David Lake v. Gregory Catarious, Sr. (2014)

MEMORANDUM OF DECISION RE MOTION TO DISMISS # 104

FACTS

On August 23, 2013, the plaintiff, David Lake, filed a one-count complaint against the defendant, Gregory Catarious, Sr., alleging negligence in regards to a motor vehicle accident involving both parties.   The plaintiff alleges the following facts.   The plaintiff resides in Meriden, Connecticut.   The defendant resides in Douglassville, Pennsylvania.   On October 11, 2011, the plaintiff was involved in a car accident with the defendant when the defendant negligently struck the plaintiff's car from behind.   The plaintiff's car was damaged and required repair.   The plaintiff alleges that the defendant was negligent in that he did not keep a reasonable and prudent lookout for other vehicles on the road, did not have his vehicle under reasonable control, and failed to operate his vehicle in a reasonable fashion.   The plaintiff seeks damages in the amount of $2,289, plus costs and fees and any other relief the court may deem just.

An appearance was entered by the defendant's attorney on October 23, 2013.   On November 19, 2013, the defendant filed a request for extension of time to respond to the complaint, pleading that “[a]dditional time was needed in order for the undersigned to investigate this matter and to file a proper motion, request or pleading.”   Subsequently, a motion to dismiss was filed on December 16, 2013.   An objection to the motion to dismiss was filed on January 8, 2014.   A reply to the objection was filed on January 17, 2014, and a response to the reply was filed January 21, 2014.   The matter was heard at short calendar on February 3, 2014.

DISCUSSION

The defendant argues in his motion to dismiss that the court does not have personal jurisdiction over the defendant because service was made upon the Department of Motor Vehicles and not the Secretary of State, pursuant to General Statutes 52–59b(c) ¹ The plaintiff argues in return that because the motion to dismiss was not filed within 30 days as required by the Practice Book, it must be denied.   The defendant replies that a proper motion for extension of time was filed with the court and that therefore the filing of the motion to dismiss outside of 30 days was proper.

“[A]ny defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance.”  Practice Book § 10–30(b).  “[This] 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 in the sequence required by Practice Book § 10–6.”  (Emphasis in original.)  Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).  “Extension of the deadline for any reason, on a motion for extension of time to file a responsive pleading or otherwise, would be completely inconsistent with the relevant language of the Practice Book, which makes no provision whatsoever for such extensions.”   (Emphasis added.)   Mazzone v. Carranza, Superior Court, judicial district of New Britain, Docket No. CV–07–5004401–S (October 19, 2007, Shapiro, J.) (44 Conn. L. Rptr. 546, 547).

The rules of statutory interpretation apply equally to Practice Book rules.   Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984).   Thus, if the intent of a rule is plain and unambiguous, its “unequivocal meaning is not subject to modification by way of construction.”  Id. The meaning of Practice Book § 10–30(b) is clear.   A motion to dismiss must be filed within 30 days of the filing of an appearance.   The defendant had until November 23, 2013, to file a motion to dismiss.   The motion was not filed until December 16, 2013.   While the defendant's argument—that filing a motion for extension of time allowed for additional time to plead—might conceivably have been entertained had the motion in question specified that more time was required to file a motion to dismiss specifically, the motion for extension of time as filed provides the plaintiff with no notice as to the type of response to expect, motion to dismiss or otherwise.   It provides merely that additional time was needed in order for the defendant to investigate the matter and to file a proper “motion, request or pleading.”   Given the clarity and decisiveness of the case law asserting that a motion to dismiss shall not be filed outside of 30 days and the lack of specificity of the motion for extension of time, the court finds no reason justifying the entertainment of the motion in this case.

CONCLUSION

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

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. Section 52–59b(c) reads in pertinent part:  “Any nonresident individual, foreign partnership or foreign voluntary association, or the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual, foreign partnership or foreign voluntary association, or the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual, foreign partnership or foreign voluntary association personally.   The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State ․”.  FN1. Section 52–59b(c) reads in pertinent part:  “Any nonresident individual, foreign partnership or foreign voluntary association, or the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual, foreign partnership or foreign voluntary association, or the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual, foreign partnership or foreign voluntary association personally.   The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State ․”

Fischer, Jack W., J.