Opinion
FBTCV166057338S
01-03-2017
Adele R. Jacobs v. Jenna M. Gagliardi
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Richard E. Arnold, Judge.
Pursuant to Practice Book § 10-31, the defendant has filed a motion to dismiss the plaintiff's complaint, arguing that the court lacks personal jurisdiction because the plaintiff failed to file the complaint at least six days before the return date, in accordance with General Statutes § 52-46a. Furthermore, the defendant states that the plaintiff failed to commence this action within one year after the determination of the original action. The defendant's motion and memorandum of law are dated June 22, 2016. The plaintiff's objection and memorandum of law is dated September 5, 2016. Oral argument was held before the court on September 6, 2016.
This matter involves a motor vehicle accident that occurred on or about December 23, 2009, when the plaintiff was a front seat passenger in a motor vehicle being operated by Jose F. Quiles in Bridgeport, Connecticut. The plaintiff claims the vehicle being operated by the defendant struck the rear of the Quiles vehicle causing the plaintiff to sustain personal injuries, economic and noneconomic monetary damages. The plaintiff commenced her initial action with a return date of January 31, 2012, bearing Docket No. FBT CV12 6024630S. Counsel for the defendant filed an appearance for the defendant on January 31, 2012, and filed an answer to the complaint on February 6, 2012. The matter was claimed for a jury trial. On May 14, 2015, the court (Bellis, J.), ordered a judgment of dismissal pursuant to Practice Book § 14-3, stating that the plaintiff failed to appear at " the dormancy status conference" on May 14, 2015. Thereafter, the plaintiff initiated the present action pursuant to General Statutes § 52-592, reciting that the " prior original action failed to be tried on its merits and was dismissed pursuant to Practice Book § 14-3." The plaintiff contends that the failure to prosecute the original action constitutes an accidental failure of suit. The present action bears a return date of June 7, 2016. According to the return of service filed by the state marshal, the defendant Gagliardi was served at her usual place of abode, 66 Tannery Road, Monroe, Connecticut, on May 16, 2016, two days following the dismissal of the original action. According to the defendant, the plaintiff did not return the writ of summons and complaint to the court until June 7, 2016, violating General Statutes § 52-46a, which requires process to be returned to court at least six days before the stated return date. The plaintiff has filed a motion to amend the return date pursuant to General Statutes § 52-72.
§ 14-3. Dismissal for Lack of Diligence reads as follows:
§ 52-72. Amendment of process reads as follows:
The defendant also argues that the plaintiff failed to commence this second action within one year of the dismissal of the plaintiff's initial action which was May 14, 2015, as the defendant was not served until May 16, 2016, and the matter was not returned to court until June 7, 2016. The defendant notes that both of these dates are beyond the one-year limitation period for an action commenced pursuant to General Statutes § 52-592. The defendant filed an appearance on June 14, 2016, and filed her motion to dismiss on June 22, 2016. On September 5, 2016, the plaintiff filed a motion to amend the return date pursuant to General Statutes § 52-72 to comply with General Statutes § 52-46a and to comply with General Statutes § 52-48(b). The plaintiff requests that the return date be amended to read " June 14, 2016."
Notice of the judgment of dismissal dated May 14, 2015 was issued by the Clerk's Office on May 15, 2015.
§ 52-48(b). Return day of process reads as follows:
Standard of Law
" 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." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). 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. Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990). " The grounds which may be asserted in [a motion to dismiss] are: (1) are 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 § 10-31.
A statute of limitations defense generally " 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 § 10-50.1 " A motion to dismiss is not the appropriate procedural means to challenge an action commenced pursuant to the accidental failure of suit statute. The appropriate challenge is by way of a properly pleaded special defense . . ." (Internal quotation marks omitted.) Worth v. Commissioner of Transportation, 135 Conn.App. 506, 515 n.16, 43 A.3d 199, cert. denied, 305 Conn. 919, 47 A.3d 389 (2012). Nonetheless, " [o]ur Supreme Court has held that a trial court may properly consider a motion to dismiss in such circumstances when the plaintiff does not object to the use of the motion to dismiss." (Internal quotation marks omitted.) Id. The plaintiffs in the present action have not objected to the defendants' procedural use of a motion to dismiss. Therefore, the court will proceed to consider the merits of the motion. See Dorry v. Garden, Superior Court, judicial district of Waterbury, Docket No. X10UWYCV126014186S, (Oct. 17, 2012, Dubay, J.)(denying motion to dismiss where the plaintiff objected to the use of a motion to dismiss.")
Discussion
A.
Amendment of Return date
The motion to dismiss is dated June 22, 2016. At the time of the hearing on the motion on September 6, 2016, the plaintiff's motion to amend the return date had not been ruled upon, as the motion to amend is dated September 5, 2016, one day before the scheduled oral argument on the defendant's motion to dismiss. To determine whether to allow the motion to amend the return date at this time it is necessary to examine the purpose of General Statutes § 52-72.
" Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court . . . 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 . . . For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal." (Internal quotation marks omitted.) Tellar v. Abbott Laboratories, Inc., 114 Conn.App. 244, 254, 969 A.2d 210 (2009). Indeed, [our Supreme Court] has stated that the purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction . . . The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." (Internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 308, 763 A.2d 1055 (2001), citing Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994). Further, the Appellate Court has reiterated the common holding that, " § 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Merrill v. NRT New England, Inc., 126 Conn.App. 314, 321, 12 A.3d 575 (2011). " Even liberally construed, however, this statute does not allow amendments without restrictions." Adamovich v. Town of East Hartford, Superior Court, judicial district of Hartford, No. HHDCV106012652S, (Feb. 18, 2011, Peck, J.) " A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b). Section 52-48(b) requires that '[a]ll process shall be made returnable not later than two months after the date of the process . . .' Section 52-48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended." Coppola v. Coppola, 243 Conn. 657, 666-67, 707 A.2d 281 (1998). " [A]ccording to the Supreme Court, the relevant dates for measuring whether the plaintiff's proposed amended return date . . . complies with the two month limitation of § 52-48(b) are the date of process . . . and the amended return date . . ." Donovan v. Sowell, Superior Court, judicial district of Waterbury, Docket No. CV 06 5000596 (June 21, 2006, Matasavage, J.) (41 Conn.L.Rptr. 609, 614, ), citing Coppola v. Coppola, supra, at 667 n.12.
The defendant has not raised any issue regarding the plaintiff's compliance with General Statutes 52-48(b). Therefore, the court does not address that issue.
The defendant rightly points out that the underlying factual disputes in this matter involves events occurring in December 2009, more than seven years ago and the plaintiff still has not managed to prosecute her action to a conclusion. The Court agrees that the delays are regrettable, as it is the court's goal, as well as, public policy to promote finality in the litigation process. However, the defendant does not argue that the plaintiff's motion to amend would deprive the defendant of any substantive rights and the court agrees. The proposed amendment would simply correct the return date so that the return of process met the statutory six-day period required by § § 52-46a. See. Coppola v. Coppola, supra, 243 Conn. 665. The motion to amend the return date is granted.
B.
Dismissal Pursuant to General Statutes § 14-3
The defendant's second claim raised in her motion to dismiss is that the plaintiff cannot file a new action pursuant to the accidental failure of suit statute, § 52-592, because the plaintiff's first action, Docket No. FBT CV12 6024630S, was dismissed pursuant to General Statutes § 14-3 on May 14, 2015, and the plaintiff's present action was not commenced within one year after the determination of the original action. " To re-file a § 14-3 dismissal successfully under § 52-592 a plaintiff must make a " factual showing that the prior dismissal was a 'matter of form' in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect." Ruddock v. Burrowes, 243 Conn. 569, 576-77, 706 A.2d 967 (1998). Accordingly, " a plaintiff's ability to rely upon § 52-592 is limited to those cases where the [§ 14-3] dismissal is rendered after the case failed because of accident or simple negligence." Skibeck v. Avon, 24 Conn.App. 239, 242-43, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991). On the other hand, " § 52-592(a) affords no relief in case in which a plaintiff's prior action was dismissed because the plaintiff withdrew it voluntarily . . . or consented to its dismissal." (Citations omitted) Ruddock v. Burrowes, supra, 243 Conn. 577-78. Similarly, the refiling of a § 14-3 dismissal, by utilizing § 52-592, is precluded whenever it appears that the dismissal of the original action resulted from any voluntary, deliberate or egregious conduct on the part of the plaintiff. Id., 577; Lacasse v. Burns, 214 Conn. 464, 473, 572 A.2d 357 (1990).
In Ruddock v. Burrowes, supra, 243 Conn. 569, 706 A.2d 967 (1998), " [the] Supreme Court considered whether a disciplinary dismissal may be characterized as a dismissal 'for any matter of form' for purposes of obtaining relief pursuant to § 52-592. The court concluded that disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592(a) . . ." (Internal quotation marks omitted.) Vestuti v. Miller, 124 Conn.App. 138, 143-44, 3 A.3d 1046 (2010) (reversing trial court's decision to grant summary judgment because unresolved issue of fact raised by motion to open non-suit existed). See also, Pallacovitch v. Waterbury Hospital, Superior Court, judicial district of Waterbury, No. UWYCV126013332S, (Dec. 26, 2014, Brazzel-Massaro, J.).
" In the context of disciplinary dismissal, our Supreme Court has cautioned that [w]hether [§ 52-592] applies cannot be decided in a factual vacuum. Instead, the propriety of applying § 52-592 depends on whether the plaintiff has made a factual showing that the prior dismissal was a 'matter of form' in the sense that the plaintiff's non-compliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect. The inquiry under § 52-592, therefore may be conceptualized as a continuum whereupon a case must be properly placed between one extreme of dismissal for mistake and inadvertence, and the other extreme of dismissal for serious misconduct or cumulative transgressions." (Citations omitted; internal quotation marks omitted.) Skinner v. Doelger, 99 Conn.App. 540, 554, 915 A.2d 314, cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007).
Here, the plaintiff, in her objection to the motion to dismiss, has set forth the circumstances surrounding the court's dismissal of the plaintiff's original action for failure to respond to the dormancy calendar on May 14, 2015. The plaintiff has stated that her counsel mistakenly marked her calendar for a later date in a different judicial district. Plaintiff's counsel also set forth a narrative of circumstances surrounding her personal life during the course of 2015 and into 2016, which included among other things, being the sole care-giver for an elderly parent and a pending dissolution of marriage. The court finds that there was no deliberate, voluntary or egregious conduct committed by plaintiff's counsel when she failed to attend the scheduled dormancy calendar, leading to a dismissal of the plaintiff's original action.
C.
Failure to Commence Action Within One Year
Lastly the defendant argues that the plaintiff failed to commence the present action within one year of the dismissal of the original action, which occurred on May 14, 2015. An action brought pursuant to General Statutes § 52-592 must be commenced " within one year after the determination of the original action . . . this limitation period begins to run 'when the notice of dismissal is actually issued by the court.'" Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142, 1145 (2002). The defendant notes that the plaintiff served the defendant on May 16, 2016, and returned the matter to court on June 7, 2016, and both dates are more than one year beyond the date of the § 14-3 dismissal and the mailing of notice by the Clerk's Office, which also occurred on May 14, 2015.
The plaintiff has submitted a supplemental return of service from the state marshal, pursuant to General Statutes § 52-593a. The supplemental return is dated September 6, 2016 and states that the plaintiff's writ, summons and complaint were personally delivered to him on May 10, 2016, prior to the expiration of one year after the dismissal of the original action on May 14, 2015. He, thereafter, made abode service on the defendant on May 16, 2016, which was within thirty days of having received the writ, summons and complaint from plaintiff's counsel.
Sec. 52-593a. Right of action not lost where process served after statutory period reads as follows:
" Resolving the . . . claim requires us to construe whether the additional thirty days for a marshal to serve process under § 52-593a is part of the 'time limited by law' contained in § 52-592(a), the savings statute." Dorry v. Garden, 313 Conn. 516, 531, 98 A.3d 55 (2014) " Section 52-593a allows a marshal to effectuate service within thirty days of receiving the writ, summons and complaint, even if that service falls beyond the statute of limitations. The plaintiff's current claim requires us to determine whether this thirty-day provision applies to claims saved by operation of the savings statute." Id., 532
The plaintiff claims that if a defendant receives effective notice during the thirty-day period for marshals to effectuate service, the case should be considered effectively commenced for purposes of the savings statute. " [R]eading these two remedial statutes together so as to give effect to both, requires us to conclude that the thirty day time period for a marshal to effectuate service must be included within the 'time limited by law' for purposes of the savings statute. Therefore, if a defendant has effective notice within the thirty day period allowed for a marshal to make service of the writ, summons and complaint, the action will be considered commenced for purposes of the savings statute." Id., 533. General Statutes § 52-593a " is a remedial provision that allows the salvage of an [action] that otherwise may be lost due to the passage of time." Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 55, 850 A.2d 1032 (2004). Remedial statutes " must be afforded a liberal construction in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Harbour Pointe, LLC v. Harbour Landing Condominium Assn., Inc., 300 Conn. 254, 283, 14 A.3d 284 (2011). " Because both the savings statute and § 52-593a are remedial provisions that must be afforded liberal constructions, we see no reason why the time period provided in § 52-593a for a marshal to make service is not implicitly included in the 'time period limited by law' in the savings statute. Accordingly, we conclude that, . . . if a defendant has actual notice within the thirty days in § 52-593a for a marshal to make service, the savings statute would operate to save the claim." Dorry v. Garden, supra, 313 Conn. 534-35.
Order
For the reasons set forth herein, the motion to amend the return date is granted and the defendant's motion to dismiss is hereby denied.
(a) If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11-1, or on its own motion, render a judgment dismissing the action with costs. At least two weeks' notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests. (b) If a case appears on a docket management calendar pursuant to the docket management program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Section 10-18, only those papers which close the pleadings by joining issues, or raise a special defense, may be filed by any party, unless the judicial authority otherwise orders.
(a) Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective. (b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form. (c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form. A certified copy of the finding shall be attached to and served with the amended process.§ 52-46a. Return of process reads as follows:
Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.
(b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.
(a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery. (b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section.