Citibank (South Dakota) v. Joseph Wonoski (2011)

ORDER

ORDER REGARDING 02/09/11 101.00 MOTION TO DISMISS

The foregoing, having been considered by the Court, is hereby:

ORDER:  GRANTED

This matter was scheduled for oral argument on 5/9/11.   The plaintiff failed to appear.   Plaintiffs recognizance is not in compliance with Practice Book Section 8–3(a) and General Statutes § 52–185.

“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 ․ [T]he Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction.”  (Citations 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).  “Although the writ of summons need not be technically perfect ․ the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons.”  (Citation omitted.)  Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991).

In its memorandum in support of its motion to dismiss, the defendant argues that the court lacks personal jurisdiction over it because the plaintiff failed to provide a recognizance, as required by Practice Book § 8–3(a) and General Statutes Section 52–185 and, as a result, service upon the defendant was insufficient.

Practice Book Section 8–3(a) provides in relevant part that “if the plaintiff in any civil action is not an inhabitant of this state, or if it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against the plaintiff, he or she shall, before such process is signed, enter into a recognizance to the adverse party with some substantial inhabitant of this state as surety, or some substantial inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute the action to effect, and answer all damages in case the plaintiff does not make his or her plea good;  and no such recognizance shall be discharged by any amendment or alteration of the process between the time of signing and of serving it.”

Sec. 52–185 states in relevant part:  “(a) If the plaintiff in any civil action is not an inhabitant of this state, or if it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against him, the plaintiff shall enter into a recognizance to the adverse party with a financially responsible inhabitant of this state as surety, or a financially responsible inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute his action to effect and answer all costs for which judgment is rendered against him.   The recognizance shall not be discharged by any amendment or alteration of the process between the time of signing and serving it.”

This is consistent with Connecticut Practice Book Section 8–3.   If the plaintiff is an inhabitant of this state and the authority signing the process certifies that said inhabitant is sufficient to pay costs in the action, then no recognizance is required.   However, if the plaintiff is either (1) not an inhabitant of this state, or (2) does not appear to be able to pay costs, then in either of these two events, the plaintiff must provide a recognizance.   Therefore, in be present case, it is irrelevant that the subscribing authority certified to the financial ability of the plaintiff, because the plaintiff is not an inhabitant of this state.   Accordingly, the failure to include a recognizance constitutes a defect which deprives this court of jurisdiction.   The motion to dismiss is therefore granted.

Judge ROBIN LYNN WILSON

Wilson, Robin L., J.