Citibank (South Dakota) v. Joseph Wonoski (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

BACKGROUND:

The plaintiff in this action served a writ, summons and complaint upon the defendant.   The return date on the writ was July 19, 2011.   The writ was dated May 26, 2011.   The attached complaint was dated May 19, 2011.   The defendant has moved to dismiss the action because the date of the complaint was more than two months prior to the return date in violation of General Statutes § 52–48(b).  The plaintiff filed an objection and the court heard argument on the issue.

LEGAL STANDARD OF REVIEW:

“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.)  Cox v. Aiken, 278 Conn. 204, 210–11, 897 A.2d 71 (2006).

The standard governing a trial court's review of a motion to dismiss is well established.  “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Brennan v. Fairfield, 58 Conn.App. 191, 195, 753 A.2d 396 (2000).

“Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”  (Citations omitted;  internal quotation marks omitted.)  Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996).

When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light.   In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.

A defect in process implicates personal jurisdiction, rather than subject matter jurisdiction.  Merrill v. NRT New England, Inc., 126 Conn.App. 314, 319 (2011), Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).

ANALYSIS:

General Statutes § 52–48(b) states, “All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.   The issue presented here is whether the date on a complaint or the writ is controlling as to the date of the process.”

General Statutes § 52–45a defines legal process as “consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.   The writ shall be accompanied by the plaintiff's complaint.”   All of this information is contained in Form JD–CV–1, entitled summons, an official form of the Judicial Branch.  P.B. § 8–1(a).   The statute does not state that the complaint is legal process, only that the legal process shall be accompanied by the complaint.

The controlling date for General Statutes § 52–48(b) is the date on the writ of summons, JD–CV–1.  “The ‘date of the process,’ of course, refers to the date of the writ of summons or attachment which must be accompanied by the complaint.  General Statutes 52–45a and 52–45b.”  Haylett v. Commission on Human Rights & Opportunities, 207 Conn. 547, 554–55, 541 A.2d 494 (1988).   That date, May 26, 2011, was within two months of the return date.   There is compliance with the statutory time limit.

ORDER:

The defendant's motion to dismiss (101.00) is denied.   The objection to the motion (103.00) is sustained.

Robert E. Young, Judge

Young, Robert E., J.