Amy Setkoski v. University of Connecticut Health Center (2011)

MEMORANDUM OF DECISION

The plaintiff, Amy Setkoski, commenced this lawsuit in July 2010, against the defendants, the University of Connecticut Health Center, Lance Bauer and Yifrah Kaminer ¹ pursuant to General Statutes § 46a–100.   The operative complaint, filed on August 27, 2010,² is set forth in one count and alleges disability discrimination, retaliation and wrongful termination in violation of General Statutes § 46a–60(a)(1) and (4), the Connecticut Fair Employment Practices Act.³

In support of her complaint, the plaintiff alleges the following facts.   The plaintiff worked for the defendants from September 14, 1998, until she was terminated on August 25, 2008.   On or about March 27, 2008, she took medical leave from work due to anemia.   She returned to work on July 7, 2008.   Upon her return, the plaintiff was met with general hostility because her absence had put the department behind schedule.   On July 15, 2008, she was given a negative performance evaluation.   On July 24, 2008, she was presented with a demand to leave the department.   As part of this demand, the defendants offered her a transfer to another department and continued employment until September 15, 2008, at which time she was to be laid off.   The plaintiff declined the offer.   On August 25, 2008, the plaintiff was given a second negative performance evaluation and terminated.

Pending before the court is the defendants' motion to dismiss on the grounds that (1) the court lacks jurisdiction over Bauer and Kaminer in their individual capacities in that they were not properly served;  (2) attempts to assert claims against Bauer and Kaminer, individually, in the amended complaint are untimely as a matter of law in that they were not brought within ninety (90) days of the release of jurisdiction from the Connecticut Commission on Human Rights and Opportunities (the commission);  (3) the plaintiff has failed to exhaust her administrative remedies as to certain allegations;  (4) the doctrine of sovereign immunity bars punitive damages;  and, (5) the plaintiff is not entitled to a jury trial.⁴

“A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court ․ The grounds which may be asserted in this motion 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.”  (Internal citations omitted.)  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).

I

Jurisdiction over Defendants Bauer and Kaminer in Their Individual Capacities

“[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).  “[W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ The jurisdiction that is found lacking ․ is jurisdiction over the person.”  (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).

A review of the record reveals the following uncontested facts regarding service of process.⁵  The marshal's return states that on July 7, 2010, three attested copies of the original writ, summons and complaint were delivered to the office of Perry Zinn–Rowthorn, Associate Attorney General, located at 55 Elm Street in the city of Hartford, Connecticut.   Moreover, a copy of the amended complaint was mailed to the defendants with the United States Postal Service.   This correspondence was received by Bauer on August 31, 2010, and by Kaminer on September 2, 2010.

Bauer and Kaminer argue that service upon the office of the Attorney General on July 7, 2010, was insufficient to confer personal jurisdiction over them in their individual capacities.   The plaintiff contends that such service is permissible pursuant to General Statutes § 52–64.⁶

Section 52–64 states:  “Service of civil process in any civil action or proceeding maintainable against or in any appeal authorized from the actions of, or service of any foreign attachment or garnishment authorized against, the state or against any institution, board, commission, department or administrative tribunal thereof, or against any officer, servant, agent or employee of the state or of any such institution, board, commission, department or administrative tribunal, as such, may be made by a proper officer (1) leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the Attorney General's office in Hartford, or (2) sending a true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the Attorney General's office in Hartford.”

The question of whether service of process pursuant to § 52–64 is sufficient to establish personal jurisdiction over a state official in his or her individual capacity was recently discussed in Edelman v. Page, 123 Conn.App. 233, 1 A.3d 1188 (2010).   In that case, state officials were sued in their individual capacities but service was made on a secretary at the office of the attorney general.   The Appellate Court concluded “that the [trial] court properly dismissed the action against the state defendants due to insufficient service ․ The complaint served on the state defendants alleges that they were being sued in their individual capacities, which required that they be served at their usual places of abode.”  Id., 243.   Based on this language, the court finds that § 52–64 does not confer personal jurisdiction over state officials sued in their individual capacities.⁷

Other trial court rulings are consistent with this conclusion.  “Section 52–64 ․ on its face does not authorize service through the Attorney General's Office on an individual State employee in his or her individual capacity.   With respect to an individual who is an officer or employee of the State but is not sued as such, Connecticut law requires that service be made by leaving [the summons and complaint] with the [defendant] or at his usual place of abode.”   Hanton v. Connection, Inc., Superior Court, judicial district of New Haven, Docket No. CV 10 5033331 (December 2, 2010, Robinson, J.);   see also Sala v. Metro–North Commuter Railroad Co., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 03 0199222 (November 22, 2005, Tobin, J.) (40 Conn. L. Rptr. 329) (finding service pursuant to General Statutes § 52–64 generally insufficient to confer personal jurisdiction over defendants in individual capacity).

The record indicates that no attempt was made to serve Bauer and Kaminer either in hand or at their usual place of abode.   Therefore, service of the writ, summons and complaint upon the office of the attorney general was insufficient to confer personal jurisdiction over these defendants in their individual capacities.   Accordingly, the motion to dismiss all claims against Bauer and Kaminer in their individual capacities must be granted.

II

Exhaustion

The defendant also moves to dismiss certain aspects of the plaintiff's claims on the grounds that certain of allegations were not set forth in her complaint with the commission and therefore have not been exhausted.  “Under [the exhaustion of administrative remedies doctrine], a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed.”  (Internal quotation marks omitted.)   Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009).   In essence, the defendant moves to dismiss certain paragraphs of the plaintiff's complaint which contain allegations not specifically made in the underlying administrative complaint.   The court rejects this claim.   The plaintiff has set forth a one-count complaint alleging wrongful termination as a result of disability discrimination and retaliation claims timely made with the commission and administratively exhausted as a matter of law.   The defendant has cited no authority mandating dismissal of individual paragraphs of an otherwise valid complaint and this court declines to do so.

IV

CONCLUSION

For the reasons stated herein, the motion to dismiss the claims against defendants Bauer and Kaminer in their individual capacities are hereby granted.   In all other respects, the motion to dismiss is denied.

Peck, J.

FOOTNOTES

FN1. Bauer and Kaminer are sued in both their official and individual capacities..  FN1. Bauer and Kaminer are sued in both their official and individual capacities.

FN2. The return day listed on the summons filed was August 3, 2010.   Consequently, the plaintiff's amendment was permitted as of right pursuant to Practice Book § 10–59..  FN2. The return day listed on the summons filed was August 3, 2010.   Consequently, the plaintiff's amendment was permitted as of right pursuant to Practice Book § 10–59.

FN3. The plaintiff filed a complaint with the Connecticut commission on human rights and opportunities on February 17, 2009.   The commission issued a release of jurisdiction to the plaintiff on April 7, 2010.  General Statutes § 46a–100 creates a private cause of action to any person upon release of jurisdiction by the commission.  FN3. The plaintiff filed a complaint with the Connecticut commission on human rights and opportunities on February 17, 2009.   The commission issued a release of jurisdiction to the plaintiff on April 7, 2010.  General Statutes § 46a–100 creates a private cause of action to any person upon release of jurisdiction by the commission

FN4. The plaintiff concedes that she is not entitled to punitive damages or a jury trial in connection with claims made against the defendants in their official capacities.   Since the court grants the motion to dismiss the claims against Bauer and Kaminer in their individual capacities, these grounds for the motion are not further addressed..  FN4. The plaintiff concedes that she is not entitled to punitive damages or a jury trial in connection with claims made against the defendants in their official capacities.   Since the court grants the motion to dismiss the claims against Bauer and Kaminer in their individual capacities, these grounds for the motion are not further addressed.

FN5. “[T]he due process requirement of a hearing is required only when issues of facts are disputed.”  (Emphasis in original.)  Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007).  “[I]n the absence of any disputed issues of fact pertaining to jurisdiction, there [is] no need to hold an evidentiary hearing before deciding the motion to dismiss.”   Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994).   Because the facts set forth above are uncontested, they may be considered by this court in ruling upon the motion..  FN5. “[T]he due process requirement of a hearing is required only when issues of facts are disputed.”  (Emphasis in original.)  Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007).  “[I]n the absence of any disputed issues of fact pertaining to jurisdiction, there [is] no need to hold an evidentiary hearing before deciding the motion to dismiss.”   Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994).   Because the facts set forth above are uncontested, they may be considered by this court in ruling upon the motion.

FN6. In their motion to dismiss, Bauer and Kaminer also argue that the court lacks personal jurisdiction over them in their individual capacities due to insufficiency of process and insufficient service of process.   Specifically, these defendants argue that the mailing of the amended complaint was insufficient because it did not include a summons and because it failed to comport with § 52–54.   Because the plaintiff does not argue that the mailing of the amended complaint conferred personal jurisdiction, this court need only determine whether the service of process made upon the office of the attorney general was sufficient to confer personal jurisdiction over the defendants in their individual capacities..  FN6. In their motion to dismiss, Bauer and Kaminer also argue that the court lacks personal jurisdiction over them in their individual capacities due to insufficiency of process and insufficient service of process.   Specifically, these defendants argue that the mailing of the amended complaint was insufficient because it did not include a summons and because it failed to comport with § 52–54.   Because the plaintiff does not argue that the mailing of the amended complaint conferred personal jurisdiction, this court need only determine whether the service of process made upon the office of the attorney general was sufficient to confer personal jurisdiction over the defendants in their individual capacities.

FN7. Because the plaintiff in Edleman “did not dispute ․ that service on the secretary in the attorney general's office was improper” but only that “that the state defendants had waived their right to contest the insufficient service of process,” the holding of the Appellate Court is dicta.   It does, nonetheless, serve as persuasive authority for the resolution of the issue before the court..  FN7. Because the plaintiff in Edleman “did not dispute ․ that service on the secretary in the attorney general's office was improper” but only that “that the state defendants had waived their right to contest the insufficient service of process,” the holding of the Appellate Court is dicta.   It does, nonetheless, serve as persuasive authority for the resolution of the issue before the court.

Peck, A. Susan, J.