Lena Schriever v. Joshua Medeiros (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 101)

FACTS

On February 9, 2011, the plaintiffs, Lena and Karl Schriever, filed a two-count complaint against the defendant, Joshua Medeiros, pursuant to the accidental failure of suit statute, General Statutes § 52–592.   The plaintiffs initially filed suit against the defendant on February 4, 2010;  that action, however, failed for insufficiency of service of process because the marshal never served the defendant with a summons and complaint.   The action sounds in negligence and loss of consortium arising out of a motor vehicle accident that allegedly occurred on February 7, 2008.

On March 21, 2011, the defendant filed a motion to dismiss this action on the ground of insufficiency of service of process.   His motion is accompanied by a memorandum of law.   On May 5, 2011, the plaintiffs filed an objection to the motion to dismiss and a memorandum in support of their objection.   The matter was heard at short calendar on May 9, 2011.   On the same day, pursuant to a request by this court, the plaintiff filed a supplementary affidavit from his attorney detailing the steps he took in filing the motion to dismiss.

DISCUSSION

“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]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).   “Facts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Emphasis in original;  internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).  “[Practice Book § 10–32] specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after the filing of an appearance and] in the sequence required by Practice Book § 10–6.”  (Emphasis in original.)   Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).

In the present case, the defendant argues that he was never properly served with a writ, summons and complaint.   Without proper service, the court lacks personal jurisdiction over the defendant.   In response, the plaintiffs do not contest the merits of the motion;  instead, they argue that this motion to dismiss is not properly before the court on the ground that it was not signed by the defendant's attorney when he electronically filed the motion.   Having not properly filed a motion to dismiss within thirty days of entering an appearance, the plaintiffs contend, the defendant has waived his right to contest personal jurisdiction.

Practice Book § 4–2(a) provides in relevant part:  “Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's name.”  Practice Book § 4–4 provides in relevant part:  “Papers may be filed, signed or verified by electronic means that comply with procedures and technical standards established by the office of the chief court administrator ․” According to paragraph E, section 1 of the E–Services Procedures and Technical Standards, which applies to documents filed by attorneys, “[a] document that is submitted electronically through the e-filing system ․ must be signed by the attorney submitting the document as follows:  (a) For any document electronically filed in the e-filing system, entry in the e-filing system of the individual juris number of the attorney who electronically filed the document shall constitute the signature of the attorney for the purposes of Section 4–2 ․ of the Practice Book.”

In his affidavit, the defendant's attorney outlined the steps he took in electronically filing the motion to dismiss.   After uploading the document in PDF form, counsel was required to provide his juris number in the space entitled “Signature Required.”   Counsel could not submit the motion to dismiss without providing this information.   After submitting the motion, counsel was provided with an e-filing confirmation page.   The defendant's attorney has provided the court with copies of the e-filing confirmation page that includes his juris number, as well as a screen shot of the “Signature Required” box that requires the entry of counsel's juris number before the motion can be submitted to the court.   The defendant's attorney also states in his affidavit that a signed copy of the motion was sent via regular mail to plaintiffs' counsel, something that plaintiffs' counsel, during oral argument, admitted to receiving.

Based on the affidavit of the defendant's attorney and the rules regarding electronic submission of pleadings, the court finds that the motion to dismiss is deemed “signed.”   The court will now address the merits of the motion.

General Statutes § 52–57(a) provides:  “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”

According to the marshal's return of service in this case, the marshal Wayne Vendetto left a copy of the writ, summons and complaint at the post office in New London, Connecticut, as certified mail, addressed to the defendant with an address in Norwich, Connecticut.   There is no evidence in the return of service that any attempt was made to serve the defendant in person or by leaving a copy at his usual place of abode, as required by statute.   Further, no explanation has been offered by the plaintiffs as to why the marshal did not comply with § 52–57(a).

In cases involving the negligent operation of a motor vehicle, General Statutes § 52–63(b) does permit service by certified mail.¹  Service must also be made, however, by leaving a copy of the writ, summons and complaint at the office of the commissioner of motor vehicles and only if:  “(1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another.”   There is no evidence provided by the plaintiffs or the marshal in his return of service that a copy of the writ, summons and complaint was left with the commissioner of motor vehicles or that it was impossible to make service at the defendant's last address on file in the department of motor vehicles.  “When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.”  (Internal quotation marks omitted.)  Kenny v. Banks, 289 Conn. 529, 534, 958 A.2d 750 (2008).

CONCLUSION

Thus, it is clear that there has been insufficient service of service on the defendant in this case.   Without proper service, this court lacks personal jurisdiction over the defendant.   For that reason, the defendant's motion to dismiss is hereby granted.

Cosgrove, J.

FOOTNOTES

FN1. General Statutes § 52–63(b) provides:  “Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another.”.  FN1. General Statutes § 52–63(b) provides:  “Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another.”

Cosgrove, Emmet L., J.