Lisa Whitnum v. Alfonso Robinson (2012)

Memorandum of Decision

This matter was initiated by the self-represented plaintiff on February 10, 2012 by way of an application for an ex-parte temporary injunction.   In her application, the plaintiff seeks a court order forcing the defendant to remove allegedly defamatory internet postings and an order precluding the defendant from deleting comments complementary to the plaintiff from a website, (Myleftnutmeg.com), that the defendant is alleged to maintain.   In the complaint attached to her application, the plaintiff alleges that she is a candidate for the nomination of the Democratic party for the office of the United States senator for the state of Connecticut.   She claims that the defendant owns or is the managing member of Myleftnutmeg.com, a website devoted to Democratic politics in Connecticut.   The plaintiff claims that the defendant's website contains more than two hundred references to her, most of which are unflattering and some of which are defamatory.   The plaintiff claims that the postings on the defendant's website have caused her “emotional distress, loss of job opportunity, esteem in the eyes of the public, and other hardship.”   In addition to the requested injunctive relief, the plaintiff's complaint also seeks monetary damages stemming from the alleged defamation.

The plaintiff filed a writ of summons with the court on February 14, 2012 (# 100.30).   Although this document appears to have been signed by an assistant clerk of court, the plaintiff did not use a JD–CV–1 civil summons form.   Thereafter, on the same date, the plaintiff filed a JD–CV–1 civil summons form (# 101) that was not signed by either a commissioner of the Superior Court or an assistant clerk of court.   The plaintiff also did not provide a recognizance on either the signed summons or the unsigned JD–CV–1 form.   On February 14, 2012, the court, Mintz, J., denied the plaintiff's ex-parte application.

Thereafter, on February 21, 2012, a state marshal served process on the defendant using both the unsigned JD–CV–1 form and the summons signed by the clerk.   The documents served by the marshal on February 21, 2012, were returned to the court on February 28, 2012. (# 102.)

On March 8, 2012, the defendant filed a timely ¹ motion to dismiss for lack of personal jurisdiction and a supporting memorandum of law.   The defendant's motion to dismiss relies on two grounds.   First, the defendant contends that this action must be dismissed because the plaintiff's writ of summons is not signed by a commissioner of the Superior Court or a clerk of court in violation of General Statutes § 52–45a and Practice Book § 8–1.   Second, the defendant claims that the court should dismiss this case because the plaintiff failed to provide a recognizance in violation of General Statutes § 52–185(a) and Practice Book §§ 8–3 and 8–4.   Although the plaintiff has not filed any written opposition to the defendant's motion to dismiss, she did appear at the short calendar hearing on March 26, 2012 to oppose the motion.   Despite the fact that he did not obtain prior permission of the court to do so, the defendant filed a supplemental memorandum in support of his motion to dismiss on March 29, 2012.

Prior to the hearing on the defendant's motion to dismiss, the plaintiff's application for a temporary injunction was placed on the miscellaneous and special proceedings calendar held on March 5, 2012.   On that date, after ascertaining that a hearing on the merits of the plaintiff's application might involve several hours of testimony, the court, Tobin, J., referred the matter to civil caseflow for scheduling.   Both parties were subsequently notified of a hearing date of March 13, 2012.

On the date of the hearing, the plaintiff requested the court to issue a subpoena on her behalf to compel the defendant to appear and testify.   The court pointed out that, as a practical matter, a subpoena could not be issued and served to compel the defendant's attendance at court on the same day.   The court offered the plaintiff the opportunity to present such evidence as she could in support of her application.   Without objection, the plaintiff offered nineteen exhibits, all of which were printouts of postings that currently appear on the defendant's website.   Some of these postings date back to the summer of 2008 when the plaintiff was engaged in a primary seeking the Democratic nomination for the position of representative to Congress from Connecticut's fourth congressional district.

Various postings on the defendant's website refer to the plaintiff as “loony,” “crazy,” “mentally ill,” a “nutcase,” or “a raving lunatic.”  (Exs. 1, 8, 10, and 17.)   Other postings accuse her of being anti-immigrant (Ex. 2) and anti-Semitic.  (Ex. 18.)   For purposes of the hearing on the plaintiff's application for a temporary injunction, the defendant does not dispute that some of the postings may, in fact, be defamatory.²  The court ordered the parties to submit briefs no later than March 23, 2012, on the issue of whether, under the first amendment of the United States Constitution and under the Constitution of Connecticut, article first, §§ 4 and 5, the court could lawfully impose a prior restraint on the postings on the defendant's website as demanded by the plaintiff.³

The court heard both the plaintiff's application for a temporary injunction and the defendant's motion to dismiss.   Accordingly, this memorandum of decision will address both matters.   Because it implicates the court's jurisdiction, the court will first consider the defendant's motion to dismiss.

DISCUSSION—MOTION TO DISMISS

“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 (2007).  “The grounds which 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 (1985), citing Practice Book 10–31.  “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 (2004).  “[T]he Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction ․ [A]n action commenced by ․ improper service must be dismissed.”  (Citation omitted;  internal quotation marks omitted.)  Alldred v. Alldred, 132 Conn.App. 430, 434 (2011), cert. denied, 303 Conn. 926 (2012).

MOTION TO DISMISS—UNSIGNED SUMMONS

The court will first consider the defendant's argument that this action must be dismissed because the JD–CV–1 civil summons form did not have a signature of either a commissioner of the Superior Court or an assistant clerk of court.   The defendant contends that this omission renders the summons fatally defective, and, as a result, the court is constrained to dismiss the plaintiff's case.  General Statutes § 52–45a provides:  “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, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.   The writ shall be accompanied by the plaintiff's complaint.   The writ may run into any judicial district and 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.)  “Mesne process in civil actions shall be a writ of summons or attachment, 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 ․ Any person proceeding without the assistance of counsel shall sign the complaint and present the complaint and proposed writ of summons to the clerk;  the clerk shall review the proposed writ of summons and, unless it is defective as to form, shall sign it.”  (Emphasis added.)   Practice Book § 8–1.

“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 ․ A summons is part of a citation.   The citation ․ is a command to a duly authorized officer to summon the [defendant] ․ to appear in court on a specific day to answer the [complaint].”  (Citation omitted;  internal quotation marks omitted.)   Hillman v. Greenwich, 217 Conn. 520, 524–25 (1991).  “The standard civil summons form ․ plainly requires two signatures, one for the writ of summons and one for the recognizance.   The failure to affix two signatures on the form renders the writ defective.”  Sargent v. Capital Airlines, Inc., 96 Conn.App. 320, 323 (2006).   Consequently, the unsigned JD–CV–1 summons form provided by the plaintiff in this matter is defective, which would ordinarily render the court without personal jurisdiction over the defendant.

Despite this fact, the Appellate Court has held that under certain circumstances, the absence of a signature of a commissioner of the Superior Court in the proper space of the civil summons form is a circumstantial, as opposed to a fatal, defect.   In Sargent v. Capital Airlines, Inc., supra, 96 Conn.App. 320, although the attorney for the plaintiff signed the recognizance line on the civil summons form, the plaintiffs' counsel neglected to sign the appropriate space on the writ of summons for a commissioner of the Superior Court.   The trial court granted the defendant's motion to dismiss for lack of personal jurisdiction.   When reversing the trial court, the Appellate Court invoked the spirit of General Statutes § 52–123 ⁴ and stated that “[w]e conclude that [the plaintiff's attorney's] failure to sign the civil summons form in the proper space constituted a circumstantial defect and consequently did not deprive the court of personal jurisdiction over the defendant.   Our Supreme Court has explained that ‘[a]lthough the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book ․ the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons.’  “ Id., 324, citing Hillman v. Greenwich, supra, 217 Conn. 526.   The Appellate Court then analyzed the language found in the Sargent plaintiff's complaint to see if the complaint contained sufficient language to give direction to the process server.   According to the Sargent court, “the absence of [the plaintiff's attorney's] signature on the civil summons form was a circumstantial defect because [the plaintiff's attorney] directed the process server in the complaint to serve the defendants.”  Id., 325.

In the present case, the summons dated February 10, 2012 that was filed with the court on February 14, 2012, states as follows:  “To Any Proper Officer:  By authority of the state of Connecticut you are hereby commanded to summon the defendant in the foregoing action to appear before ․ the superior court ․ by serving in the manner provided by statute for the service of process a true and attested copy of the foregoing writ and verified complaint, application, order and summons on the defendant ․” Additionally, a document titled “Order of Service” dated February 9, 2012, gives a similar directive to the marshal.   This language is in substantial conformity with that provided by General Statutes § 52–45b, which is titled “Forms for commencement of civil action.”   Both of these documents are signed by an assistant clerk of the court, and they were both part of the document package that was served on the defendant by the marshal on February 21, 2012, and returned to court on February 28, 2012.   The court finds that these documents, which are signed by a proper officer, an assistant clerk of the court, are sufficient to confer authority on the marshal to serve process.   Therefore, pursuant to the Appellate Court's holding in Sargent, the omission of a signature of a commissioner of the Superior Court or an assistant clerk on the JD–CV–1 civil summons form is a circumstantial defect.   Accordingly, the court finds that it does not lack personal jurisdiction over the defendant, and the defendant's motion to dismiss must be denied with respect to this ground.⁵

MOTION TO DISMISS—ABSENCE OF SIGNED RECOGNIZANCE

The court will next consider the defendant's argument that this matter must be dismissed because the plaintiff failed to provide a signed recognizance.   General Statutes § 52–185 provides in relevant part:  “(a) If the plaintiff in any civil action is not an inhabitant of this state, or if it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against him, the plaintiff shall enter into a recognizance to the adverse party with a financially responsible inhabitant of this state as surety, or a financially responsible inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute his action to effect and answer all costs for which judgment is rendered against him ․ (d) If there has been a failure to comply with the provisions of this section, or if the authority signing a writ has failed to certify in accordance with any statute or rule that he has personal knowledge as to the financial responsibility of the plaintiff and deems it sufficient, the validity of the writ and service shall not be affected unless the failure is made a ground of a plea in abatement.” ⁶  Similarly, Practice Book § 8–3(a) provides in relevant part:  “if the plaintiff in any civil action is not an inhabitant of this state, or if it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against the plaintiff, he or she shall, before such process is signed, enter into a recognizance to the adverse party with some substantial inhabitant of this state as surety, or some substantial inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute the action to effect, and answer all damages in case the plaintiff does not make his or her plea good ․” Practice Book § 8–4(a) further provides in relevant part:  “in all actions wherein costs may be taxed against the plaintiff, no mesne process shall be issued until the recognizance of a third party for costs has been taken, unless the authority signing the writ shall certify thereon that he or she has personal knowledge as to the financial responsibility of the plaintiff and deems it sufficient.”   Finally, Practice Book § 8–5(a) provides that:  “When there has been a failure to comply with the provisions of Sections 8–3 and 8–4;  the validity of the writ and service shall not be affected unless the neglect is made a ground of a motion to dismiss.”

Although the plaintiff has clearly failed to comply with both General Statutes § 52–185 and Practice Book §§ 8–3 and 8–4 because of her failure to provide a signed recognizance, this omission is not necessarily a fatal defect.   In fact, our Supreme Court has held that the failure to provide a recognizance is amendable following the filing of a motion to dismiss.   Franchi v. Farmholme, Inc., 191 Conn. 201, 208 (1983).   Additionally, “Practice Book § 8–5(b) [and General Statutes § 52–185(d) ] [establish] a remedy for failing to post a bond ․ Both authorities permit the curing of a defective bond or a recognizance short of a dismissal.”  (Internal quotation marks omitted.)   Buehler v. Greenspan, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 11 5013680 (September 12, 2011, Adams, J.T.R.) (52 Conn. L. Rptr. 576, 579);  see also Mazzone v. Carranza, Superior Court, judicial district of New Britain, Docket No. CV 07 5004401 (October 19, 2007, Shapiro, J.) (44 Conn. L. Rptr. 546, 547–48) (same).   Practice Book § 8–5(b) provides:  “If the judicial authority, upon the hearing of the motion to dismiss, directs the plaintiff to file a bond to prosecute in an amount deemed sufficient by the judicial authority, the action shall be dismissed unless the plaintiff complies with the order of the judicial authority within two weeks of such order.”   Additionally, General Statutes § 52–185(d) provides in relevant part:  “If such plea in abatement is filed and sustained or if the plaintiff voluntarily elects to cure the defect by filing a bond, the court shall direct the plaintiff to file a bond to prosecute in the usual amount.   Upon the filing of the bond, the case shall proceed in the same manner and to the same effect as to rights of attachment and in all other respects as though the failure had not occurred.   The court may, in its discretion, order, as a condition to the acceptance of the bond, that the plaintiff pay to the defendant costs not to exceed the costs in full to the date of the order.”   Consequently, pursuant to Practice Book § 8–5(b) and General Statutes § 52–185(d), a court has the option of simply ordering a plaintiff who has failed to furnish a recognizance to provide a bond as opposed to dismissing the case outright.

Therefore, in accordance with Practice Book § 8–5(b) and General Statutes § 52–185(d), the court directs the plaintiff to file a bond to prosecute in the amount of $250 within two weeks of the date of this memorandum of decision.   If the plaintiff shall fail to file such a bond within the time specified, this action shall be dismissed.  Practice Book § 8–5(c) provides that if the plaintiff files the bond in accordance with the court's order, “the case shall proceed in the same manner ․ as though the neglect had not occurred.”   In anticipation of the plaintiff's compliance with the court's order with respect to the filing of a bond, the court will consider whether the plaintiff's application for a temporary injunction represents a constitutionally impermissible prior restraint on speech.

DISCUSSION—TEMPORARY INJUNCTION

There is no question that the plaintiff is seeking a temporary injunction, which constitutes a prior restraint on speech.  “Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”  (Internal quotation marks omitted.)  Alexander v. United States, 509 U.S. 544, 550 (1993).   A prior restraint is any government action—be it a statute, ordinance or court order—that “authorizes suppression of speech in advance of its expression ․” Ward v. Rock Against Racism, 491 U.S. 781, 795, n.5 (1989).   It is “a judicial order or administrative system that restricts speech rather than merely punishing it after the fact”;  The Mortgage Specialists, Inc. v. Implode–Explode Heavy Industries, Inc., 160 N.H. 227, 240 (2010);  and encompasses both restrictions against future speech and republication of prior speech.  Id., 242 (stating that “[a]lthough the injunction here prohibits republication ․ rather than their publication in the first instance, the injunction is nevertheless a restriction on what [the defendant] may publish in the future”).

It is well settled that “[p]rior restraints on speech and publication are the most serious and the least tolerable infringements on First Amendment rights”;  Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 559 (1976);  and, accordingly, a court may not properly issue an injunction in defamation cases “absent extraordinary circumstances.”  Metropoiltan Opera Ass'n. v. Local 100, Hotel Employees & Restaurant Employees International Union, 239 F.3d 172, 177 (2d Cir.2001).   In 1996, the United States Court of Appeals for the Sixth Circuit reviewed the history of prior restraints and found that “the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.”   Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir.1996).

In New York Times Co. v. United States, 403 U.S. 713 (1971), the Supreme Court denied the government's attempt during the height of the Vietnam War to impose a prior restraint on the publication of the pentagon papers, a classified study on United States policy in Vietnam.   The court relied on Near v. Minnesota, 283 U.S. 697 (1931), which held that prior restraints on speech may be issued only in rare and extraordinary circumstances, such as when necessary to prevent the publication of troop movements during time of war, to prevent publication of obscene material or to prevent the overthrow of the government.   In that case, the state of Minnesota sought to enforce a law that declared publication of defamatory information to be a public nuisance.   The law also permitted the county attorney to seek a civil injunction preventing further publication of defamatory information.   On an appeal from the Minnesota Supreme Court, the Supreme Court of the United States held the law to be an unconstitutional violation of the defendant's first amendment rights.   In so ruling, the court stated:  “It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.”  Near v. Minnesota, supra, 707.

The Constitution of Connecticut, article first, § 4, directly prohibits any prior restraints on speech.   That provision provides that:  “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”   Unlike the first amendment to the United States Constitution,⁷ the Connecticut provision makes no reference to legislative action.   As pointed out by Chief Justice Peters in her dissent in Cologne v. Westfarms Associates, 192 Conn. 48 (1984), the protections to free speech afforded under the Connecticut Constitution are more expansive than those conferred by the federal constitution.  Id., 72.

In State v. McKee, 73 Conn. 18, 28–29 (1900), the court stated:  “The right to discuss public matters stands in part on the necessity of that right to the operation of a government by the people;  but, with this exception, the right of every citizen to freely express his sentiments on all subjects stands on the broad principle which supports the equal right of all to exercise gifts of property and faculty in any pursuit in life,—in other words, upon the essential principles of civil liberty as recognized by our Constitution ․ The general right to disseminate opinions on all subjects was probably specified mainly to emphasize the strong necessity to a free government of criticism of public men and measures.”

The court finds that it cannot, consistent with the federal and state constitutional guarantees of free speech, grant the plaintiff's application for injunctive relief.   Accordingly, the plaintiff's application for a temporary injunction must be, and it is hereby, denied.⁸

David R. Tobin, J.

FOOTNOTES

FN1. The defendant's counsel filed an appearance on March 5, 2012..  FN1. The defendant's counsel filed an appearance on March 5, 2012.

FN2. The defendant reserved the right to assert all defenses, including privilege and the plaintiff's status as a “public figure,” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964)..  FN2. The defendant reserved the right to assert all defenses, including privilege and the plaintiff's status as a “public figure,” under New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

FN3. The court advised the parties that if it determined that the plaintiff could proceed with her application for a temporary injunction, a date would be promptly set to allow the plaintiff to present additional evidence in support of her claims..  FN3. The court advised the parties that if it determined that the plaintiff could proceed with her application for a temporary injunction, a date would be promptly set to allow the plaintiff to present additional evidence in support of her claims.

FN4. General Statutes § 52–123 provides:  “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”.  FN4. General Statutes § 52–123 provides:  “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”

FN5. In its Sargent opinion, the Appellate Court notes that Sargent is distinguishable from past cases where Connecticut's appellate courts have held that a defect in the writ of summons was fatal to the plaintiff's case.   For instance, in Hillman v. Greenwich, supra, 217 Conn. 520, the plaintiff failed to file any writ of summons.   Additionally, the plaintiff merely filed a “bare bones complaint, totally lacking in any direction to the proper officer for service or a command to summon the defendant to appear in court.”  Id., 525.   Similarly, in Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 240–42 (2000), the plaintiff provided both an unsigned writ of summons and an unsigned complaint.   Given these facts, both Hillman and Raynor are distinguishable from the present case.   As a result, Sargent should serve as the primary guidance on the motion to dismiss that is presently before the court..  FN5. In its Sargent opinion, the Appellate Court notes that Sargent is distinguishable from past cases where Connecticut's appellate courts have held that a defect in the writ of summons was fatal to the plaintiff's case.   For instance, in Hillman v. Greenwich, supra, 217 Conn. 520, the plaintiff failed to file any writ of summons.   Additionally, the plaintiff merely filed a “bare bones complaint, totally lacking in any direction to the proper officer for service or a command to summon the defendant to appear in court.”  Id., 525.   Similarly, in Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 240–42 (2000), the plaintiff provided both an unsigned writ of summons and an unsigned complaint.   Given these facts, both Hillman and Raynor are distinguishable from the present case.   As a result, Sargent should serve as the primary guidance on the motion to dismiss that is presently before the court.

FN6. In modern Connecticut civil procedure, “[t]he plea in abatement ․ has ․ been replaced by the motion to dismiss.”  (Internal quotation marks omitted.)  Pecan v. Madigan, 97 Conn.App. 617, 621 (2006), cert. denied, 281 Conn. 919 (2007)..  FN6. In modern Connecticut civil procedure, “[t]he plea in abatement ․ has ․ been replaced by the motion to dismiss.”  (Internal quotation marks omitted.)  Pecan v. Madigan, 97 Conn.App. 617, 621 (2006), cert. denied, 281 Conn. 919 (2007).

FN7. The first amendment to the United States Constitution provides:  “Congress shall make no law ․ abridging the freedom of speech, or of the press ․”.  FN7. The first amendment to the United States Constitution provides:  “Congress shall make no law ․ abridging the freedom of speech, or of the press ․”

FN8. If the plaintiff files the bond as directed by the court in the first part of this memorandum of decision, the plaintiff's claims for damages based on allegations of defamation will remain viable..  FN8. If the plaintiff files the bond as directed by the court in the first part of this memorandum of decision, the plaintiff's claims for damages based on allegations of defamation will remain viable.

Tobin, David R., J.