Opinion
CV166009101S
08-03-2016
Marcia Mongelluzzo v. Allergan USA, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS #103, #104 AND #109
John F. Cronan, Judge.
FACTS
On April 11, 2016, the plaintiff, Marcia Mongelluzzo, filed a four-count complaint against the defendants, Allergan USA, Inc., Allergan Sales, LLC (collectively referred to as Allergan herein), Yale-New Haven Hospital, Inc. (YNHH), and Richard Restifo d/b/a/ Restifo Plastic Surgery (Restifo). In counts one and two of her complaint, the plaintiff alleges the following facts against the defendant Allergan. The defendant Allergan was engaged in the manufacture, wholesaling, distribution and/or retailing of a breast implant, commonly referred to as the Allergan 68HP-800 (product). The plaintiff was inserted with two of the products. On or about February 25, 2013, the plaintiff was putting the product to its intended use when, suddenly and without warning, both of the products inserted on the left side of the plaintiff's body and the right side of the plaintiff's body ruptured, causing the plaintiff severe and serious personal injuries.
The plaintiff further alleges that the defendant Allergan is liable to the plaintiff by virtue of General Statutes § 52-572m et seq. in one or more of the following ways, in that: (1) the product was in a defective and unreasonably dangerous condition and could not be used without unreasonable risk of injury to the plaintiff; (2) the product was expected to and did reach the plaintiff without substantial change in the condition from which it was manufactured and sold; (3) the warnings and instructions which were given and accompanied the product were inadequate and failed to provide sufficient notice to the plaintiff of the dangerous propensities of the product; (4) the defendant failed to warn or instruct the plaintiff that the product in question was dangerous and subject to breakage; (5) the defendant failed to disclose to the plaintiff and the general public the dangerous propensities of the product; (6) the defendant misrepresented to the plaintiff and the general public that the product in question was safe for use by the public; (7) the defendant was negligent in failing to properly test the product prior to marketing, and knew or should have known of the dangerous characteristics of the product, yet continued to manufacture and distribute the product; (8) the defendant breached an implied warranty of merchantability in that the product was not of merchantable quality and fit for its intended purpose; (9) the defendant breached its express warranties that the product in question was safe and effective for its intended purpose; and (10) the product in question was not altered or modified in any way by the plaintiff or any third party from the condition in which it was manufactured and distributed by the defendant.
Count three is directed at the defendant YNHH and re-alleges the same facts as counts one and two. Count four is directed at the defendant Restifo and re-alleges the same facts as counts one and two. As result of the defendants' conduct, the plaintiff seeks damages for injuries sustained.
On May 5, 2016, the defendants Allergan and Restifo filed the present motions to dismiss, along with supporting memoranda of law. On May 6, 2016 the defendant YNHH filed the present motion to dismiss, along with a supporting memorandum of law. On June 15, 2016, the plaintiff filed an objection to all of the defendants' motions to dismiss, to which the defendant Restifo filed a reply to on June 18, 2016. This matter was heard at the short calendar on June 20, 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 motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (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).
" The grounds which may be asserted in [a] motion [to dismiss] are . . . (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). " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . 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." (Internal quotation marks omitted.) Id., 401.
In the defendants' memoranda of law in support of their motions to dismiss, they argue that the court lacks personal jurisdiction over the plaintiff because the plaintiff has failed to comply with General Statutes § 52-46a. Specifically, the defendants argue that the deadline to return process was March 30, 2016 and that the return date was April 6, 2016, but the plaintiff did not return process until April 11, 2016, twelve days late. Additionally, the defendants argue that the plaintiff cannot amend her complaint because doing so would not comply with the requirements of General Statutes § 52-48(b). Therefore, the plaintiff's complaint should be dismissed. In the plaintiff's objection to the defendants' motions to dismiss, the plaintiff concedes that she did not comply with § 52-46a as the complaint was returned to the court on April 11, 2016. Nonetheless, the plaintiff contends that the late return is not fatal in this case because General Statutes § 52-72 allows the plaintiff to amend the return date in lieu of dismissal. Thus, the plaintiff argues that complaint should not be dismissed.
Section 52-46a provides " process 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, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day."
Section 52-48 provides " (a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month. The return day in any summary process action may be any week day, Monday through Saturday, except a holiday. (b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held."
Section 52-72 provides " (a) Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective. (b) Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form. (c) If the court, on motion and after hearing, finds that the parties had notice of the pendency of the action and their rights have not been prejudiced or affected by reason of the defect, any attachment made by the original service and the rights under any lis pendens shall be preserved and continued from the date of service of the original process as though the original process had been in proper form. A certified copy of the finding shall be attached to and served with the amended process."
The return date is a necessary component of a writ by which a civil action is commenced . . . Both the time within which process must be served after its issuance and the time within which the writ must be filed with the court after service are determined by reference to the return day." (Citations omitted; footnote omitted; internal quotation marks omitted.) Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 242, 763 A.2d 54 (2000). Nevertheless, " [§ ]52-72 creates an avenue to amend defects in the return date . . . [O]ur Supreme Court has held that a remedial statute such as § 52-72 should be construed liberally as not to preclude jurisdiction merely because of a defective return date." (Citation omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 309, 763 A.2d 1055 (2001). " [Section] 52-72 . . . provide[s] for amendment of otherwise incurable defects that go to the court's jurisdiction . . . The apparent intent of the legislature . . . [is] to prevent the loss of jurisdiction merely because of a defective return date." (Internal quotation marks omitted.) Id., 308. " Despite the remedial nature of § 52-72 and the fact that the statute is to be liberally construed, our Supreme Court has established boundaries to the statute's reach . . . A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b)." (Citation omitted; internal quotation marks omitted.) Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn.App. 617, 621-22, 117 A.3d 965 (2015).
General Statutes § 52-48(b) provides that: " all process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held." " [A]s a general rule, a trial court should permit a plaintiff to amend the return date when, on the basis of the fact of a particular case, the amendment brings process into compliance with the mandatory requirements of both § 52-46a and § 52-48(b)." Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn.App. 625. " Our Supreme Court allows an improper return date to be amended after the return date has passed when doing so will not offend § 52-48(b) . . . and to amend the return date to correct a failure to return process to court six days before the return date, if time permits." (Citations omitted.) Id., 628. " [T]he requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement . . . A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b). Section 52-48(b) requires that [a]ll process shall be made returnable not later than two months after the date of process . . . Section 52-48(b), therefore, with its two-month time limit, circumscribes the extent to which a return date may be amended." (Citations omitted; footnote in original; internal quotation marks omitted.) Id., 622.
In the present case, the date on the writ of summons is dated February 25, 2016. In order to comply with the two-month requirement under Section 52-48(b), the return date would have to be April 25, 2016. The plaintiff's original return date of April 5, 2016 met that requirement. The plaintiff, however, did not return process until six days after this date, which is inapposite to the requirements of § 52-46a, which requires the plaintiff to return process at least six days before April 5, 2016. In an attempt to correct this deficiency in process, the plaintiff filed an amendment to change the return date to April 19, 2016. The amended date would satisfy the six-day requirement pursuant to § 52-46a, as process was returned to the court on April 11, 2016. It would also be sufficient under § 52-48(b), as the plaintiff seeks to amend the date to April 19, 2016, which is before the two-month requirement date of April 25, 2016. Although April 25, 2016 has already passed, the plaintiff is still permitted to file a request to amend after the two-month requirement. See Ribeiro v. Fasano, Ippolito and Lee, P.C., supra, 157 Conn.App. 617 (stating that as a general rule, a trial court should permit a plaintiff to amend return date when, on basis of facts of a particular case, amendment brings process into compliance with mandatory requirements of both § 52-46a and § 52-48(b)); see also Coppola v. Coppola, 243 Conn. 657 n.12, 707 A.2d 281 (1998) (the writ of summons and complaint were dated June 25, 1995, and plaintiff's amended return date was August 22, 1995, thus complying with two-month limitation of § 52-48(b), even though plaintiff filed request to amend in September, after two-month requirement date had passed).
It is noted that on July 5, 2016, the court, Cronan, J., sustained the defendants' objections to the plaintiff's request to amend. (Order #116.10)
The court finds the present case distinguishable from Ribeiro v. Fasano, Ippolito and Lee, P.C., supra, 157 Conn.App. 617, and Prenderville v. Sinclair, 164 Conn.App. 439, 138 A.3d 336 (2016), because in Ribeiro and Prenderville, the plaintiff's selected an amended return date that still did not comply with both § § 52-46a and 52-48(b). In Ribeiro, our Appellate Court stated that " process was signed with respect to both of the defendants on March 26, 2013, and the return date was set at May 28, 2013. Since this return date is two months and two days past the date on which process was signed, it is outside the two-month requirement of § 52-48(b).The plaintiff returned the process to this court on May 21, 2013, in compliance with § 52-46a, as May 21 is at least six days prior to the return date of May 28, 2013. The return of process date here on May 21 . . . cannot be amended to be in agreement with both § 52-46a and § 52-48(b), as it must be [because the date of May 28, 2013 is still outside the two-month requirement of § 52-48(b)]. Moreover, since the return date to this court must be on a Tuesday, as [provided] in § 52-48(a), moving the May 28 date back one week to a Tuesday would make the return date fall on May 21, the same date as the return of process, resulting in noncompliance with § 52-46a. Also, if the return date is to be pushed forward to the following Tuesday, on June 4, 2013, the two-month limit between June 4, 2013, and the date process was signed on March 26 would still be contravened." Id., 622.
In Prenderville, the plaintiff's proposed amended return date also did not comply with the statutory requirements of § § 52-46a and 52-48(b). The court stated that " [t]he summons and complaint were dated April 1, 2013, and bore a return date of May 7, 2013. The plaintiffs returned process to the court on September 9, 2013 . . . to be in compliance with § 52-48(b), process had to be returnable to court no later than June 1, 2013. The only amended return date proposed by the plaintiffs was October 29, 2013. This date was not in compliance with the requisite two-month time restriction imposed by § 52-48(b)." Id., 442. Moreover, " [t]he plaintiffs' service of process 114 days after the return date and their return of process 125 days after the return date, i[s] [a] violation of § § 52-46 and 52-46a." Id., 446. In the present case, unlike the plaintiffs in Ribeiro and Prenderville, the plaintiff has elected an amended return date that complies with both statutory requirements of § § 52-46a and 52-48(b). Accordingly, the plaintiff can comply with the mandatory requirements of both statutes, and therefore the court has personal jurisdiction over the defendants.
CONCLUSION
Based on the foregoing, defendants' motions to dismiss the plaintiff's complaint are denied. Accordingly, without prejudice to the plaintiff, the plaintiff is permitted to file a new request to amend based on the court's denial of the defendants' motions to dismiss.