Sylvester Traylor v. Cathy Gambrell et al. (2015)

MEMORANDUM OF DECISION ON MOTION OF DEFENDANTS CATHY GAMBRELL AND CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY TO DISMISS

The defendants Cathy Gambrell and Connecticut Interlocal Risk Management Agency (CIRMA) ¹ moved on November 6, 2014, to dismiss the plaintiff Sylvester Traylor's complaint dated September 5, 2014.²  The motion was timely, the movants having appeared in this case on October 15, 2014.   On November 17, 2014, the plaintiff filed an objection to the present motion (and two others) and a brief in support of that objection.   The motion was argued on January 5, 2015, the plaintiff representing himself and Rachel Segger representing the movants.   The movants seek dismissal of this action because, at the time they were served with process, the plaintiff had provided no recognizance or bond for costs.  General Statutes § 52–185(a) provides, in pertinent part, “if it does not appear to the authority signing the process that the plaintiff is able to pay the costs of the action should judgment be rendered against him, the plaintiff shall enter into a recognizance to the adverse party with a financially responsible inhabitant of this state as surety, or a financially responsible inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute his action to effect and answer all costs for which judgment is rendered against him ․” The applicable rule of court, Practice Book § 8–3(a), is to the same effect.

Practice Book § 8–5(a) provides that, where no bond, recognizance or certificate of financial responsibility has been provided by a plaintiff, “the validity of the writ and service shall not be affected unless the neglect is made a ground of a motion to dismiss.” ³  When the jurisdiction of the court has been properly challenged, it is the burden of the party seeking the court's exercise of jurisdiction to demonstrate that the court has personal jurisdiction over that party.   See Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413–14, 35 A.3d 188 (2012).   Here, however, § 52–185(d) provides that the defect in process is curable.   According to § 52–185(d), a plea in abatement is the proper way to challenge the lack of compliance with § 52–185(a) ⁴ and Practice Book § 8–5(b) reveals that, in this context, a motion to dismiss is really a motion to dismiss nisi or a plea in abatement.⁵  On December 17, 2014, the plaintiff cured the defect by filing with the clerk of the court a cash bond of $250, the amount required by Practice Book § 8–1(a) for “other civil actions,” i.e., as provided in the present form JD–CV–1.   Though the present motion was well founded when filed, it was defeated by the plaintiff's bond filed eleven days later.

For these reasons, this motion to dismiss, # 130.00, is denied.

Cole–Chu, J.

FOOTNOTES

FN1. The withdrawal of this suit as to a third movant, Bruce Wollschlager, renders the motion moot as to him..  FN1. The withdrawal of this suit as to a third movant, Bruce Wollschlager, renders the motion moot as to him.

FN2. The plaintiff timely amended his complaint as of right on November 6, 2014—the return date being October 7, 2014, thirty days earlier.   See Practice Book § 10–59.   The present ruling makes it unnecessary to consider the effect of that filing on the present motion..  FN2. The plaintiff timely amended his complaint as of right on November 6, 2014—the return date being October 7, 2014, thirty days earlier.   See Practice Book § 10–59.   The present ruling makes it unnecessary to consider the effect of that filing on the present motion.

FN3. Practice Book § 8–1(a) requires that, “[a]ny person proceeding without the assistance of counsel shall sign ․ and present the complaint and proposed writ of summons to the clerk;  the clerk shall review the proposed writ of summons and, unless it is defective as to form, shall sign it.”   Since the failure of the plaintiff to file a bond, recognizance or certificate of financial responsibility is waivable;  Practice Book § 8–5(a);  that omission from the summons in this case is presumably because the clerk found no defect in the form of the writ of summons..  FN3. Practice Book § 8–1(a) requires that, “[a]ny person proceeding without the assistance of counsel shall sign ․ and present the complaint and proposed writ of summons to the clerk;  the clerk shall review the proposed writ of summons and, unless it is defective as to form, shall sign it.”   Since the failure of the plaintiff to file a bond, recognizance or certificate of financial responsibility is waivable;  Practice Book § 8–5(a);  that omission from the summons in this case is presumably because the clerk found no defect in the form of the writ of summons.

FN4. Section 52–185(d) provides, in pertinent part, “If there has been a failure to comply with the provisions of this section, ․ the validity of the writ and service shall not be affected unless the failure is made a ground of a plea in abatement.   If such plea in abatement is filed and sustained or if the plaintiff voluntarily elects to cure the defect by filing a bond, the court shall direct the plaintiff to file a bond to prosecute in the usual amount.   Upon the filing of the bond, the case shall proceed in the same manner and to the same effect as to rights of attachment and in all other respects as though the failure had not occurred ․”.  FN4. Section 52–185(d) provides, in pertinent part, “If there has been a failure to comply with the provisions of this section, ․ the validity of the writ and service shall not be affected unless the failure is made a ground of a plea in abatement.   If such plea in abatement is filed and sustained or if the plaintiff voluntarily elects to cure the defect by filing a bond, the court shall direct the plaintiff to file a bond to prosecute in the usual amount.   Upon the filing of the bond, the case shall proceed in the same manner and to the same effect as to rights of attachment and in all other respects as though the failure had not occurred ․”

FN5. “If the judicial authority, upon hearing the motion to dismiss [pursuant to § 8–5(a) ], directs the plaintiff to file a bond to prosecute in an amount deemed sufficient by the judicial authority, the action shall be dismissed unless the plaintiff complies with the order of the judicial authority within two weeks of such order.”  Practice Book § 8–5(b)..  FN5. “If the judicial authority, upon hearing the motion to dismiss [pursuant to § 8–5(a) ], directs the plaintiff to file a bond to prosecute in an amount deemed sufficient by the judicial authority, the action shall be dismissed unless the plaintiff complies with the order of the judicial authority within two weeks of such order.”  Practice Book § 8–5(b).

Cole–Chu, Leeland J., J.