Opinion
No. 5100938
August 24, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #103
FACTS
The plaintiff, Lonnie Johnson, filed a complaint in negligence against the defendant, Connecticut Steel Corporation, alleging that the defendant negligently loaded steel onto his truck causing it to tip over and injure him. The original complaint and summons are dated January 22, 2007 with a return date of March 6, 2007. The defendant was served on February 21, 2007 and filed an appearance on February 27, 2007. The summons, complaint and marshal's return were filed on March 8, 2007, two days after the return date.
On March 29, 2007, the defendant filed a motion to dismiss, with a memorandum in support, on the grounds that the court lacked personal jurisdiction over it because the plaintiff failed to return process in a timely manner under General Statutes § 52-46a and lacked subject matter jurisdiction because any proposed amended return date would violate General Statutes § 52-48(b). On April 18, 2007, the plaintiff filed a motion to amend the return date and a memorandum of law in opposition to the motion to dismiss. On June 22, 2007, the defendant filed a reply memorandum of law.
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). "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 § 10-31.
In its memorandum of law in support of the motion to dismiss, the defendant argues that the plaintiff failed to comply with § 52-46a, which requires the return of service of process to be filed six days prior to the return date, and that this failure to timely return process deprives the court of personal jurisdiction over it. The defendant also argues that, even though § 52-72 allows a plaintiff to amend a return date, any proposed return date by the plaintiff in the present case would violate § 52-48(b) because that date would be later than two months after the date of the process on January 22, 2007; and, therefore, under these circumstances, the court would lack subject matter jurisdiction.
In response, on April 18, 2007, the plaintiff filed a motion to amend the return date to March 20, 2007 along with his memorandum in opposition to the motion to dismiss. The plaintiff asserts that § 52-72 allows amendment of a defective return date, even if the defectiveness was caused by a plaintiff's failure to timely return process as long as the new return date falls within the two-month period required by § 52-48(b), which the plaintiff maintains begins on February 21, 2007, the date of service on the defendant. The plaintiff further argues that the new return date of March 20, 2007 falls well within this two-month period, that new service is not required under § 52-72 and that a lack of service does not bar amending the return date. Finally, the plaintiff argues that the defendant's motion to dismiss was untimely filed thirty-one days after filing its appearance.
The defendant has thirty days from the date of filing an appearance to file a motion to dismiss under Practice Book § 10-30. The defendant correctly points out in its reply memorandum of law that its motion to dismiss, dated March 29, 2007, was filed thirty days after the filing of an appearance on February 27, 2007. The plaintiff has simply miscalculated the number of days.
Under § 52-46a, process must be returned to the clerk of the superior court six days prior to the return date. "[T]he requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirement renders the proceeding voidable, rather than void, and subject to abatement. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989). `[O]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period.' Rana v. Ritacco, 236 Conn. 330, 339, 672 A.2d 946 (1996)." Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998).
General Statute § 52-46a provides: "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 date."
A plaintiff can amend a defective return date under § 52-72. "Section 52-72 is a remedial statute that must be liberally construed . . . [O]ur legislature [has] enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw . . . The legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date. The principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results . . . The construction of the term defective to permit an amendment of the return date to correct the plaintiff's failure to return process six days prior to the return day [as required by § 52-46a] effectuates the statute's remedial purpose and statutory policy of amend[ing] . . . otherwise incurable defects that go to the court's jurisdiction." (Citations omitted; internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 664-65. In other words, a plaintiff can amend the return date for a failure to comply with § 52-46a. See id.
General Statute § 52-72 provides in relevant part: "(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement. (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."
The amendment must also comply, however, with the provisions of § 52-48(b). "Section 52-48 (b) . . . with its two month limit, circumscribes the extent to which a return date may be amended." Coppola v. Coppola, supra, 243 Conn. 666-67. The two-month limit starts on the date of the process, which "refers to the date of the writ of summons or attachment which must be accompanied by the complaint." (Internal quotation marks omitted.) Haylett v. Commission on Human Rights Opportunities, 207 Conn. 547, 554-55, 541 A.2d 494 (1988); see also Coppola v. Coppola, supra, 243 Conn. 667 n. 12.
General Statute § 52-48 provides in relevant part: "(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."
The defendant is correct in arguing that the date of the process is January 22, 2007, the date of the summons and complaint, and not the date of service, February 21, 2007, as the plaintiff suggests. The plaintiff's amended return date of March 20, 2007, however, would still fall within sixty days of January 22, 2007.
In the present case, the plaintiff did not adhere to § 52-46a because he returned process to the court on March 8, 2007, two days after the return date rather than six days prior to the return date. The plaintiff may fix this defective return date because under the Coppola decision a failure to timely file under § 52-46a may be corrected by amendment pursuant to § 52-72. Coppola v. Coppola, supra, 243 Conn. 665. The plaintiff's proposed amended return date, March 20, 2007, would fall within two months of the date of the process, fulfilling the requirements of § 52-48(b). In addition, the return date for any new service of process would not fall outside the § 52-48(b) two-month window because under § 52-72(b) the amended process has the same effect as if the original process was served properly and timely. See Coppola v. Coppola, supra, 243 Conn. 659-60 (holding that the amended return date could conform with § 52-48(b) even though the amendment was filed outside the § 52-48(b) two-month period); see also Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 309-10, 763 A.2d 1055 (2001) (holding that plaintiff's request to amend can properly amend the return date to conform with § 52-48(b), even though the service of the amendment occurred beyond the two-month period). If the plaintiff properly amends the return date in the present case, March 20, 2007 would fulfill the requirements of both § 52-46a and § 52-48(b).
The plaintiff's motion to amend must comply with Practice Book § 10-60 because the motion to amend was filed more than thirty days after the original return date. Practice Book § 10-60 further provides in relevant part: "[i]f no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party." The plaintiff filed his motion to amend on April 18, 2007 and the defendant made no objection. Under § 10-60 the defendant has given its consent to the amendment. As a result, the plaintiff has properly amended the return date to March 20, 2007.
Practice Book § 10-60 provides in relevant part; "a party may amend his or her pleadings or other parts of the record or proceeding at any time subsequent to that stated in [Practice Book § 10-59]." Practice Book § 10-59 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day."
The amended return date does not prejudice the defendant or deny him any substantive rights. In the Coppola case, the court held that the plaintiff was not deprived of any substantive rights because "the defendant received actual notice of the cause of action within the statutory time frame, suffered no prejudice as a result of the late return of process, and already had filed an appearance and had served the plaintiff with interrogatories." Coppola v. Coppola, supra, 243 Conn. 666. In this case, the defendant received notice within the statutory time frame, filed an appearance, served the plaintiff with interrogatories and requests for production, and filed apportionment complaints. Under these circumstances, a simple change to the original return date that complies with the statutory period would not prejudice the defendant or deny him any substantive rights.
The defendant's motion to dismiss is denied.