Gary R. Damato v. Detective Nicholas Dejohn et al. (2000)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 102

“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.   Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs.”  Practice Book § 10-30.  “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);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).  “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.

“[A]ny 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 ․” (Emphasis in original.)  Pitchell v. Hartford, 247 Conn. 422, 433, 711 A.2d 797 (1999).  “One who is not served with process does not have the status of a party to the proceeding ․ 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);  Exley I v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn, 939, 761 A.2d 760 (2000).

“The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court.”  Cumberland Farms, Inc. v. Groton, 247 Conn. 196, 216, 719 A.2d 465 (1998). “[t]he prior pending action rule does not truly implicate the subject matter jurisdiction of the court.”  Halpern v. Board of Education, 196 Conn. 647, 652 n.4, 495 A.2d 264 (1985).  “Any claim that the pendency of a prior suit between the same parties, for the same thing, will abate a latter suit ․ formerly could be raised in a plea in abatement ․ The plea in abatement ․ has, however since been replaced by the motion to dismiss.”  (Citations omitted;  internal quotation marks omitted.)  Id. Consequently, “[t]he prior pending action doctrine is properly raised via a motion to dismiss ․” (Internal quotation marks omitted.)  Pecan v. Madigan, 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).

The defendants argue that the lawsuit should be dismissed for the following reasons:  (1) the plaintiff has failed to provide service of process against the defendants;  (2) the action is merely repetitive of an earlier lawsuit filed in the Judicial District of Hartford (See Gary Damato v. Nicholas Dejohn et al., Docket No. HHD-CV08-5022971-S, Jud. Dist. Hartford, filed September 15, 2008);  (3) the defendants enjoy sovereign immunity from suit for the state constitutional claim levied against them in their individual and official capacities;  and (4) State's Attorney Thomas is entitled to absolute prosecutorial immunity for his actions as alleged in the complaint.   After careful consideration of the pleadings and arguments presented by the parties at short calendar on November 30, 2009, and applying the principles described above to the present case, this court finds that it lacks jurisdiction over this matter.   Therefore the motion to dismiss is granted.

Marano, J.

Marano, Richard M., J.