Jane Doe v. Yale University (2012)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

Practice Book § 11–20A(h)(1) provides;  “Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in knowing the name of the party.”  (Emphasis added.)  General Statutes § 52–45a provides that;  “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment describing the parties, the court to which it is returnable, the return day, [and] the date and place for the filing of an appearance.”  (Emphasis added.)

In the case at bar, it is undisputed that the plaintiff did not follow the procedure set forth in Practice Book § 11–20A(h)(1).   After serving the defendant with the Writ Summons and Complaint using the pseudonym “Jane Doe,” the plaintiff attached an application to the writ, summons and complaint requesting permission to proceed using a pseudonym, and only then returned the writ and application to court.   This application was never served on the defendant.   As a result, the defendant never learned from the plaintiff the true identity of the plaintiff.   A show cause order and hearing date was assigned for the application, but the hearing never went forward, and was not reclaimed by the plaintiff.   Interestingly, in the related case of Doe v. Crespo, Superior Court, judicial district of New Haven at New Haven, Docket No. CV–06–5005274, the same plaintiff did follow the proper procedure set forth in Practice Book § 11–20A(h)(1).   That is to say, the plaintiff (represented by the same counsel as the case at bar) filed an application with the court before bringing and serving the action against the defendant in that action.   (The defendant in this action, Yale University, was not a party in Doe v. Crespo.)   It is clear then, that the plaintiff was aware of the proper procedure for the use of a pseudonym that is set forth in Practice Book § 11–20A(h)(1).

The return date of the writ in the case at bar was August 1, 2006.   The defendant timely filed an appearance dated August 2, 2006, which was stamped in by the clerk's office on August 4, 2006.   Due to an error by the clerk's office, that appearance was sent back to counsel for the defendant with the notation that the clerk's records did not disclose the case with the caption indicated had been returned to court.  (A copy of the returned appearance form filed by the defendant was attached to its moving papers.)   The caption was accurately set forth by the defendant in its appearance, and the case had, indeed, been returned the court.   The defendant then, understandably, assumed that the writ had not been returned to court, since his appearance was returned with the notation that no such case had been returned to court.

It was not until the plaintiff filed a Request for Leave to Amend Summons and Complaint on February 22, 2007, that the defendant became aware (at least from the plaintiff) that this matter was returned to court.   The request to amend was mailed directly to the defendant as no appearance had been accepted by the court on behalf of the defendant.   The plaintiff's request was to substitute the plaintiff's true name for that of Jane Doe. The defendant then immediately filed the present motion to dismiss for lack of subject matter jurisdiction and/or personal jurisdiction.

The record is clear that the plaintiff did not follow the proper procedure under Practice Book § 11–20A(h).  The defendant cites America's Wholesale Lender v. Pagano, 87 Conn.App. 474 (2005) and related cases, in arguing that under the facts and circumstances of this case, “Jane Doe” does not have legal existence sufficient to confer jurisdiction on the court.   The court agrees.

“ ‘It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that he or it must be a person in law or a legal entity with legal capacity to sue.’  Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, cert. denied, 196 Conn. 807 (1985).”   Pagano, at 477.   Because “Jane Doe” does not have legal existence, the plaintiff cannot confer jurisdiction on the court.  Id. (See also, Davila v. Morris, Superior Court, judicial district of Hartford at Hartford, Docket No. 5020220 (12–4–2009) [48 Conn. L. Rptr. 879].)   Moreover, in the case at bar, the plaintiff did not disclose the true identity of the plaintiff to the defendant when it served the defendant with the writ, summons and complaint.   As a result of this omission, the defendant asserts that the use of as fictitious name without the court's permission has hindered its ability to prepare to defend the accusations against it.   This case is, therefore, unlike the two Superior Court cases cited by the plaintiff;  Doe v. Ortiz, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. 0062842 (11–9–1998) (which predates Practice Book § 11–20A(h));  and Jacobs v. NAFI, Connecticut, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 5012305 (11–2–2007) [44 Conn. L. Rptr. 458].   In each of those cases the plaintiff's true identity was disclosed to the defendant.   It is also clear in the case at bar (from the related case of Doe v. Crespo ) that the plaintiff was aware of the proper Practice Book procedure to be used when one seeks to bring an action using a pseudonym.   As this procedure was not followed in the case at bar, the court dismisses the action for lack of subject matter jurisdiction.  (See also, W.N.J. v. Yocom, 257 F.3d 1171 (10th Cir.2001);  case dismissed for lack of jurisdiction because plaintiffs used pseudonyms without obtaining permission from district court.   Court also noted that “a lack of jurisdiction cannot be corrected by an order nunc pro tunc.   “ Id. at 1172.  “Actions may be brought only by legal entities and against legal entities.   There must be some ascertainable persons, natural or artificial, to whom judgments are awarded and against whom they may be enforced.”  Ivanhoe Grand Lodge v. Most Worshipful Grand Lodge, 251 P.2d 1085, 1087 (Colo.1953).)

The defendant, as an alternative ground also seeks dismissal for insufficiency process and insufficient service of process, essentially for the same reason:  that even if the court has subject matter jurisdiction, process is insufficient as “Jane Doe” does not have a legal existence.   See, Doe v. Hill Health Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. 0446764 (10–29–2001) [30 Conn. L. Rptr. 571].   The court agrees, and as an alternate ground, dismisses the action for insufficiency process and insufficient service of process.

Frechette, J.

Frechette, Matthew E., J.