Opinion
No. CV 04 4000764
July 20, 2005
MEMORANDUM OF DECISION RE (#113) DEFENDANT'S MOTION TO DISMISS
This is an action by the plaintiff to enforce an independent contractor agreement which it alleges to have entered into with the defendant. The plaintiff is seeking to enjoin the defendant from being employed by a competitor of the plaintiff pursuant to the terms of a covenant not to compete which the plaintiff alleges is contained in the parties' agreement.
The defendant has filed a motion to dismiss the plaintiff's action. She argues that the court has no subject matter jurisdiction because the named plaintiff is improperly characterized by its trade name, Century 21 Access America, the name that it does business as. The plaintiff is a corporation and is registered with the secretary of state as Access America, LLC. The plaintiff filed a motion to amend or correct the complaint, in order to change the caption to "Access America, LLC doing business as Century 21 Access America" and filed a memorandum in opposition to the motion to dismiss.
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter . . ." . . ." Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51 (2002). "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 267 (2005). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291 (2005). "Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n. 6 (2003).
The defendant relies exclusively on America's Wholesale Lender v. Pagano, 87 Conn.App. 474 (2005) to support its argument that the case must be dismissed for lack of subject matter jurisdiction. The defendant argues that the present case is identical to America's. The plaintiff argues that typing its trade name on the complaint was a misnomer, it should be allowed to amend its complaint and the motion to dismiss should be denied. It asserts that Dyck O'Neal, Inc. v. Wynne, 56 Conn.App. 161 (1999) is factually similar and controlling.
In America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 474, the plaintiff instituted an action under its trade name, "America's Wholesale Lender," rather than its corporate name, "Countrywide Home Loans, Inc." The court noted that "in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue . . . Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name." Id., 477. The court mentioned that "this court, as well as our Supreme Court, has held in numerous circumstances that the mislabeling or misnaming of a defendant constituted a circumstantial error that is curable under [General Statutes] § 52-123 when it did not result in prejudice to either party." (Emphasis in original.) Id., 478. The court declined "to extend the use of § 52-123 in this manner to a plaintiff that has used a fictitious name for itself when commencing an action." (Emphasis in original.) Id.
See also America's Wholesale Lender v. Silberstein, 87 Conn.App. 485, 866 A.2d 695 (2005).
General Statutes § 52-123 provides: "No writ, pleading, judgment or any kind of proceeding . . . shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court."
The court also distinguished Dyck O'Neal, Inc. v. Wynne, supra, 56 Conn.App. 161. That case did not involve the use of a trade name where the plaintiff's true identity was concealed. America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 478-79 n. 5. In this action, the plaintiff incorrectly designated itself by its fictitious trade name rather than its true corporate identity.
Although the defendant in this case does not allege that she was misled or prejudiced by the corporate plaintiff bringing the action under its trade name, "[a] lack of subject matter jurisdiction . . . requires dismissal, regardless of whether prejudice exists." America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 480.
Subject matter jurisdiction cannot be conferred when an action is instituted under a trade name, as a trade name is not a legal entity with capacity to sue. The plaintiff brought suit under its trade name and, therefore, it has no standing to sue.
For the foregoing reasons, the defendant's motion to dismiss is hereby granted.
By the Court,
Joseph W. Doherty, Judge