Sharon Moye-Johnson v. 10375 (2010)

MOTION TO DISMISS # 102 and MOTION TO SUBSTITUTE # 104

FACTS

On June 1, 2010 the plaintiff, Sharon Moye-Johnson, filed a one-count complaint sounding in negligence against the defendant, Rite Aid Store # 10375, for personal injuries she received when struck by a soda bottle.   In the complaint, the plaintiff alleges the following facts.

In the return of service attached to the complaint, state marshal Lonnie W. Barnes, Jr. states that he served “Rite Aid store # 10375” by leaving a true and attested copy of the original writ, summons and complaint in the hands of “Vilma shift supervisor Hamden store.”

On August 19, 2010, the defendant filed a motion to dismiss the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction over the matter because the plaintiff has failed to sue a legal entity, and on the additional ground that service of process was insufficient.   The motion is accompanied by a memorandum of law.   The plaintiff has not filed an objection to the defendant's motion to dismiss.   The plaintiff filed a motion to substitute defendant on August 25, 2010, as well as an amended complaint recognizing the substituted defendant.¹  The defendant filed objections to both the plaintiff's motion to substitute defendant and amended complaint on September 9, 2010.

DISCUSSION

“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.”  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.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008);  R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “[A]n action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).

The defendant argues that the plaintiff failed to properly serve the defendant pursuant to General Statutes § 52-57(c) because “Vilma shift supervisor Hamden store” is not a proper entity to serve process upon.   The defendant further argues that the court lacks jurisdiction over the subject matter of this case because the plaintiff, by filing the summons and complaint against “Rite Aid Store # 10375” rather than “Right Aid of Connecticut, Inc.,” has failed to sue a legal entity.   Finally, the defendant argues that the plaintiff's motion to substitute defendant should be denied, and General Statutes § 52-123 may not be relied upon to cure such jurisdictional deficiencies because the plaintiff failed to sue a legal entity and also failed to properly serve the correct defendant.

General Statutes § 52-57(c) provides:  “In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located.”  “When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate.”  Nelson v. Stop & Shop Companies, Inc., 25 Conn.App. 637, 641, 596 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991).  “Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction.   When the particular officers or employees of a corporation upon whom service may be made are designated, service upon any other person as a representative of the corporation is inadequate to confer jurisdiction upon the court to which the process is returnable.”  Hyde v. Richard, 145 Conn. 24, 25-26, 138 A.2d 527 (1958).  “A determination of the position, rank, duty and responsibilities of the person served is a question of fact.   Our Supreme Court has held that in cases where constructive service of process is employed and, ‘[w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.’  “ Nelson v. Stop & Shop Companies, Inc., supra, 642.  “Requiring employees to be entrusted with responsibility ensures that appropriate officials will be notified that process has been served upon the corporation.   The operations store manager of one of hundreds of stores is not the manager of a foreign corporation contemplated by the statute.”  Id., 641.

In the present case, the marshal's court return indicates that the defendant was served by leaving with and in the hands of “Vilma shift supervisor Hamden store,” a true and attested copy of the original writ, summons and complaint.   The title of “shift supervisor” is not specifically designated as an appropriate agent for service under General Statutes § 52-57(c).  Nor has the plaintiff submitted evidence to establish that the person served possesses authority to act as an agent for service on the defendant.   Accordingly, the plaintiff has failed to sufficiently effect service on the defendant, and therefore, it is unnecessary to address the defendant's lack of subject matter jurisdiction argument or the plaintiff's motion to substitute party.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion to dismiss.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. In the amended complaint the plaintiff substituted “Rite Aid Store # 10375” with “Rite Aid of Connecticut, Inc.”.  FN1. In the amended complaint the plaintiff substituted “Rite Aid Store # 10375” with “Rite Aid of Connecticut, Inc.”

Burke, Richard E., J.