Peter S. Montgomery v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 136 SHORT CALENDAR MAY 23, 2011

The issue before the court is whether to grant the defendants' motion to dismiss the plaintiff's amended complaint on the ground that the plaintiff's summons does not comply with Practice Book § 8–4.

I

FACTS

This action was originally initiated by the plaintiff, Peter Montgomery, on the small claims docket.   Thereafter, the action was transferred, by motion of defendant Reliability Plus Property Care, LLC to the regular civil docket of the Superior Court.

On January 31, 2011, the plaintiff filed a motion to cite in defendant John Camp as a party defendant.   The motion was granted on February 22, 2011, and the plaintiff was ordered to amend his complaint and to have the summons and complaint properly served on Camp on or before March 9, 2011.   On March 10, 2011, the plaintiff filed a copy of the summons and amended complaint served on Camp on March 3, 2011, and mailed to Reliability Plus Property Care, LLC on February 28, 2011.   On April 20, 2011, the defendants filed the present motion to dismiss the plaintiff's amended complaint on the ground that the summons does not comply with Practice Book § 8–4 in that no recognizance was provided.   The matter was heard on the May 23, 2011 short calendar.   The plaintiff entered an oral objection at the hearing.

II

DISCUSSION

“A motion to dismiss attacks the jurisdiction of the court ․ Where there is insufficient process, the court lacks personal jurisdiction and the complaint must be dismissed ․ Practice Book § 8–4 provides in pertinent part ‘in all actions wherein costs may be taxed against the plaintiff, no mesne process shall be issued until the recognizance of a third party for costs has been taken, unless the authority signing the writ shall certify thereon that he or she has personal knowledge as to the financial responsibility of the plaintiff and deems it sufficient.’  “ (Citations omitted.)   Levinson v. Lawrence, Superior Court, judicial district of Hartford, Docket No. CV 10 5034976 (September 27, 2010, Aurigemma, J.).   Where “the plaintiff has not complied with Practice Book ․ § 8–4, the court lacks jurisdiction and the case must be dismissed.”  Levinson v. Lawrence, supra, Superior Court, Docket No. CV 10 5034976.

In the present case, the summons reveals that no recognizance was provided and there is no signature of an official attesting to the plaintiff's financial responsibility.   At the hearing on the motion to dismiss, the plaintiff argued that he was proceeding pro se and that under Practice Book § 8–4(b) no recognizance was required.   In reply, the defendants argued that Practice Book § 8–4(b) was inapplicable because the present action is not a summary process matter.  Practice Book § 8–4(b) states in relevant part:  “No recognizance shall be required of a pro se complainant in a summary process action ․”

“The Superior Court has consistently held that the failure of a plaintiff to comply with § 8–4 [results] in insufficient service, and consequently ․ [a] defendant's motion to dismiss [should be granted] ․ Plaintiffs who are indigent ․ are not exempt from filing a recognizance.”   Lowery v. Shea, Superior Court, judicial district of New Haven, Docket No. CV 09 4037443 (January 4, 2010, Keegan, J.) [49 Conn. L. Rptr. 132].

In the present case, the plaintiff's summons does not contain a recognizance of a third party.   The plaintiff's contention that he is excused from providing a recognizance pursuant to Practice Book § 8–4(b) is without merit as the present action is not a summary process action.   Accordingly, because the plaintiff has failed to comply with Practice Book § 8–4 by failing to provide a recognizance, the defendants' motion to dismiss for insufficiency of process is granted.

Roche, J.

Roche, Vincent E., J.