Lena Schriver et al. v. Joshua Medeiros (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS [# 103]

FACTS

On October 25, 2011, the plaintiffs, Lena Schriever and Karl Schriever, filed a two-count complaint against the defendant, Joshua Medeiros, pursuant to General Statutes § 52–592, the accidental failure of suit statute.   The plaintiffs filed prior suits against the defendant on February 4, 2010, and January 13, 2011.   Both prior actions failed due to insufficient service of process upon the defendant.   The plaintiffs' claims against the defendant sound in negligence and loss of consortium arising out of a motor vehicle accident that allegedly occurred on February 7, 2008.

On December 20, 2011, the defendant filed a motion to dismiss the plaintiffs' complaint on the ground that the court lacks subject matter jurisdiction because the matter was improperly instituted pursuant to § 52–592.   The defendant filed a memorandum of law in support of his motion.   On February 2, 2012, the plaintiffs filed a memorandum of law in opposition 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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).

The accidental failure of suit statute, General Statutes § 52–592, provides that “[i]f any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ․ for any matter of form ․ the plaintiff ․ may commence a new action ․ for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”  General Statutes § 52–592(a).

The defendant argues that the plaintiffs are barred from bringing an action pursuant to § 52–592 because they failed to commence their action within the time limited by law under the statute.   Specifically, the defendant claims that the plaintiffs' February 4, 2010 action was never filed, and therefore was not tried on the merits, and the plaintiffs' January 10, 2011 action was filed after the statute of limitations expired on the plaintiffs' claims.   The plaintiffs counter that a motion to dismiss is not the proper procedural vehicle to determine the applicability of the accidental failure of suit statute, and further, that the plaintiffs' action is properly brought pursuant to § 52–592 as it was filed within one year of the dismissed prior action.

“[A]s a general matter, a motion to dismiss is not the proper procedural instrument for challenging the applicability of § 52–592(a), the proper challenge being by way of a properly pleaded special defense ․” Labow v. Labow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005).  “[A] court [however] properly may consider a motion to dismiss in such circumstance when the plaintiff does not object to the use of the motion to dismiss.”  (Internal quotation marks omitted.)  Id.

“Nevertheless, the purpose of a motion to dismiss is to challenge jurisdiction.  [A] motion [to dismiss] may be granted only where it clearly appears on the face of the entire record that the court is without jurisdiction ․ The applicability of § 52–592 is concerned not with the jurisdiction of the court, but with the extension of the statute of limitations ․ To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form in the sense that the plaintiff's noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect.   A determination of the applicability of § 52–592 depends on the particular nature of the conduct involved ․ Thus, [w]here there is an objection to a motion to dismiss, it may not be used for a challenge of § 52–592 as the statute does not confer jurisdiction, but rather extends the statute of limitations in the circumstances provided in the statute ․ Since a motion to dismiss only permits an examination of [the record on its face], a plaintiff who objects to the use of the motion to dismiss to challenge the propriety of the use of the savings provision of § 52–592 must prevail, because he is entitled to make a factual showing that the prior dismissal was one of form;  and therefore, the plaintiff would be entitled to invoke the statute.”   (Citations omitted;  internal quotation marks omitted.)   Fidelity National Title Ins. Co. v. Romania, Superior Court, judicial district of New Haven, Docket No. CV 10 6012682 (February 25, 2011, Woods, J.).   See, in accord, Parent v. Saja, Superior Court, judicial district of New Britain, Docket No. CV 09 6002247 (December 23, 2009, Sweinton, J.).

In the present case, the plaintiffs filed a timely opposition to the use of a motion to dismiss as the proper procedural vehicle to challenge their claims brought pursuant to § 52–592.   The plaintiffs raised their objection both in written documents and at oral argument on the motion.   As the court must examine the facts under which the initial action was dismissed to determine if the new cause of action is saved by the statute, and the plaintiffs have properly objected to the use of the motion to dismiss to do so, the plaintiffs must prevail.   Therefore, the defendant's motion to dismiss is denied.

CONCLUSION

Based on the foregoing, the court hereby denies the defendant's motion to dismiss the plaintiffs' complaint.

Martin, J.

Martin, Robert A., J.