Sylvestor Traylor v. Eric S. Parker et al. (2015)

MEMORANDUM OF DECISION re Motion to Dismiss # 113

ISSUE

The issue presented is whether the court should grant defendant Wyatt Kopp's motion to dismiss on the ground of lack of personal jurisdiction for failure to provide a recognizance bond.

FACTS

The plaintiff, Sylvester Traylor, filed an eight-count complaint in this action on November 18, 2013.   The plaintiff also filed an amended complaint that same day.   The amended complaint named ten defendants, including Wyatt Kopp. The plaintiff alleges that in connection with a news broadcast, Mr. Kopp stated that plaintiffs like Mr. Traylor cause the State of Connecticut to pay for frivolous lawsuits.   The plaintiff further alleges that Mr. Kopp repeatedly attempted to harass and intimidate him with unwanted communications regarding other litigation to which the plaintiff was a party.   Mr. Kopp filed his appearance on December 3, 2013.

On December 11, 2013, defendants Meredith Corporation, Eric Parker, Klarn DePalma, and Dana Neves removed this action to the United States District Court for the District of Connecticut.   On March 20, 2015, the District Court remanded the action to Connecticut Superior Court.   On April 20, 2015, Mr. Kopp filed a motion to dismiss on the ground of lack of personal jurisdiction based on the plaintiff's failure to provide a recognizance bond.   Alternatively, Mr. Kopp seeks an order requiring a recognizance bond.   The motion is accompanied by a memorandum of law.   On May 29, 2015, the plaintiff filed an objection to the motion to dismiss and an accompanying memorandum of law.

DISCUSSION

“Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.”  (Internal quotation marks omitted.)  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).  “Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost.”  (Internal quotation marks omitted.)  General Electric Capital Corp. v. Metz Family Enterprises, LLC, 141 Conn.App. 412, 420, 61 A.3d 1154 (2013).  “The use of the motion to dismiss is ordinarily limited by Practice Book §§ 10–6, 10–7, 10–30 and 10–32, which together require that a motion to dismiss be the first pleading filed in response to the complaint and that it be filed within thirty days of the filing of an appearance.   If the motion to dismiss is not filed according to those requirements, then any challenges on the grounds of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process are deemed waived.”  Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).

Mr. Kopp argues that a recognizance is necessary because the plaintiff will be unable to pay the costs of this action if judgment is rendered against him.   The plaintiff argues that Mr. Kopp's motion to dismiss is untimely.   The plaintiff further agues that the federal court has already ruled on this motion and that the court is bound by that ruling.   Regarding the timeliness issue, Mr. Kopp argues that because the case was removed to federal court, he did not have a chance to file a motion to dismiss within thirty days of his appearance.   He argues that this situation presents an equitable reason for the court to excuse compliance with the thirty-day time limitation.

Practice Book § 8–3 provides in relevant part:  “[i]f 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 the plaintiff, he or she shall, before such process is signed, enter into a recognizance to the adverse party with some substantial inhabitant of this state as surety, or some substantial inhabitant of this state shall enter into a recognizance to the adverse party, that the plaintiff shall prosecute the action to effect, and answer all damages in case the plaintiff does not make his or her plea good ․” Practice Book § 8–3 provides in relevant part:  “(a) When there has been a failure to comply with the provisions of Sections 8–3 and 8–4;  the validity of the writ and service shall not be affected unless the neglect is made a ground of a motion to dismiss. (b) If the judicial authority, upon the hearing of the motion to dismiss, 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 § 10–30(b) provides:  “Any 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 § 10–32 provides, in relevant part:  “Any claim of lack of jurisdiction over the person ․ is waived if not raised by a motion to dismiss filed ․ within the time provided by Section 10–30.”

“The federal removal statute, 28 U.S.C. § 1446(d), provides that, upon removal, ‘the State court shall proceed no further unless and until the case is remanded.’   When, however, a certified copy of a remand to state court is mailed to the state court clerk, 28 U.S.C. § 1447(c) authorizes the state court to proceed again with the case.   See Ins. Co. of Pennsylvania v. Waterfield, 102 Conn.App. 277, 283, 925 A.2d 451 (2007) (under plain language of 28 U.S.C. § 1447, state court has subject matter jurisdiction to proceed as soon as remand effected).”  (Footnote omitted.)  Massad v. Greaves, 116 Conn.App. 672, 678, 977 A.2d 662, cert. denied, 293 Conn. 938, 981 A.2d 1079 (2009), cert. denied, 560 U.S. 904, 130 S.Ct. 3276, 176 L.Ed.2d 1183 (2010).

At issue in the present case is what effect the removal and subsequent remand had on the Practice Book deadline for contesting personal jurisdiction via a motion to dismiss.   The court is aware of only one Connecticut case on this issue, Tortora v. Shelton Board of Fire Commissioners, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–12–6011979–S (August 23, 2013, Matasavage, J.) (56 Conn. L. Rptr. 735).   In Tortora, the court examined case law from other jurisdictions in which courts have held that removal to federal court tolls state court deadlines.  Id., 737.

In Southern Bell Telephone & Telegraph Co. v. Perry, 308 S.E.2d 848, 849 (Ga.App.1983), the court considered the effect of removal and remand on a statute that required the plaintiff to obtain a continuance within a five-year period.   The court held that upon remand, “the case stood as it did at the time of removal.”  (Internal quotation marks omitted.)  Id. The court reasoned that because jurisdiction was suspended while the case was removed, the statutory five-year period did not run during that time.  Id.

An Idaho court considered a similar issue in Lucky Friday Silver–Lead Mines Co. v. Atlas Mining Co., 395 P.2d 477, 480 (Idaho 1964).   The court held that “[a]ll state proceedings, in the State court are held in abeyance until the cause is remanded back from the Federal Court ․ Thus the period of time the cause is before the Federal court, cannot be considered in computing the time within which the appellant had to appear and plead to the cause.”   The court cited a California case which held in a similar situation that “when the cause was remanded to the respondent court by the federal court, the state of suspension theretofore existing terminated, and plaintiff had the unexpired time theretofore given him within which to file his demurrers and motions to strike.”  Dauenhauer v. Superior Court In & For Sonoma County, 149 Cal.App.2d 22, 26, 307 P.2d 724 (1957).

The Tortora court cited two more cases in which removal tolled or suspended state court filing deadlines:  Swanson v. Swanson, Docket No. A11–902 (Minn.App.2012) (holding that removal tolled deadline to file claim in state court for attorneys fees);  Quaestor Investments, Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex.1999) (where defendant removed case to federal district court with fourteen days remaining in its window to appeal default judgment, defendant had fourteen days from date of remand to file appeal).

Finally, the Supreme Court of South Carolina recently considered this issue at length in Limehouse v. Hulsey, 744 S.E.2d 566, 576 (S.C.2013).   The court held “that removal of a state court case to federal court tolls the time period for filing responsive pleadings.”  Id., 577.   In reaching this conclusion, the court noted that “other jurisdictions have reached a similar conclusion.   See Lucky Friday Silver–Lead Mines Co. v. Atlas Mining Co., [supra, 395 P.2d 480] ․ Peoples Trust & Sav. Bank v. Humphrey, 451 N.E.2d 1104, 1109 (Ind.Ct.App.1983) (finding removal of action to federal court tolled ten-day time limit to apply for change of venue and stating that ‘tolling the time period eliminates uncertainty, preserves the status quo, and is easily applied’);  Jatczyszyn v. Marcal Paper Mills, Inc., 422 N.J.Super. 123, 27 A.3d 213 (2011) (concluding that discovery period established by state court rules is tolled during the time a motion to remand is pending before the federal court);  see also Gen. Elec. Credit Corp. v. Smith, 484 So.2d 75 (Fla.Dist.Ct.App.1986) (holding that time for filing appeal was tolled during period when case was removed to federal court);  Hartlein v. Illinois Power Co., 151 Ill.2d 142, 176 Ill.Dec. 22, 601 N.E.2d 720 (1992) (finding removal of action to federal court tolled time limit on petition for leave to appeal circuit court's grant of preliminary injunction).”   The court also noted that in some jurisdictions, pleading deadlines reset after a remand to state court;  however, those jurisdictions had specific rules of procedure resetting filing deadlines following remand.   Id., 576–77 and n.13.

In the present case, the court adopts the rule from Tortora v. Shelton Board of Fire Commissioners, supra, Superior Court, Docket No. CV–12–6011979–S (56 Conn. L. Rptr. 737), and from other jurisdictions and holds that removal of a case to federal court tolls Practice Book pleading deadlines.   Accordingly, Mr. Kopp's motion to dismiss is untimely.   Mr. Kopp filed his appearance on December 3, 2013.   Defendants Parker, DePalma, Neves, and Meredith Corporation removed the case to federal court on December 11, 2013.   The District Court remanded the case to Superior Court on March 20, 2015.   Mr. Kopp filed his motion to dismiss on April 20, 2015.   Eight days elapsed between Mr. Kopp's appearance and the day the case was removed.   Once the case was remanded, the case stood as it had at the time of the removal, meaning that Mr. Kopp had twenty-two days left to file his motion to dismiss.   Mr. Kopp did not file his motion until thirty days after the remand.   At that time, the instant motion was eight days late.

The court now turns to the issue of whether the removal and remand present an equitable reason for the court to excuse compliance with the thirty-day deadline for filing a motion to dismiss.   As Mr. Kopp points out, Connecticut courts occasionally excuse compliance with mandatory time limitations.   See Pedro v. Miller, 281 Conn. 112, 118, 914 A.2d 524 (2007) (“Mandatory time limitations ․ must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties.”)   For example, in Pedro v. Miller, supra, 118–19, the court concluded that “the fact that the legal basis for apportioning liability arose only after the 120–day limit already had expired constitutes an equitable reason justifying excusal from compliance with the limit.”   In the present case, however, the court is unpersuaded that the removal and remand of the action constitute an equitable reason excusing compliance with Practice Book §§ 10–30(b) and 10–32 as Mr. Kopp had 22 days after the remand within which to file the instant motion.   He failed to do so and has offered no equitable reason for excusing timely compliance.

CONCLUSION

For the foregoing reasons, the court denies Mr. Kopp's motion to dismiss.

Zemetis, J.

Zemetis, Terence A., J.