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

MEMORANDUM OF DECISION ON MOTION OF DEFENDANTS MACIEJ PIATKOWSKI AND RYAN RYAN DELUCA, LLP, TO DISMISS (# 127)

The defendants Ryan Ryan Deluca, LLP (the law firm), on two grounds, and Maciej Piatkowski on one of those grounds, moved on November 5, 2014, to dismiss the plaintiff's complaint dated September 5, 2014.¹  The motion was timely, the movants having appeared in this case on October 8, 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, with the plaintiff representing himself and Piatkowski, in his capacity as an attorney with the law firm, representing that firm and himself.

DISCUSSION

First, the law firm seeks dismissal of the complaint for lack of personal jurisdiction due to insufficiency of service of process, which is a proper use of a motion to dismiss.  Practice Book § 10–30(a)(5).   The law firm argues that, because it is a limited liability partnership, “service of process may be made by personally serving any process within the state upon any one of the partners ․” General Statutes § 52–57(d).  The law firm further argues that service of process may be effected only in that manner and, therefore, service of the summons and complaint by the judicial marshal “with and in the hands of Corine Marescot, person in charge authorized to take service for Ryan Ryan & Deluca LL [sic] at said 707 Summer Street, Stamford Conn.”—the business address of the law firm—was of no legal effect.  (See return of service filed October 1, 2014, first page.)

It is the burden of the party who seeks the court to exercise jurisdiction in his favor to clearly allege facts demonstrating that the court has personal jurisdiction over the defendant.  Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413–14, 35 A.3d 188 (2012).   Litigants' compliance with the law, including procedural requirements of the law, are fundamental to this court's jurisdiction.   See Kim v. Magnotta, 249 Conn. 94, 101–02, 733 A.2d 809 (1999).   In particular, if legal process is not served in compliance with the law, the court lacks personal jurisdiction.   See Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003).

The question on this first ground is whether the marshal's service of process in this case complied with the law.   The plaintiff is aided in bearing his burden of proof by the presumption of regularity and correctness of judicial marshals' returns of service.  Bove v. Bove, 93 Conn.App. 76, 82, 888 A.2d 123 (presumption of truth afforded to the statements of the marshal's return), cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).   That presumption is rebuttable.  Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008) (evidence may be introduced to controvert presumption).

This court perceives no basis for doubt that the law firm could delegate to someone other than one of its partners the authority to accept service of process.   Individuals and organizations of all kinds often do that.   The marshal's return says it did so in this case:  the return says the law firm authorized Corine Marescot, one of its employees, “to take service for” the partnership.   The law firm does not claim otherwise:  it does not claim that it could authorize Ms. Marescot to accept service of process then have the action dismissed because the marshal relied on that authority.

This is not a situation where the facts are more available to the party with the burden of proof—in this case, the burden of proof of jurisdiction.   It would be inequitable to deprive the plaintiff of the benefit of the presumption of regularity of returns of service by judicial officers—returns those officers are bound by oath to make true and correct—by requiring the plaintiff to disprove a defendant's mere claim that the marshal's return is inaccurate as to the authority of the person served on behalf of the defendant.   Saying something is true does not make it so.   See Chayoon v. Sherlock, 89 Conn.App. 821, 829, 877 A.2d 4 (saying defendant is being sued individually does not make it so), cert. denied, 276 Conn. 913, 888 A.2d 83 (2005).   Therefore, the law firm has the burden of rebutting the presumption of correctness of the marshal's return as to Ms. Marescot's authority.   The law firm offered no evidence that the marshal's return was inaccurate in this conclusion.

Without prejudging the weight of testimony that might have been adduced, but was not, it seems likely that the law firm could have supported the present motion with an affidavit of Ms. Marescot that she did not have authority to accept service for it and that she did not tell the marshal that she had such authority.   Such an affidavit would more potently rebut the presumption of regularity of marshals' returns if Ms. Marescot testified that she told the marshal that she did not have the authority the marshal's return says she had.   If Ms. Marescot is no longer employed by the law firm, the defendant could at least have tried to subpoena her to attend the argument on the present motion and testify to the same effect.   The law firm did not even offer an affidavit of one of its partners, or have a partner take the witness stand, to deny Ms. Marescot's authority.   The law firm could have called the marshal as a witness to seek an admission that he had no basis for the report of Ms. Marescot's authority to accept service for it.   The law firm did not do that, either.

The law firm failed to rebut the presumption of correctness of the marshal's return as to Ms. Marescot's authority.   Murphy v. Del Sole & Del Sole, LLP, Superior Court, judicial district of New Britain, Docket No. CV–05–4007244–S (November 14, 2005) [40 Conn. L. Rptr. 233], is not to the contrary because it does not involve a marshal's return reciting the authority of the recipient of process.

Second, both movants seek dismissal of this action because, when 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.” ²  The problem with the movants' second ground is that the court does not lack jurisdiction where a statute 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) ³ and Practice Book § 8–5(b) reveals that, in such context, a motion to dismiss is really a motion to dismiss nisi or a plea in abatement.⁴  In this case, on November 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 twelve days later.

For the foregoing reasons, the motion to dismiss # 127.00 is denied.

Cole–Chu, J.

FOOTNOTES

FN1. 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—or the plaintiff's argument that the claimed defect in service of the original complaint was cured, and this motion was rendered moot, by service of the amended complaint on a partner of the law firm..  FN1. 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—or the plaintiff's argument that the claimed defect in service of the original complaint was cured, and this motion was rendered moot, by service of the amended complaint on a partner of the law firm.

FN2. 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..  FN2. 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. 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 ․”.  FN3. 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. “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)..  FN4. “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.