Donald Marut v. M. Ferrara & Sons (2011)

MEMORANDUM OF DECISION RE DEFENDANT CASCO BAY'S MOTION TO DISMISS

BACKGROUND

This is an action seeking damages for personal injuries.   The plaintiff, Donald Marut [Marut] alleges as follows.

Marut is an employee of Essex Machine Tool Services, LLC [“Essex”].   On September 14, 2007, a truck operated by a driver of defendant Casco Bay Transportation [“Casco Bay”] delivered a piece of machinery to Essex.   The delivery of the machinery was attended by Michael Ferrara, sales manager of defendant M. Ferrara & Sons [“Ferrara”], which had an equal share of interest in the machinery with Essex.   Mr. Ferrara was present so as to make payment to the Casco Bay, upon delivery of the machinery.

While removing the binders holding the machinery to the truck, the Casco Bay driver asked for a pipe.   The plaintiff, Marut, was walking by and handed the driver a pipe which was lying on the floor.   Shortly thereafter, Marut was struck by the pipe.   Marut contends that, while the driver was unloading the truck, a chain snapped, causing the pipe to strike Marut in the face.

The initial action was brought by Marut solely against Ferrara.   On November 2, 2009, Ferrara apportioned in Casco Bay pursuant to General Statutes § 52–102b(a).   On November 11, 2009, Casco Bay filed its appearance.   The plaintiff did not plead over as to Casco Bay within sixty days as set forth in General Statutes § 52–102b(d).

On March 19, 2010, the plaintiff filed a request for leave to amend and an amended complaint.   The amended complaint added a count against Casco Bay. Casco Bay objected to the request for leave to amend on three grounds:  (1) the statute of limitations, General Statutes § 52–184 had expired, (2) the plaintiff failed to plead over within 60 days of the apportionment complaint pursuant to § 52–102b(d) and (3) the plaintiff failed to plead within 20 days of the appearance of a third-party defendant pursuant to § 52–102a(c).  The court, Shortall, J.T.R., overruled the objection on May 3, 2010, citing Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn.App. 136, 727 A.2d 219 (1999).

Nine months later, on February 4, 2011, Casco Bay filed the subject motion to dismiss the amended complaint (139.00) to which the plaintiff filed a memorandum of law in opposition (146.00) on March 18, 2011.   Oral argument was presented on April 4, 2011.

The basis for Casco Bay's motion to dismiss is that the plaintiff lacks personal jurisdiction over it because the plaintiff failed to plead over within sixty days of the filing of the apportionment complaint pursuant to § 52–102b(d).  The plaintiff argues that Casco Bay has waived any claim of lack of personal jurisdiction as it has not moved to dismiss within thirty days of its appearance, pursuant to Practice Book § 10–30.¹

LEGAL STANDARD OF REVIEW

“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.)  Cox v. Aiken, 278 Conn. 204, 210–11, 897 A.2d 71 (2006).

The standard governing a trial court's review of a motion to dismiss is well established.  “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Brennan v. Fairfield, 58 Conn.App. 191, 195, 753 A.2d 396 (2000).

ANALYSIS

Casco Bay has not based its motion to dismiss on any claimed lack of subject matter jurisdiction, which can be raised at any time.   Rather, the sole basis for the motion to dismiss is for lack of personal jurisdiction.   A challenge to a court's personal jurisdiction ․ is waived if not raised by a motion to dismiss within thirty days of the filing of an appearance.  Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).

“Unlike the situation with subject matter jurisdiction, a party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance ․ Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion ․ 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.”  (Internal quotation marks omitted.)  Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 416, 885 A.2d 768 (2005);  see also Practice Book §§ 10–30 and 10–32.”  St. Paul's Flax Hill Co–Operative v. Johnson, 124 Conn.App. 728, 739–40, 6 A.3d 1168 (2010).

Compliance with the time limits of General Statutes § 52–102b implicates personal jurisdiction.  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).   Failing to file a motion to dismiss within thirty days constituted a waiver of any claim of lack of personal jurisdiction, pursuant to Practice Book §§ 10–30 and 1–32.  “Unlike subject matter jurisdiction ․ personal jurisdiction may be created through consent or waiver.”  United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985);  Phoenix Leasing, Inc. v. Kosinski, 47 Conn.App. 650, 653, 707 A.2d 314 (1998).

While normally, there is an existing action to dispute when the defendant files an appearance, in this particular case, the allegations by the plaintiff against Casco Bay did not arise until the filing of the motion to amend the complaint.   Nonetheless, at the very latest, Casco Bay had the opportunity to contest the complaint for lack of personal jurisdiction within thirty days of the order overruling its objection to the request for leave to amend.   That order was on May 3, 2010.   If timely filed, Casco Bay may have had a viable motion to dismiss based on an argument that the plaintiff's amendment circumvented § 52–102b(d).  However, Casco Bay has offered no reason which would in equity justify the delay in contesting personal jurisdiction nine months after Judge Shortall's ruling.   By failing to so do, Casco Bay has waived any claim of lack of personal jurisdiction.

ORDER

The defendant's motion to dismiss (139.00) is denied.

Robert E. Young, Judge

FOOTNOTES

FN1. Practice Book § 10–30 states, 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.”.  FN1. Practice Book § 10–30 states, 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.”

Young, Robert E., J.