Anna Guida v. Catherine Piscitelli (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 110)

PROCEDURAL AND FACTUAL BACKGROUND

The plaintiff, Anna Guida, has brought a one-count complaint against the defendant, Catherine Piscitelli, based upon a motor vehicle collision and sounding in negligence.   The plaintiff delivered the writ, summons and complaint to the marshal on December 11, 2008, and the marshal made service upon the defendant via late return in accordance with General Statutes § 52-593a(a) ¹ on January 8, 2009.   The writ, summons and complaint served upon the defendant all bear a return date of February 10, 2009.   The writ, summons and complaint were filed with the court on February 20, 2009.   In the “Return Date” box of the summons form filed with the court, someone wrote the number twenty-six over the number ten to reflect a return date of February 26, 2009.

The defendant filed a motion to dismiss and an accompanying memorandum of law on May 3, 2010.   The plaintiff has not filed an objection to the motion.   The plaintiff also did not appear for oral argument on the motion, which was heard at short calendar on June 7, 2010.   During oral argument, the defendant submitted a copy of the writ, summons and complaint with which she was served to the court.   The submission was marked into evidence as Exhibit A to the motion.

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).  “A defect in process ․ such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction.”  (Internal quotations marks omitted.)   Rock Rimmon Grange No. 142 v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415, 885 A.2d 768 (2005).  “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).

The defendant moves to dismiss the plaintiff's action on the ground that the writ, summons and complaint were filed with the court on February 20, 2009, even though General Statutes § 52-46a required the filing to occur by February 4, 2009, which was within six days of the return date, February 10, 2009.²  The defendant also argues that the handwritten alteration made to the summons form filed with the court does not qualify as an amendment to the return date under General Statutes § 52-72 because a corrected version of the writ, summons and complaint has not been served upon her.³  She further contends that a return date of February 26, 2009 would be improper under General Statutes § 52-48, which requires, inter alia, a return date to be on a Tuesday.⁴

“It is axiomatic that an action is brought on the date on which the writ is served on a defendant.”  (Internal quotation marks omitted.)  John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn.App. 599, 603 n.5, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003).   As the court has noted, the writ, summons and complaint served upon the defendant list the return date as February 10, 2009.   The return date at the commencement of the action was therefore February 10, 2009, not February 26, 2009.   The court further concludes that, as the defendant has argued, the attempt to amend the return date must fail because it does not comply with the requirements of § 52-72.   This is because an amended writ, summons and complaint have not been served upon the defendant and/or filed with the court.  “[T]he requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement ․ [O]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return service of process within the mandated time period.”  (Citation omitted;  internal quotation marks omitted.)  Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998).   The plaintiff in the present case has not complied with the mandatory requirement that she return process to the court within six days of the return date, and she also has not sought to amend the return date in accordance with the statutory provisions that allow her to do so.   Accordingly, the court grants the defendant's motion to dismiss the plaintiff's action for the reasons articulated in both Coppola and the defendant's memorandum of law in support of the motion.⁵

CONCLUSION

Accordingly, for the foregoing reasons the defendant's motion to dismiss is granted.

Wilson, J.

FOOTNOTES

FN1. General Statues § 52-593a(a) provides in relevant part:  “․ [A] cause or right of action shall not be lost because of the passage of time limited by law within which the action may be brought if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served as provided by law within thirty days of the delivery.”.  FN1. General Statues § 52-593a(a) provides in relevant part:  “․ [A] cause or right of action shall not be lost because of the passage of time limited by law within which the action may be brought if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served as provided by law within thirty days of the delivery.”

FN2. Section 52-46a provides in relevant part:  “Process in civil actions ․ if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, [shall be returned] to the clerk of such court at least six days before the return day.”.  FN2. Section 52-46a provides in relevant part:  “Process in civil actions ․ if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, [shall be returned] to the clerk of such court at least six days before the return day.”

FN3. Section 52-72 provides in relevant part:  “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement. (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.”.  FN3. Section 52-72 provides in relevant part:  “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement. (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.”

FN4. Section 52-48 provides in relevant part:  “(a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month ․ (b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”   When she first brought the motion, the defendant argued that a return date of February 26, 2009 would be improper under § 52-48 for the additional reason that a return date must be within two months of the date that the writ, summons and complaint are served upon the defendant.   She contended to this end that February 26, 2009 is more than two months after December 11, 2008.   The defendant has since filed an “Addendum to Memorandum in Support of Motion to Dismiss” in which she concedes that she was served on January 8, 2009, not December 11, 2008, the date that the plaintiff delivered the writ, summons and complaint to the marshal..  FN4. Section 52-48 provides in relevant part:  “(a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month ․ (b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”   When she first brought the motion, the defendant argued that a return date of February 26, 2009 would be improper under § 52-48 for the additional reason that a return date must be within two months of the date that the writ, summons and complaint are served upon the defendant.   She contended to this end that February 26, 2009 is more than two months after December 11, 2008.   The defendant has since filed an “Addendum to Memorandum in Support of Motion to Dismiss” in which she concedes that she was served on January 8, 2009, not December 11, 2008, the date that the plaintiff delivered the writ, summons and complaint to the marshal.

FN5. While the court has reached its decision without considering the issue of whether a return date of February 26, 2009 is improper under § 52-48 because it does not fall on a Tuesday, the court notes that the language of § 52-48 is permissive and not mandatory in nature:  “Process in civil actions ․ brought to the Superior Court may be made returnable on any Tuesday in any month.”  (Emphasis added.).  FN5. While the court has reached its decision without considering the issue of whether a return date of February 26, 2009 is improper under § 52-48 because it does not fall on a Tuesday, the court notes that the language of § 52-48 is permissive and not mandatory in nature:  “Process in civil actions ․ brought to the Superior Court may be made returnable on any Tuesday in any month.”  (Emphasis added.)

Wilson, Robin L., J.