Opinion
FBTCV165031739
01-12-2017
Rafael Rivera v. Trevor A. Smith et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Richard E. Arnold, J.
The defendants, Trevor A. Smith and Engineers Welding, LLC have moved to dismiss the plaintiff's complaint, dated May 27, 2016, and the plaintiff's Application for Prejudgment Remedy on the grounds that the court lacks subject matter jurisdiction due to the fact that the complaint was not returned to court at least six days before the return date and said process was returnable more than two months after the date of process. The defendants also claim the Application for Prejudgment Remedy must be dismissed as the Application was filed utilizing the procedures set forth in General Statutes § 52-278a-g, which govern applications for prejudgment remedies filed prior to the institution of suit. The defendants state that since the plaintiff has commenced suit, his Application is void. Additionally, since suit has been commenced, the plaintiff is required to follow, the provisions of General Statutes § 52-278h in order to obtain a prejudgment remedy, which he cannot do, as the court lacks subject matter jurisdiction. The defendants have submitted a memorandum of law.
In response the plaintiff has filed an objection and his memorandum of law. The plaintiff objects for four reasons. First, although the defendants claim this is an issue of subject matter jurisdiction, it is, in fact, an issue of personal jurisdiction. The defendants' motion to dismiss is untimely, as the motion was filed more than thirty days after the defendants filed their appearances, which results in a waiver that the court lacks personal jurisdiction. Second, the plaintiff argues his action was timely commenced when the signed complaint was served at the same time that the Application for Prejudgment Remedy (" PJR") and supporting documents were served on the defendants. Plaintiff argues PJR applications may be properly served at the same time as the commencement of a civil action, as was done here. Third, the plaintiff argues that any alleged defect in the return date, should not be grounds for a loss of personal jurisdiction where there is actual notice of the lawsuit and there has been no prejudice to the defendants. Fourth, the accidental failure of suit statute would act to save this action for want of jurisdiction or for any matter of form. The court heard oral argument on the motion to dismiss on October 17, 2016.
I
Procedural Background
This case stems from a motor vehicle accident, which is alleged to have occurred on May 31, 2014, on East Main Street in Bridgeport, Connecticut. The plaintiff was traveling in a southerly direction when his vehicle was struck from behind by a vehicle operated by defendant, Trevor A. Smith, causing the plaintiff to allegedly suffer personal injuries. Smith, is alleged to have been operating a vehicle owned by Engineers Welding, LLC, of which Smith is the managing member. Following the collision, the plaintiff claims he was physically assaulted by two men, which he claims were acting as agents, servants and/or employees of the defendant Smith and who had the authority and permission of Smith to assault him. The plaintiff also claims that since the date of the accident, Smith has continued to have violated a " no contact" order issued by the court on May 31, 2014, The complaint consists of thirty-one counts alleging negligence, statutory recklessness (§ 14-295), common-law recklessness, battery, assault and conduct violative of a court-issued " no contact" order.
The plaintiff has in separate counts also alleged that the vehicle Smith was operating was owned by T. Smith & Associates, LLC and Clarence Street Bridgeport, LLC. The plaintiff alleges that Trevor A. Smith had the permission of each of the limited liability entities to operate the subject vehicle.
Based on the relevant documents submitted for the purposes of deciding this motion, the court has no information regarding the issuing court or the existence of such order. Its existence or non-existence and the allegations regarding the defendant Smith's behavior is not relevant to determining the issues raised by the motion to dismiss.
The plaintiff filed an Application for Prejudgment Remedy dated May 27, 2016. On May 27, 2016, the plaintiff also filed an unsigned, proposed copy of his complaint, along with various other pleadings related to his Application for a PJR. On May 27, 2016, the Clerk of the Court set a hearing date of June 14, 2016, for the PJR hearing and ordered that service on the defendants be effectuated by June 10, 2016. On June 13, 2016, an Affidavit of the state marshal with respect to that service was filed. In the Affidavit, the marshal avers that he served the pleadings in connection with the PJR, as well as a signed copy of the writ, summons and complaint on the defendants. The defendants, Smith and Engineers Welding, LLC, filed their appearance in this matter on June 13, 2016. Subsequently, the plaintiff, on August 2, 2016, returned to court the signed writ, summons and complaint bearing a return date of July 12, 2016. The defendants filed their motion to dismiss on August 8, 2016. Thereafter, on September 29, 2016, the plaintiff, pursuant to Practice Book § 10-60 and General Statutes § 52-72, filed a motion to amend the return date on his complaint from July 12, 2016 to August 9, 2016 to comply with General Statutes § 52-46a. The defendants have filed an objection to the motion to amend the return date arguing that any such amendment would violate General Statutes § 52-48(b), which requires that process shall be made returnable not later than two months after the date of process.
At the time of the filing of the Motion to Dismiss, the hearing on the underlying PJR had not gone forward and is not presently scheduled due to the pending motion to dismiss.
II
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). In deciding a " jurisdictional question raised by a pretrial motion to dismiss, [the Court] 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." Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).
" [J]urisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citations omitted; internal quotations marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004); Adler v. Rosenthal, 163 Conn.App. 663, 674, 134 A.3d 717 (2016) " Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30(b).
III
Discussion
A.
Timeliness of Motion to Dismiss
As the defendants' motion to dismiss is directed to both the prejudgment remedy action and the civil action it is necessary to review the difference between the two actions. A party may seek prejudgment relief, such as an attachment on property, to secure the anticipated judgment. General Statutes § 52-278a et seq. That party submits a proposed unsigned copy of the writ of summons and complaint; General Statutes § 52-278c(a); but the civil action is not yet initiated. See Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 560-61, 944 A.2d 329 (2008). It is not until after the prejudgment remedy proceeding is completed that the applicant serves a signed writ, summons and complaint, and returns them to court to officially commence the action. Id., at 555-56, 559; Adler v. Rosenthal, 163 Conn.App. 663, 676, 134 A.3d 717 (2016).
" [T]he language of the prejudgment remedy statutes, [General Statutes] § 52-278a et seq., in several instances . . . makes it clear that proceedings for prejudgment remedy applications and civil actions are separate and distinct, with a prejudgment remedy application generally preceding the filing of the civil action . . . [I]n addition to the differences regarding the process for initiating these two legal proceedings, the purpose of filing a civil action is fundamentally different from the purpose of obtaining a prejudgment remedy. A prejudgment remedy application is brought as a prelude to the filing of a civil action, and is meant to determine whether security should be provided for any judgment ultimately recovered by the plaintiff if he or she is successful on the merits of the civil action. A civil action, in contrast, resolves the merits of the parties' claims, and can be filed irrespective of whether the plaintiff was successful in his or her prior pursuit of a prejudgment remedy." Id., at 560-61, 944 A.2d 329. Adler v. Rosenthal, supra, 163 Conn.App. 674. As the prejudgment remedy proceedings and the commencement of civil actions are separate and distinct issues the court, the court will discuss them separately.
Before discussing the motion to dismiss as to how it might apply to the PJR proceedings, the court first addresses whether the motion to dismiss was timely filed. Practice Book § 10-30(b) provides:
(b) Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance.
From the recitation of the procedural background recited earlier herein, it is undisputed that the defendants filed their appearance on June 13, 2016, in response to the plaintiff's Application for a PJR, that application having been filed on May, 27, 2016, with service on the defendants having been effectuated in advance of the scheduled hearing on the PJR, which was scheduled for June 14, 2016. The signed writ, summons and complaint, while served by the marshal, had not yet been returned to court. Therefore, the defendants appearance was in response to the application for the PJR with a scheduled hearing date of June 14, 2016. The plaintiff does not dispute that the signed writ, summons and complaint was not returned to court until August 2, 2016. Thus, no civil action was pending until it was returned to court until August 2, 2016. The motion to dismiss was filed on August 8, 2016.
" [T]he plaintiff's claim, in . . . objection to the defendants' motion to dismiss, that the defendants' motion was not timely because it was not filed within thirty days of the defendants' filing of an appearance, is without merit." Archie v. Yale New Haven Hosp., Superior Court, judicial district of New Haven, Docket No. No. CV 990430379S (Jan. 13, 2000, Fracasse, J.), 26 Conn.L.Rptr. 330, . The defendants could not have filed a motion to dismiss by July 13, 2016, which was thirty days after they filed their appearance for the PJR proceedings because no civil action was pending before the court on that date, as the plaintiff had not yet returned process to the court. There was no existing action which the defendants could have asked the court to dismiss. Id. Moreover, Practice Book § 10-6 sets forth " pleadings allowed and their order." Section 10-6 provides, in pertinent part, that: " [T]he order of pleading shall be as follows: (1) The plaintiff's complaint, (2) The defendant's motion to dismiss the complaint . . ." Pursuant to Practice Book § 10-6, the defendants could not properly file their motion to dismiss until the plaintiff filed his complaint. Id. Defendants' motion to dismiss relating to personal jurisdiction for the civil action was timely filed.
B.
Prejudgment Remedies Proceeding
The defendants argue that the court lacks subject matter jurisdiction as to the prejudgment remedy action. The defendants argue that the PJR proceedings were filed utilizing the procedures set forth in General Statutes § 52-278a-g, which govern PJR applications filed prior to the institution of suit. The defendants state that a plaintiff's right to attach property is created and regulated by statute and the law mandates strict compliance with the authorizing statute. Our Supreme Court determined that " a plaintiff's attachment of a defendant's real property is valid only when the plaintiff strictly follows the applicable statute." Feldmann v. Sebastian, 261 Conn. 721, 725, 805 A.2d 713 (2002). " [T]he statute [regarding attachments] is . . . exclusive. Being in derogation of both common right and common law, it is one to be strictly interpreted and pursued. Its provisions and requirements may not be disregarded with impunity, nor waived or changed by courts . . . We consistently have adhered to these principles of strict construction in dealing with various aspects of prejudgment remedy statutory." Id. The defendants do not quarrel with the fact that the plaintiff complied with General Statutes § 52-278c., as it applies to the proposed unsigned writ, summons and complaint. The defendants' argument is that the simultaneous service by the state marshal of a signed writ, summons and complaint has voided the Application for Prejudgment Remedy because the subject PJR application utilized Section 52-278. The defendants argue that the court cannot entertain the instant application for a PJR, as a signed writ, summons and complaint has been filed. Also, if the application is to be construed as an application filed after the institution of a civil action, pursuant to Section 52-278h, then it must also be dismissed because the court lacks " subject matter" jurisdiction over the summons and complaint which was not timely returned to court.
General Statutes § 52-278c provides in relevant part as follows:
General Statutes § 52-278h reads as follows:
In response, the plaintiff argues that courts have held that service of a signed wit, summons and complaint along with a PJR application commences a civil action in cases where the defendants have alleged that a PJR application, itself, was defective. See. Fitchville Recycling Corp. v. United Paper Corp., Superior Court, Docket No. CV980583462, May 2, 2001, Hennessey, J.), 29 Conn.L.Rptr. 504, WL 54149229 (discussing whether the plaintiffs' service upon the defendants satisfies the requirements of General Statutes § 52-45a, even though the plaintiffs served the summons and complaint at the same time as the prejudgment remedy application). " It is well settled that the inclusion of an unsigned writ, summons and complaint with a prejudgment remedy application is not sufficient to commence a civil action. In this case, however, despite the defendants' claim that the plaintiffs served an unsigned summons and complaint, the plaintiffs included a signed summons and a signed complaint with the prejudgment remedy application documents." (Internal citations omitted.) Id. See also. See, e.g., Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 236, 763 A.2d 54 (2000) (" [T]here was no need for the plaintiff to institute two actions. She simply could have availed herself of the provisions of General Statutes § 52-278h by bringing her action within the statute of limitations together with an application for a prejudgment remedy").
The plaintiff's cited cases relate to the provisions of General Statutes 52-45a, and it is not disputed that the plaintiff could commence a civil action and a prejudgment remedy action simultaneously. Despite the merits of the motion to dismiss for the late return of process to the court, which will be discussed later herein, the issue here is whether a properly commenced PJR action pursuant to Section 52-278 is actually voided by an attempt to commence an underlying civil action simultaneously and, therefore, should be dismissed. The court finds that the motion to dismiss the PJR proceedings must fail, despite the attempt at a simultaneous commencement of the civil action. This is so because the commencement of a PJR action and a civil action are distinct and separate.
" [A]n application for a prejudgment remedy does not commence a civil action for purposes of a subsequent claim . . . First, there is no service of the requisite signed writ of summons. Additionally, the language of the prejudgment remedy statutes, § 52-278a et seq., in several instances previously set forth herein, makes it clear that proceedings for prejudgment remedy applications and civil actions are separate and distinct, with a prejudgment remedy application generally preceding the filing of the civil action. Finally, in addition to the differences regarding the process for initiating these two legal proceedings, the purpose of filing a civil action is fundamentally different from the purpose of obtaining a prejudgment remedy. A prejudgment remedy application is brought as a prelude to the filing of a civil action, and is meant to determine whether security should be provided for any judgment ultimately recovered by the plaintiff if he or she is successful on the merits of the civil action. A civil action, in contrast, resolves the merits of the parties' claims, and can be filed irrespective of whether the plaintiff was successful in his or her prior pursuit of a prejudgment remedy . . ." Id., at 560-61; see also, Sammarco v. Kostowski, Superior Court, Judicial District of Fairfield at Bridgeport, No. CV095027402, (Aug. 18, 2010, Arnold, J.)
The defendants upon the filing of their appearance did not file a motion to dismiss claiming any defect in the commencement of the PJR proceedings. Regarding the PJR application, documentation, including an unsigned writ, summons and complaint, and service of notice by the state marshal, there were no apparent defects. It is only the simultaneous service of a copy of a signed writ, summons and complaint that leads the defendants to claim the entire PJR proceedings were rendered voidable. The PJR proceeding pursuant to Section 52-278 and the attempted commencement of a civil action were separate and distinct proceedings. No order has yet to be entered in the PJR proceedings. If the PJR is granted, further proceedings would be subject to compliance with General Statutes § 52-278d(b) and § 52-278j(a). The motion to dismiss is denied as to the pending prejudgment remedy proceedings.
The court will not address whether or not compliance with General Statutes § 52-278d(b) and § 52-278j(a) is possible. That issue is not ripe for adjudication, See. Section D of this decision.
C.
Commencement of Civil Action
The defendants argue that the signed writ, summons and complaint, dated May 27, 2016 should be dismissed due to the fact that the summons and complaint were not returned to court at least six days before the return date, which was July 12, 2016. The defendants have admitted that due to " inadvertence" the matter was not returned to the court until August 2, 2016. The defendants claim that this late return violates General Statutes § 52-46a which provides that process in civil actions shall be returned to the superior court at least six days before the return date. The defendants also argue that any amendment to the return date to August 9, 2016, as the plaintiff has requested, pursuant to General Statutes § 52-72, would violate General Statutes § 52-48(b), which requires that process be returnable not later than two months after the date of process.
The plaintiff argues that an inadvertent failure to file the process within six days before the return date does not invalidate jurisdiction when there was notice of a suit and no prejudice resulted to the defendants. The plaintiff specifically points to General Statutes § 52-72, which would allow an amended return date to comply with General Statutes § 52-46a. General Statutes § 52-46a states:
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.
General Statutes § 52-72 reads as follows:
(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.
The apparent inherent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction because of a defective return date. Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 308, 763 A.2d 1055 (2001). Accordingly, " § 52-72 must be liberally construed in favor of those whom the legislature intended to benefit, " as it was enacted to avoid " the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date." Id. The plaintiff also cites several superior court cases standing for the proposition that pursuant to § 52-72 that a return date can be amended notwithstanding that the amended return date made process returnable later than two months after the date of process. See, Zorn v. Old Danbury Donuts, Inc., Superior Court, judicial district of Danbury, Docket No. CV13 60116905 (July 18, 2013, Doherty, J.) 56 Conn.L.Rptr. 505, (citing Olympia Mortgage Corp. v. Klein, supra, 61 Conn.App. 305); see also, Eastern Water Solutions, Inc. v. Gandhi, Superior Court, judicial district of Ansonia-Milford, Docket No. No. AAN106004021 (April 5, 2011, Doherty, J.); 51 Conn.L.Rptr. 668, (citing Olympia Mortgage Corp. v. Klein, supra, 61 Conn.App. 305). The plaintiff concludes with the argument that the court should deny the motion to dismiss in keeping with the policy of our trial courts to " make every effort to adjudicate the substantive controversy before it, and . . . decide a procedural issue so as not to preclude a hearing on the merits . . ." Haigh v. Haigh, 50 Conn.App. 456, 463, 717 A.2d 837 (1998) (citing Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991) (claim of lack of jurisdiction).
The defendants in their reply memorandum note that the Appellate Court in Olympia Mortgage Corp. v. Klein, supra, 61 Conn.App. 305, was deciding whether the plaintiff would be allowed to amend the return date and no objection was filed by the defendant. Thus the defendant conceded to the amendment. Id., 307, 310. The defendant cites Prenderville v. Sinclair, 164 Conn.App. 439, 138 A.3d 336 (2016) which stands for the proposition that a defect in process which runs afoul of Section 52-48(b) implicates personal jurisdiction.
The recent case of Prenderville v. Sinclair, 164 Conn.App. 439, 138 A.3d 336 (2016) is the controlling authority in this case. The record in Prenderville reveals that after the death of their son the plaintiffs commenced a medical malpractice action against the defendants by service of process on August 29, 2013. The summons and complaint were dated April 1, 2013, and bore a return date of May 7, 2013. The plaintiffs returned process to court on September 9, 2013.
On November 1, 2013, the defendants moved to dismiss the plaintiffs' action on several grounds including grounds that the court lacked personal jurisdiction because the plaintiffs failed to comply with the time limits for service and return of process when they served process 114 days after the return date and returned process to court 125 days after the return date. Id., 442. The plaintiffs objected to the motion to dismiss, moved to amend the return date, and filed a proposed amended summons and complaint bearing a return date of October 29, 2013. Id., 443. " In their motion to amend, the plaintiffs argued that amendment of the return date was proper because (1) Connecticut has a strong preference for curing circumstantial defects to allow a case to be heard on its merits, . . . (2) it was in accordance with " the precedent of Coppola v. Coppola [243 Conn. 657, 665-66, 707 A.2d 281 (1998)], " (3) it would bring process into compliance with General Statutes § 52-48(b), as well as, § § 52-46 and 52-46a, . . ."
The trial court issued a memorandum of decision, in which it denied the motion to amend, granted the motion to dismiss, and rendered a judgment of dismissal. In particular, the court determined that the return date could not be amended to comply with § § 52-46 and 52-46a without running afoul of § 52-48(b). Id., 444. The plaintiffs claimed that the court improperly denied their motion to amend the return date. The plaintiffs claimed the court incorrectly concluded that amendment of the return date was not proper pursuant to Coppola and General Statutes § 52-72, among other claims. Id., 445.
The Appellate Court stated that it acknowledged " that § 52-72 mandates that " any court shall allow a proper amendment to civil process which is for any reason defective." Id., 447. " In Coppola, our Supreme Court determined that 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." Id., quoting, Coppola v. Coppola, supra, 243 Conn. at 665, 707 A.2d 281. " [S]uch an interpretation is consistent with our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Internal quotation marks omitted.) Id. Thus, in adherence to our stated policy, as the court in Coppola explained, an erroneous return date is a curable defect. Id., 448.
However, the Appellate Court in Prenderville, supra, found that " [n]otwithstanding the remedial purpose and policy expressed in § 52-72, the court in Coppola also recognized that for an amendment to be proper within the meaning of § 52-72, the amended return date must comply with § 52-48(b). Id. " A return date . . . 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." (Citations omitted.) Id. Consequently, to be in compliance with § 52-48(b), process had to be returnable to court no later than June 1, 2013. The only amended return date proposed by the plaintiffs was October 29, 2013. This date was not in compliance with the requisite two-month time restriction imposed by § 52-48(b)." Id.
Therefore, in affirming the trial court's granting of the defendant's motion to dismiss, the Appellate Court concluded that amendment of the return date to a date that was well beyond two months from the date of process would not be proper because such an amendment would violate § 52-48(b). Id., 449. " Accordingly, the court properly concluded that the return date could not be amended pursuant to § 52-72." Id. " Here, the plaintiffs failed to comply with § § 52-46 and 52-46a, and their proposed amended return date could not bring their process into compliance with those two statutes and § 52-48(b). Thus, because the plaintiffs' only proposed amended return date runs afoul of these statutory restrictions and there was no proposed date that would comply with these statutes, the inquiry into whether amendment is proper under § 52-72 is at an end." Id., see Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn.App. at 631, 117 A.3d 965 (determining that trial court correctly concluded that no amended return date would comply with mandatory requirements of both § § 52-46a and 52-48[b] and affirming dismissal without considering prejudice).
" A defect in process . . . implicates personal jurisdiction . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire [personal] jurisdiction." (Internal quotation marks omitted.) Id., quoting Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007). Both § § 52-46 and 52-46a are mandatory, and failure to comply with their requirements as to the time when process shall be served and returned renders the plaintiff's action vulnerable to a motion to dismiss for lack of personal jurisdiction. (Citations omitted.) Id.
In the present matter, the court cannot permit amendment of the plaintiffs' return date to comply with § § 52-46 and 52-46a because the requested amended return date would not comply with § 52-48(b). As a result, process does not comply with the mandatory requirements of § § 52-46 and 52-46a, rendering the plaintiffs' action vulnerable to a motion to dismiss for lack of personal jurisdiction. Prenderville v. Sinclair, supra, 164 Conn.App. 452-53. Accordingly, the court grants the defendants' motion to dismiss the plaintiff's complaint dated May 27, 2016, bearing a return date of July 12, 2016, which was not returned to the court until August 2, 2016.
D.
Accidental Failure of Suit: General Statutes § 52-592
The plaintiff, in his objection to the motion to dismiss, argues that the accidental failure of suit statute, General Statutes § 52-592 would act to save this action where the complaint was not filed six days before the return date due to mistake, inadvertence and/or excusable neglect. The plaintiff states that the present motion to dismiss should be denied on the basis that this is the type of activity that warrants utilization of the accidental failure of suit statute.
§ 52-592. Accidental failure of suit; allowance of new action, reads as follows:
In their reply memorandum of law, the defendants address this issue for the first time. The defendants argue that a dismissal of the present action for lack of jurisdiction is a condition precedent to the institution of another action pursuant to General Statutes § 52-592. If the present action is dismissed and the plaintiff chooses to institute another action, the court at that time can determine whether the plaintiff is entitled to relief under § 52-592.
The court agrees that the plaintiff's assertion that they can recommence the action utilizing § 52-592 is not a sufficient ground to preclude this court from ruling on the claims of jurisdictional defects. See, Ortiz v. Bridgeport, Superior Court, Docket No. 547104, (Aug. 11, 1999, Martin, J.) 28 Conn.L.Rptr. 254, 1999 WL 643655. The court cannot engage in the required analysis of the viability of a possible subsequent action filed by the plaintiff pursuant to § 52-592, unless and until the plaintiff does so. Indeed, any opinion by this court on this issue would be premature and no more than a hypothetical advisory opinion. See, e.g., Putman v. Kennedy, 279 Conn. 162, 168, 900 A.2d 1256 (2006) (" [W]e note that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law"); Shockley v. Okeke, 92 Conn.App. 76, 85, 882 A.2d 1244, (2005) " [An advisory] opinion is not a judgment and is not binding on anyone"). Until the plaintiff files a subsequent action under Section 52-592, the question of whether the accidental failure of suit statute applies is not ripe for adjudication. Therefore, the court leaves the discussion and analysis of that issue to another day.
E.
Summary of Orders
The defendants' motion to dismiss the PJR proceedings is denied. The defendants' motion to dismiss the signed writ, summons and complaint dated May 27, 2016, bearing a return date of July 12, 2016, that was returned to court on August 2, 2016, is granted.
(a) Except as provided in sections 52-278e and 52-278f, any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint to the following documents: (1) An application, directed to the Superior Court to which the action is made returnable, for the prejudgment remedy requested; (2) An affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any known defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff; (3) A form of order that a hearing be held before the court or a judge thereof to determine whether or not the prejudgment remedy requested should be granted and that notice of such hearing complying with subsection (e) of this section be given to the defendant; (4) A form of summons directed to a proper officer commanding him to serve upon the defendant at least four days prior to the date of the hearing, pursuant to the law pertaining to the manner of service of civil process, the application, a true and attested copy of the writ, summons and complaint, such affidavit and the order and notice of hearing . . . (c) The clerk upon receipt of all such documents in duplicate, if he finds them to be in proper form, shall fix a date for the hearing on the application and sign the order of hearing and notice except that if the application includes a request for a temporary restraining order, the court or a judge of the court shall act on the application for the temporary restraining order, fix a date for the hearing on the prejudgment remedy and sign the order of hearing and notice. The entry fee shall be then collected and the duplicate original document shall be placed in the court file. (d) The clerk shall deliver to the applicant's attorney the original of the documents for service. Service having been made, the original documents shall be returned to the court with the endorsement by the officer of his actions. (e) An application for a prejudgment remedy shall be accompanied by a notice and claim form, in such form as may be prescribed by the Office of the Chief Court Administrator, containing the following language: . . . (f) The notice and claim form required under subsection (e) of this section shall contain (1) the name and address of any third person holding property of the defendant who is to be made a garnishee by process preventing the dissipation of such property, and (2) a statement of the procedure set forth in subsection (g) of this section for contesting the application for a prejudgment remedy or for claiming an exemption. (g) A defendant may request a hearing to contest the application for a prejudgment remedy, assert any exemption or make a request concerning the posting or substitution of a bond. The hearing may be requested by any proper motion or by return to the Superior Court of a signed claim form that indicates, by the checking of the appropriate box on the claim form, whether the claim is an assertion of a defense, counterclaim, set-off or exemption, an assertion that any judgment that may be rendered is adequately secured by insurance, an assertion that the amount sought in the application for the prejudgment remedy is unreasonably high, a request that the plaintiff be required to post a bond to secure the defendant against any damages that may result from the prejudgment remedy or a request that the defendant be allowed to substitute a bond for the prejudgment remedy.
The provisions of this chapter shall apply to any application for prejudgment remedy filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly.
(a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. (b) When any action has been brought against an executor or administrator or continued against an executor or administrator after the death of the defendant and has failed for any of the causes listed in subsection (a) of this section, the plaintiff, or his executor or administrator in case a cause of action survives, may commence a new action within six months after the determination of the original action. (c) If an appeal is had from any such judgment to the Supreme Court or Appellate Court, the time the case is pending upon appeal shall be excluded in computing the time as above limited. (d) The provisions of this section shall apply to any defendant who files a cross complaint in any action, and to any action between the same parties or the legal representatives of either of them for the same cause of action or subject of action brought to any court in this state, either before dismissal of the original action and its affirmance or within one year after the dismissal and affirmance, and to any action brought to the United States circuit or district court for the district of Connecticut which has been dismissed without trial upon its merits or because of lack of jurisdiction in such court. If such action is within the jurisdiction of any state court, the time for bringing the action to the state court shall commence from the date of dismissal in the United States court, or, if an appeal or writ of error has been taken from the dismissal, from the final determination of the appeal or writ of error. (e) The provisions of this section shall apply to any claim against the state for which a notice of claim has been properly and timely filed with the Office of the Claims Commissioner in accordance with sections 4-147 and 4-148 and which thereafter has been dismissed by the Office of the Claims Commissioner pursuant to section 4-142.