Augustus Samuel, Jr. v. Children's Advocacy Center et al. (2011)

MEMORANDUM OF DECISION ON MOTION TO DISMISS NO.117

FACTS

The plaintiff, Augustus Samuel, Jr., filed this action against the defendants, Lisa Murphy–Cippola, Children's Advocacy Center, the city of Hartford and John Laplant ¹ on June 21, 2010.   The plaintiff then filed an amended complaint on August 13, 2011 and a second amended complaint on March 30, 2011.   The plaintiff's second amended complaint alleges the following relevant facts.   The plaintiff's daughter, Jane Doe, was a student at West Side Middle School, which was operated by the city of Hartford.   In September 2007, she stated that her father sexually abused her during an interview with Murphy–Cippola, a clinical social worker who was employed by Children's Advocacy Center.

John Laplant, a social worker at the school, interviewed Jane Doe's sister, who reported that the plaintiff sexually and physically abused Jane Doe. Laplant then reported the incident to the principal and contacted the Department of Children and Families (DCF).  The plaintiff alleges that Laplant was negligent and committed malpractice by not thoroughly investigating the accusations of abuse prior to reporting it to the principal and DCF and that the city of Hartford was negligent in failing to have procedures in place at the West Side Middle School regarding interviewing children who make allegations of sexual abuse.   As a result of the defendants' alleged tortious conduct, the plaintiff has suffered two years of incarceration, pain and suffering, lost wages, damage to his reputation, familial estrangement, and litigation costs.

The plaintiff's second amended complaint alleges the following counts:  libel, as to Children's Advocacy Center (count one), libel, as to Murphy–Cippola (count two), negligence, as to the city of Hartford (count three), negligence, as to Laplant (count four), false imprisonment, as to Lisa Murphy–Cippola (count five), and malpractice as to Laplant (count six).   The plaintiff seeks compensatory and punitive damages.

On April 11, 2011, defendants Murphy–Cippola and Children's Advocacy Center objected to the second amended complaint to the extent that is asserts allegations against them because the court previously granted their motion to dismiss the original complaint on December 2, 2010 on the ground that the plaintiff failed to comply with General Statutes § 52–190a.   The court sustained this objection on April 25, 2011.   The remaining defendants, city of Hartford and Laplant, filed a motion to dismiss (No. 117) counts three, four and six of the plaintiff's second amended complaint on the grounds that this court lacks jurisdiction due to the plaintiff's failure to comply with the notice requirements of General Statutes § 7–465(a) and that legal process is insufficient based on the plaintiff's failure to provide a proper recognizance.   This motion is accompanied by a memorandum of law (No. 118).   The plaintiff filed a memorandum in opposition on April 25, 2011 (No. 120).

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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  (Internal quotation marks omitted.)   Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).

A

Failure to Comply with General Statutes § 7–465(a)

The defendants first argue that the court lacks jurisdiction over counts three, four and six because the plaintiff failed to comply with General Statutes § 7–465(a), which provides in relevant part:  “No action for personal physical injuries ․ shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose and written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued.”   The defendants maintain that the court lacks subject matter jurisdiction because the plaintiff did not provide notice of a potential claim within six months after the action accrued.   In a footnote, the defendants also argue that the complaint is untimely because it was filed more than two years after the alleged negligent act.

“This court previously has held ․ that ‘the liability of the municipality, but not that of the municipal employee, is dependent upon the giving of proper statutory notice ․ [A]n injured party may maintain a common-law action against a municipal employee covered by the statute, thereby avoiding those requirements which are unique to recovery under the indemnification statute ․ A plaintiff's failure to sustain his complaint against the municipality is no reason for turning the plaintiff out of court if he can sustain his complaint against the employee ․’ (Internal quotation marks omitted) Perodeau v. City of Hartford, 259 Conn. 729, 747 n.20, 792 A.2d 752 (2002).   Accordingly, “only a municipality may assert the absence of notice required by § 7–465 in a motion to dismiss for lack of subject matter jurisdiction.”  Altfeter v. Borough of Naugatuck, 53 Conn.App 791, 799, 732 A.2d 207 (1999).   For example, in Altfeter, the Appellate Court held that the trial court improperly dismissed claims against a municipal employee on the ground that the plaintiffs failed to provide the municipality with notice of a potential claim within six months.  Id., 800.   Similarly, with respect to counts four and six against Laplant, the court does not lack subject matter jurisdiction over the plaintiff's claims for failure to comply with the notice requirement of General Statutes § 7–465(a) because the statute does not apply to municipal employees.

With respect to the city of Hartford, the court must first determine whether General Statutes § 7–465(a) applies to the allegations in count three of the plaintiff's second amended complaint.   See id., 799.   In count three, the plaintiff alleges that the city of Hartford operated the West Side Middle School, where Laplant was a social worker, and that the city “was negligent in not having guidelines and procedures in effect to guide its social workers to sort fact from fiction when interviewing children who make allegations of sexual abuse and physical abuse ․ prior to reporting said allegations to other agencies or police departments.”   Construing these allegations in the manner most favorable to the pleader, this is a common law negligence cause of action.   This action is not “for indemnification nor statutory in nature.   Rather, [it is a] common law action[ ] that [is] not subject to the notice requirements of § 7–465.”  Forbes v. Ballaro, 31 Conn.App. 235, 241, 624 A.2d 389 (1993).   Accordingly, the defendants' motion to dismiss for failure to comply with § 7–465(a) is denied.

B

Failure to Provide a Proper Recognizance

The defendant's next move to dismiss counts three, four and six on the ground of lack of personal jurisdiction.   They argue that process was insufficient because the recognizance on the summons was not properly attested to pursuant to General Statutes § 52–185(d) and Practice Book § 8–5(b).  Below the appearance line on the “Summons–Civil” form, spaces are provided for the taking of a recognizance.   No one signed as the “Official taking recognizance,” the space for which was left blank.²

“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).  “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).  “[A]ny claim of lack of jurisdiction over the person as a result of an insufficiency of ․ process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10–6 ․” (Emphasis in original, footnote omitted.)  Pitchell v. City of Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).   Assuming that the second amended complaint, filed March 30, 2011, is the operative complaint,³ the defendants timely filed their motion to dismiss on April 7, 2011, within thirty days.

Moreover, the defendants' argument that personal jurisdiction is lacking and dismissal is warranted as a result of the deficient recognizance is unpersuasive ․ [because] Practice Book § 8–5(b) contains a remedy which may be utilized where a plaintiff has failed to provide a recognizance in the summons.”   Mazzone v. Carranza, Superior Court judicial district of New Britain, Docket No CV 07 5004401 (October 19, 2007, Shapiro, J.).  “Where no recognizance appears the writ is defective and subject to a motion to dismiss ․ This defect is, however, curable ․ Practice Book § 8–5(b) provides that upon hearing the motion to dismiss, the court is permitted to direct the plaintiff to file a bond to prosecute in an amount deemed sufficient by the [court] ․” (Citation omitted, internal quotation marks omitted.)   Quinones v. Armstrong, Superior Court, Docket No CV 02 0816230 (November 1, 2002, Hennessey, J.).⁴

“A similar remedy is also found in General Statutes § 52–185(d):  ‘If there has been a failure to comply with the provisions of this section, or if the authority signing a writ has failed to certify in accordance with any statute or rule that he has personal knowledge as to the financial responsibility of the plaintiff and deems it sufficient the validity of the writ and service shall not be affected unless the failure is made a ground of a plea in abatement.   If such plea of abatement is filed and sustained or if the plaintiff voluntarily elects to cure the defect by filing a bond, the court shall direct the plaintiff to file a bond to prosecute in the usual amount.’   Both authorities permit the curing of a defective bond or a recognizance short of a dismissal.”   Ridgefield Bank v. Stones Trail, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No CV 02 0188226 (April 2, 2003, Tierney, J.) (denying motion to dismiss but requiring plaintiff to post a bond).

In Quinones v. Armstrong, supra, Superior Court, Docket No CV 02 0816230, the defendants filed a motion to dismiss because an incarcerated, pro se plaintiff failed to provide a proper recognizance.   The Superior Court reserved judgment on the defendants' motion to dismiss until the plaintiff complied with the court's order to submit a financial affidavit to assist in determining a bond amount.   Similarly, in Loughery v. Commissioner of Corrections, Superior Court, Docket No. CV 01 0812161 (July 9, 2002, Hennessey, J.), the Superior Court recognized that while inmates and plaintiffs who are indigent are not exempt from filing the required bond to begin a cause of action, the court was not obligated to dismiss the action.   Instead, the court determined that it would hold a hearing to determine the sufficient amount for the bond and the plaintiff would have two weeks after the court's order to file the bond.   The court delayed entering its judgment on the motion to dismiss for lack of proper recognizance until the two-week period ended.

The plaintiff in the present case did not file a proper recognizance.   The court hereby orders the plaintiff to cure his defective recognizance.   If the plaintiff fails to do so, the court will grant the defendants' motion to dismiss for lack of personal jurisdiction.

CONCLUSION

In conclusion, the court does not lack subject matter jurisdiction for the plaintiff's failure to comply with General Statutes § 7–465(a).   The court reserves judgment on the defendants' motion to dismiss on the ground that personal jurisdiction is lacking until the plaintiff is given an opportunity to cure his defective recognizance.

Robaina, J.

FOOTNOTES

FN1. The summons refers to this defendant as John Laplant.   It is noted, however, that some filings refer to this defendant as John LaPlant..  FN1. The summons refers to this defendant as John Laplant.   It is noted, however, that some filings refer to this defendant as John LaPlant.

FN2. Pursuant to Connecticut Code of Evidence §§ 2–1 and 2–2, the court takes judicial notice of the contents of the file.   A court may take judicial notice of relevant court files.   See State v. Carey, 228 Conn. 487, 497, 636 A.2d 840 (1994)..  FN2. Pursuant to Connecticut Code of Evidence §§ 2–1 and 2–2, the court takes judicial notice of the contents of the file.   A court may take judicial notice of relevant court files.   See State v. Carey, 228 Conn. 487, 497, 636 A.2d 840 (1994).

FN3. In the present case, the pro-se plaintiff's second amended complaint was filed on March 30, 2011.  Practice Book § 10–60 states in relevant part:  “If no objection [to the request for leave to amend] has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”   While it is true that the plaintiff did not file a request for leave to amend, it is submitted that the court should treat the March 30, 2011 second amended complaint as operative because the defendants failed to file an objection within fifteen days.   See Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008), trial court has wide discretion in granting or denying an amendment to a complaint)..  FN3. In the present case, the pro-se plaintiff's second amended complaint was filed on March 30, 2011.  Practice Book § 10–60 states in relevant part:  “If no objection [to the request for leave to amend] has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”   While it is true that the plaintiff did not file a request for leave to amend, it is submitted that the court should treat the March 30, 2011 second amended complaint as operative because the defendants failed to file an objection within fifteen days.   See Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008), trial court has wide discretion in granting or denying an amendment to a complaint).

FN4. Practice Book § 8–5(b) provides a remedy for failing to post a bond:  “If the judicial authority, upon the hearing of the motion to dismiss, directs the plaintiff to file a bond to prosecute in an amount deemed sufficient by the judicial authority, the action shall be dismissed unless the plaintiff complies with the order of the judicial authority within two weeks of such order.”.  FN4. Practice Book § 8–5(b) provides a remedy for failing to post a bond:  “If the judicial authority, upon the hearing of the motion to dismiss, directs the plaintiff to file a bond to prosecute in an amount deemed sufficient by the judicial authority, the action shall be dismissed unless the plaintiff complies with the order of the judicial authority within two weeks of such order.”

Robaina, Antonio C., J.