Opinion
No. CV 10 5033332
December 21, 2010
MEMORANDUM OF DECISION IN RE MOTION TO DISMISS #103
FACTS
A trial court convicted the plaintiff, Clyde Meikle, of murder on April 8, 1998, and sentenced him to fifty years imprisonment on July 7, 1998. The plaintiff alleges the following. In August 2007, the plaintiff filed a habeas petition. In 2008, the defendant, the public defender service commission, appointed the defendant, Damon Kirschbaum, as the plaintiff's special public defender. Since Kirschbaum's appointment as counsel, the plaintiff has only talked to Kirschbaum twice by telephone. In 2010, Kirschbaum sent a private investigator to the plaintiff to discuss the plaintiff's upcoming trial on the habeas petition.
State v. Meikle, Superior Court, judicial district of Hartford, Docket No. CR 940464797 (March 17, 2009, Gold, J.) [ 47 Conn. L. Rptr. 373].
On June 3, 2010, the plaintiff filed a one-count complaint against the defendants, Kirschbaum and the commission, in which he requested the following relief: a temporary injunction ordering the public defender service commission to investigate Kirschbaum's performance, an injunction preventing Kirschbaum from seeking to dismiss the habeas case, an order requiring the commission to issue the plaintiff a lawyer of his choice and compensatory damages in the amount of 13 million dollars. On September 16, 2010, the plaintiff filed an amended complaint and a second return of service of process dated August 30, 2010. In the amended complaint the plaintiff requests the following relief: a declaration that the acts and omissions of the defendants violated his state and federal rights; a preliminary and permanent injunction ordering Kirschbaum and the commission to adhere to the settlement in Rivera v. Rowland and stop putting incarcerated persons in a space equivalent to the Gulags and Concentration camps of Stalinist Russia and Hitler's Germany; a declaratory judgment against the defendants; and a jury trial on all triable issues.
The initial return of service of process, dated July 8, 2010, attests that service of process was effected at 24 Oak Street in Hartford, Connecticut in the hands of the occupant for the defendant, Kirschbaum. On August 13, 2010, the defendants moved to dismiss the complaint on the grounds that the defendants are immune from suit, lack of proper service, inadequate service of process, lack of service and because there is no legal cause of action. The defendants also submitted a memorandum of law in support of the motion on August 13, 2010. On September 15, 2010, the plaintiff submitted a memorandum of law in response to the defendants' motion to dismiss accompanied by nine affidavits. The return of service accompanying the amended complaint, dated August 30, 2010, attests that service of process was effected at 21 Oak Street in Hartford, Connecticut upon Kirschbaum and at 2275 Silas Deane Highway, in Rocky Hill, Connecticut, in the hands of Stanley, for the commission. On October 7, 2010, the defendants filed a reply memorandum to the plaintiff's memorandum in response to the defendants' motion to dismiss. This court heard oral argument on this matter at short calendar on October 18, 2010.
On June 28, 2010, Kirschbaum filed a motion to withdraw as counsel in the plaintiff's habeas petition case. On July 15, 2010, a hearing on Kirschbaum's motion to withdraw as counsel was held. The plaintiff alleges that Kirschbaum decided not to withdraw. The defendants argue in their memoranda that Kirschbaum was given permission to withdraw, and withdrew.
On July 19, 2010, counsel entered an appearance in this case on behalf of both defendants.
DISCUSSION
"Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30. "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of [a] complaint . . . [that] is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed acts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits . . . or other evidence, the trial court may dismiss the action without further proceedings." (Citations omitted; emphasis in original; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
I PERSONAL JURISDICTION
"[A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "Facts showing the service of process in time, form and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction." (Internal quotation marks omitted.) Knipple v. Viking Communication, Ltd., 236 Conn. 602, 607 n. 9, 674 A.2d 426 (1996); Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).
A. Service of Process on Kirschbaum
In the motion to dismiss and the accompanying memorandum of law, Kirschbaum argues that the plaintiff failed to complete proper service of process. Kirschbaum attaches an affidavit to the motion in which he attests to not receiving service, the address of service not being his office, not authorizing anyone at the address of service to act as his agent, and not knowing whether a building exists at the address of service. The plaintiff counters that Kirschbaum represented, in his affidavit, that he received service at the address of service and that the address is that of Kirschbaum's office.
In the present case, the original return of service provides that service was left "with and in the hands of occupant, for the within named defendant, Damon Kirschbaum, at 24 Oak Street, Hartford, CT 06106." The return does not indicate that the occupant was Kirschbaum, thus the return does not support the inference that Kirschbaum received service at the address of service. It merely demonstrates that someone received service of process at the address of service. Secondly, the evidence presented does not contradict the attestations of Kirschbaum that he did not receive service of process and that the address of service is not his address. The evidence supports the conclusion that the plaintiff failed to effect sufficient service of process on Kirschbaum by service upon an incorrect address.
Viewing the second service of process as the operative service of process, the suit commenced when Kirschbaum accepted service of process. The second return of service, dated August 30, 2010, attests that service was carried out "with and in the hands of occupant, for the within named defendant Damon Kirschbaum, at 21 Oak Street, Hartford, CT 06106." In the reply memorandum, Kirschbaum claims that "[t]he new summons, with a [r]eturn date of October 12, 2010, was served on Attorney Kirschbaum . . ." Kirschbaum's concession that the second service of process was properly effected and failure to object to the second service of process demonstrates that the court has personal jurisdiction over Kirschbaum. Therefore, the plaintiff effected proper service upon Kirschbaum and the court denies the defendant's motion to dismiss as to Kirschbaum as to this issue.
B. Service of Process on the Commission
The second return of service of process, dated August 30, 2010, attests that service of process was performed on the "Public Defenders Service Commission, the within named defendant, with and in the hands of Stanley, for the within named defendant, at 2275 Silas Deane Highway, in the said town of Rocky Hill, CT." The commission argues that the plaintiff failed to complete proper service of process on the commission or its agent because the commission does not have a business address at the address indicated on the return and the identity of "Stanley" is unknown.
Further, the commission argues that the initial service of process for Kirschbaum never named the commission as a defendant and thus failed to perform service upon the commission.
"When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." (Internal quotation marks omitted.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).
In the present case, the marshal's return indicates that service of process was affected upon Stanley at the address provided by the plaintiff as the address for the commission. The commission argues that the address of service is not the commission's address and that Stanley, whose identity is unknown, is not an agent of the commission and is not authorized to accept service of process for the commission. This creates the factual questions of whether the address the plaintiff provided is the correct address for the commission and whether Stanley is an agent for the commission. These questions cannot be determined from the face of the record because nothing in the record indicates whether the address is the proper address for the commission or whether Stanley is a registered agent of the commission. The plaintiff has the burden of providing evidence to demonstrate that service of process was properly affected upon the commission in order to establish jurisdiction over the commission. The plaintiff, however, fails to provide evidence to resolve these factual questions because none of the affidavits provided by the plaintiff speak to the correct address of service or Stanley serving as an agent for the commission. Furthermore, the commission is a state agency and service of process for the commission is properly carried out upon the Attorney General or at the Attorney General's office according to General Statutes § 52-64. The plaintiff's attempt to effect service of process upon the commission and not the Attorney General or the Attorney General's office renders service of process improper. Therefore, the court concludes that the plaintiff commenced this action against the commission by improper service of process and the motion to dismiss is granted as to the commission.
II SUBJECT MATTER JURISDICTION
"Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Sullins v. Rodriguez, 281 Conn. 128, 131, 913 A.2d 415 (2007). "Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1989). "It is our established policy to allow great latitude to a litigant who, either by choice or necessity, represents himself in legal proceedings, so far as such latitude is consistent with the just rights of any adverse party . . ." (Internal quotation marks omitted.) Cersosimo v. Cersosimo, 188 Conn. 385, 393, 449 A.2d 1026 (1982).
The defendants argue that they have statutory immunity from suit under § 4-165. The state is immune from suit unless it consents to be sued under the common-law doctrine of sovereign immunity. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990); Capers v. Lee, 239 Conn. 265, 267 n. 3, 684 A.2d 696 (1996). "[S]tatutory immunity provided by § 4-165 applies where sovereign immunity does not apply." Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000). "By its own terms, § 4-165 applies only to state officers and employees sued in their personal capacities, and is therefore inapplicable to the determination of whether . . . a state agency, is immune from suit." Hanna v. Capitol Region Mental Health Center, 74 Conn.App. 264, 268, 812 A.2d 95 (2002). General Statutes § 4-141 provides in relevant part: "state officers and employees includes attorneys appointed as victim compensation commissioners, attorneys appointed by the Public Defenders Services Commission as public defenders, assistant public defenders or deputy assistant public defenders and attorneys appointed by the court as special assistant public defenders . . ." (Internal quotation marks omitted.).
Statutory immunity only applies to state officials and employees, not to state agencies. General Statutes § 4-141 explicitly provides for "attorneys appointed by the [p]ublic [d]efenders [s]ervice [c]ommission as public defenders." The commission appointed Kirschbaum as the plaintiff's public defender for the plaintiff's habeas petition. Therefore, as a public defender appointed by the commission, Kirschbaum qualifies as a state official.
The Connecticut Supreme Court established a test to determine whether a suit brought against a state official is one against the state or whether the suit is actually against the state official in his or her personal capacity. If all criteria of the test are satisfied, the suit is one against the state; if one of the criterion of the test fails, the suit is one against the state official in his or her individual capacity. Kenney v. Weaving, 123 Conn.App. 211, 216, 1 A.3d 1083 (2010); see also Spring v. Constantino, 168 Conn. 563, 568, 362 A.2d 871 (1975). "The criteria are: (1) a state official has been sued; (2) the suit concerns some matter in which that official represents the state; (3) the state is the real party against whom relief is sought; and (4) the judgment, though nominally against the official, will operate to control the activities of the state of subject it to liability." Kenney v. Weaving, supra, 216; Spring v. Constantino, supra, 568.
In the present case, the first criterion of a state official being sued is satisfied because Kirschbaum qualifies as a state official as discussed above. In Kenney v. Weaving, the court addressed the second criterion and found that the suit concerned a matter in which the official represented the state because the cause of action was related to his duties as a state official. In the present case, the plaintiff brings suit against Kirschbaum for his actions in carrying out his duties as a public defender. Thus, the second criterion is satisfied because the suit is related to Kirschbaum's fulfillment of his duties as a public defender. In Kenney v. Weaving, the plaintiff sued the defendant because of his position as the commissioner of motor vehicles, not because he had any personal involvement in the accident that brought about the suit. In addressing the third criterion, the Kenney court found that the real party against whom relief was sought was the state and not the defendant because the plaintiff did not allege that the defendant had any personal involvement in the actions bringing about the suit. In the revised complaint for the present action, the plaintiff seeks a declaratory judgment that his rights were violated, a preliminary and a permanent injunction against both defendants ordering them to adhere to commission guidelines and to "stop putting incarcerated persons in a space equivalent to the Gulags and Concentration camps of Stalinist Russia and Hitler's Germany," and a jury trial on all triable issues. The plaintiff's request for declaratory judgment and a jury trial are forms of relief within the purview of the court's power, but not within the authority of either Kirschbaum or the commission. The placement of incarcerated persons is a matter that is determined by the department of correction, not the public defender service commission or any employee thereof. As the department of correction is a state agency, however, one can infer that the real party against whom the plaintiff seeks relief is the state and not Kirschbaum, thus satisfying the third criterion. As for satisfying the fourth criterion, the placement of incarcerated individuals would subject the state to liability, rather than Kirschbaum as he does not have the authority to direct the placement of incarcerated individuals. Being that all four criteria are satisfied, the allegations support the conclusion that the plaintiff's suit is in effect against the state and not against Kirschbaum in his personal capacity.
The doctrine of statutory immunity is inapplicable to this cause of action because the plaintiff's suit is against the state. Suits against the state are subject to the doctrine of sovereign immunity. "[T]o avoid the bar of the doctrine of sovereign immunity . . . [a] plaintiff must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Internal quotation marks omitted.) Kenney v. Weaving, supra, 123 Conn.App. 217; see also Miller v Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). The doctrine of sovereign immunity bars this suit against the state because the state did not consent to this type of suit by statutory waiver, the plaintiff did not allege that Kirschbaum acted beyond the scope of his authority, and the plaintiff did not allege that Kirschbaum acted pursuant to an unconstitutional statute. The applicability of the doctrine of sovereign immunity deprives this court of subject matter jurisdiction over this suit. Therefore, the motion to dismiss the complaint is granted as to Kirschbaum.
If the plaintiff's suit was, in effect, one against Kirschbaum in his personal capacity, the doctrine of statutory immunity would apply and would also bar the plaintiff from bringing his suit. General Statutes § 4-165(a) provides that: "No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment." In the revised complaint, the plaintiff alleges that Kirschbaum violated his rights while carrying out his duties as a public defender. To establish a claim under § 4-165, the plaintiff would have to allege facts to demonstrate that Kirschbaum acted wantonly, recklessly or maliciously in violating the plaintiff's rights while carrying out his duties as a public defender. The allegations in the revised complaint do not allege any facts that would support the conclusion that Kirschbaum acted wantonly, recklessly or maliciously in the discharge of his public defender duties. Therefore, statutory immunity would apply to the present suit and the court grants the motion to dismiss as to Kirschbaum for lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reason, the court grants the defendants' motion to dismiss the plaintiff's complaint.