Opinion
HHDCV156062155S
05-17-2016
Joseph L. Ellison v. Kyle Macci et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kevin G. Dubay, J.
FACTS
On September 11, 2015, the plaintiff, Joseph L. Ellison, filed a negligence complaint against the defendants, Kyle Macci (police officer), and the City of New Britain (municipality). The plaintiff alleges the following facts. On June 9, 2014, the plaintiff operated an automobile westbound on Chestnut Street in New Britain. The police officer as the agent, servant and/or employee of the municipality operated a vehicle with the permission of the municipality westbound on Chestnut Street and suddenly and without warning struck the plaintiff's automobile. The police officer's negligence caused the plaintiff to sustain injuries and incur monetary expenses, and the plaintiff seeks to hold the defendants liable for the motor vehicle accident. In the return of service attached to the complaint, state marshal Keith Niziankiewicz states that he took the following steps to serve process upon the defendants: On September 4, 2015, he left two copies of the process for the municipality and one copy of the process for the police officer, in the hands of Mark Bernacki, the town clerk, who was authorized to accept service for the defendants. On September 14, 2015, the defendants filed their appearances. On September 23, 2015, the defendants filed a motion for extension of time to file a responsive pleading to the complaint, which the court granted on October 12, 2015, extending the time to plead through December 5, 2015.
On October 20, 2015, the defendants filed a motion to dismiss the complaint on the ground of insufficient service of process. According to the defendants, service of process effectuated on the town clerk pursuant § 52-57(b)(7) was insufficient on the police officer as he was not an employee of the municipality at the time of the service of process. In addition, the defendants state that the plaintiff's claim against the municipality should be dismissed since it is derivative of his claim against the police officer under § 7-465. In support of their motion, the defendants filed an affidavit of Karen R. Levine, a personnel director of the municipality. On January 26, 2016, the plaintiff filed an objection to the motion to dismiss. On February 2, 2016, the defendants filed a reply to the plaintiff's objection. The matter was heard at short calendar on February 8, 2016.
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.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). Practice Book § 10-30 provides in relevant part: " (a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process. (b) Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing an appearance."
A
Timeliness of Motion to Dismiss
As a threshold matter, the court addresses whether the defendants' motion to dismiss is properly before the court. The plaintiff argues that the motion to dismiss was not timely filed, whereas, the defendants argue that the motion to dismiss was timely filed on October 20, 2015, in sequence to the court granting the defendants an extension of time through December 20, 2015, to file a responsive pleading.
Practice Book § 10-30(b) provides that a motion to strike must be filed " within thirty days of the filing of an appearance." " 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.) Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 416, 885 A.2d 768 (2005), aff'd, 112 Conn.App. 1, 961 A.2d 1012 (2009). " Thus, thirty-one days after the filing of an appearance . . . a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999).
Our appellate courts have not addressed the question of whether the courts may extend the deadline in which to file a motion to dismiss for lack of personal jurisdiction. Melchor v. Family Care Visiting Nurses, LLC, judicial district of New Haven, Docket No. CV-11-6020688-S (June 28, 2012, Gold, J.) . Previously, this court noted that " [t]here is a split among the judges of the Superior Court on [whether the courts may extend the deadline in which to file a motion to dismiss]. Some judges have held that motion to dismiss for lack of personal jurisdiction must be filed within the thirty-day time frame, regardless of whether the court has granted motions for extension of time . . . Other judges have considered a motion to dismiss to be timely when it was filed more than thirty days after an appearance but within the time period granted in a motion for extension of time." (Citations omitted.) Dorry v. New Milford Hospital, judicial district of Waterbury, Complex Litigation Docket, Docket No. X10-UWY-CV-09-6004823-S, (April 29, 2011, Dubay, J.).
This court has already decided that a motion for extension of time to file a responsive pleading extends the time in which to file a motion to dismiss. See Dorry v. New Milford Hospital, supra, Docket No. X10-UWY-CV-09-6004823-S, (explaining " Practice Book § 1-8 provides: The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any care where it shall be manifest that a strict adherence to them will work surprise or injustice. Moreover, the [r]ules of practice must be construed reasonably and with consideration of this purpose . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding. (Internal quotation marks omitted.) Danzig v. PDPA, Inc., 125 Conn.App. 254, 262, 11 A.3d 153 (2010), [cert. denied, 300 Conn. 920, 14 A.3d 1005, cert. denied, 564 U.S. 1044, 131 S.Ct. 3077, 180 L.Ed.2d 899 (2011)]. Construing the court's extension of time narrowly would prevent the merits of the defendant's argument regarding personal jurisdiction from being reached. Such a result would be unjust").
In the present case, this court granted the defendants an extension of time through December 5, 2015, to file a responsive pleading to the complaint. The defendants' filing of their motion to dismiss on October 20, 2015, is timely as it was filed with the court before the deadline of December 5, 2015. As the court recognized in Maccarone v. Golioto, judicial district of Hartford, Docket No. CV-11-6019721-S (September 16, 2011, Peck, J.) (52 Conn. L. Rptr. 628, 630), " it would be unjust, within the meaning and spirit of [Practice Book] § 1-8, for the court to grant a party an extension of time to file a responsive pleading and then, only after the party acted in reliance upon the extension, deem it ineffective and deny the responsive pleading as untimely."
B
Service of Process upon Police Officer
Although the defendants' motion to dismiss was timely filed, the court must next address whether the marshal's service of process upon the town clerk pursuant to § 52-57(b)(7) is sufficient service of process upon the police officer in the present case. In support of their motion to dismiss, the defendants argue that the service of process effectuated on the town clerk pursuant to § 52-57(b)(7) on September 4, 2015, was insufficient service of process on the police officer as he was not an employee of the municipality at the time of the service of process. The defendants filed an affidavit of Karen R. Levine, a personnel director of the municipality, who attests that the police officer's employment with the municipality terminated on May 1, 2015. The plaintiff does not address this argument and offers a conclusory argument that service of process was proper under the statute.
General Statutes § 52-57(b)(7) provides that service of process shall be served " against an employee of a town, city or borough in a cause of action arising from the employee's duties or employment, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the employee." Nevertheless, service of process under § 52-57(b)(7) is optional rather than mandatory, as § 52-57(a) provides " an alternative method of service [on municipal employees] by personal service or abode." Estrella v. Stamford, judicial district of Stamford, Docket No. CV-04-0200832-S (October 21, 2005, Jennings, J.) (40 Conn. L. Rptr. 180, 182).
The court has addressed whether service of process effectuated on the town clerk pursuant to § 52-57(b)(7) is proper where the municipal employee " [was an employee] at the time of the alleged malfeasance but [was] no longer [an employee] of the municipality at the time of service of process." Crane v. New Haven, judicial district of New Haven, Docket No. CV-13-6036221-S (May 29, 2013, Blue, J.) (56 Conn. L. Rptr. 172, 173). Neither § 52-57(b)(7) nor its legislative history explain whether service of process may be effectuated on current and former municipal employees under the statute. See Keeton v. Weiner, judicial district of New Haven, Docket No. 13-6041584-S (January 29, 2014, Nazzaro, J.) (57 Conn. L. Rptr. 572, 573 and 575). In Meade v. Hartford, judicial district of Hartford, Docket No. CV-04-0834669-S (March 24, 2005, Wagner, J.T.R.) (39 Conn. L. Rptr. 51, 51-52), the plaintiff served process upon the town clerk under § 52-57(b)(7) for an action against a school superintendent, who moved to dismiss the complaint on the ground of insufficient service of process, as he was not employed by the municipality at the time of service of process. The court found that " employee" under § 52-57(b)(7) " commonly refers to one who is presently employed in an agency relationship [with the municipality.]" Id., 53. The court found that as a notice statute, § 52-57(b)(7) " is designed to alert both a town and an employee of a pending lawsuit, " and that § 52-57(b)(7) " [applies] to present employees" for the practical purpose of " forwarding [copies] of the writ[s], summons and complaints to the [employees], " and for " defending the suit[s] or indemnifying the [employees]." Id. Accordingly, service of process upon the town clerk under § 52-57(b)(7) was improper service upon the superintendent as he was not employed by the municipality at the time of the service of process. Id.
Like Meade, the plaintiff served process upon the town clerk under § 52-57(b)(7) for an action against a municipal employee in Crane v. New Haven, supra, 56 Conn. L. Rptr. 172. In Crane, the housing inspector moved to dismiss the complaint on the ground of insufficient service of process, as he was not employed by the municipality at the time of service of process. Id. The Crane court addressed whether § 52-57(b)(7) applied to current and former municipal employees. Id. The court found the term " employee" under § 52-57(b)(7) to be " ambiguous" and applied the " canon of constitutional avoidance, " which provides: " [it] is to be presumed that the legislature in enacting a law intended it to be reasonable and just, and where a [statute] admits of a construction that will make it so, it is the duty of a court to uphold it by giving it such a construction. Hope v. Cavallo, 163 Conn. 576, 586, 316 A.2d 407 (1972). Under the avoidance canon, when a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter. Gonzalez v. United States, 553 U.S. 242, 128 S.Ct. 1765, 1771, 170 L.Ed.2d 616 (2008)." (Internal quotation marks omitted.) Id. Like Meade, the Crane court found that the purpose of § 52-57(b)(7) is to provide notice of the pendency of the lawsuit, which the Crane court explained is a requirement for due process under the Constitution. Id. The Crane court found that " service of process [on the town clerk under § 52-57(b)(7)] would not be reasonably calculated, under all of the circumstances to apprise [former municipal employees] of the pendency of the action, " as the town clerk, who is " directed to forward a copy of the process to the employee in question, " would " inevitably vary in [its] diligence" to locate the former employee and serve process upon them. (Internal quotation marks omitted.) Id., 172-73. In construing the statute to effectuate notice on employees, the Crane court found that the legislature did not intend the term " employee" to " include persons who were employees of a municipality at the time of the alleged malfeasance but [were] no longer employees of the municipality at the time of service of process." Id., 173.
In the present case, the marshal's return of service provides that the police officer was not served process in the alternative method to § 52-57(b)(7) through service in hand or at his place of abode. Thus, whether service of process upon the town clerk pursuant to § 52-57(b)(7) is effective on the police officer depends upon whether this court construes § 52-57(b)(7) to apply to current employees, or current and former municipal employees. The defendants argue that this court should find that § 52-57(b)(7) applies only to current employees and that this court should dismiss the action against the former police officer for insufficient service of process on a former employee as the undisputed affidavit of Karen R. Levin, a personnel director of the municipality establishes that the police officer's employment with the municipality terminated on May 1, 2015, a time before the September 4, 2015 service of process upon the town clerk. The plaintiff does not address this argument.
This court finds the reasoning in Crane persuasive that § 52-57(b)(7) is a notice statute that is designed to facilitate notice of the pendency of the lawsuit upon persons employed by the municipality at the time of service of process. Crane v. New Haven, supra, 56 Conn. L. Rptr. 172-73. In the present case, the police officer's employment with the municipality terminated on May 1, 2015, and the officer was not employed by the municipality at the time of service of process upon the town clerk on September 4, 2015. Thus, " [s]ervice of process [on the town clerk under § 52-57(b)(7)] would not be reasonably calculated, under all of the circumstances to apprise [the police officer] of the pendency of the action, " as the town clerk, who is " directed to forward a copy of the process to the [police officer], " would " inevitably vary in [its] diligence" to locate the former employee and serve process upon him. Id. Service of process upon the town clerk under § 52-57(b)(7) was improper service upon the police officer as he was no longer an employee of the municipality at the time of service of process. Accordingly, the court grants the motion to dismiss as to the police officer.
C
Plaintiff's Claim Against Municipality
As the court has determined that the defendants' motion to dismiss should be granted as to the police officer, the court must next determine whether the plaintiff's claim against the municipality is derivative of the plaintiff's claim against the police officer under § 7-465 and must be dismissed, and whether in response to a motion to dismiss, the plaintiff may allege that his claim against the municipality proceeds under General Statute § 52-557n, a statute not identified in the complaint. In support of their motion to dismiss, the defendants argue that the court should dismiss the plaintiff's claim against the municipality as it is derivative of the plaintiff's claim against the police officer under § 7-465. The plaintiff does not address this argument, but argues that the court has jurisdiction over claims against a municipality under § 52-557n, a statute which may allow the municipality to be independently liable for the negligent acts of its employees. In reply, the defendants argue that the court should not allow the plaintiff to add a new claim sounding in § 52-557n to the complaint as the statute was not identified in the complaint in violation of Practice Book § 10-3(a).
Practice Book § 10-3(a) provides: " When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number."
" The general rule . . . is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity." (Citation omitted.) Spears v. Garcia, 66 Conn.App. 669, 677, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). The legislature established municipal liability for certain acts of employees in General Statute § 7-465(a), which provides in relevant part: " Any town, city or borough . . . shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded . . . for physical damages to person or property . . . if the employee, at the time of the occurrence, accident, physical injury or damages complaint of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any willful or wanton act of such employee in the discharge of such duty." " To invoke § 7-465, the [plaintiff] first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification." (Emphasis omitted; internal quotation marks omitted.) Altfeter v. Borough of Naugatuck, 53 Conn.App. 791, 799, 732 A.2d 207 (1999). " This is a personal liability requirement that calls for . . . an inquiry into the factual matter of individual negligence." (Emphasis omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). " While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment . . . it is quite clear that the municipality does not assume liability in the first instance . . . The municipality's liability is derivative." (Citations omitted; internal quotation marks omitted.) Kaye v. Manchester, 20 Conn.App. 439, 443-44, 568 A.2d 459 (1990). " Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual." Wu v. Fairfield, supra, 204 Conn. 438.
In addition to actions for indemnification under § 7-465, § 52-557n " abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property." (Internal quotation marks omitted.) Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 928 (2002). Section § 52-557n provides in relevant part: " (a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." " The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property [in § 52-557n(b)]." (Internal quotation marks omitted.) Segreto v. Bristol, supra, 71 Conn.App. 850.
This court is guided by Spears v. Garcia, supra, 66 Conn.App. 669. In Spears, the plaintiffs commenced a common-law negligence action against a municipality, who moved for summary judgment on the complaint on the ground that the plaintiffs failed to cite a statute which abrogated governmental immunity. Id., 672. In response to the motion for summary judgment and for the first time in the proceedings, the Spears plaintiffs cited a negligence statute § 52-557n, which the defendant argued that the court should not consider as § 52-557n had not been identified by the plaintiffs in the complaint in violation of Practice Book § 10-3. Id. The Appellate Court held " although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." (Emphasis in original.) Id., 676. The Spears court found that " the plaintiffs in [the case] relied on 52-557n] in their memorandum of law in opposition to the motion for summary judgment and in oral argument before [the court]. That sufficiently apprised the defendants that the plaintiffs were relying on § 52-557n to abrogate governmental immunity. Under the circumstances of [the] case, the defendants [could not] complain of unfair surprise." Id. In addition, the Appellate Court held that § 52-557n and § 7-465 " can be read to coexist. Under § 7-465, a municipal employer must indemnity its employees for judgment rendered against them under certain circumstances. Pursuant to § 52-557n(a), governmental immunity is abrogated for a direct cause of action under certain circumstances. See General Statutes § 52-557n(a). Those circumstances include the negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties." (Emphasis added; internal quotation marks omitted.) Id., 679-80.
On the appeal of Spears v. Garcia, supra, 66 Conn.App. 669, the Supreme Court affirmed the Appellate Court ruling that § 52-557n permits a plaintiff to bring a direct cause of action in negligence against a municipality. Spears v. Garcia, supra, 263 Conn. 25. In so holding, the Supreme Court addressed the appellant's argument that allowing a direct cause of action under § 52-557n would allow a plaintiff to circumvent the requirement that a plaintiff must file notice with the town clerk " within six months [of the accrual of the cause of action] of his or her intention to bring a cause of action [under § 7-465]." Id., 31-2. The Supreme Court held that negligence " causes of action under [§ 52-557n(a) and § 7-465] are independent and are not mutually exclusive." Id. " [S]ubsection (b) of § 52-557n, which references subsection (a), sets forth many exceptions under which an injured party may not pursue a direct action in negligence against a municipality . . . In the absence of any such reference to . . . § 7-465 . . . [§ 52-557n and § 7-465] can coexist and that a party may choose to rely on either statute [for a negligence action against a municipality]." (Emphasis added; footnote omitted.) Id., 33. Although " there may be circumstances under which a municipality is held liable under § 52-557n where it would have been able to avoid liability had the suit been brought jointly against the employee and the municipality under § 7-465 . . . [The] outcome results from a clear legislative expression of an intent [under § 52-557n] to abrogate municipal immunity independent of the availability of a claim under § 7-465. As long as this result is rational, [the court] may not judge the wisdom, desirability or logic of the legislative determination." (Emphasis omitted; internal quotation marks omitted.) Id., 37.
In the present case, had the plaintiff not identified § 52-557n as the basis for his claim against the municipality in these proceedings, the court would have ground to dismiss the complaint as to the municipality as derivative of the plaintiff's claims against the police officer under § 7-465. The plaintiff, however, identified § 52-557n as the basis for his claim against the municipality in his objection to the motion to dismiss. This court subscribes to the reasoning in Spears and applies the rationale to the present case. " Although Practice Book § 10-3(a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory ." (Citation omitted; emphasis added.) Spears v. Garcia, supra, 66 Conn.App. 675-76. While the plaintiff has not identified § 52-557n in the complaint as the basis for his negligence claim against the municipality, his " fail[ure] to do so [does not] necessarily bar recovery [because] the defendants are sufficiently apprised of the applicable statute during the course of the proceeding." Id., 676. The plaintiff identified § 52-557n in his objection to the motion to dismiss. As the defendants are placed on notice of the statute during the course of the proceedings, they cannot " complain of unfair surprise." Id. Therefore, the plaintiff may proceed with a direct cause of action sounding in negligence against the municipality under § 52-557n, which does not depend upon any derivative action under § 7-465. Spears v. Garcia, supra, 263 Conn. 33. Accordingly, the court denies the motion to dismiss as to the municipality.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss as to Kyle Macci (police officer) but denies the motion as to City of New Britain (municipality).