Opinion
No. CV 01-0807586 S
March 30, 2004
MEMORANDUM ORDER RE MOTION TO DISMISS BY DEFENDANT DR. HENRY E. JONES
Upon reviewing all materials submitted by the parties concerning defendant Dr. Henry Eugene Jones's Motion to Dismiss, the Court hereby concludes, for the following reasons, that said Motion must be DENIED:
1. This is an action by the plaintiff, the State of Connecticut, against three defendants, Four Health Drugs, LLC ("Four Health Drugs"), Medicine Chest Pharmacy, and Dr. Henry Eugene Jones ("Dr. Jones"), alleging violations of General Statutes § 42-110a, et. seq., the Connecticut Unfair Trade Practices Act ("CUTPA"), in connection with the alleged selling of prescription drugs over the Internet.
2. The State commenced this action against defendant Dr. Jones, a physician residing in the State of Louisiana, on or about May 4, 2001, by having a State Marshal leave one verified true and attested copy of the original Writ, Summons, Complaint and Prayer For Relief herein at the office of the Secretary of the State of Connecticut.
3. On June 21, 2001, an initial appearance was filed in this action on behalf of Four Health Drugs and Dr. Jones by the Hartford law firm of Cummings Lockwood. A second appearance for the same defendants was filed by the same law firm on June 25, 2001, and a third appearance was filed by present counsel, from a different Hartford law firm, on August 28, 2002.
4. On July 2, 2001, Dr. Jones filed a Motion For Extension Of Time To Respond To Plaintiff's Complaint ("MET #1"), in which he sought a "thirty (30) day extension of time, up to and including August 4, 2001, within which to file an Answer or otherwise respond to the plaintiff's Complaint." Although MET #1 was not opposed by the plaintiff, it was never claimed for oral argument or decision on the papers, and thus was never acted upon by the Court.
5. Between July 2, 2002 and January 23, 2003, Dr. Jones filed a total of sixteen additional Motions For Extension Of Time ("MET ##2-17") and one Revised Motion For Extension Of Time in which to plead to the plaintiff's Complaint. Though these Motions, like MET #1, were not opposed by the plaintiff, none was ever claimed to the short calendar or adjudicated by the Court.
6. On January 31, 2003, over eighteen months after counsel first appeared on his behalf in this case, Dr. Jones filed the instant Motion to Dismiss. As grounds for this Motion, the defendant has asserted that this Court lacks jurisdiction over his person under both the controlling Connecticut long-arm statute, General Statutes § 52-59b(a), and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The defendant initially supported his Motion with a Memorandum of Law, and has since supplied the Court with an additional Memorandum of Law addressing an issue raised by the Court at oral argument on the Motion. The plaintiff has opposed the Motion on its merits with an initial Memorandum in Opposition and its own additional Memorandum of Law on the issue raised by the Court at oral argument.
7. In reviewing the parties' submissions and the case file in this action, it has come to the Court's attention that, irrespective of the merits of the defendants' jurisdictional challenge, that challenge suffers from a fatal procedural defect that prevents the Court from granting the relief therein requested. In particular, the Court has determined, as aforesaid, that the defendant's Motion to Dismiss was not filed within thirty (30) days after the filing of the first appearance on his behalf in this case, and thus that the defendant waived his right to file that motion under Sections 10-30 and 10-32 of the Connecticut Practice Book, as authoritatively interpreted and applied by our Supreme Court.
8. In Pitchell v. Hartford, 247 Conn. 422 (1999), the Supreme Court was asked to decide if a defendant had waived his right to challenge the Court's jurisdiction over his person under Practice Book § 10-30 by failing to file his motion to dismiss within thirty days of the original appearance of his counsel, where counsel's intent to represent him, and ethical ability to do so without a conflict of interest, was called into question within three days of the filing of the original appearance. The defendant seeking dismissal was a former Hartford police officer, Gregory Sargis, who had been sued for money damages in connection with the shooting of the plaintiff by a different Hartford police officer, James Callan, whom defendant Sargis allegedly failed to control. Counsel for the City, from a prominent Hartford law firm, originally filed an appearance for "all defendants" — the two police officers as well as the City. Three days later, however, the law firm filed an "amended appearance" for the City only. In the four months that followed, the law firm did nothing to represent defendant Sargis. Among other things, it failed to file a motion to dismiss on his behalf. Later, since the Court continued to treat the law firm as legal counsel for "all defendants," the firm successfully moved to withdraw its appearance on behalf of the individual defendants on the ground of conflict of interest.
9. Notwithstanding these extenuating circumstances, the Pitchell Court rejected the defendant's argument that he was functionally unrepresented from the date of counsel's amended appearance forward, and thus that he should not be deemed to have waived his jurisdictional challenge because of counsel's failure to move to dismiss within the 30-day filing period established by Practice Book § 10-30. To the contrary, ruled the Court, the defendant's original counsel properly remained his counsel for all purposes from the date of his original appearance forward until the date of the granting of his motion to withdraw. The Court therefore ruled as follows that the defendant had waived his jurisdictional challenge by failing to move to dismiss within thirty days of the filing of counsel's original appearance:
[T]he filing of an appearance on behalf of a party, in and of itself does not waive that party's personal jurisdiction claims. Nevertheless, "[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. The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person is waived unless it is raised by a motion to dismiss filed within thirty days. Thus, thirty-one days after the filing of an appearance . . ., a party is `deemed to have submitted to the jurisdiction of the court.' Any claim of [lack of personal jurisdiction] is waived if not sooner raised.
Pitchell, supra, 247 Conn. at 432-33. "The rules of practice," the Pitchell Court continued,
are unambiguous. Its provisions create evenhanded, easy to follow procedures that all litigants must follow. As the plaintiff argues, to allow a party to compromise these well established, unambiguous Practice Book provisions would lead to a case-by-case analysis by the courts, which would lead to uncertainty of application.
Id. at 436.
10. The upshot of Pitchell could hardly be clearer. The 30-day deadline for filing motions to dismiss based on alleged lack of personal jurisdiction is a mandatory deadline that must be complied with or the defendant will be deemed to have waived all challenges he might have to the Court's jurisdiction over his person. Extension of the deadline for any reason, on a motion for extension of time to file a responsive pleading or otherwise, would be completely inconsistent with the relevant language of the Practice Book, which makes no provision whatsoever for such extensions. Granting extensions to some defendants and not others, moreover, would surely lead to the very result that the Pitchell Court sought to avoid by issuing its strongly worded decision, to wit: "[a] compromise [of] these well established, unambiguous Practice Book provisions [, and with it] . . . a case-by-case analysis by the courts, which would lead to uncertainty of application." Id.
11. Bound, as it is, by our Supreme Court's decision in Pitchell, this Court must conclude that the instant Motion to Dismiss was untimely filed because it was not filed within thirty days of the initial filing of an appearance by counsel herein. Accordingly, because the failure to file a timely motion to dismiss on the ground of lack of jurisdiction over the person constitutes a waiver of one's jurisdictional challenge as a matter of law, under Practice Book § 10-32, the instant motion must be DENIED.
IT IS SO ORDERED this 29th day of March 2004.
Michael R. Sheldon, J.