Discover Bank v. Darren Waggoner (2010)

MEMORANDUM OF DECISION RE MOTION TO DISMISS, No. 101

FACTS

On September 2, 2010, the plaintiff, Discover Bank, filed a summons and one-count complaint against the defendant, Darren Waggoner, seeking to recover a debt after the defendant allegedly failed to make payments for the credit that was extended to him by the plaintiff.   The return date on the summons was September 7, 2010.   The defendant filed an appearance on September 9, 2010 and subsequently filed a motion to dismiss the complaint on the ground of insufficiency of process on September 28, 2010.   The motion is accompanied by a memorandum of law.   The plaintiff filed an objection to the defendant's motion to dismiss on October 13, 2010.

DISCUSSION

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 ․” “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).  “A defect in process ․ such as an improperly executed writ, implicates personal jurisdiction ․ Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.”  (Citation omitted;  internal quotation marks omitted.)  Rock Rimmon Grange # 142, Inc. v. Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415-16, 895 A.2d 768 (2005).  “The sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.”  (Internal quotation marks omitted.)  Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 17, 776 A.2d 1115 (2001).

In the present case, the defendant seeks dismissal of the case based on insufficiency of process.   Specifically, the defendant argues that the plaintiff has violated General Statutes § 52-46a by not returning the process to the Superior Court at least six days before the return day.   The plaintiff counters that the rules of pleading allow liberal amendment to cure any defect and that a dismissal would cause undue prejudice to the plaintiff.

General Statutes § 52-46a provides:  “Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day, and if returnable to the Superior Court ․ to the clerk of such court at least six days before the return day.”

General Statutes § 52-72(a) provides:  “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.”

“[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.”  Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998).  “Section 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit.”  Id., 664.  “The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date.”  Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 642 A.2d 1186 (1994).   The Supreme Court has concluded that a violation of § 52-46a is a “defect” covered under the scope of § 52-72 by holding:  “The construction of the term defective to permit an amendment of the return date to correct the plaintiff's failure to return process six days prior to the return day effectuates the statute's remedial purpose and statutory policy of amend[ing] ․ otherwise incurable defects that go to the court's jurisdiction.”  (Internal quotation marks omitted.)  Coppola v. Coppola, supra, 665.

“Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court ․ Our practice does not favor termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure ․ For that reason, [a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.”   (Citations omitted;  internal quotation marks omitted.)  Egri v. Foisie, 83 Conn.App. 243, 249-50, 848 A.2d 1266 (2004).

In the present case, the plaintiff failed to return civil process at least six days prior to the return date as required by § 52-46a.   The plaintiff's violation of § 52-46a, however, is not grounds for dismissal.   The court is bound to allow liberal amendment to defective civil process by statute, § 52-72, by Supreme Court precedent and by the longstanding policy of the judiciary to bring about a trial on the merits of a dispute whenever possible and to avoid dismissal on a procedural technicality.   The defendant's motion to dismiss must be denied so that the plaintiff has an opportunity to amend its complaint to comply with the applicable rules of procedure.

CONCLUSION

Based on the foregoing, the court hereby denies the defendant's motion to dismiss.

Martin, J.

Martin, Robert A., J.