James Tortora v. The City of Shelton Board of Fire Commissioners et al. (2013)

MEMORANDUM OF DECISION

This is a decision on the defendants' motion to dismiss, dated January 8, 2013.   The defendants claim that the court lacks jurisdiction due to the plaintiff's failure to timely return his process to court.

The present matter began when the plaintiff, James Tortora, served a complaint on the defendants, the city of Shelton board of fire commissioners, Robert Araujo, David Sekelsky, Merle Chase, Bruce Kosowsky, John Finn and Justin Sabatino on May 31, 2012.   The forty two-count complaint, dated May 30, 2012, alleges claims of civil conspiracy, invasion of privacy, defamation, intentional infliction of emotional distress, and interference with contractual relations, and has a return date of July 17, 2012.

On June 28, 2012, prior to the return date, and prior to the plaintiff returning the summons and complaint to court, the defendants filed a notice of removal to the United States District Court for the District of Connecticut.   Thereafter, the plaintiff did not file his complaint with this court prior to the return date.   The parties apparently then litigated the removal issue in federal court, whereby the plaintiff made a motion for remand, dated August 8, 2012.   On October 11, 2012, the court, Underill, J., ordered this matter remanded to state court.

Not until December 17, 2012, did the plaintiff file this action in this court along with the applicable filing fee.   The complaint, as filed on December 17, 2012, is dated May 30, 2012, and bears a return date of July 17, 2012.

On January 8, 2013, the defendants filed a motion to dismiss on the ground that the court lacks jurisdiction because the plaintiff has failed to comply with General Statutes §§ 52–46a and 52–48.   The defendants submitted a memorandum of law in support of their motion.   On May 20, 2013, the plaintiff filed his objection to the motion to dismiss.   In support, the plaintiff submitted a memorandum of law and the following exhibits:  the May 31, 2012 return of service by the state marshal, N.E. Nikola, attesting that service occurred for all defendants on that date;  the defendants' June 28, 2012 notice of removal;  the plaintiff's August 8, 2012 motion for remand filed in United States District Court for the District of Connecticut;  and Judge Underhill's October 11, 2012 ruling granting the plaintiff's motion for remand.

The court heard the matter at short calendar on May 20, 2013.   Subsequent to this hearing, the defendants submitted a supplemental brief in support of their motion on May 24, 2013.

I.

“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.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).  “Practice Book §§ 10–30 through 10–32 require that any challenge to personal jurisdiction be brought through a motion to dismiss” Maltas v. Maltas, 298 Conn. 354, 359, 2 A.3d 902 (2010).  “[A] defect in process ․ such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011).

II.

In the present matter, the defendants argue that the plaintiff has failed to meet the requirements of §§ 52–46a and 52–48(b).  They note that the return of service is dated May 31, 2012, and the return date was July 17, 2012.   The defendants argue that, by the time he had returned process to the Superior Court on December 17, 2012, the plaintiff was approximately five months beyond the time that the process could have been amended and that the court must dismiss the action for lack of jurisdiction.

The plaintiff argues in response that granting the motion to dismiss would be contrary to fairness and law.   The plaintiff points to the fact that the defendants' notice of removal was filed on June 28, 2012, several days prior to the statutory deadline for returning process to the Superior Court.¹  Therefore, by returning process as soon as the case was remanded by the federal court, the plaintiff contends, the filing was timely.   Further, the plaintiff argues that forcing the plaintiff to be forced to pay the expenses involved in reserving and refiling this action under the facts presented would be unjust and work a hardship upon the plaintiff and put him even further from a determination on merits.²

In their supplemental brief, the defendants make the following arguments.   First, they note that despite the plaintiff's implications, that the requirement in Connecticut that complaints are served upon defendants prior to the filing of the case with the court meant that the defendants were required by federal law to remove the case before the return date.   Second, the defendants argue that the removal of this case to federal court did not excuse the plaintiff from returning the process as required by statute.   Even accepting the plaintiff's arguments as true that they could do nothing in state court once the case had been removed, the defendants further contend that the plaintiff nonetheless failed to return the summons and complaint to the court until two months after the remand order and has not moved to amend the process either within two months of the remand or at any time.   Third, the defendants contend that their motion to dismiss is timely as they filed a motion to dismiss in federal court for lack of subject matter jurisdiction and filed the present motion to dismiss within thirty days of filing an appearance.

Section 52–46a provides in relevant part:  “Process in civil actions ․ shall be returned ․ if returnable to the Superior Court ․ to the clerk of such court at least six days before the return day.”  General Statutes § 52–72 allows a party to amend civil process “which is for any reason defective” and serve the amended process;  the amended process then “shall have the same effect, from the date of the service, as if originally proper in form.”   General Statutes § 52–72(a) and (b).  The ability to amend a return date, however, is curtailed by General Statutes § 52–48(b), which requires that “[a]ll process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held.”   See also Coppola v. Coppola, 243 Conn. 657, 666–67, 707 A.2d 281 (1998).

“The federal removal statute, 28 U.S.C. § 1446(d), provides that, upon removal, the State court shall proceed no further unless and until the case is remanded.   When however, a certified copy of a remand to state court is mailed to the state court clerk, 28 U.S.C. § 1447(c) authorizes the state court to proceed again with the case.   See Ins. Co. of Pennsylvania v. Waterfield, 102 Conn.App. 277, 283, 925 A.2d 451 (2007) (under plain language of 28 U.S.C. § 1447, state court has subject matter jurisdiction to proceed as soon as remand effected).”  (Internal quotation marks omitted.)  Massad v. Greaves, 116 Conn.App. 672, 678, 977 A.2d 662 (2009).   While a removed case remains before the federal court, a state court thus lacks jurisdiction to take any action until the case has been remanded.   See O'Connor v. Pierson, Superior Court, judicial district of Hartford, Docket No. CV 00 0595721 (August 11, 2009, Elgo, J.);   LoSacco v. Serra, Superior Court, judicial district of Middlesex, Docket No. 073177 (June 16, 1995, Stanley, J.) (14 Conn. L. Rptr. 390, 390).   See also, e.g., Doerr v. Warner, 247 Minn. 98, 106, 76 N.W.2d 505 (because “order removing an action to a Federal court does not terminate the state court's jurisdiction but merely stays or interrupts proceedings in that court pending a disposal of the action by the Federal court ․ [t]he effect of an order remanding is not to invest the state court with a new jurisdiction but merely to revive a jurisdiction previously acquired but held in abeyance” [emphasis in original] ), cert. dismissed, 352 U.S. 801, 77 S.Ct. 20, 1 L.Ed.2d 37 (1956).

Courts that have considered the issue have held that removal tolls statutory deadlines within state court.   See Southern Bell Telephone & Telegraph Co. v. Perry, 168 Ga.App. 387, 388–89, 308 S.E.2d 848 (1983) (continuance order timely because state statutory rule requiring automatic dismissal if no written order or written continuance order is entered in five years “did not run during the time the instant case was in federal court”);  Lucky Friday Silver–Lead Mines Co. v. Atlas Mining Co., 88 Idaho 11, 18, 395 P.2d 477 (Idaho 1964) (because state court has no jurisdiction to act while case is in federal court, “the period of time the cause is before the Federal court ․ cannot be considered in computing the time within which the appellant had to appear and plead to the cause”);  Swanson v. Swanson, Docket No. A11–902, 2012 Minn.App. Unpub.   LEXIS 74 *9 (Minn.App. January 23, 2012) (under circumstances before court, “notice of removal effectively tolled the [deadline to file a claim in state court for attorneys fees pursuant to the Equal Access to Justice Act] during the time period in which the case was pending in federal court”);  Quaestor Investments, Inc. v. Chiapas, 997 S.W.2d 226, 227–29 (Tex.1999) (holding that party's fourteen remaining days to timely file appeal under state rule requiring writ of error to be filed within six months of judgment began to run upon mailing of certified copy of remand order).

In the present case, on May 31, 2012, the plaintiff served the defendants with a complaint bearing a return date of July 17, 2012.   Thus, when the defendants filed the notice of removal to federal court on June 28, 2012, and thereby divested this court of jurisdiction to act, the plaintiff still had fourteen days to return process in accordance with the time requirements of § 52–46a.   This fourteen days to return process would have begun to run again when the certified copy of remand was mailed to the state court clerk.   Neither of the parties has provided evidence as to the precise date that this certified remand order was mailed, nor the date that it was received by this court, and a copy of the order was not filed under the docket number for this case or the docket number for a previous related case under which the notice for removal was filed.   Nonetheless, given the tortured procedural and factual circumstances of this case and the effect that the removal stays any action of this court, the court assumes that the plaintiff could properly have returned process and paid the required filing fees on December 17, 2012.

Despite this court finding that the plaintiff could have returned the process on December 17th does not end the matter, however.   The delay caused by removal necessarily caused the return date to be woefully inaccurate.   Given the importance of the return date to various components of the pleading process within this state,³ the plaintiff was required to amend his return date within the time frame created by the statutory scheme previously described, as tolled by the defendants' removal of the case to federal court.   As service occurred on May 31, 2012, and the plaintiff could have amended the return date no later than July 31, 2012, the defendants' removal of this case after only twenty-eight days resulted in the plaintiff having more than a month to amend the return date after this case had been remanded.   The plaintiff, even in light of a pending motion to dismiss, has at no point sought to make the necessary amendment.   Therefore, the plaintiff's failure to even attempt to amend the return date leaves this court with process that is now fatally defective.

For the foregoing reasons, the defendants' motion to dismiss is granted.

Matasavage, J.

FOOTNOTES

FN1. The plaintiff suggests that he had twenty-three days to return process to the Superior Court.   This is incorrect.   Process must be returned to the Superior Court at least six days before the return date.   General Statutes § 52–46a.   As the return date was July 17, 2012, the process would be returnable no later than July 11, 2012;  thus, on June 28, 2012, fourteen days remained..  FN1. The plaintiff suggests that he had twenty-three days to return process to the Superior Court.   This is incorrect.   Process must be returned to the Superior Court at least six days before the return date.   General Statutes § 52–46a.   As the return date was July 17, 2012, the process would be returnable no later than July 11, 2012;  thus, on June 28, 2012, fourteen days remained.

FN2. The plaintiff raises the additional argument that “the provisions of [General Statutes] § 52–592(d) specifically provide for a one year statutory period for refiling actions in State Court which have been dismissed from Federal Court ‘without trial upon its merits or because of lack of jurisdiction in such court.’  “ This argument lacks merit.   By its terms, § 52–592(d) applies only where the action has been dismissed by the federal court, not where it has been remanded.   See General Statutes § 52–592(d);  see also Pitchell v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 01 0809003 (January 29, 2003, Sheldon, J.) (34 Conn. L. Rptr. 23, 24)..  FN2. The plaintiff raises the additional argument that “the provisions of [General Statutes] § 52–592(d) specifically provide for a one year statutory period for refiling actions in State Court which have been dismissed from Federal Court ‘without trial upon its merits or because of lack of jurisdiction in such court.’  “ This argument lacks merit.   By its terms, § 52–592(d) applies only where the action has been dismissed by the federal court, not where it has been remanded.   See General Statutes § 52–592(d);  see also Pitchell v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 01 0809003 (January 29, 2003, Sheldon, J.) (34 Conn. L. Rptr. 23, 24).

FN3. “The return date is a necessary component of a writ by which a civil action is commenced.  General Statutes § 52–45a ․ Both the time within which process must be served after its issuance and the time within which the writ must be filed with the court after service are determined by reference to the return day.”  (Citation omitted;  internal quotation marks omitted.)  Raynor v. Hickcock Realty Corp, 61 Conn.App. 234, 242, 763 A.2d 54 (2000).   The return date governs when a party must file an appearance.  Practice Book § 3–2(a).   The return date begins the clock running for when parties must file pleadings, motions and requests.   Practice Book § 10–8.   The return date also determines when parties may generally start seeking discovery.   See Practice Book § 13–6(a) (interrogatories);  Practice Book § 13–9(b) (requests for production);  Practice Book § 13–22(a) (admissions of fact).   Parties can file motions for nonsuit or default against any party who fails to file an appearance by the second day after the return date.  Practice Book § 17–20(a)..  FN3. “The return date is a necessary component of a writ by which a civil action is commenced.  General Statutes § 52–45a ․ Both the time within which process must be served after its issuance and the time within which the writ must be filed with the court after service are determined by reference to the return day.”  (Citation omitted;  internal quotation marks omitted.)  Raynor v. Hickcock Realty Corp, 61 Conn.App. 234, 242, 763 A.2d 54 (2000).   The return date governs when a party must file an appearance.  Practice Book § 3–2(a).   The return date begins the clock running for when parties must file pleadings, motions and requests.   Practice Book § 10–8.   The return date also determines when parties may generally start seeking discovery.   See Practice Book § 13–6(a) (interrogatories);  Practice Book § 13–9(b) (requests for production);  Practice Book § 13–22(a) (admissions of fact).   Parties can file motions for nonsuit or default against any party who fails to file an appearance by the second day after the return date.  Practice Book § 17–20(a).

Matasavage, Paul, J.