Jesse Estrada et al. v. Stamford Board of Education et al. (2009)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (103.00)

FACTUAL BACKGROUND

On September 19, 2006, the plaintiff, Jesse Estrada, through her next friend and guardian, Amy Estrada, filed this civil action against the defendants, Stamford Board of Education, City of Stamford, Dr. Anthony Mazzullo, Elayne Cuttitta, Mary Fiore, Camille Figluizzi-Bingham, Darlene Desmond, Eugene Charles, Ronnie Griggs (collectively the Stamford defendants) and Jonathan Alarcon (Alarcon).¹  In her amended complaint dated February 14, 2008, the plaintiff alleges the following facts.   The plaintiff, who suffers from a learning disability, was enrolled as a special education student at Westhill High School in Stamford.   On February 28, 2005, the plaintiff asked a substitute teacher if she could use the restroom.   While in the restroom, the plaintiff alleges that she was forcibly sexually assaulted by Alarcon, who was a special education student enrolled in the same classes as the plaintiff.   Consequently, the amended complaint alleges the following claims:  (1) assault and battery against Alarcon;  (2) false imprisonment against Alarcon;  (3) intentional infliction of emotional distress against Alarcon;  (4) invasion of privacy against Alarcon;  (5) negligence against the Stamford defendants;  (6) negligence against the Stamford Board of Education, City of Stamford, Mazullo, Figluizzi-Bingham, Cuttitta and Fiore;  (7) negligence per se, a violation of General Statutes § 17a-101a, against the Stamford defendants;  (8) recklessness against the Stamford defendants;  (9) negligent infliction of emotional distress against the Stamford defendants, and (10) indemnity under General Statutes § 7-465(b) against the City of Stamford.   All of the individual Stamford defendants are employed by the City of Stamford or Westhill High School.

On May 14, 2007, Alarcon filed a motion to dismiss and memorandum of law in support.   As grounds, Alarcon contends that he is entitled to dismissal because he was not properly served with process.   Specifically, Alarcon argues that the plaintiff did not complete effective abode service because the plaintiff served Alarcon at an address where he no longer lived.   In support of his motion, Alarcon has attached the notarized affidavit of his biological parents, Nicolas Alonzo Alarcon and Mabriel Villegas.   On June 15, 2007, the plaintiff filed a memorandum of law in opposition.   The plaintiff argues that Alarcon's motion to dismiss should be denied because it was not timely filed, and, therefore, any defect in personal jurisdiction has been waived.   On October 26, 2009, the court took this motion on the papers.

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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “The grounds that 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 order to establish proper service of process, “[f]acts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes ․ are essential ․” (Internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).   As a result, “[o]ne who is not served with process does not have the status of a party to the proceeding ․ [and][a] court has no jurisdiction over persons who have not been made parties to the action before it.”  (Internal quotation marks omitted.)  Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).

Nevertheless, Practice Book § 10-30 provides in relevant part:  “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.”   As further provided by Practice Book § 10-32:  “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 by Sections 10-6 and 10-7 and within the time provided by Section 10-30.”  “The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 ․ Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court.   Any claim of insufficiency of process is waived if not sooner raised.”  (Emphasis in original.)  Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).

According to the return of service, state marshal Kevin McNeill left a copy of the original writ, summons and complaint at 126 Seaside Avenue in Stamford on September 27, 2006.   The return of service notes that this address was Alarcon's usual place of abode.   In the affidavit attached to Alarcon's motion, however, the affiants attest that Alarcon has lived in Columbia since June 2005.   Consequently, Alarcon may very well have been improperly served with process.   Despite this fact, defects in service of process implicate personal jurisdiction, and a defense of lack of personal jurisdiction is waived if a motion to dismiss is not filed timely.   Alarcon's counsel filed his appearance on November 22, 2006, and this motion to dismiss was not filed until May 14, 2007.   As this motion to dismiss was filed well outside the thirty-day time frame allotted by Practice Book § 10-30, Alarcon has waived any potential personal jurisdiction defect, and the court denies his motion to dismiss.

SO ORDERED.

TAGGART D. ADAMS

SUPERIOR COURT JUDGE

FOOTNOTES

FN1. The summons and complaint spell this defendant's surname as “Alorcon.”   In contrast, the memorandum of law in support of the subject motion to dismiss, as well as the attached affidavit, have the spelling as “Alarcon.”   This memorandum will use the spelling “Alarcon,” because this is the spelling used in the defendant's pleadings..  FN1. The summons and complaint spell this defendant's surname as “Alorcon.”   In contrast, the memorandum of law in support of the subject motion to dismiss, as well as the attached affidavit, have the spelling as “Alarcon.”   This memorandum will use the spelling “Alarcon,” because this is the spelling used in the defendant's pleadings.

Adams, Taggart D., J.