Brittany Dembinski v. George Rigakos et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 114)

FACTS

This action arises out of an alleged collision that occurred between the defendants, George Rigakos and Carlissa Osle–Sherman, while the plaintiff was a passenger in George Rigakos' vehicle.   On June 9, 2011, the plaintiff filed a two-count complaint against the defendants and Maria Rigakos, the owner of the vehicle, alleging negligence.   In count two, which is the only count at issue in this motion, the plaintiff alleges the following relevant facts.   On or about April 23, 2009, the plaintiff was a passenger in George Rigakos' vehicle while it was under his operation.   Osle–Sherman, while driving her car, entered the intersection of Farmington Avenue and Walbridge Road in West Hartford, Connecticut.   As she entered the intersection, George Rigakos failed to stop at the stop sign on Walbridge Road and crossed in front of Osle–Sherman.   As a result, Osle–Sherman struck George Rigakos' car on the passenger side.   The collision was a result of the negligence and carelessness of Osle–Sherman.   As a result of the accident, the plaintiff suffered serious and painful injuries, some of which may be permanent.

On June 28, 2011, counsel for Osle–Sherman filed an appearance with the court.   On August 12, 2011, Osle–Sherman filed a motion to dismiss count two for lack of personal jurisdiction.   The motion was accompanied by a memorandum of law in support and Osle–Sherman's affidavit.   On September 28, 2011, the plaintiff filed an objection to the motion to dismiss.   On September 30, 2011, Osle–Sherman filed a supplemental memorandum in support of her motion to dismiss, arguing that the court lacks subject matter jurisdiction.

DISCUSSION

“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).   “Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.”  (Internal quotation marks omitted.)  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).  “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.)  St. Paul's Flax Hill Co-operative v. Johnson, 124 Conn.App. 728, 740, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011).

In her motion to dismiss, Osle–Sherman makes two arguments to support her assertion that the court lacks personal jurisdiction.   First, she argues that service of process upon her was improper because service was not made in hand or at her usual place of abode.   Second, she asserts that the court lacks jurisdiction because the plaintiff violated General Statutes § 52–48(b), because the return date on the writ of summons was more than two months after the date of process.   At oral argument on October 3, 2011, the plaintiff conceded that the return date was more than two months after the date of process.   The plaintiff, however, counters that the motion ought to be denied because a motion to dismiss for lack of personal jurisdiction must be brought within thirty days of the filing of an appearance and in this case it was not.   On October 17, 2011, the plaintiff also filed a request to amend the defective return date pursuant to General Statutes § 52–72.¹

General Statutes § 52–57(a) provides:  “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”  “[W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ The jurisdiction that is found lacking ․ is jurisdiction over the person ․” (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).  Practice Book § 10–30 provides:  “Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.” ²

As to her first argument, at oral argument, counsel for Osle–Sherman conceded that the thirty-day time period in which to challenge personal jurisdiction had already passed.   Since a challenge to service of process implicates personal jurisdiction over a defendant, and Osle–Sherman concedes that the time period in which to challenge personal jurisdiction has passed, the court finds that she has waived her right to challenge the service of process.

As to her second argument, “[a]n improperly specified return date affects the court's jurisdiction ․ [An] incorrect return date should not be viewed lightly.   The defect of an improper return day is not a minor defect.   Rather ․ an improper return day is a defect which could not be corrected at all until [General Statutes] § 52–72 was enacted.”  (Internal quotation marks omitted.)  Danziger v. Shaknaitis, 33 Conn.App. 6, 10, 632 A.2d 1130 (1993).   In her motion to dismiss and memorandum in support thereof, Osle–Sherman argues that the court lacks personal jurisdiction over her because of the defective return date.   She, however, in her supplemental memorandum in support of the motion to dismiss and at oral argument, asserted that the court lacks subject matter jurisdiction over the action because of the defective return date and, therefore, it can be raised and must be considered by the court at any time.   The latter ground was not stated in the original motion, but regardless, it is without merit.   The Supreme Court has held:  “A defect in process ․ such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction.”  (Internal quotation marks omitted.)  Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007);  see also Adamovich v. East Hartford, Superior Court, judicial district of Hartford, Docket No. HHD CV 10 6012652 (February 18, 2011, Peck, J.) (denying motion to dismiss for improper return date and allowing plaintiff to amend date).   Therefore, Osle–Sherman has waived her right to challenge the defective return date because the motion to dismiss was filed more than thirty days after the filing of her appearance.   For the foregoing reasons, the court denies Osle–Sherman's motion to dismiss.

Woods, J.

FOOTNOTES

FN1. General Statutes § 52–72(a) and (b) provides:  “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.“(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.”.  FN1. General Statutes § 52–72(a) and (b) provides:  “(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement.“(b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form.”

FN2. Practice Book § 10–33 provides:  “Any claim of lack of jurisdiction over the subject matter cannot be waived;  and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”.  FN2. Practice Book § 10–33 provides:  “Any claim of lack of jurisdiction over the subject matter cannot be waived;  and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”

Woods, Glenn A., J.