VC v. Dharmesh Patel (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101)

The plaintiff, VC Management, Inc., brought the present action against the defendant, Dharmesh Patel d/b/a Derby Mart, in which it alleged that the defendant wrongfully removed an automated teller machine owned and serviced by the plaintiff from his convenience store.   The defendant filed the present motion to dismiss (# 101), along with a memorandum of law.   He argues that the action should be dismissed because the plaintiff's counsel, Attorney Anthony Wallace, took his own recognizance on the summons form, in violation of Practice Book § 8–4(c).  The plaintiff filed no objection to the motion and did not appear at oral argument, which occurred on March 7, 2011.

“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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  (Citation omitted.)   Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).   Under Practice Book § 10–31, “[t]he 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).

Practice Book § 8–4(a) provides:  “Except as provided below, 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.” ¹  Furthermore, § 8–4(c) provides:  “No attorney shall enter into a recognizance upon a writ which such attorney signs.”

The undisputed evidence in the record shows that the plaintiff's counsel signed the summons and listed himself as the person entering into the recognizance.   Thus, the process in this action is insufficient due to noncompliance with § 8–4(c).  Accordingly, because “[a] defect in process ․ such as an improperly executed writ, implicates personal jurisdiction”;  Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004);  the court finds that it lacks personal jurisdiction over the defendant.

On the basis of the foregoing analysis, the motion to dismiss is granted.

BY THE COURT,

Woods, J.

FOOTNOTES

FN1. Under § 8–4(b), “[n]o recognizance shall be required of a pro se complainant in a summary process action.”   This exception is inapplicable to this case..  FN1. Under § 8–4(b), “[n]o recognizance shall be required of a pro se complainant in a summary process action.”   This exception is inapplicable to this case.

Woods, Glenn A., J.