Mary Papageorge v. Andrea Micek–Holt (2016)

MEMORANDUM OF DECISION (Motion to Dismiss # 104, Short Calendar, February 16, 2016)

Pursuant to Practice Book § 10–30, the defendant, Jamie Davis, Esq., moves to dismiss the plaintiff's complaint dated August 24, 2015, on the ground that the court lacks personal jurisdiction due to improper service of process.¹  The defendant claims that service was improper under General Statutes § 52–54, which requires in hand or abode service.  The defendant contends that service was never made upon her, in-hand, nor was it left at her usual place of abode.²  The plaintiff, Mary Papageorge, objects to the motion to dismiss, claiming that service was perfected on October 27, 2015, by way of a State Marshal serving the defendant in hand.  In reply, the defendant claims that the perfection of service was also improper on the grounds that:  “(1) service of a complaint, without a civil summons, does not constitute proper service;  (2) such service was not within the requisite twelve days before the return date;  and (3) the belated service also was not returned to court within six days before the return date.”

The motion to dismiss must be granted.  While there is some dispute as to whether the defendant was served with a writ of summons upon reservice, that issue need not be addressed, as the motion to dismiss must be granted on other grounds.³  General Statutes § 52–46 requires that “[c]ivil process, if returnable to the Supreme Court, shall be served at least thirty days, inclusive, before the day of the sitting of the court, and, if returnable to the Superior Court, at least twelve days, inclusive, before such day.”  (Emphasis added.)  Moreover, General Statutes § 52–46a requires that “[p]rocess in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court ․ to the clerk of such court at least six days before the return day.”  (Emphasis added.)  The Supreme Court has found that adherence to such statutes is mandatory.  See Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 559 A.2d 1110 (1989);  Daley v. Board of Police Commissioners, 133 Conn. 716, 54 A.2d 501 (1947).

In the present case, the return date is listed as September 22, 2015.  The attempt by the plaintiff to reserve the defendant on October 27, 2015, is clearly in violation of both §§ 52–46 and 52–46a.  Due to the mandatory nature of the two statutes, the motion to dismiss is granted.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. It must be noted that the defendant, Jamie Davis, Esq., is one of six defendants in this matter.  For the purposes of this motion to dismiss, she will be referred to as the defendant..  FN1. It must be noted that the defendant, Jamie Davis, Esq., is one of six defendants in this matter.  For the purposes of this motion to dismiss, she will be referred to as the defendant.

FN2. Section 52–54 requires that:  “The service of a writ of summons shall be made by the officer reading it and the complaint accompanying it in the hearing of the defendant or by leaving an attested copy thereof with him or at his usual place of abode.  When service is made by leaving an attested copy at the defendant's usual place of abode, the officer making service shall note in his return the address at which such attested copy was left.”.  FN2. Section 52–54 requires that:  “The service of a writ of summons shall be made by the officer reading it and the complaint accompanying it in the hearing of the defendant or by leaving an attested copy thereof with him or at his usual place of abode.  When service is made by leaving an attested copy at the defendant's usual place of abode, the officer making service shall note in his return the address at which such attested copy was left.”

FN3. The Marshal's Return from October 27, 2015, indicates:  “Then and by virtue hereof and by direction of the plaintiff, I left a true and attested copy of the WRIT, COMPLAINT and EXHIBITS supplied by the plaintiff in the hands of the within named defendant, Attorney Jamie Davis, at 155 Providence Street, Putnam, CT, 06260.”  (Emphasis in original.)  However, an affidavit of the defendant indicates that she was served a copy of the original complaint in hand on October 27, 2015, but was never served in-hand with a writ of summons and a writ of summons was not left at her usual place of abode.  Because the motion to dismiss must be granted on other grounds this issue need not be decided at this time..  FN3. The Marshal's Return from October 27, 2015, indicates:  “Then and by virtue hereof and by direction of the plaintiff, I left a true and attested copy of the WRIT, COMPLAINT and EXHIBITS supplied by the plaintiff in the hands of the within named defendant, Attorney Jamie Davis, at 155 Providence Street, Putnam, CT, 06260.”  (Emphasis in original.)  However, an affidavit of the defendant indicates that she was served a copy of the original complaint in hand on October 27, 2015, but was never served in-hand with a writ of summons and a writ of summons was not left at her usual place of abode.  Because the motion to dismiss must be granted on other grounds this issue need not be decided at this time.

Calmar, Harry E., J.