Opinion
No. CV 06-5007567
January 24, 2008
MEMORANDUM OF DECISION
On November 28, 2006, the pro se plaintiff, Deborah Carlin, filed this seven-count complaint against the defendants, Dana Wiseman, Dana Wiseman, MD and Dana Wiseman, MD, PC. This action arises out of injuries and losses allegedly sustained by the plaintiff after the defendant, her primary care physician, provided certain third parties with a note in which he cast doubt upon the plaintiff's emotional stability.
The three defendants consist of the plaintiff's primary care physician in his individual capacity, and the business entities under which he is organized. Hereinafter, for purposes of clarity, the court will refer to those three entities as "the defendant."
In the first count, the plaintiff alleges a cause of action sounding in libel. The plaintiff's second count is labeled as medical malpractice. In her third count, she brings an action against the defendant for negligence. In count four, the plaintiff claims that the defendant engaged in willful, wanton or reckless misconduct. In her fifth count, she alleges that the defendant's actions constitute negligent infliction of emotional distress. Finally, in her sixth and seventh counts, the plaintiff claims that the defendant's conduct violated her state and federal constitutional rights.
On February 26, 2007, the defendant filed a motion to dismiss the first, second, sixth and seventh counts of the plaintiff's complaint. Thereafter, on April 26, 2007, the plaintiff filed an objection to the defendant's motion.
Although the defendant asserts that the third, fourth and fifth counts of the complaint should be "dismissed," his argument challenges the legal sufficiency of the causes of action contained in those counts. Whenever a party wants to test the legal sufficiency of a complaint, the proper procedural vehicle is a motion to strike. See Practice Book § 10-39; Rizzato v. Davidson Ladders, Inc., 280 Conn. 225, 256, 905 A.2d 1165 (2006). Therefore, it is not appropriate to analyze his arguments regarding the third, fourth and fifth counts in the context of a motion to dismiss.
I
"[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time . . . 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." (Internal quotation marks omitted.) Vitale v. Zoning Board of Appeals, 279 Conn. 672, 678, 904 A.2d 182 (2006). Further, "[t]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
Finally, "[W]hen issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 833, 826 A.2d 1102 (2003); see also Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608 n. 10, 674 A.2d 426 (1996) (noting that evidentiary hearing requirement arises from request of either party). In the present case, neither party has requested an evidentiary hearing, nor are there facts in dispute that arc necessary to determine jurisdiction. As such, the court will rely upon the pleadings and the evidence submitted by the parties prior to oral argument.
II Libel
In the present case, the defendants insist that the plaintiff's libel claim is barred by the statute of limitations. They maintain that, pursuant to General Statutes § 52-597, the plaintiff must bring a libel action within two years from the date of the alleged publication. They note that the allegedly libelous statement was published on November 9, 2004, but that the plaintiff did not file her claim until November 24, 2006. Accordingly, they argue that the claim is time barred. The plaintiff, acting pro se, responds that the defendant has not made a "valid legal argument."
General Statutes § 52-597 provides: "No action for libel or slander shall be brought but within two years from the date of the act complained of."
"[T]he defense of the Statute of Limitations . . . must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Nevertheless, "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993).
To begin, the defendant fails to acknowledge that a motion to dismiss is not the appropriate procedural vehicle in which to assert a statute of limitations defense. Further, he has failed to cite to any case law indicating that libel was not recognized at common law. Even if he had made such an argument, however, his motion with regard to the plaintiff's claim for libel must fail because a claim for libel originates at common law and is not created by § 52-597. Instead, § 52-597 merely sets forth the statute of limitations for a remedy that existed at common law. As the common law recognized a cause of action for libel, the court finds that the defendant's motion to dismiss the libel count is denied.
See Lega Siciliana Social Club, Inc., v. St. Germaine, Superior Court, judicial district of Waterbury, Docket No. CC 00 0159363 (May 2, 2002, Pittman, J.) ( 32 Conn. L. Rptr. 168) (noting that libel was recognized at common law).
III Malpractice
The defendant maintains that the plaintiff's failure to file a good faith certificate and a written opinion, pursuant to General Statutes § 52-190a, requires the court to dismiss the plaintiff's malpractice claim. Specifically, the defendant argues that, pursuant to § 52-190a(c), dismissal is mandatory where a party does not file the requisite documents. The defendant asserts that, because the plaintiff failed to comply with either requirement, the court should grant the defendant's motion to dismiss the malpractice claim. In response, the plaintiff argues that the omission of the good faith certificate and the written opinion letter is not an absolute bar to medical malpractice claims, particularly where there is no need to consult with medical experts regarding the existence of medical negligence.
Under § 52-190a(a), "a party filing a medical malpractice action is required to file both a certificate of good faith and a written opinion from a similar health care provider which states that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." (Internal quotation marks omitted.) Boykin v. Rutherford, Superior Court, judicial district of New Haven, Docket No. 07 5009783 (December 6, 2007, Holden, J.) Further, § 52-190a(c) provides: "The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
To begin, our appellate courts have not addressed whether dismissal is mandatory under § 52-190a(c). In turning to Superior Court decisions for guidance, the court notes that there is a split of authority concerning this precise issue. On the one hand, a number of Superior Courts have determined that § 52-190a(c) is mandatory in nature and requires the court to dismiss any claim where the plaintiff fails to obtain and file the written opinion. See Votre v. County Obstetrics Gynecology Group, Superior Court, judicial district of New Haven, Docket No. CV 06 5005430 (May 24, 2007, Holden, J.) [ 44 Conn. L. Rptr. 436] (granting a motion to dismiss for failure to provide a certificate of good faith and a written opinion of a similar healthcare provider in a medical malpractice action); Mastrone v. St. Vincent's Medical Center, Superior Court, judicial district of Fairfield, Docket No. CV 05 5000477 (May 23, 2006, Rodriguez, J.) ( 41 Conn. L. Rptr. 375) ("[F]ailure to attach the required opinion implicates the court's subject matter jurisdiction"); Fyffe-Redman v. Rossi, Superior Court, judicial district of Hartford, Docket No. CV 05 6000010 (June 7, 2006, Miller, J.) ( 41 Conn. L. Rptr. 504) ("[T]he language of § 52-190a(c) makes it clear that a failure to comply with the written opinion requirement deprives the court of subject matter jurisdiction").
Although these opinions correctly note that the use of the word "shall" generally indicates that a given statutory or regulatory directive is mandatory, a close examination of § 52-190a(c) makes it clear that "shall" is used to modify the word "grounds," and not the word "dismissal." Further, the word "ground" is defined as "a basis for belief, action, or argument." Merriam-Webster's Collegiate Dictionary (9th Ed. 1987). This definition indicates that the failure to submit the requisite documents shall provide the court with a justification for dismissing the action, but not a mandate for dismissal. Additionally, in Greer v. Norbert, Superior Court, judicial district of Hartford, Docket No. CV 06 5004859 (February 7, 2007, Rittenband, J.T.R.) ( 42 Conn. L. Rptr. 806), the court noted that the statute does not say, for example, that, upon a failure to obtain and file the requisite documents, "the action shall be dismissed." Such an example illustrates that § 52-190a(c) proscribes a discretionary act rather than a mandatory one. For these reasons, the court will follow the line of cases holding that dismissal pursuant to § 52-190a(c) is discretionary rather than mandatory. See Donovan v. Sowell, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000596 (Jun. 21, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 609); Doe v. Priority Care, Inc., 50 Conn.Sup. 385, 390, 933 A.2d 755 (2007); Maitan v. Access Ambulance Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 07 5003252 (October 18, 2007, Nadeau, J.).
Although discretionary matters are within the sole province of the court, there are several factors that have been considered by other courts when considering a discretionary dismissal under the statute. For instance, in Donovan v. Sowell, supra, 41 Conn. L. Rptr 609, the court relied upon the fact that the plaintiff had obtained a written opinion but failed to attach it to the complaint. In that case, the court provided the plaintiff with the opportunity to amend his complaint. Id. In Doe v. Priority Care, Inc., supra, 50 Conn.Sup. 397, the court was faced with an insufficiently detailed written opinion. There, the court focused on the plaintiff's "good faith" in filing the complaint and permitted the plaintiff to file an amended opinion letter Id., 397-98.
In the present case, the plaintiff has completely failed to obtain or submit the good faith certificate and the written opinion. Although she maintains, in her memorandum, that she filed this action after a good faith inquiry, she has not submitted any evidence to support that claim. At the same time, however, the plaintiff is appearing pro se and "[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." Connecticut Light Power Co. v. Kluczinsky, 171 Conn. 516, 519-20, 370 A.2d 1306 (1976).
IV Constitutional Claims
The defendant challenges the plaintiff's sixth and seventh counts by asserting that the plaintiff may not maintain a claim for constitutional deprivation where there is no allegation that the defendant is "state actor," or that the constitutional deprivation involved "state action." While the plaintiff concedes that there is some merit to the defendant's argument, she maintains that this particular defect is not jurisdictional in nature.
"The constitutional protections of individual rights and liberties extend only to government actions. Since the civil rights cases . . . the United States Supreme Court has maintained that, against private conduct, however discriminatory or wrongful . . . the [fourteenth [a]mendment offers no shield . . . Therefore, in determining whether a claimant's due process rights have been violated, the threshold inquiry is whether the challenged conduct constitutes state action. This inquiry becomes quite complicated when, as in the present case, the actor is a private entity . . . In such a case, the question becomes whether the conduct in question is `fairly attributable' to the state . . .
"The United States Supreme Court currently employs a two part test to determine whether the conduct of a private actor is fairly attributable to the state. First, the deprivation must be caused by the exercise of some right or privilege created by the [s]tate or by a rule of conduct imposed by the [s]tate or by a person for whom the [s]tate is responsible . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor . . .
"In order to determine whether the actor is a state actor, the court must consider: the extent to which the actor relies on governmental assistance and benefits . . . whether the actor is performing a traditional governmental function . . . and whether the injury caused is aggravated in a unique way by the incidents of governmental authority . . ." (Citations omitted; internal quotation marks omitted.) MedValUSA Health Programs, Inc. v. Memberworks, Inc., 273 Conn. 634, 641-42, 872 A.2d 423 (2005).
In the present case, the plaintiff asserts her claims under the first and fifth amendments to the United States constitution and the "the equivalent Articles of the Constitution of the State of Connecticut." As for the plaintiff's federal constitution claims, those claims appear to be made pursuant to the federal civil rights statute, 42 U.S.C. § 1983. See Massey v. Branford, Superior Court, judicial district of New Haven, CV 04 048778 (March 28, 2006, Munro, J.) (construing unlabeled claims of federal constitutional violations as claims under § 1983). Where the plaintiff brings an action pursuant to § 1983, "[t]here appears to be no question that the requirement of `state action' . . . is an essential jurisdictional predicate . . . Accordingly, where state action is found lacking, the section 1983 complaint is properly dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Tucker v. Neighborhood Legal Services, Inc., 4 Conn.App. 209, 212, 493 A.2d 278 (1985). As nothing in the pleadings or the record indicates that the defendant is a "state actor" or that his conduct qualifies as "state action," the court grants the defendant's motion with regard to the plaintiff's federal claims.
As noted, the plaintiff seems to concede that the "state action" requirement is lacking.
As for the state constitution claims, the defendant has failed to cite, and the court was unable to find, any case law addressing whether the lack of "state action" is a defect that implicates subject matter jurisdiction or whether it is one that goes to the legal sufficiency of the complaint. Nevertheless, it has been held that "[t]here is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." Egrie v. Foise, 83 Conn.App. 243, 247, 848 A.2d 1266 (2004). In the present case, the plaintiff, in her memorandum, does not dispute that the defendant is not a "state actor," and that his conduct does not qualify as "state action." Accordingly, under these circumstances, the plaintiff cannot state a cause of action under the Connecticut constitution. Therefore, the court lacks subject matter jurisdiction over the plaintiff's state constitutional claims.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion with regard to counts six and seven, and denies the motion with regard to counts one and two.