part of the Defendant in bringing the Motion to Dismiss for Failure to Diligently Prosecute.

In addition, none of the conclusory claims or assertions could support the present Motion to

Dismiss. The Plaintiff asserts that the same considerations as to the Defendant's failure to adequately brief

the issues applies to his "ancillary" assertion of irrelevant facts and claims in support of his Motion to

Dismiss.

IV. SUMMARY

The Defendant's Motion to Dismiss for Failure to Diligently Prosecute, entry # 539.00 (and entry

# 540.00 — the Memorandum in Support of the Motion) should be summarily denied; or denied after an

evidentiary hearing.

THE PLAINTIFF JENNIFER DULOS,

euben S. Midler, Esq. Juris # 17824

Law Office of Wayne D. Effri P.C.
Juris #100106
2 Greenwich Office Park, 2'd Floor West
P. 0. Box 5237
Greenwich, Connecticut 06831-0504
Tel: (203) 622-1160
Fax: (203) 622-4004
e-mail: effronlaw@effronlaw.com

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 CERTIFICATION

I certify that a copy of the above was or will immediately be mailed or delivered electronically or
non-electronically on December 31, 2019 to .all counsel and self-represented parties of record and that
written consent for electronic delivery was received from all counsel and self-represented parties of record
who were or will immediately be electronically served.

Defendant Fotis Dulos Intervenor Gloria Farber

c/o Norman A. Pattis, Esq. c/o Anne C. Dranginis, Esq.
Pattis & Smith, LLC Pullman & Comley, LLC
383 Orange Street, 1st Floor 90 State House Square
New Haven, CT 06511 Hartford, CT 06103-3702
E-mail: npattis@pattisandsmith.com E-mail: adranginis@pullcom.com

Defendant Fotis Dulos Guardian Ad Litem Michael T. Meehan, Esq.

c/o Richard A. Rochlin, Esq. Meehan Law, LLC
Rich Rochlin Law Group 76 Lyon Terrace
10 North Main Street, Suite 304 Bridgeport, CT 06604
West Hartford, CT 06107 E-mail: mtm@meehanlaw.com
E-mail: rrochlin@taboadarochlin.com

I further certify that the original of this document is a true copy of the document electronically
filed with the Superior Court of the above-captioned Judicial District.

Reuben S. Midler, Esq. (Juris #03 824)

Commissioner of the Superior Court

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Attorney/Firm: EFFRON WAYNE D. PC (100106) E-Mail: effronlaw@effronlaw.com Logout

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Docket Number: FST-FA-17-5016797-S
Case Name: DULOS,JENNIFER v. DULOS,FOTIS
Type of Transaction: Pleading/Motion/Other document
Date Filed: Dec-31-2019
Motion/Pleading by: EFFRON WAYNE D. PC (100106)
Document Filed: 542.00 MEMORANDUM IN OPPOSITION TO MOTION
to Defendant's Motion to Dismiss
Date and Time of Transaction: Tuesday, December 31, 2019 1:14:38 PM

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