Cordelia Thorpe v. J. Robert Galvin, Commissioner of Public Health et al. (2011)

MEMORANDUM OF DECISION REGARDING DEFENDANTS' MARCH 4, 2010 MOTION TO DISMISS

The defendants, J. Robert Galvin, the Commissioner of the Department of Public Health, the Department of Public Health, Alfreda Gaither, Devon Conover, Sandra Lock and Amy Schwarzkopf, moved the Court to dismiss the plaintiff's Complaint due to lack of subject matter jurisdiction, insufficiency of process and insufficiency of service of process.

The Department of Public Health (DPH) is the State agency responsible for issuing licenses to family daycare providers.   The plaintiff avers that she was such a licensed provider.   The DPH, pursuant to statute, gave notice to the instant plaintiff of proposed licensure action, a statement of charges was drawn, hearings were held and a final Memorandum of Decision was issued.

The plaintiff failed, neglected and/or refused to file an administrative appeal from the hearing officer's final decision, as authorized by Connecticut General Statutes § 4–183 of the Uniform Administrative Procedures Act. Instead, the plaintiff filed this declaratory judgment and injunction action in the Superior Court.

The instant Motion to Dismiss challenges both jurisdiction over the person and subject matter jurisdiction.

As the issues of subject matter jurisdiction have previously been described in some detail the Memorandum of Decision on the co-defendants' February 26, 2010 Motion to Dismiss, the Court will incorporate those by reference the holdings therein into the instant memorandum.

The plaintiff has failed to exhaust administrative remedies, thereby depriving the Superior Court of subject matter jurisdiction.   This issue has been described in some detail in the February 26, 2010 Memorandum of Decision and the discussion and case citations are incorporated by reference herein.   Based upon the failure to exhaust the available administrative remedies, the Court dismisses the case, vis-a-vis, the moving defendants.

The defendants also move to dismiss the case for a lack of a proper recognizance, or certification of financial responsibility in the Writ, Summons and Complaint issued in the instant matter.   In the present case, the plaintiff's attorney signed a written recognizance in violation of Practice Book § 8–4(c).  Further the Writ does not indicate that a bond for prosecution surety was given.

Accordingly, the process in the instant matter was insufficient and the plaintiff's case is dismissed.

The defendants further move that the case be dismissed because of an inadequacy of service of process.   Without adequate service of process, the Court has no jurisdiction over the person, Coppolla v. Coppolla, 243 Conn. 657, 661–61 (1998).

Service returnable to the Superior Court must be completed at least twelve days before the Return Date, C.G.S. § 52–46.   Process returnable to the Superior Court in civil actions must be returned to the Clerk of the Court at least six days prior to the Return Date, C.G.S. § 52–46a.

In the present case, the Return Date of the plaintiff's Amended Writ, Summons and Complaint is February 16, 2010 and according to the Marshal's return, service of process was made on the same day, in violation of C.G.S. § 52–46.   Furthermore, the process was returned to the Superior Court on February 25, 2010, nine days after the Return Date, in violation of C.G.S. § 52–46a.

The service of process was defective in violation of both C.G.S. § 52–46 and C.G.S. § 52–46a.   Hence, the Court lacks personal jurisdiction over the above-named defendants.

WHEREFORE, the Motion to Dismiss is therefore granted for a lack of both subject matter and personal jurisdiction.

BY THE COURT

ZEMETIS, T.

Zemetis, Terence A., J.