LLC v. Josephine Persampieri (2012)

Memorandum of Decision on Motion to Dismiss (No. 108)

FACTS

On December 21, 2011, the plaintiff, Midland Funding, LLC, filed a writ, summons and complaint against the defendant, Josephine Persampieri.   The plaintiff alleges that on or before November 30, 2009, the defendant incurred a $5,189.95 debt through the use of a Chase Bank credit card.   According to the plaintiff, on June 30, 2011, it purchased title to this debt and it is now the bona fide owner of the debt.   The plaintiff alleges that the entire $5,189.95 balance remains unpaid.   Therefore, the plaintiff's two-count complaint alleges claims against the defendant for default on a credit account and account stated.

Following the commencement of this case, the defendant filed a motion to dismiss and a supporting memorandum of law on February 22, 2012.   The defendant moves to dismiss this action on the ground that the court lacks personal jurisdiction over her due to insufficient service of process.   On March 16, 2012, the defendant filed her sworn affidavit in support of her motion to dismiss.   The plaintiff filed a memorandum of law in opposition to the defendant's motion on March 7, 2012.   The following day, March 8, 2012, the plaintiff also filed the sworn affidavit of Edmund K. Maskowski, the state marshal who claims to have served the defendant with process.   The court took this matter on the papers at the March 19, 2012 short calendar.

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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, 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.”  (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “The grounds that may be asserted in [a motion to dismiss] are (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”   Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10–31.   In order to establish proper service of process, “[If]acts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes ․ are essential ․” (Internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).  “One who is not served with process does not have the status of a party to the proceeding ․ A court has no jurisdiction over persons who have not been made parties to the action before it.”  (Internal quotation marks omitted.)  Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).

The defendant moves to dismiss this action for lack of personal jurisdiction due to insufficient service of process.   Specifically, the defendant contends that the marshal did not complete proper abode service in accordance with the governing statutes.¹  In response, the plaintiff argues that service of process was proper and the defendant failed to rebut the presumption that the facts stated in the marshal's return of service are true.   Furthermore, the plaintiff contends that the defendant's motion should be denied because it was untimely filed.

Practice Book § 10–30, which governs motions to dismiss, provides in relevant part that “[a]ny 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.”  (Emphasis added.)  “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided by Sections 10–6 and 10–7 and within the time provided by Section 10–30.”  Practice Book § 10–32.   As explained by our Supreme Court, “[t]he rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10–6 ․ Thus, thirty-one days after the filing of an appearance or the failure to adhere to the requisite sequence, a party is deemed to have submitted to the jurisdiction of the court.   Any claim of insufficiency of process is waived if not sooner raised.”  (Emphasis in original.)  Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).

In the present case, the defendant's counsel filed an appearance on January 19, 2012.   The defendant's motion to dismiss was not filed until thirty-four days later on February 22, 2012.   Accordingly, the defendant has clearly waived any potential defects in the court's personal jurisdiction over her.   The untimeliness of the defendant's motion to dismiss makes it unnecessary for the court to examine the merits of the defendant's argument with respect to any improper service of process.   By filing her motion to dismiss more than thirty days after her counsel filed an appearance, the defendant has consented to the court's personal jurisdiction over her.   Therefore, the defendant's motion to dismiss is untimely.

Order

For the forgoing reasons the defendant's motion to dismiss is denied.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. In her affidavit (No. 118) the defendant states, as the basis for her claim of insufficient abode service, that:  “[The papers served by the marshal] were not placed inside the door to my house in any way but were instead left loose outside of the door to my house at 27 Charles Street, Stamford, Connecticut when no one was home.”.  FN1. In her affidavit (No. 118) the defendant states, as the basis for her claim of insufficient abode service, that:  “[The papers served by the marshal] were not placed inside the door to my house in any way but were instead left loose outside of the door to my house at 27 Charles Street, Stamford, Connecticut when no one was home.”

Jennings, Alfred J., J.T.R.