Opinion
No. CV 07-5009225 S
October 24, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103) and OBJECTION TO DISMISS (#105)
The defendants filed a Motion to Dismiss (#108), dated March 21, 2007, which this court denied on April 2, 2007. Then on April 26, 2007, the defendants filed a Motion for Articulation (#112), to which the plaintiff objected (#116) on May 4, 2007. On July 16, 2007, the court sustained the plaintiff's objection. However, this court has reconsidered the ruling and issues the following articulation.
In a handwritten order, this court denied the Motion to Dismiss, stating: "the plaintiff has sufficiently named defendant parties in the Summons and Complaint to comply with Practice Book and statutory requirements." See Connecticut Electric Equipment Co. v. Fidelity Guaranty Insurance, Superior Court, Judicial District of New Haven, Docket Nos. CV00274893 (03-25-02), Skolnick, J. [31 Conn. L. Rptr. 588].
This Memorandum of Decision obviates the need to rule on the defendants' Motion to Reargue (#118) dated July 25, 2007 and the plaintiff's objection to the Motion to Reargue (#120), dated July 31, 2007.
FACTS
The plaintiff, Harmony Healthcare International, Inc., commenced this action by service of process on the defendants, PARCC Health Care, Inc., and Talmadge Park, Inc., on January 23, 2007, and January 26, 2007, respectively. The writ of summons named the defendants as "PARCC Healthcare, Inc. dba Astoria Park" and "Talmadge Park Healthcare." The plaintiff filed a single-count complaint on February 13, 2007, in which it alleged that it recovered a default judgment against the defendants in the Ipswich District Court in Newburyport, Massachusetts, in the amount of $11,041.23 and that the judgment remains unsatisfied. In that complaint, the defendants were identified as "PARCC Healthcare, Inc., dba Astoria Park" and "Talmadge Park, Inc." The caption of the complaint, however, identifies the named defendant as "PARCC Healthcare, Ind. [sic] dba Astoria Park." The plaintiff subsequently filed an amended complaint on February 16, 2007, the caption of which identifies the first named defendant as "PARCC Healthcare, Ind. [sic], dba Astoria [sic] Park."
On March 21, 2007, the defendants filed a motion to dismiss on the ground that the writ of summons and the complaint do not properly or sufficiently identify the defendants. The defendants argue that the errors made in the writ and the complaint mandate a dismissal of the complaint for lack of personal jurisdiction and/or insufficiency of process and/or insufficiency of service of process. The defendants have submitted a memorandum of law in support of the motion. On March 28, 2007, the plaintiff filed a memorandum of law in opposition to the motion to dismiss and, without leave of the court, simultaneously filed a "revised complaint" correcting the errors made in their amended complaint.
DISCUSSION
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143 (now Practice Book § 10-31).
Practice Book § 8-1 provides in relevant part: "Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint."
In their memorandum of law in support of the motion to dismiss the defendants argue that misidentifying Talmadge Park, Inc. and PARCC Health Care, Inc., dba Astoria Park, in the writ of summons and the amended complaint, respectively, constitutes a deficiency of process and strips this court of personal jurisdiction.
The defendants mention insufficiency of service of process in their motion, but fail to articulate in their memorandum of law any irregularity in service. Therefore the issue is more properly identified as insufficiency of process.
The plaintiff, in response, argues that the defendants are precluded from raising the issue of personal jurisdiction because this is a common-law action on a foreign judgment and, therefore, is presumed valid under the full faith and credit clause of the constitution of the United States and General Statutes § 52-607. The plaintiff argues the appropriate venue to contest personal jurisdiction is in Massachusetts (the state of the original judgment) and not in Connecticut.
The plaintiff also argues in its memorandum in opposition to the motion to dismiss that the parties were properly named in the action and that the errors and discrepancies found in and between the writ and the amended complaint constitute typographical errors which neither "misleads [n]or masks the actual identities of the parties." The plaintiff contends that the appropriate mechanism to correct the typographical errors is by revising the complaint and not by granting a motion to dismiss.
Finally, the plaintiff argues that the agents for the respective defendants accepted service of process. The plaintiff argues that it received the original return of service from the state marshal confirming service was made and has not been informed by the defendants that service was made on the wrong party.
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005).
The only inquiry concerns whether the errors contained in the writ and the amended complaint warrant a dismissal in favor of the defendants for insufficiency of process and lack of personal jurisdiction. Generally, "[a] defect in process . . . such as an improperly executed writ, implicates personal jurisdiction rather than subject matter jurisdiction." Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004).
It is noted that there is Connecticut case law in which a parties argue that a misnomer or a misidentification of the defendant in a complaint or writ of summons deprives the court of subject matter jurisdiction. See Connecticut Electric Equipment Co. v. Fidelity Guaranty Ins. Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0274893 (March 25, 2002, Skolnick, J.) [31 Conn. L. Rptr. 588]. Although the defendant does not raise the issue, it is noted that Connecticut courts will not dismiss the action for lack of subject matter jurisdiction when such a misnomer does not result in undue prejudice to a party. See Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 414, 885 A.2d 768 (2005); see also Western Boot Clothing Co. v. L'Enfance Magique, Inc., 81 Conn.App. 486, 492, 840 A.2d 574, cert. denied, 269 Conn. 903, 852 A.2d 737 (2004).
"[A] writ of summons is a statutory prerequisite to the commencement of a civil action . . . [I]t is an essential element to the validity of the jurisdiction of the court . . . [T]he writ of summons need not be technically perfect . . . and need not conform exactly to the form set out in the Practice Book . . ." (Internal quotation marks omitted.) Feldmann v. Sebastian, 261 Conn. 721, 729, 805 A.2d 713 (2002). Indeed, "as long as the process served on the defendant comports with the basic statutory requirements, a circumstantial defect will not deprive the court of jurisdiction." Boyles v. Preston, 68 Conn.App. 596, 606, 792 A.2d 878 (2002).
Moreover, "General Statutes § 52-123 provides that [n]o writ, pleading, judgment or any kind of proceeding in court or course of justice 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 purpose of § 52-123 is to afford relief from defects found in the text of the writ itself . . . It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects . . . Indeed, § 52-123 . . . protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties . . . The accepted policy is to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . 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." (Citations omitted; internal quotation marks omitted.) Rocco v. Garrison, 268 Conn. 541, 557-58, 848 A.2d 352 (2004). In Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995), the Supreme Court re-articulated a two-part test it had developed to determine whether a mistake on a writ, summons or complaint was susceptible to correction by § 52-123. The court stated: "[W]e first [consider] whether the plaintiff . . . intended to sue the proper party or whether it . . . erroneously misdirected its action . . . Second, we [consider] three factors to determine whether the error was a misnomer and therefore a circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice." (Citations omitted; internal quotation marks omitted.)
In this case, the defendants' attorney, as agent for Talmadge Park, Inc., was one of the parties served with a writ of summons. The defendant argues that the typographical error misidentified the defendant, but does not argue that it is the wrong party in the present action. It is clear from the briefs of the parties that the plaintiff did not misdirect its action.
The next inquiry is whether the errors contained in the writ and the amended complaint are circumstantial defects. It is undisputed that both Talmadge Park, Inc., and PARCC Health Care, Inc., the correct parties to the action, were served and both accepted service. This is sufficient to presume actual notice of the institution of the action against the defendants. In addition, it seems obvious that the defendants, who have not indicated that they are the wrong parties to the action, knew or should know that they are the intended defendants. Lastly, neither PARCC Health Care, Inc., nor Talmadge Park, Inc., alleges that the errors misled it to its prejudice. As such, it is evident that the mistakes contained in the writ and the amended complaint should be classified as circumstantial errors under the aforementioned analysis.
In summary, it is clear that the writ was not technically perfect; however, the typographical errors contained in the amended complaint and writ have not prejudiced the defendants. It is equally clear that the writ was served on the proper defendants and the defendants had sufficient notice of the proceedings being instituted against them. Furthermore, General Statutes § 52-123 saves the writ and the amended complaint when the mistakes are circumstantial in nature and the person and the cause may be rightly understood by the court. It is submitted that the errors contained in the writ and the amended complaint are circumstantial and that both the defendant corporate entities and the cause of action brought by the plaintiff are sufficiently identified so as to be rightly understood by the court.
CONCLUSION
For the reasons set forth herein, the defendants' motion to dismiss is denied. The typographical errors contained in the amended complaint and the misnomer contained in the writ constitute circumstantial errors that are more properly corrected by allowing an amendment.