Opinion
No. NNH CV 10 6007446 S
August 3, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#105)
The plaintiff, SNET Information Services, Inc., commenced this case by service of process against the defendant, Michael Redmond DBA M.E. Redmond Group, Inc. DBA On the Fly Computer Guy on January 13, 2010. The three-count complaint alleges the following facts. On or about June 26, 2006, the plaintiff provided advertising services to the defendant. The defendant currently owes the plaintiff $63,726.41 for these services, which he has not paid. The following counts comprise the complaint — breach of contract (count one), unjust enrichment (count two) and quantum meruit (count three).
The defendant filed the present motion to dismiss on May 12, 2010. The plaintiff in turn filed its objection and an accompanying memorandum of law on May 27, 2010. The plaintiff then filed a supplemental memorandum in opposition to the motion on July 6, 2010. In response, the defendant filed a supplemental memorandum in support of the motion on July 9, 2010. The court heard the matter at short calendar on July 12, 2010.
The court notes that the motion was not accompanied by a memorandum of law in support thereof, which is required by Practice Book § 10-31: "[Section] 10-31(a) provides in relevant part: `[The] motion [to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.'" Ferreira v. Pringle, 255 Conn. 330, 346 n. 10, 766 A.2d 400 (2001).
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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "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. "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007). "Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, `[a]ny [defendant], wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.' Practice Book § 10-30 . . ." (Citations omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002).
"[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party." (Internal quotation marks omitted.) American Express Centurion Bank v. Head, 115 Conn.App. 10, 11 n. 1, 971 A.2d 90 (2009). Nevertheless, "[t]here are no special rules authorizing a lesser standard of compliance for pro se parties. Any litigant may choose to proceed without representation, but all are bound by the same standards." Basilicato v. Dept. of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985), overruled on other grounds by LeConche v. Elligers, 215 Conn. 701, 579 A.2d 1 (1990).
The defendant in the present case argues that the court should dismiss the present action because he is being sued "for alleged acts by a corporate entity, from which [he] is separate by rule of law." He is therefore challenging the court's personal jurisdiction over him in his individual capacity. See Seufert v. Temple Management, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 4038054 (Wilson, J., May 6, 2010); Garcia v. Two by Six, LLC, Superior Court, judicial district of New Haven, Docket No. CV 04 5000021 (Wilson, J., January 29, 2010) ( 49 Conn. L. Rptr. 363). The plaintiff objects by arguing, inter alia, that Practice Book §§ 10-30 and 10-32 preclude the present motion because it was filed more than thirty days after the defendant's appearance, which in turn was filed on March 29, 2010.
The plaintiff also argues that the court should not consider the present motion because it granted the plaintiff's motion for default for failure to plead on April 12, 2010, and the default has not yet been vacated. The plaintiff, however, did not file a claim for a hearing in damages or a motion for judgment in response to the court's grant of its motion. It did file a claim for a hearing in damages in response to the court's grant of its motion for default for failure to appear on February 25, 2010, but the case was stricken from the inventory of cases scheduled for a hearing in damages by the court, Silbert, J., on June 10, 2010. Practice Book § 17-32(b) provides: "If a party who has been defaulted under this section [for failure to plead] files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default. If a claim for a hearing in damages or a motion for judgment has been filed, the default may be set aside only by the judicial authority. A claim for a hearing in damages or motion for judgment shall not be filed before the expiration of fifteen days from the date of notice of issuance of the default under this subsection." The defendant's filing of his answer thus served to set aside the default.
The plaintiff is correct. Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Section 10-6 and 10-7 and within the time provided by Section 10-30." Section 10-30 in turn provides: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." "[M]otions to dismiss must be made within thirty days of filing an appearance." Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 307, 635 A.2d 843 (1993). "Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." Foster v. Smith, 91 Conn.App. 528, 536-37, 881 A.2d 497 (2005). The defendant in the present case has thus lost his ability to challenge the court's personal jurisdiction over him in his individual capacity because he has filed his motion in an untimely fashion, i.e., more than thirty days after he filed his appearance. Accordingly, the defendant's motion to dismiss is denied.