Mason Perrone v. Buttonwood Farm Ice Cream, Inc. (2014)

MEMORANDUM OF DECISION ON MOTION OF DUANE BUTTON AND KIMBERLY BUTTON TO DISMISS (121.00)

This suit arises from an alleged accident on the Griswold, Connecticut, premises of the defendant Buttonwood Farm Ice Cream, Inc. On September 25, 2013, defendants Duane Button and Kimberly Button moved (# 121.00) to dismiss the plaintiff's claims against them based on improper service of process.   The plaintiff filed a brief in opposition to the motion to dismiss (# 124.00) on October 8, 2013.   The motion was argued on October 28, 2013.

FACTS

In ruling on a question of jurisdiction raised by a motion to dismiss, this court considers the allegations of the challenged pleading in their most favorable light, taking the facts to be those alleged and necessarily implied from what is alleged, construed most favorably to the pleader.  Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004).   Viewed in this light, the pertinent facts are as follows.

On July 31, 2011, the plaintiff suffered a serious crushing injury to his right foot in an accident at the Griswold farm and ice cream shop of Buttonwood Farm Ice Cream, Inc. This lawsuit was initiated by writ, summons and complaint served on Buttonwood Farm Ice Cream, Inc., on September 5, 2012, and returned to court on September 10, 2012.   On July 12, 2013, nineteen days before the second anniversary of the accident, the plaintiff filed a motion to cite in as defendants Duane Button and Kimberly Button (movants), who own, operate and maintain the farm and ice cream shop where the accident occurred.   Presumably out of concern that the motion might not be ruled on in time to permit service of process before that anniversary,¹ the plaintiff prepared, and caused to be served on the movants on July 19, 2013, a new writ and summons dated July 12, 2013, and a complaint against the movants dated July 17, 2013.  (The 2013 writ, summons and complaint will be referred to as “the 2013 lawsuit.”)   Both the 2013 summons and complaint state August 27, 2013, as the return date of the 2013 lawsuit.

Instead of returning the 2013 lawsuit to court as a new lawsuit, and paying the fee for a new suit, the plaintiff filed the 2013 lawsuit in this case (# 116.00) on August 5, 2013.   As electronically filed by the plaintiff's law firm of record, the summons in the 2013 lawsuit was altered by the crossing out of the return date and by the addition, in hand-written lettering, of “DOC # KNL–CV–12–6014802–S”—i.e., the docket number of this case.²  On August 9, 2013, the plaintiff requested leave (# 117.00) to amend the complaint in this case to merge with it the complaint in the 2013 lawsuit.   On August 28, 2013, the movants' counsel appeared in this case.

DISCUSSION

Practice Book Sec. 10–30(a) provides as follows:  “A motion to dismiss shall be used to assert:  (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.”   A motion to dismiss essentially asserts that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.   Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011);  see Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

The ground for the present motion is that “the court lacks personal jurisdiction over [the movants] based on improper service of process ․ [in that] the plaintiff ․ did not serve them in accordance with his July 12, 2013, motion for permission to cite in and serve” them.   Citing Ngetich v. Central Connecticut State University, Superior Court, judicial district of New Britain, Docket No. CV–11–6012241–S (February 14, 2012, Pittman, J.), the movants essentially claim that, in order for them to be added as defendants in this case, the court must have granted a motion to cite them in and service of process on them must have been made pursuant to that order—necessarily after the ruling on the motion to cite in—with due return of service to the court.   This argument involves an extrapolation from Ngetich which this court cannot accept because Judge Pittman's analysis cited by the movants concerned whether a lawsuit had been commenced for purposes of the Accidental Failure of Suit statute, General Statutes § 52–592.

The filing of a suit against one party is no bar to filing a separate suit against another party or parties arising out of the same occurrence.   Manchester v. Rogers Paper Mfg. Co., 121 Conn. 617, 630–31, 186 A. 623 (1936).   In this case, the plaintiff could not properly serve on the movants the complaint by which he sought, in his motion to cite in, to bring them into this case as defendants until that motion had been ruled on.   However, that is not what the plaintiff did.   The filing of the motion to cite the movants in as defendants in this case did not bar the plaintiff from filing a separate suit against the movants, even a suit arising out of the same occurrence.   The 2013 suit process clearly informed the movants of the plaintiff's claims against them.³  Insufficiency of process is not a ground of the present motion.   The plaintiff could properly have filed that process, with the marshal's return of service, with this court as a separate suit.   However, that is not what the plaintiff did.   The plaintiff filed the 2013 suit in this suit.

Under our practice, after service of process on a defendant not less than twelve days before the return date;  General Statutes § 52–46;  the plaintiff must file the process with the court not less than six days before the return date;  General Statutes § 52–46a;  and pay a filing fee.   General Statutes § 52–259(a).   Late filing of process makes a suit subject to dismissal.  Walker v. Supeau, 134 Conn.App. 444, 445–46, 38 A.3d 1251 (2012);  see also Practice Book § 10–30.   The 2013 suit has never been filed as a separate suit, let alone timely filed.   If it were filed now as a separate suit, it would be subject to dismissal.

Unlike a lack of subject matter jurisdiction, which cannot be waived;  Keller v. Beckenstein, 305 Conn. 523, 531–32, 46 A.3d 102 (2012);  a lack of personal jurisdiction can be waived.  Practice Book § 10–32.   Such a waiver may be found in failure to move for dismissal where personal jurisdiction is lacking.  Id. The present motion is not based on the plaintiff's failure to file the 2013 suit at least six days before the return date.   The motion is based on the plaintiff's failure to serve the movants in accordance with his July 12, 2013, motion for permission to cite in the movants as defendants and the ruling on that motion—or, rather, the absence of a ruling as of the date the movants were served with the 2013 suit process.   For the reasons stated previously, the filing of the motion to cite in did not bar the plaintiff from filing the 2013 suit as a separate suit.

The court might construe the movants' election of one ground for the present motion as a waiver of other grounds.   See Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).   However, in the present situation, which is highly unusual due to the plaintiff's filing of a new suit in this action, the court will for five reasons treat the present motion as not waiving the ground of late filing of the 2013 suit as a separate suit.   First, the failure to return the 2013 suit to court as a separate suit deprives this court of subject matter jurisdiction over that suit.   See Doar v. Garfield, Superior Court, judicial district of Waterbury, Docket No. CV–05–4006247–S (December 12, 2005, Matasavage, J.) (granting motion to dismiss for late return to court on subject matter jurisdiction grounds).   Lack of subject matter jurisdiction can be raised at any time.  Keller v. Beckenstein, supra, 305 Conn. 531–32.   Second, there is no separate suit within which to file a motion to dismiss for late filing of the suit process.   Third, the movants' stated ground can reasonably be construed—that is, enlarged by inference—to object to the way the plaintiff tried to bring the movants into this case before his motion to cite them in had been granted.   The plaintiff's service was improper as service in this case.   Fourth, while the plaintiff objected to the motion, he did not do so on the ground that the motion is an improper vehicle for challenging the court's jurisdiction over the movants.   The plaintiff had and used his full opportunity to address whether this court has personal jurisdiction over the movants.⁴  Fifth, it would serve neither the parties nor the interests of justice to interpret the present motion in a narrow, literal way and leave the parties puzzled as to how to deal with a pleading that was neither authorized by this court when it was served nor filed as a separate suit.   See Ngetich v. Central Connecticut State University, supra, Superior Court, Docket No. CV–11–6012241–S (motion to dismiss was proper vehicle under the circumstances for addressing what amounted to a motion for summary judgment).

The motion of Duane Button and Kimberly Button to dismiss the plaintiff's claims against them is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The motion to cite in was granted on August 1, 2013..  FN1. The motion to cite in was granted on August 1, 2013.

FN2. Doubting that a judicial marshal would serve the summons and complaint with this unusual alteration, the court surmises that the alteration was made after service.   However, Duane Button and Kimberly Button did, through counsel, find their way to this file and have not objected to the alteration except, implicitly, to the extent it enabled a breach of court rules..  FN2. Doubting that a judicial marshal would serve the summons and complaint with this unusual alteration, the court surmises that the alteration was made after service.   However, Duane Button and Kimberly Button did, through counsel, find their way to this file and have not objected to the alteration except, implicitly, to the extent it enabled a breach of court rules.

FN3. The complaint in the 2013 suit alleges no act of Kimberly Button that caused injury to the plaintiff..  FN3. The complaint in the 2013 suit alleges no act of Kimberly Button that caused injury to the plaintiff.

FN4. The plaintiff's brief in opposition to the motion claims “the letter of the law permits exactly what the defendants claim is not permitted.”   This court disagrees.   The plaintiff was free to initiate the 2013 suit as a separate suit, but it was improper to disregard the court rules regarding citing in new defendants..  FN4. The plaintiff's brief in opposition to the motion claims “the letter of the law permits exactly what the defendants claim is not permitted.”   This court disagrees.   The plaintiff was free to initiate the 2013 suit as a separate suit, but it was improper to disregard the court rules regarding citing in new defendants.

Cole–Chu, Leeland J., J.