Edward Gaudio v. D.C.S.R., Inc. et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (# 139.00)

The plaintiff brings this action to recover “wages” owed by the defendants pursuant to an “Employment Purchase Agreement.”   The defendant, Brown & Brown of Connecticut, moves to dismiss on the basis of lack of jurisdiction claiming the plaintiff failed to serve Brown & Brown of Connecticut with the operative complaint in this matter.

On May 9, 2011 the plaintiff filed a Request for Leave to Amend the Complaint and attached the proposed amended complaint.   On May 18, 2011, the defendants Scanlon and Halligan filed an objection to the request and on May 24, 2011 the defendants DCSR, Inc. and Rittman joined in the objection.   The court ordered the request and objections related thereto to be scheduled for argument through the caseflow co-ordinator.   Before argument was scheduled the plaintiff, on June 13, 2011, filed a Motion to Cite in Additional Party seeking to bring the defendant Brown & Brown of Connecticut into the action.   A copy of the amended complaint as proposed by the plaintiff was attached to the memorandum of law submitted to the court.   No objections were filed by the defendants with respect to this motion and the matter was taken on the papers on the June 15, 2011 short calendar.   The court granted the plaintiff's motion and ordered:  “ ․ That on or before 7/28/2011, the plaintiff amend his complaint to state the facts showing the interest of Brown & Brown of Connecticut in this action and summon Brown & Brown of Connecticut to appear as a defendant in this action on or before the second day following 8/9/2011, by causing some proper officer to serve on it in the manner prescribed by law a true and attested copy of this order, a true and attested or certified copy of the complaint in this action, as amended, and a summons civil form JD–CV–1 and do return make.”

In compliance with the court order, the plaintiff served a copy of the amended complaint upon the defendant Brown & Brown of Connecticut, Inc. and properly filed a return of service.

The defendant Brown & Brown of Connecticut argues that because the plaintiff's prior request to revise the complaint and the objections thereto had not yet been scheduled for argument by caseflow, the original complaint was the operative complaint and therefore should have been served upon Brown & Brown of Connecticut, Inc. As a result, the defendant claims that the service of process was insufficient and that the matter should be dismissed as against Brown & Brown of Connecticut for lack of personal jurisdiction.

The plaintiff contends that the court had not directed him to take any further steps in regard to amending the complaint, that he had submitted the proposed amended complaint to the court and had attached it to his motion for the court's consideration, and that he complied with the court order directing him to serve the amended complaint upon the defendant.

The Supreme Court has stated that the “chief purpose [of § 52–57] is to ensure actual notice to the defendant that the action is pending.”  (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, supra, 288 Conn. 576.   In this regard, “service must be effectuated in a way reasonably calculated to provide actual notice.”  Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007).  “When notice is given to a defendant of the commencement of a legal action, [however] there must also be substantial compliance with the service of process statutes.”  Hibner v. Bruening, supra, 78 Conn.App. 461.

Practice Book § 10–60(a)(1) provides:  “except as provided in section 10–66, a party may amend his or her pleadings or other parts of the record of proceedings at any time subsequent to that stated in the preceding section in the following manner:  (1) by order of the judicial authority ․ “

In this case, the court had reviewed the complaint, the Request to Revise and the objections thereto, the Amended Complaint along with the plaintiff's Motion to Cite in Additional Defendant and specifically ordered the plaintiff to serve the defendant Brown & Brown of Connecticut with the amended complaint.   The court finds the operative complaint to be the Amended Complaint and because the defendant complied with the orders of the court and because that service did comply with both the statutory and practice book requirements the defendant's motion to dismiss is denied.

Markle, J.

Markle, Denise D., J.