2011 Ct. Sup. 5386
No. HHD CV 10-6012652-SConnecticut Superior Court Judicial District of Hartford at Hartford
February 18, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS
PECK, J.
The plaintiff, William Adamovich, initiated this twelve-count complaint against the defendants, the town of East Hartford, its chief of police and four East Hartford police officers for injuries he claims to have sustained while being apprehended by the officers. Specifically, the plaintiff alleges negligent, reckless, malicious and deliberate misconduct on the part of the defendants. The summons and undated complaint were served on defendants on June 25, 2010. The summons lists a return day of July 26, 2010. Counsel for the defendants filed an appearance on July 23, 2010.
Pending before the court is the defendants’ motion to dismiss the complaint filed on August 23, 2010[1] on the ground that the court lacks personal jurisdiction over them due to defects in process. Specifically, the defendants state that the summons dated and served with the complaint on June 25, 2010, contained a return date that was a Monday, rather than a Tuesday, in violation of General Statutes § 52-48(a).
The relatively short life of this case has been punctuated by procedural missteps. On August 27, 2010, the plaintiff filed a motion to amend the return date and effectuate new service of process. In that motion, the plaintiff sought to change the return date to October 12, 2010. The defendants filed an objection to the plaintiff’s motion to amend, in which they argued that the plaintiff cannot amend the return date because he did not do so within the two-month period in which an amendment would be acceptable.[2] The defendants’ objection to the motion to amend appeared on the September 13, 2010 short calendar as a non-arguable matter and, on that date, Judge Robaina sustained the objection and, accordingly, denied the plaintiff’s motion to amend.
Also on August 27, 2010, the same date that the plaintiff filed his motion to amend the return date, the plaintiff filed what he denominated as an objection to the defendants’ motion to dismiss. The objection to the motion to dismiss appeared on the September 7, 2010 short calendar as CT Page 5387 a non-arguable matter, and, on September 15, 2010, Judge Rittenband sustained the objection without ruling on the motion to dismiss. On September 24, 2010, the defendants filed a motion to reargue/reconsider Judge Rittenband’s ruling in light of its perceived contradiction with Judge Robaina’s ruling, and the fact that they had not been afforded oral argument on their motion to dismiss.[3] On October 7, 2010, the plaintiff filed an objection to the defendants’ motion to reconsider, and on October 14, 2010, the defendants filed a reply to the plaintiff’s objection. On October 21, 2010, Judge Rittenband denied the defendants’ motion to reargue/reconsider, noting that they had not preserved a right to oral argument on their motion to dismiss because they had not requested argument on the bottom of the first page of their motion, as required by Practice Book § 11-18(a)(2).
On October 13, 2010, the defendants claimed their motion to dismiss for short calendar argument. The matter was scheduled for oral argument before the undersigned on October 25, 2010. Given the procedural posture of the case, at oral argument, the court ordered the parties to file memoranda on the effect of the potentially inconsistent rulings of Judges Rittenband and Robaina. The supplemental memoranda were filed by the defendants on November 5, 2010 and the plaintiff on November 15, 2010. Also, on November 15, 2010, the plaintiff filed an amended motion to amend the return date. In that motion, the plaintiff sought to amend the return date to July 27, 2010. On November 24, 2010, the defendants filed an objection to the amended motion to amend the return day. That objection appeared on the short calendar as a non-arguable matter, and, on December 8, 2010, Judge Rittenband sustained the defendants’ objection. Judge Rittenband noted that “[i]t would appear that the Motion to Dismiss should have been granted, but since the matter on that has been referred to Judge Peck, this Court will leave it there.” This court again held oral argument on the motion to dismiss on December 20, 2010.
I
“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.” (Internal quotation marks omitted.) C.R. Klewin Northeast, LLC v. State, 299 Conn. 167, 174, 9 A.3d 326 (2010). “A defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction.” (Internal quotation marks omitted.)Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007). “Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.” (Internal quotation marks omitted.) Golodner v. Women’s CT Page 5388 Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959
(2007).
II
In this case, the defendants’ motion to dismiss asserts that the court lacks personal jurisdiction over them based on defective process.[4]
There is no dispute that the summons contained a return date of July 26, 2010, which was a Monday. The defendants argue that because General Statutes § 52-48(a) provides that “[p]rocess in civil actions . . . brought to the Superior Court may be made returnable on any Tuesday in any month,” and because the time to amend such a defect as allowed by General Statutes § 52-72 has passed, the court must dismiss this action for lack of personal jurisdiction. The plaintiff concedes that the process is defective on this basis, but he argues that he should be allowed to amend under § 52-72, in that the statute is to be liberally construed, and thus the court should deny the motion to dismiss. It is noted that, as detailed above, judges of this court have twice previously denied the plaintiff’s motions to amend.
“[A]n improperly specified return date affects the court’s jurisdiction . . . [An] incorrect return date should not be viewed lightly. The defect of an improper return day is not a minor defect. Rather . . . an improper return day is a defect which could not be corrected at all until [General Statutes] § 52-72 was enacted.” (Internal quotation marks omitted.)Danziger v. Shaknaitis, 33 Conn.App. 6, 10, 632 A.2d 1130 (1993). Section 52-72, which the plaintiff argues affords him a right to cure the defect, states in the relevant part, “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement . . .”
In reviewing this motion, it is noted that, “Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . Our 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 . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.” (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn App. 244, 254, 969 A.2d 210 (2009). Specifically with regard to § 52-72, “it appears that [§ 52-72] was enacted in response to decisions of [our Supreme Court] holding that an CT Page 5389 improper return date was a jurisdictional defect that could not be corrected . . . Indeed, [our Supreme Court] has stated that the purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction . . . The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date.” (Internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 308, 763 A.2d 1055 (2001), citing Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994). Further, the Appellate Court recently reiterated the common holding that, “§ 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit.” (Internal quotation marks omitted.)Merrill v. NRT New England, Inc., 126 Conn.App. 314, 321, ___ A.3d ___ (2011).
Even liberally construed, however, this statute does not allow amendments without restrictions. Our Supreme Court has stated: “A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b). Section 52-48(b) requires that `[a]ll process shall be made returnable not later than two months after the date of the process . . . `Section 52-48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended.” Coppola v. Coppola, 243 Conn. 657, 666-67, 707 A.2d 281 (1998). “[A]ccording to the Supreme Court, the relevant dates for measuring whether the plaintiffs’ proposed amended return date . . . complies with the two month limitation of § 52-48(b) are the date of process . . . and the amended return date . . .” Donovan v. Sowell, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000596 (June 21, 2006, Matasavage, J.) (41 Conn. L. Rptr. 609, 614), citing Coppola v. Coppola, supra, 677 n. 12.
The defendants have argued, however, that an amendment in this case is impossible because more than sixty days have passed since the date of process. This is incorrect. As noted by the court in Haigh v. Haigh, 50 Conn.App. 456, 717 A.2d 837 (1998), our Supreme Court, in Concept Associates, Ltd. v. Board of Tax Review, “rejected the claim that § 52-72
applied only to amendments to correct a defective return date sought before the correct return date has passed. The court disagreed with the defendant’s claim `that such a limitation is implicit in the words “a proper amendment” [in § 52-72] because there is no longer a case before the court once the return date has passed.’ [Concept Associates, Ltd. v. Board of Tax Review, supra, 229 Conn. 623.] In eschewing such a strict construction, the Concept Associates, Ltd., court stated that `[a]s a remedial statute, § 52-72 must be liberally construed in favor of those whom the legislature intended to benefit.'” Haigh v. Haigh, supra, 464. CT Page 5390 Furthermore, the Appellate Court recently reiterated the importance of a liberal construction of § 52-72, noting that our Supreme Court, i Coppola v. Coppola, supra, 243 Conn. 666, held that “[w]e [refuse] to permit the recurrence of the inequities inherent in eighteenth century common law that denied a plaintiff’s cause of action if the pleadings were technically imperfect.” (Internal quotation marks omitted.) Merrill v. NRT New England, Inc., supra, 126 Conn.App. 321-22.[5]
With this law as a background, the court examines the prior rulings in the present case. The first order of the court was Judge Robaina’s denial of the plaintiff’s motion to amend on September 13, 2010. Judge Robaina did not include an explanation for the order. The plaintiff, in his first motion to amend, sought to change the return date from July 26, 2010, to October 12, 2010, which, as the original date of process was June 25, 2010, would have been well outside the two-month limit from the date of process set by § 52-48(b). Thus, that motion was properly denied.
Subsequently, on September 15, 2010, Judge Rittenband sustained the plaintiff’s objection to the motion to dismiss apparently without knowledge of the prior order of Judge Robaina two days earlier on September 13, 2010, denying the plaintiff’s motion to amend. Judge Rittenband’s order also did not include an explanation for the ruling. In his objection to the motion to dismiss, however, the plaintiff argued that the proper path for this case was for the court to deny the motion to dismiss and grant the motion to amend.
After the initial motion to amend was denied, on November 15, 2010, the plaintiff again sought to amend the return date but this time he requested leave to make it July 27, 2010, a date within two months after the date of service of process (June 25, 2010) as required by § 52-48(b). When the second motion to amend came before Judge Rittenband as a non-arguable matter, he sustained the defendants’ objection to this motion stating, “[p]laintiff has failed to comply with the time limit of CGS 52-48(b). It would appear that the Motion to Dismiss should have been granted, but since the matter on that has been referred to Judge Peck, this Court will leave it there.”
In hindsight, the second motion to amend the return date to July 27, 2010, although mired in confusion, should have been allowed and the objection overruled. As previously noted, in calculating whether the two-month requirement of § 52-48(b) was met, the court is to consider the date of process and the proposed return date, not the date on which the motion to amend was filed. Despite the fact that the plaintiff delayed in properly seeking to amend the return date, the return date he requested in the amended motion to amend was well within the sixty-day limit set by § CT Page 5391 52-48(b).
As noted at the outset, the issue before this court is whether the complaint in this case should in justice be dismissed given the admittedly improper return date which still stands. There is no question that an improper return date is a serious error which must be corrected in order for the court to exercise personal jurisdiction over the defendants, absent their consent or waiver. Although there is no pending motion to amend before the court and the court has twice previously denied motions to amend brought by the plaintiff, the court is not without a solution. Practice Book § 10-60 provides in relevant part that, “a party may amend his or her pleadings or other parts of the record or proceedings at any time . . . [b]y order of judicial authority . . . Faced with a similar situation in which dismissal was appropriate in lieu of amendment to the return date, yet a motion to amend was not before the court, the court in Brandriff v. Sellas, 40 Conn.Sup. 243, 488 A.2d 853 (1985), also allowed such an amendment. See id., 245.
Accordingly, the court hereby orders that the plaintiff is to amend the return day forthwith in conformity with the provisions of § 52-72 and §52-48 within two weeks from the date of the filing of this memorandum of decision. Therefore, the motion to dismiss is denied without prejudice and may be renewed without further argument should the plaintiff fail to properly amend the return day in accordance with the foregoing statutes and this memorandum.
(“A defect in process . . . such as an improperly executed writ, CT Page 5392 implicates personal jurisdiction, rather than subject matter jurisdiction.” (Internal quotations marks omitted.)).
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