Joshua Sholes v. David Hartikka et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANT ROGER DUCHARME'S MOTION TO DISMISS (# 113.00) FIRST COUNT OF PLAINTIFF'S APPORTIONMENT COMPLAINT

By a complaint dated October 13, 2011, Joshua Sholes sued David Hartikka and Marivic Hartikka for damages caused by a November 25, 2009, automobile accident.   This case is consolidated with three other suits arising from the same accident, Pedersen ppa Jody Pedersen v. Hartikka, Docket No. CV–11–6011590–S;  Ducharme v. Hartikka, Docket No. CV–11–6011670–S;  and Valdez v. Hartikka, Docket No. CV–11–6011645–S.¹

In this case, the apportionment defendant Roger Ducharme (movant) has moved to dismiss the first count of the plaintiff's Apportionment Complaint as to Roger Ducharme and Janice Valdez, dated June 15, 2012, for lack of jurisdiction.

FACTS

Since December 20, 2011, the movant has been represented of record in the consolidated case of Ducharme v. Hartikka by Andrea L. Truppa.   In this case, on March 21, 2012, the defendants David Hartikka and Marivic Hartikka served an apportionment complaint against the movant (apportionment complaint) on the movant via abode service.   The apportionment complaint was duly filed on April 2, 2012.   The return date of the apportionment complaint was April 17, 2012.   The law firm of Katz & Seligman, PC, entered its appearance in this case on behalf of the movant on April 18, 2012.²  On June 15, 2012, the plaintiff filed the subject Apportionment Complaint as to Roger Ducharme and Janice Valdez (amendment to complaint ³ or “amendment”).   The first count of the amendment is against the movant.   According to the certificate of service appended to the amendment, plaintiff's counsel served the amendment on most, but not all, of the appearing counsel and parties in the four consolidated cases.   Plaintiff's counsel did not serve the amendment on Katz & Seligman, PC, the movant's attorneys in this case ⁴ but did serve the movant's attorney of record in Ducharme v. Hartikka, Attorney Andrea Truppa.

On July 6, 2012, the movant moved to dismiss the first count of the amendment for lack of jurisdiction due to improper service of the amendment on the movant.   The plaintiff filed a brief in opposition to the motion on May 2, 2013.   The motion was argued on May 13, 2013.

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.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “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, 490 A.2d 509 (1985), citing then Practice Book § 143 (now § 10–31).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 808, 12 A.3d 852 (2011).   On the other hand, in considering a challenge to the court's jurisdiction, the facts are construed in favor of finding jurisdiction where it is reasonable to do so.  Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012) (“[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (internal quotation marks omitted)).  “Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ․ A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.”  (Internal quotation marks omitted.)  Johnson v. Rell, 119 Conn.App. 730, 734–35, 990 A.2d 354 (2010).

“Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ․ Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).  “The 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 [after the filing of an appearance and] in the sequence required by Practice Book § 10–6.”  (Citation omitted;  internal quotation marks omitted.)  Narayan v. Narayan, 305 Conn. 394, 402, 46 A.3d 90 (2012).

In his motion to dismiss, the movant argues that the amendment was not properly served on his attorney in this case, Katz and Seligman, and, therefore, the court lacks jurisdiction over him.   The plaintiff argues that the timely filing of the amendment and its timely service on one of the movant's attorneys, Attorney Truppa, along with the eventual mailing to Katz and Seligman on August 8, 2012,⁵ were sufficient for the court to acquire jurisdiction.

General Statutes § 52–102b(a) provides as follows:  “A defendant in any civil action to which section 52–572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.   Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred twenty days of the return date specified in the plaintiff's original complaint.   The defendant filing an apportionment complaint shall serve a copy of such apportionment complaint on all parties to the original action in accordance with the rules of practice of the Superior Court on or before the return date specified in the apportionment complaint.   The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52–572h.”

General Statutes § 52–102b(d) provides as follows:  “Notwithstanding any applicable statute of limitation or repose, the plaintiff may, within sixty days of the return date of the apportionment complaint served pursuant to subsection (a) of this section, assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint.”   Emphasis added.

The Supreme Court stated in Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35, 848 A.2d 418 (2004), that the 120–day time limitation in General Statutes § 52–102b(a) is mandatory.   In Demers v. Demers, Superior Court, judicial district of Waterbury, Docket No. CV–01–0166813–S (June 8, 2004, Matasavage, J.) [37 Conn. L. Rptr. 230], the court reasoned that, because the Supreme Court stated in Lostritto that the 120–day time limitation in § 52–102b(a) is mandatory, the 60–day time limitation in § 52–102b(d) is also mandatory.

The present motion makes a general challenge to the court's jurisdiction over the plaintiff's claim against the movant pursuant to General Statutes § 52–102b(d).  The movant does not specify the type of jurisdiction which he claims is lacking:  he does not specify whether he seeks dismissal under Practice Book § 10–31(1), for lack of subject matter jurisdiction, or under Practice Book § 10–31(2), for lack of personal jurisdiction.   The court therefore could deny the present motion outright, but will endeavor to determine whether there are any grounds, jurisdictional or otherwise, to grant it.

Lack of subject matter jurisdiction is not a valid ground for dismissal of count one of the amendment:  the subject matter of the case in general, an automobile accident, and the claim under this state's apportionment statutes, General Statutes §§ 52–102b, and 52–572h, in particular, are well within the court's jurisdiction as a state common-law court of general jurisdiction.

“[N]oncompliance with § 52–102b implicates a court's personal jurisdiction, not subject matter jurisdiction.”   Emphasis added.  Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35, 848 A.2d 418 (2004) (failure to serve an apportionment complaint pursuant to 52–102b(a)).

“The language of General Statutes § 52–102b(d) does not include a provision for a nonappearing party;  therefore, our rules of practice control.”  Tocco v. Wesleyan University, 112 Conn.App. 28, 32, 961 A.2d 1009 (2009).   In Luckingham v. Campbell, Superior Court, judicial district of Tolland, Docket No. CV–05–5000129–S (October 10, 2006, Sferrazza, J.) [42 Conn. L. Rptr. 145], the court stated that because § 52–102b(d) uses the phrase “assert any claim” and does not specify a method of service, the court should apply § 10–12 ⁶ and § 10–13.⁷  See also Shepard v. Chelsea Square Condominium Assn., Inc., Superior Court, judicial district of Waterbury, Docket No. CV–11–6008169–S (December 1, 2011, Trombley, J.) [53 Conn. L. Rptr. 49].   Practice Book §§ 10–12(c) and 10–13 require that, when a party has not appeared, a claim against that party must be served in the same manner as an original complaint.   See Tocco v. Wesleyan University, supra.   When a plaintiff did not effect service in accordance with those rules, it has been held that the court lacks personal jurisdiction over the defendant.  Id. However, in this case, despite the movant's contention that jurisdiction is implicated, the movant was already before the court as apportionment defendant in this case and as plaintiff in a consolidated case.⁸  Put another way, the court finds that, despite the plaintiff's failure to serve the amendment on Katz & Seligman, P.C., when he filed it, the plaintiff asserted his claim against the movant in substantial compliance with General Statutes § 52–102b(d) The court has personal jurisdiction over the movant concerning count one of the amendment.   The motion to dismiss based on lack of jurisdiction—either subject matter or personal—due to the claimed failure to comply with General Statutes § 52–102b(d) must fail.

Citing Tocco v. Wesleyan University, supra, the movant claims that the plaintiff's failure properly to send the amendment to the movant's attorney of record in this case deprives the court of jurisdiction for failure to follow the provisions of Practice Book §§ 10–12 and 10–13.   Having determined that the court has jurisdiction over the subject matter and the movant, the only remaining issue is whether the court should treat the present motion as based on Practice Book § 10–31(5) and dismiss count one of the amendment for insufficiency of service of process.⁹

In Ocasio v. New Life in Christ Church, Inc., Superior Court, judicial district of New Britain, Docket No. CV–11–6010543–S (October 17, 2012, Shortall, J.T.R.) [54 Conn. L. Rptr. 745], the court granted the apportionment defendant's motion to dismiss an amended complaint because the plaintiff failed to send, or otherwise give notice of, the amended complaint to the apportionment defendant.   The court acknowledged that “[e]quitable considerations are not foreign to the law governing apportionment,” citing Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007), but stated that, where the apportionment defendant could not know that the amended complaint had been filed, it should be dismissed.  Id. The court in Ocasio found a jurisdictional defect even though the apportionment defendant had already appeared in the case.   This court's analysis differs, for the reasons stated above.   But Ocasio well explains and illustrates when a claim should be barred because of the plaintiff's failure to comply with the practice book.

In this case, when the amendment was filed and incompletely served, the movant had been served with the apportionment complaint and appeared by counsel.   The case in which the movant is plaintiff had been consolidated with this case.   He was therefore a party, within the court's jurisdiction, upon whom service by mail on his attorneys was all that was required.   The movant's attorney of record in this case was not served in accordance with the Practice Book, but that attorney learned of the amendment promptly and another of the movant's attorneys was timely served with the amendment.

Whether a violation of the practice book warrants dismissal of the action is within the discretion of the trial court.   Dutch v. Mashtare, Superior Court, judicial district of Fairfield, Docket No. CV–08–5015796–S (April 14, 2009, Gilardi, J.) (47 Conn. L. Rptr. 518, 519).   See also Dauti v. Stop & Shop Supermarket Co., 90 Conn.App. 626, 632–35, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005), cert. denied, 283 Conn. 912, 928 A.2d 536 (2007) (court has discretion over whether violations of the practice book merit dismissal of case);  Strachel v. Chart One, Inc., Superior Court, judicial district of Waterbury, Docket No. CV–04–4001206–S (September 5, 2006, Gallagher, J.) (same).  The movant has failed to demonstrate—indeed, he has not claimed—that he was prejudiced by the plaintiff's failure to serve the amendment on his attorneys in this case at the same time his attorney in Ducharme v. Hartikka was served.   The court finds there is no sufficient ground to dismiss the first count of the amendment for insufficiency of service of process.

For the above reasons, the motion to dismiss is denied.

Cole–Chu, J.

FOOTNOTES

FN1. See orders 102.01, dated January 9, 2012, consolidating this case with Valdez v. Hartikka, and 103.01, dated February 1, 2012, consolidating all four cases..  FN1. See orders 102.01, dated January 9, 2012, consolidating this case with Valdez v. Hartikka, and 103.01, dated February 1, 2012, consolidating all four cases.

FN2. Katz & Seligman, PC, filed the present motion but, on February 11, 2013, were replaced as movant's counsel by Gordon, Muir & Foley..  FN2. Katz & Seligman, PC, filed the present motion but, on February 11, 2013, were replaced as movant's counsel by Gordon, Muir & Foley.

FN3. The plaintiff's Apportionment Complaint as to Roger Ducharme and Janice Valdez dated June 15, 2012, adds Roger Ducharme and Janice Valdez as defendants in the case caption but does not include the plaintiff's claims against defendants David Hartikka and Marivic Hartikka.   Since that pleading does not replace the original complaint, it is more properly called an amendment to the complaint than an amended complaint..  FN3. The plaintiff's Apportionment Complaint as to Roger Ducharme and Janice Valdez dated June 15, 2012, adds Roger Ducharme and Janice Valdez as defendants in the case caption but does not include the plaintiff's claims against defendants David Hartikka and Marivic Hartikka.   Since that pleading does not replace the original complaint, it is more properly called an amendment to the complaint than an amended complaint.

FN4. Besides the omission of Katz & Seligman, the certificate of service lists Sholes v. Hartikka twice, once with the docket number for Valdez v. Hartikka, which case name is omitted..  FN4. Besides the omission of Katz & Seligman, the certificate of service lists Sholes v. Hartikka twice, once with the docket number for Valdez v. Hartikka, which case name is omitted.

FN5. The plaintiff has filed no certification of service of the amendment on Katz and Seligman on August 8, 2012, or any other date.   Katz & Seligman knew of the amendment not later than July 6, 2012, when it filed the present motion.   Whether and when the amendment was served on Katz & Seligman are not important to the disposition of this motion..  FN5. The plaintiff has filed no certification of service of the amendment on Katz and Seligman on August 8, 2012, or any other date.   Katz & Seligman knew of the amendment not later than July 6, 2012, when it filed the present motion.   Whether and when the amendment was served on Katz & Seligman are not important to the disposition of this motion.

FN6. Practice Book § 10–12 states:  “(a) It is the responsibility of counsel or a pro se party filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion other than one in which an order is sought ex parte and every paper relating to discovery, request, demand, claim, notice or similar paper, except a request for mediation under Public Act 08–176, § 16.   When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority. (b) It shall be the responsibility of counsel or a pro se party at the time of filing a motion for default for failure to appear to serve the party sought to be defaulted with a copy of the motion.   Upon good cause shown, the judicial authority may dispense with this requirement when judgment is rendered. (c) Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties.”.  FN6. Practice Book § 10–12 states:  “(a) It is the responsibility of counsel or a pro se party filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion other than one in which an order is sought ex parte and every paper relating to discovery, request, demand, claim, notice or similar paper, except a request for mediation under Public Act 08–176, § 16.   When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority. (b) It shall be the responsibility of counsel or a pro se party at the time of filing a motion for default for failure to appear to serve the party sought to be defaulted with a copy of the motion.   Upon good cause shown, the judicial authority may dispense with this requirement when judgment is rendered. (c) Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties.”

FN7. Practice Book § 10–13 states:  “Service upon the attorney or upon a pro se party, except service pursuant to Section 10–12(c), may be by delivering a copy or by mailing it to the last known address of the attorney or party.   Delivery of a copy within this section means handing it to the attorney or to the party;  or leaving it at the attorney's office with a person in charge thereof;  or, if there is no one in charge, leaving it in a conspicuous place therein;  or, if the office is closed or the person to be served has no office, leaving it at the usual place of abode.   Delivery of a copy within this rule may also mean electronic delivery to the last known electronic address of the attorney or party, provided that electronic delivery was consented to in writing by the person served.   Service by mail is complete upon mailing.   Service by electronic delivery is complete upon sending the electronic notice unless the party making service learns that the attempted service did not reach the electronic address of the person to be served.   Service pursuant to Section 10–12(c) shall be made in the same manner as an original writ and complaint is served or as ordered by the judicial authority.”.  FN7. Practice Book § 10–13 states:  “Service upon the attorney or upon a pro se party, except service pursuant to Section 10–12(c), may be by delivering a copy or by mailing it to the last known address of the attorney or party.   Delivery of a copy within this section means handing it to the attorney or to the party;  or leaving it at the attorney's office with a person in charge thereof;  or, if there is no one in charge, leaving it in a conspicuous place therein;  or, if the office is closed or the person to be served has no office, leaving it at the usual place of abode.   Delivery of a copy within this rule may also mean electronic delivery to the last known electronic address of the attorney or party, provided that electronic delivery was consented to in writing by the person served.   Service by mail is complete upon mailing.   Service by electronic delivery is complete upon sending the electronic notice unless the party making service learns that the attempted service did not reach the electronic address of the person to be served.   Service pursuant to Section 10–12(c) shall be made in the same manner as an original writ and complaint is served or as ordered by the judicial authority.”

FN8. Compare Palmieri v. Ferraro's Foodland, Superior Court, judicial district of New Haven, Docket No. CV–06–5005756–S (February 11, 2008, Bellis, J.) [45 Conn. L. Rptr. 94] (dismissal granted where plaintiff made no service of § 52–102b(d) claim on a non-appearing apportionment defendant), and Watson v. Sardo, Superior Court, judicial district of Waterbury, Docket No. CV–09–5014771–S (October 13, 2010, Trombley, J.) [50 Conn. L. Rptr. 749] (same)..  FN8. Compare Palmieri v. Ferraro's Foodland, Superior Court, judicial district of New Haven, Docket No. CV–06–5005756–S (February 11, 2008, Bellis, J.) [45 Conn. L. Rptr. 94] (dismissal granted where plaintiff made no service of § 52–102b(d) claim on a non-appearing apportionment defendant), and Watson v. Sardo, Superior Court, judicial district of Waterbury, Docket No. CV–09–5014771–S (October 13, 2010, Trombley, J.) [50 Conn. L. Rptr. 749] (same).

FN9. There is no claim that the process itself was insufficient.   See Practice Book § 10–31(4)..  FN9. There is no claim that the process itself was insufficient.   See Practice Book § 10–31(4).

Cole–Chu, Leeland J., J.