Opinion
No. HHB CV 05 4005168
June 20, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS #111.00
I. FACTS PROCEDURAL BACKGROUND
On April 20, 2005, the plaintiff, International Motorcars, LLC, filed a one-count complaint alleging negligence against the defendant, James Sullivan, a state marshal, for property damage to the plaintiff's 1990 Ferrari 550 Maranello (the vehicle) that occurred when the defendant seized the vehicle in connection with a matter pending in the judicial district of Stamford/Norwalk. The complaint states in relevant part that: "(6) Marshall [sic] Sullivan, his agents, servants, and/or employees were negligent in seizing [the vehicle] in that: (a) He/they failed to determine that said vehicle was not owned by any of the defendants in said action; (b) He/they ignored the fact that said vehicle had [an] International's dealer plate; (c) He/they made no effort to ascertain the true owner of said vehicle. (7) Marshall [sic] Sullivan, his agents, servants, and/or employees were further negligent in that he/they damaged said [vehicle]."
The matter is Kendall v. Amster, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4002328.
On February 10, 2006, the defendant filed a motion to dismiss and a memorandum of law moving the court to dismiss the plaintiff's one-count complaint for lack of subject matter jurisdiction. The basis of his claim being that sovereign immunity precludes an action against the defendant. Subsequently, on February 27, 2006, the plaintiff filed a request for leave to amend its complaint. On March 7, 2006, the defendant filed an objection to the plaintiff's request for leave to amend. An objection to the motion to dismiss, accompanied by a memorandum of law, was filed by the plaintiff on March 22, 2006. On April 18, 2006, the defendant filed a reply to the defendant's objection. Oral argument was held before the court on April 17, 2006. For the reasons stated below, the motion is granted. CT Page 11825
On February 8, 2006, the defendant, seeking to raise a special defense of sovereign immunity, filed a request for leave to file an amended answer and special defense while reserving his right to address his arguments for dismissal. On February 22, 2006, the plaintiff filed an objection to the defendant's request.
II. STANDARD OF REVIEW
"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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003); Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "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." (Internal quotation marks omitted.) Filippi v. Sullivan, supra, 273 Conn. 8."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 what is now Practice Book § 10-31. "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 113, 856 A.2d 335 (2004). "A determination regarding a trial court's subject matter jurisdiction is a question of law." (Internal quotations marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003).
III. DISCUSSION
The defendant moves to dismiss the complaint on the ground that the plaintiff's action is barred by the doctrine of sovereign immunity and, therefore, the court lacks subject matter jurisdiction. Specifically, the defendant maintains that the suit is against the defendant in his official capacity, that a suit against a state marshal is a suit against the state, that the state has not waived its sovereign immunity and that the plaintiff has failed to seek permission from the claims commissioner prior to bringing this action.
The plaintiff counters that the doctrine of sovereign immunity is inapplicable to the present case because the defendant has been sued in his individual capacity, not his official capacity. It further contends that the actions of the defendant in seizing the vehicle constitute wanton, reckless and malicious conduct and that such actions fall within an exception to the protections of immunity afforded state officers and employees under General Statutes § 4-165, which provides in relevant part: "(a) No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment." The plaintiff argues that the acts of the defendant constitute the intentional tort of conversion. Because conversion is a reckless, wanton act and § 4-165 permits suits against state officials for such conduct, the plaintiff contends that the court has jurisdiction to hear its claim.
As a preliminary matter, the court notes that a motion to dismiss for lack of subject matter jurisdiction may be raised at any time and must be resolved prior to ruling on any other motions pending before the court. Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995); see Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946) ("if the question whether there is a lack of jurisdiction of the subject matter of an action comes to the attention of the court, it can proceed no further until the matter is determined"). For this reason, it is improper for the court to consider a motion to amend prior to ruling on a motion to dismiss for lack of subject matter jurisdiction. Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) ("[b]y considering the motion to amend prior to ruling on the challenge to the court's subject matter jurisdiction, the court acted inconsistently with the rule that, as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made"). Accordingly, the court must address the motion to dismiss prior to considering any of the other motions pending in the present case.
"[W]e have long recognized the validity of the common-law principle that the state cannot be sued without its consent . . . We have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state . . . While the principle of sovereign immunity is deeply rooted in our common law, it has, nevertheless, been modified and adapted to the American concept of constitutional government where the source of governmental power and authority is not vested by divine right in a ruler but rests in the people themselves who have adopted constitutions creating governments with defined and limited powers and courts to interpret these basic laws." (Citations omitted; internal quotation marks omitted.) Miller v. Egan, supra, 265 Conn. 313. "[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either express]y or by force of a necessary implication, statutorily waived the state's sovereign immunity; . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted; internal quotation marks omitted.) Id., 314. "Sovereign immunity rests on the principle and on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds and property." (Internal quotation marks omitted.) Id.
The plaintiff's complaint only seeks monetary relief. Therefore, the second prong is inapplicable to the case before the court.
Whether a suit against a state marshal should be dismissed under the doctrine of sovereign immunity is an issue of first impression for the court. In order to ascertain whether the doctrine of sovereign immunity is applicable, the court must determine whether the defendant has been sued in his official or individual capacity. "The determination of whether the plaintiff's complaint alleged claims against the defendants in their individual capacities is governed by the test set forth in Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975)." Miller v. Egan, supra, 265 Conn. 308.
The court notes that there is little case law discussing state marshals because this office was created pursuant to Public Acts 2000, No. 00-99, which became effective in 2000. Prior to the enactment of P.A. 00-99, sheriffs were responsible for serving process within the state. The court acknowledges that a cause of action existed against sheriffs for negligent service of process under General Statutes § 6-37 (Rev. to 1997). However, the court finds that the case law discussing negligence actions against sheriffs is not applicable to the present matter for the following reasons: (1) P.A. 00-99 repealed General Statutes § 6-37; (2) P.A. 00-99 did not enact a similar statute permitting such suits against state marshal; and (3) P.A. 00-99 centralized the control of state marshals under the state marshal commission, which is a state agency. As to item (3), see General Statutes § 6-38b.
Under Spring, "[t]he fact that the state is not named as a defendant does not conclusively establish that the action is not within the principle which prohibits actions against the sovereign without its consent . . . The vital test is to be found in the essential nature and effect of the proceeding." (Internal quotation marks omitted.) Spring v. Constantino, supra, 168 Conn. 568. The court should consider the following criteria in determining whether "the suit is, in effect, one against the state and cannot be maintained without its consent: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state or subject it to liability." (Internal quotation marks omitted.) Id. "If the plaintiff's complaint reasonably may be construed to bring claims against the defendants in their individual capacities, then sovereign immunity would not bar those claims." Miller v. Egan, supra, 265 Conn. 307.
Pursuant to the test set forth in Spring, the court must first determine whether a public official has been sued. "The essential characteristics of a public office are (1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government." (Internal quotation marks omitted.) Spring v. Constantino, supra, 168 Conn. 568. "A public office is a position in a governmental system created, or at least recognized, by applicable law to which position certain permanent duties are assigned, either by the law itself or by regulations adopted under the law by an agency created by it and acting in pursuance of it . . . We have said that a public office is a trust conferred by public authority for a public purpose, and involving the exercise of the powers and duties of some portion of the sovereign power." (Citations omitted; internal quotation marks omitted.) Murach v. Planning Zoning Commission, 196 Conn. 192, 196, 491 A.2d 1058 (1985). Our Supreme Court has "indicated in dictum that a fixed tenure of office [is] one that [is] either fixed by law or enduring at the pleasure of the creating power." (Internal quotation marks omitted.) Silverberg v. Great Southwest Fire Ins. Co., 214 Conn. 632, 638 n. 5, 573 A.2d 724 (1990).
State marshals are hired and regulated by the state marshal commission, which is a state agency established by the General Assembly. See General Statutes §§ 6-38b and 6-38f; see also Page v. State, Superior Court, judicial district of Hartford, Docket No. CV 05 4008109 (March 27, 2006, Tanzer, J.) (the state marshal commission is protected by the doctrine of sovereign immunity). Pursuant to General Statutes § 6-38a, state marshals are empowered to provide legal execution and service of process throughout the counties of Connecticut. In addition, a state marshal is a peace officer and, as such, possesses those powers set forth in General Statutes § 53a-3(9). Marshals may not be removed from office "except by order of the commission for cause after due notice and hearing." General Statutes § 6-38b(j). The court recognizes that a state marshal is an independent contractor, not a state employee. See General Statutes §§ 6-38a and 6-38b. Nevertheless, "an individual who [is] not employed by the state, but who [carries] out a governmental function, [may] be a `state official' for purposes of meeting the first of the four criteria for determining whether, sovereign immunity may be claimed." Gordon v. H.N.S. Management Co., 272 Conn. 81, 94, 861 A.2d 1160 (2004). Based on the foregoing, the court finds that the defendant as a state marshal is a public official under the Spring test because state marshals have "(1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government." Spring v. Constantino, supra, 168 Conn. 568.
General Statutes § 6-38b establishes the state marshal commission and sets forth the authority of the commission. Pursuant to § 6-38b, the commission's responsibilities include the enactment of regulations that govern state marshals and the duty to fill state marshal vacancies.
In conducting research on this issue, the court reviewed the legislative history of P.A. 00-99 to determine what factors motivated the legislature to classify state marshals as independent contractors. Based on the legislative history, the court finds that the classification of independent contractor was based on a desire to preserve competition, as well as creativity, among state marshals and was unrelated to the issue of sovereign immunity currently before the court. See, e.g., 43 S. Proc., Pt. 5, 2000 Sess., p. 84.
General Statutes § 6-38a provides in relevant part: "`state marshal' means a qualified deputy sheriff incumbent on June 30, 2000, under section 6-38 or appointed pursuant to section 6-38b who shall have authority to provide legal execution and, service of process in the counties in this state pursuant to section 6-38 as an independent contractor compensated on a fee for service basis . . ."
Second, the court must ascertain whether the suit concerns a matter in which the defendant represents the state. As previously discussed, the state marshal commission oversees and regulates the activities of state marshals. State marshals are statutorily vested with certain responsibilities and privileges when performing service of process and executions. See General Statutes §§ 6-32 and 6-38a(b). Further, the complaint states that at all times relevant to the complaint, the defendant was a duly authorized state marshal and that the vehicle was seized "in connection with a case pending in the Superior Court." Nowhere in plaintiff's complaint can any allegation be found that the defendant acted in his individual capacity. Based on these considerations, the court, viewing the allegations in the light most favorable to the plaintiff; Filippi v. Sullivan, supra, 273 Conn. 8; finds that the defendant was working as a representative of the state when he seized the plaintiff's vehicle.
Third, the court must determine whether the state is the real party against whom relief is sought. The plaintiff maintains that the defendant has been sued in his individual capacity, not his official capacity and, therefore, the state is not the real party to the present action. In Miller v. Egan, supra, 265 Conn. 308, the plaintiff contended that the state was not the real party against whom relief was sought "because the complaint sought relief both from the state and from the individual defendants." (Emphasis added.) The court found that "[t]he plaintiff's bare assertion, however, [was] not supported by the allegations of the complaint. Nowhere in the plaintiff's complaint did he allege that he was bringing an action against the defendants in their individual capacities. Instead, as already noted, the complaint repeatedly alleged that the defendants acted in their official capacity." Id., 308-09.
So too is the case here. The plaintiff states in the first paragraph of the complaint that "[a]t all times relevant to this complaint, the Defendant, James Sullivan, was a duly authorized State Marshall [sic], located in Danbury, Connecticut." (Emphasis added.) Furthermore, every reference to the defendant in the complaint is to "Marshall [sic] Sullivan." As noted above, a review of the language in the complaint finds not a single allegation that the defendant is being sued for conduct in his individual capacity. Based on these considerations, the court finds that the present suit is against the defendant in his official capacity and, therefore, the state is the real party against whom relief is sought.
Finally, the court must inquire whether the judgment will operate to control the activities of the state or subject it to liability. The court finds that the present suit, if allowed to proceed, would have a chilling effect on a state marshal's performance of service of process and executions. Under the factual circumstances of this case, the entering of a judgment, though nominally against Marshal Sullivan, would subject the state to liability. The court also finds that the present suit would control and/or hinder the operation of the state marshal commission, which is a state agency protected by the doctrine of sovereign immunity. Page v. State, supra, Superior Court, Docket No. CV 05 4008109.
Based on the foregoing, the court finds that the four prongs of the Spring test are satisfied and the plaintiff's suit is therefore barred by the doctrine of sovereign immunity.
In addition, the plaintiff contends that General Statutes § 6-30a, which requires that state marshals carry liability insurance, serves as a waiver of the state's sovereign immunity. In Miller v. Egan, 265 Conn. 301, 330-31, 828 A.2d 549 (2003), the court rejected this contention, stating that "[it] fail[ed] to see how a requirement that sheriffs and deputy sheriffs purchase personal liability insurance necessarily implicates that the legislature intended to waive the state's sovereign immunity." (Emphasis in original.) "Therefore, we conclude, based on the statutory language and the legislative history, that the legislature did not intend § 6-30a to constitute such a waiver." Id., 331. Accordingly, the court finds that § 6-30a is not a waiver of sovereign immunity.
The plaintiff also maintains that, pursuant to General Statutes § 4-165, the court has jurisdiction because the complaint sets forth a cause of action for conversion, which is a wanton, reckless and malicious act. Before addressing whether conversion constitutes wanton, reckless or malicious conduct, the court must determine if the plaintiff has, in fact, alleged conversion in its complaint.
Section 4-165 provides in relevant part: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious caused in the discharge of his or her duties or within the scope of his or her employment."
In order to ascertain the causes of action alleged, it is the language of the complaint itself that must be analyzed. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) ("Because we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged"); see also Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) ("[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative").
"The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights." (Emphasis in original; internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 43, 761 A.2d 1268 (2000). "[C]onversion is an unauthorized assumption owner's rights . . . In addition, conversion requires that the owner be harmed as a result of the unauthorized act." (Citations omitted; internal quotation marks omitted.) Suarez-Negrete v. Trotta, 47 Conn.App. 517, 521, 705 A.2d 215 (1998). "The intent required for a conversion is merely an intent to exercise dominion or control over an item even if one reasonably believes that the item is one's own." Plikus v. Plikus, 26 Conn.App. 174, 180, 599 A.2d 392 (1991).
In the complaint, the plaintiff alleges that "(6) Marshall [sic] Sullivan, his agents, servants, and/or employees, were negligent in seizing [the vehicle] in that: (a) He/they failed to determine that said vehicle was not owned by any of the defendants in said action; (b) He/they ignored the fact that said vehicle had International's dealer plate; (c) He/they made no effort to ascertain the true owner of said vehicle. (7) Marshall [sic] Sullivan, his agents, servants, and/or employees were further negligent in that he/they damaged said [vehicle]. (8) As a result of the foregoing negligence, [the plaintiff] suffered the following damages . . . (9) Marshall [sic] Sullivan's conduct, in addition to negligence, constituted wrongful interference with [the plaintiff's] property rights in [the vehicle]."
Reading the allegations of the complaint in the light most favorable to the pleader, it cannot be stated that the defendant's attempt to seize the vehicle was done pursuant to anything other than a valid court order. Nor is there any allegation that the defendant had any personal intent to exercise the right to ownership over the vehicle or that he did, in fact, exercise such right to ownership. Instead, the complaint affirmatively states that " Marshall [sic] Sullivan seized [the vehicle] in connection with a case pending in the Superior Court in Stamford, Connecticut" and that he wrongfully interfered with the plaintiff's property rights. (Emphasis added.) The court finds that no basis for a conversion claim can be found in the language used by the plaintiff. Sampiere v. Zaretsky, supra, 26 Conn.App. 494. Therefore, the court declines to address the plaintiff's argument as to whether conversion constitutes wanton, reckless or malicious conduct under § 4-165.
CONCLUSION
The defendant's motion to dismiss is granted on the ground that the plaintiff's action is barred by the doctrine of sovereign immunity.