Opinion
No. CV 06 5000265
October 16, 2006
MEMORANDUM OF DECISION MOTION TO REARGUE #122
FACTS
On December 27, 2005, the defendant, Leo Leo Attorneys at Law, filed a motion to dismiss on the ground that the court lacked personal jurisdiction over it. The plaintiff, Carlos Govea, filed a memorandum of law in opposition making two arguments. First, the plaintiff argued that "a corporation may not appear pro se" and, therefore, "the defendant's appearance, motion to dismiss, and memorandum of law were filed inappropriately and without authorization." Second, the plaintiff argued that the defendant had the requisite minimum contacts with Connecticut for the court to exercise personal jurisdiction.
On December 8, 2005, the plaintiff filed a complaint against the following defendants, Cusano Specialties, LLC, Stratford Insurance Company and Leo Leo Attorneys at Law. The motion to reargue presently before the court is against only Leo Leo Attorneys at Law. Therefore, Leo Leo will be referred to as the defendant in this memorandum. Subsequently, on May 5, 2006, the plaintiff filed an amended complaint adding additional claims against the first named defendant.
On May 17, 2006, the court, Taylor, J., granted the defendant's motion to dismiss, finding that the longarm statute, General Statutes § 52-59b(a)(3), did not apply. The court determined that because the longarm statute was inapplicable, it was not required to resolve the issue of minimum contacts. Nonetheless, the court did conclude that the defendant lacked the requisite minimum contacts with Connecticut.
General Statutes § 52-59b(a)(3) provides in relevant part: "A court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent . . . (3) commits a tortious act outside the state causing injury to person or property within the state . . ."
On June 5, 2006, the plaintiff filed a motion to reargue the court's decision on the ground that the court did not fully consider the issue of the defendant's pro se appearance and that the court erroneously stated that the plaintiff had not sought an evidentiary hearing on the question of minimum contacts. Even though the motion to reargue was granted by the court on June 15, 2006, the defendant filed a memorandum of law in opposition to it on June 20, 2006. On July 10, 2006, the plaintiff filed a supplemental memorandum in support of his opposition to the court's granting of the motion to dismiss. The court heard argument at the short calendar on July 10, 2006. For reasons set forth herein, the court sustains its decision to grant the defendant's motion to dismiss, dated May 17, 2006.
On March 20, 2006, at the short calendar on the original motion to dismiss, the plaintiff orally requested an evidentiary hearing and stated that he had filed a motion for an evidentiary hearing with his memorandum of law. Although the plaintiff did not claim the motion with the clerk's office, the court concedes that the clerk's office did not properly code the motion and its existence was unknown to and therefore unheeded by the court. Therefore, the court is persuaded that it did not fully consider this issue and did not address the question of the defendant's pro se appearance.
The plaintiff's supplemental memorandum was filed well over a month after the issuance of the decision in which the court granted the motion to dismiss. Nonetheless, the court will consider the authority and the arguments presented in the memorandum in light of the plaintiff's motion to reargue.
DISCUSSION
In support of his motion, the plaintiff argues that "the court did not address the issue that [the defendant's] motion to dismiss was filed pro se and, therefore, the motion should not have been considered [since it was not] filed within thirty days as mandated by Practice Book [§] 10-30." The plaintiff asserts that (1) a person who is not authorized to practice law in Connecticut cannot represent an entity in court and (2) an appearance that is filed by an attorney subsequently, who is licensed in Connecticut and argues the motion to dismiss, cannot cure the earlier defect.
The defendant counters that reargument is unnecessary because the grounds for the motion to dismiss and the arguments in the memoranda of law were already fully presented before the court at the short calendar on March 20, 2006. The defendant also argues that the plaintiff's grounds for reargument, "the filing of a motion pro se by a corporate defendant and the request for an evidentiary hearing, are not compelling." First, the defendant contends that the plaintiff has cited no law "that a motion signed by a pro se corporate defendant must be stricken" and second, that the plaintiff has provided no affidavits supporting a reasonable belief that the defendant had any minimum contacts with the state of Connecticut that would justify an evidentiary hearing.
A. Pro Se Appearance
"Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state `in his own cause.'" Expressway Associates II v. Friendly Ice Cream, 34 Conn.App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994); General Statutes § 51-88(a)(1) and (d)(2). "In Connecticut, a corporation may not appear pro se . . . A corporation may not appear by an officer of the corporation who is not an attorney." (Internal quotation marks omitted.) Expressway Associates II v. Friendly Ice Cream, supra, 34 Conn.App. 546.
General Statutes § 51-88(a)(1) provides in relevant part: "A person who has not been admitted as an attorney under the provisions of section 51-80 shall not: (A) practice law or appear as an attorney-at-law for another . . ."
General Statutes § 51-88(d)(2) provides in relevant part: "The provisions of this section shall not be construed as prohibiting . . . (2) any person from practicing law or pleading at the bar of any court of this state in his own cause . . ."
In the present case, Donald Leo, an attorney admitted in the state of New York but not in Connecticut, filed an appearance on behalf of the defendant in the Connecticut Superior Court. Additionally, the defendant filed its initial appearance and motion to dismiss pro se on behalf of a business entity. The court, as the plaintiff argues, however, is not required to "automatically dismiss" the case on the basis that a legal entity cannot represent itself pro se. Nor is the court persuaded that the defendant's subsequent proper appearance did not cure or correct any defect resulting from the improper appearance.
The plaintiff cites to Expressway Associates II v. Friendly Ice Cream, supra, 34 Conn.App. 543, for the proposition that he was not required to file a motion to dismiss the defendant's pro se appearance; rather, the court should have dismissed the appearance sua sponte. On its face, Expressway is distinguishable from the present case. In Expressway, the Appellate Court sua sponte dismissed an appeal filed by a general partner because he was not an attorney and because he represented the general partnership who appeared at the appeal pro se. Id., 551. The present case, however, is merely in the pretrial stage. See County Federal Savings Loan Ass'n. v. Eastern, 3 Conn.App. 582, 584, 491 A.2d 401 (1985); see also Practice Book § 10-39. Further, the defendant in the present case properly filed an appearance through an outside counsel more than a month before its motion to dismiss was argued at the short calendar on March 20, 2006. Therefore, the Appellate Court's decision to dismiss the appeal in Expressway does not support the plaintiff's proposition that the court should have sua sponte dismissed the appearance.
A closer look at Expressway Associates II v. Friendly Ice Cream, supra, 34 Conn.App. 543, further illustrates why the court, sua sponte, dismissed the partnership's pro se appeal. In Expressway, only one of the several general partners appeared on behalf of the partnership. Id., 551. In footnote ten, the court stated it had no subject matter jurisdiction over the appeal because to do so would involve an adjudication of the interests of other general partners, who were absent from the appeal. Id., 551-52 n. 10.
The plaintiff next argues that the court should have determined that the motion to dismiss was not timely filed. At the March 20, 2006 short calendar argument on the motion to dismiss, the plaintiff stated that "there is no proper motion to dismiss or memorandum or affidavit filed because a corporation can not file such documents pro se, it has to be done through an attorney. And, as such, since there is no memorandum of law, as a matter of law, it has to be filed within thirty days of the return date, which has not been done."
The Practice Book § 10-30 provides: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-31 provides in relevant part: "This motion shall always be filed with a supporting memorandum of law, . . ." In the present case, the complaint was filed on December 8, 2005 with a return date of January 3, 2006. The defendant filed a pro se appearance on December 27, 2005 along with a motion to dismiss and supporting memorandum of law. The defendant thereafter filed a proper appearance on February 1, 2006 and a supplemental memorandum of law in support of the motion to dismiss on March 1, 2006.
The court is not persuaded that it should have denied the defendant's motion because the supplemental memorandum of law was untimely. The court in Stewart v. Air Jamaica Holdings Ltd., Superior Court, judicial district of Hartford, Docket No. CV 99 0589438 (May 2, 2000, Rubinow, J.) ( 27 Conn. L. Rptr. 144), refused to deny the motion to dismiss because of the untimely memorandum. In Stewart, the court stated that the memorandum was only an "untimely compliance" with procedural rules and that because, the memorandum was filed well in advance of the scheduled argument, the plaintiff was not prejudiced in any way. Id.
In the present case, the defendant filed a motion to dismiss and supporting memorandum of law along with a pro se appearance on December 27, 2005. The defendant then filed a supplemental memorandum of law in support of the motion on March 1, 2006, which was filed within thirty days after filing a proper appearance on February 1, 2006. The defendant filed its supplemental memorandum approximately nineteen days before the matter was scheduled for argument. Not only did the plaintiff have ample time to review the supplemental memorandum, the arguments set forth in the original memorandum and in the supplemental memorandum were substantively similar. As a result, like the plaintiff in Stewart, the plaintiff in the present case was not prejudiced.
Lastly, the plaintiff relies on Grace v. Bank Leumi Trust Co. of New York, 443 F.3d 180, 192 (2d Cir. 2006), for the proposition that the court should have "automatically dismissed" the defendant's motion to dismiss. In Grace, supra, 192, the court cites to Mullin-Johnson Co. v. Penn Mutual Life Ins. Co., 9 F.Sup. 175 (N.D.Cal. 1934), for the proposition that federal courts have dismissed an action or motion filed by a corporation appearing pro se. In Mullin-Johnson Co. v. Penn Mutual Life Ins. Co., supra, the defendant filed a motion to dismiss the action on the ground that the plaintiff-corporation could not appear pro se. Id., 175. The court's decision to dismiss the action, therefore, was not automatic, but was the result of a motion filed by the defendant. Similarly, in Grace v. Bank Leumi Trust Co. of New York, supra, 193-94, the court acted on a motion to vacate the settlement judgment entered into by a corporation appearing pro se. In both cases, therefore, the court was not "automatically dismissing" the cases; rather, the court was acting on the motions before it. In the present case, the plaintiff did not file any such motions and therefore, inter alia, the court sustains its decision to grant the defendant's motion to dismiss.
The court emphasizes that by sustaining its decision, it is not violating the policies underlying the rule that a non-attorney cannot represent another in court. In Expressway Associates II v. Friendly Ice Cream, supra, 34 Conn.App. 543, the court reiterated these policies: "The conduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents but as well for his adversaries and the court. The lay litigant frequently brings pleadings that are awkwardly drafted, motions that are inarticulately presented, proceedings that are needlessly multiplicative. In addition, to lacking the professional skills of a lawyer, the lay litigant lacks many of the attorney's ethical responsibilities, e.g., to avoid litigating unfounded or vexatious claims." (Internal quotation marks omitted.) Id., 549.
In the present case, as previously stated, Donald Leo was not admitted in Connecticut when he filed the appearance on behalf of the defendant. He was admitted in New York, however, and, therefore, created no unusual burdens on the plaintiff. In fact, the defendant's submissions through Leo were articulate, clear and concise. Further, as the court found, the defendant's claim of lack of personal jurisdiction was sound and supported by law.
The plaintiff also cites to Perlah v. S.E.I. Corp., 29 Conn.App. 43, 612 A.2d 806 (1992), for the proposition that even a duly admitted attorney in another state cannot practice law in Connecticut without being admitted to Connecticut. The court does not find Perlah relevant beyond the particular holding of that case. In Perlah, the court held that a non-attorney was not entitled to attorneys fees for his improper representation of a client. Id., 48. In the present case, Donald Leo is not seeking attorneys fees. Perlah, therefore, does not help the court address the precise issues in this case.
B. Evidentiary Hearing
In its memorandum of decision, the court stated that the defendant did not seek an evidentiary hearing. The plaintiff argues that he did request a hearing to discover whether the defendant had minimum contacts with Connecticut to provide a basis for exercising personal jurisdiction. (See footnote 3.) The defendant counters that the plaintiff made no showing, filed no affidavits in opposition and had no reasonable belief that such minimum contacts existed.
The court's May 17, 2006 decision establishes that an evidentiary hearing would not have assisted the plaintiff in this case. The court's decision held that it was not required to determine the extent of minimum contacts the defendant has with Connecticut. Where the longarm statute, § 52-59b(a)(3), does not authorize the court to exercise jurisdiction over the defendant, the court need not consider whether exercising jurisdiction over the defendant would violate the defendant's due process rights. Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). Because the court found that the longarm statute did not apply, the defendant's request for a hearing is moot.
CONCLUSION
For the foregoing reasons, the court sustains its May 17, 2006, decision to grant the defendant's motion to dismiss.