Philip A. Andrews v. Chrysalis Center, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

FACTS

The plaintiff, Philip M. Andrews, is pro se.   Andrews filed this action against Chrysalis Centers, Inc., the defendant, by service of summons, dated June 30, 2011.   The writ is signed by an assistant clerk of the Superior Court, and dated March 3, 2010.   Andrews signed the writ on March 10, 2010.   The date next to the clerk's signature, however, is scratched out and June 20, 2011, is inserted in its place.   The return date on said summons was scratched out numerous times, but the final date reads July 12, 2011.   Andrews did not file a complaint, but rather a letter addressed to the defendant dated June 16, 2009, which essentially states that he hopes that the defendant does not retaliate against him for filing the present action.   He then directs the reader to see several attached police reports, which allegedly make out his cause of action.   The police reports state that on May 23, 2008, a cleaning company, Absolute Trauamaway, cleaned Andrews' apartment.   Afterward, items valued at approximately $650.00 were missing from the apartment.   Andrews was unable to identify anybody who cleaned the apartment or may have taken the alleged stolen items.   On July 17, 2008, the police officer contacted the cleaning company, and a representative of which claimed that nothing had been stolen from the apartment.   The representative also stated that the defendant, Chrysalis Center, hired Absolute Traumaway to clean the apartment.

The defendant has moved to dismiss on August 18, 2011 and has filed a supporting memorandum of law.   The plaintiff has not filed a response to the defendant's motion.

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.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).

The defendant argues that this court lacks personal jurisdiction over the defendant because the process in this action is insufficient, because the pleadings do not conform to the “minimal requirements” of General Statutes § 52–9.   The defendant further argues that the defendant cannot properly respond to the pleadings with an answer or special defenses.

The court will first address the defendant's arguments concerning insufficient process.  “Practice Book § 49 [now § 8–1(a) ] provides that ‘[m]esne process in civil actions shall be a writ of summons ․ describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint.   Such writ ․ shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable ․’ (Emphasis added.)   See also General Statutes § 52–45a.   (‘In ordinary usage of the term, [a] summons is the original process upon a proper service of which an action is commenced and the defendant therein named brought within the jurisdiction of the court ․’ Hillman v. Greenwich, 217 Conn. 520, 524, 587 A.2d 99 (1991).   A “writ of summons is a statutory prerequisite to the commencement of a civil action ․ [and] an essential element to the validity of the jurisdiction of the court.”  (Citations omitted.)  Id., 526.  “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).

Despite technical errors in the writ, the summons is not insufficient.   It includes the party being sued and the court to which the writ is returnable.   Additionally, it includes a clear command for the defendants to appear in court, and was signed by a clerk of the court to which the summons was returnable.   Thus, the writ itself is legally sufficient for the court to acquire personal jurisdiction over the defendant.

What cannot be overlooked, however, is that Practice Book § 8–1 mandates that the summons “shall be accompanied by the plaintiff's complaint.”   See also General Statutes § 52–45a (“The writ shall be accompanied by the plaintiff's complaint”).   As mentioned, the plaintiff has failed to file a complaint in the present case.  Practice Book Section 10–20 provides that “[t]he first pleading on the part of the plaintiff shall be known as the complaint.   It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought.   When money damages are sought in the demand for relief, the demand for relief shall include the information required by General Statutes § 52–91.” ¹

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.”  Farrell v. Saint Vincent's Hospital, 203 Conn. 554, 574 A.2d 954 (1987).   To be sure, as long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, courts will not conclude that the complaint is insufficient to allow recovery.  Harris v. Shea, 79 Conn.App. 840, 832 A.2d 97 (2003).   It is similarly true that “whenever language in pleadings fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with general theory which it was intended to follow and do substantial justice between the parties ․ but essential allegations may not be supplied by conjecture or remote implication.”  Daley v. Wesleyan University, 63 Conn.App. 119, 127, 772 A.2d 725, cert. denied, 776 A.2d 1145, 256 Conn. 930 (2001) (emphasis added).   However, in order for the court to indulge these guidelines, there must be a complaint to construe.   In the present action, there is none.

The court is aware that Andrews is a pro se plaintiff and is mindful of this fact.   However, this does not excuse the plaintiff's wholesale failure to file a complaint, in whatever form.   It is difficult for the court to understand what facts give rise to Andrews' cause of action.   This is not a matter of a poorly, or inartfully drafted complaint, to which the court would construe liberally and give the plaintiff considerable latitude.   Instead, the court is confronted with no actual allegations or statements of relief, only copies of police reports, the contents of which are not allegations.  “A writ without a complaint is void and the action must be dismissed.”   Markes v. RPM, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 06 40231956 (June 2007, Cosgrove, J.), citing Galvin v. Birch, 97 Conn. 399, 116 A. 908 (1922).   Because the plaintiff has not filed an accompanying complaint with the writ of summons, the action is dismissed.

Woods, J.

FOOTNOTES

FN1. General Statutes § 52–91 provides:  There shall be one form of civil action.   The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought.   When money damages are sought in the demand for relief, the demand for relief shall set forth:  (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs;  or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs;  or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs.   In addition, in a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum..  FN1. General Statutes § 52–91 provides:  There shall be one form of civil action.   The first pleading on the part of the plaintiff shall be known as the complaint and shall contain a statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought.   When money damages are sought in the demand for relief, the demand for relief shall set forth:  (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs;  or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs;  or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs.   In addition, in a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.

Woods, Glenn A., J.