Opinion
CV176068576S
05-15-2017
Ada Dimino-Luong, Co-Conservator of the Estate of Rosalia Dimino v. Keep Me Home, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#102)
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
This action was instituted by a writ summons and complaint returnable to the Superior Court on March 28, 2017. The named defendants are Keep Me Home, LLC, Diane Ababio and John Doe. John Doe is a fictitious name because presumably the plaintiff does not know the name of the individual whose alleged negligence caused the plaintiff's injuries. (The plaintiff does allege that John Doe is " a social associate" of the plaintiff Diana Ababio.) The complaint alleges that the plaintiff suffered multiple injuries while under the care of the defendants. The complaint further alleges negligence, battery and a violation of General Statutes § 17b-450 against all defendants, and a CUTPA violation pursuant to § 42-110b et seq., against the defendant, Keep Me Home, LLC.
On March 28, 2017, counsel entered an appearance for the defendants, Keep Me Home, LLC and Diana Ababio, and on the same date filed the present motion to dismiss. The defendants, Keep Me Home, LLC and Diana Ababio moved to dismiss counts two, three, five and seven as directed to defendant " John Doe" on grounds that the court lacks personal jurisdiction over the unknown defendant. The defendants argue that the plaintiff cannot assert claims against an unknown or fictional defendant unless pursuant to an express rule or statute. The defendants argue that since Connecticut has no such rule or statute, the plaintiff's claims against " John Doe" must be dismissed because this court lacks personal jurisdiction.
The plaintiff did not file an objection. The motion appeared on this court's May 15, 2017 short calendar as take papers.
DISCUSSION
" A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). " [A] defect in process . . . implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " 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.) St. Paul's Flax Hill Cooperative v. Johnson, 124 Conn.App. 728, 740, 6 A.3d 1168 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1002 (2011). " The motion to dismiss . . . admits all facts which are well pleaded . . ." Cogswell v. American Transit Insurance Company, 282 Conn. 505, 516, 923 A.2d 638 (2007).
The plaintiff is faced with two hurdles with regards to the defendant John Doe. First is the issue of whether an action can be maintained against a defendant utilizing a fictitious name. Second is whether the plaintiff can effectuate service on the unknown individual by certified mail. With regards to both issues the court concludes the case must be dismissed with regards to defendant John Doe.
In Angiolillo v. Buckmiller, 102 Conn.App. 697, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007), the Appellate Court held that the trial court properly dismissed the plaintiff's claims against a defendant who had been identified as " John Doe One" in the original complaint, which was served on an individual at the unknown defendant's place of employment. Subsequently, an amended complaint was filed substituting the defendant's full name for " John Doe One." A certificate of service on the defendant was not filed, no appearance was filed for either " John Doe One" or for the defendant by name, nor was a default ever filed against the defendant for failure to appear. The trial court, sua sponte, ruled that the defendant was not a party to the action because he was never served and never filed an appearance, and dismissed the claims against him. The trial court noted, inter alia, that there was no indication as to who " John Doe One" was at the time of the original complaint, nor as to whether the individual who accepted service on his behalf had the authority to do so. Id., 713-16. In this regard there is no basis in the present case for determining that the defendant John Doe was properly served. All the court has before it, is the marshal's return which states that he " deposited in the Post Office at Wethersfield, postage prepaid and certified, return receipt requested a true and attested copy of the within original Writ of Summons, Complaint, Prayer For Relief and Ad Damnum with my doings thereon endorsed, addressed to: John Doe, 356 Stuyvesant Avenue, APT 2, Irvington, N.J. 07111-1615." This court has no way of ascertaining from the marshal's return, who John Doe is or that he was properly served.
In addition, " [t]he majority of superior courts faced with issues relating to 'John Doe' defendants have generally disallowed the actions . . ." Younger v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 08 5020500 (August 4, 2008, Bellis, J.) (46 Conn.L.Rptr. 84, 85, ). " John Doe" actions are disfavored for several reasons. First, " [t]he majority of Connecticut Superior Courts have maintained that the naming of an unidentifiable 'John Doe' defendant in a complaint and a summons is improper because Connecticut does not have a fictitious name statute, nor is it authorized by the Practice Book." Mills v. Ansonia Community Action, Inc., Superior Court, judicial district of Waterbury, Docket No. 128715 (June 7, 1996, Pellegrino, J.) (17 Conn.L.Rptr. 243, 244, ). In fact, " § 52-45a of the general statutes provides that civil suits shall be commenced by process 'describing the real parties.' In dicta the court in Buxton v. Ullman, 147 Conn. 48, 59, 156 A.2d 508 (1959), stated 'that this requirement, presumably, refers to a description of the parties by their real names, so that they may be identified.'" O'Donnell v. State, judicial district of New Haven, Docket No. CV 03 0482928 (September 14, 2004, Corradino, J.) (37 Conn.L.Rptr. 884, 886, ). See also Brock v. A-1 Auto Service, Inc., 45 Conn.Supp. 525, 728 A.2d 1167, (1998 Blue, J.). Second, " [t]his court has consistently taken the view that use of fictitious names in a pending litigation causes uncertainty and possible prejudice to the unnamed defendants. Plaintiffs . . . are expected to conduct some preliminary investigation to determine the legal basis, if any, for an action against a particular person or entity." (Internal quotation marks omitted.) Himmelstein v. Windsor, Superior Court judicial district of Hartford, Docket No. CV 054013928, (May 16, 2006, Keller, J.).
Here, the plaintiff cannot establish who John Doe is or that he was properly served. The complaint alleges that John Doe was a social acquaintance of the defendant, Diana Ababio at the time of the defendants' alleged misconduct. The plaintiff did not describe John Doe with any particularity, nor has the plaintiff presented any evidence that the John Doe referenced in the complaint has been adequately served. Accordingly, this court lacks personal jurisdiction over the unidentified John Doe because there are no facts to establish that service was proper.
CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss is granted as to counts two, three, five and seven as directed to defendant " John Doe" because this court lacks personal jurisdiction over said defendant.