Opinion
No. CV05-4002378S
October 24, 2005
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS PREJUDGMENT REMEDY ORDER
The motion of defendants, seeking a dismissal of the prejudgment remedy ordered on July 18, 2005, is denied. Defendants claim that because plaintiff served them with only the PJR Order and not the entire complaint, C.G.S. § 52-278j(a) has been violated.
This court has determined that defendants' reliance upon William Beazley Co. v. Business Park Associates, Inc., 34 Conn.App. 801 (1994) is misplaced. Beazley noted the statutory nature of PJR rights and did state, as defendants note, that "the law mandates strict compliance . . ." Id. at 803. This was stated as a general rather introductory matter in a case that then did not turn upon any issue of strict procedural statutory observance or construction. Instead, Beazley found that defendant there had been wholly deprived of the truly substantive opportunity to be heard before a PJR judge and to have that court weigh the evidence and possibly determine that no probable cause had been demonstrated by plaintiffs' evidence. (The Beazley PJR court was held to be in error when it found that an earlier denial by another judge of a defense motion to strike was tantamount to probable cause and issued the PJR without a hearing.) Thus, Beazley is invoked by defendants solely for its strict compliance reference unrelated to any service "failures."
Here, a full PJR hearing was held, with defendants being present, in the context of a served complaint pre-existing. The motion's basis is found in the fact that the PJR application package included an unsigned CT Page 13938-fh and unserved complaint as is common where no prior "case" is pending. When the PJR order was executed, plaintiff caused only the order to be served upon defendants, apparently as instructed by the clerk who gave the fresh PJR order to plaintiffs' counsel for his service upon defendants. (The clerk might have noted that the file contained a complaint served on defendants prior to a PJR being sought.) Thus, defendants urge, C.G.S. § 52-278j(a) was violated by the failure to (again) serve defendants with the complaint after the court ordered a PJR.
"If an application for a [PJR] is granted but the plaintiff, within 30 days thereof, does not serve and return to court the . . . complaint for which the [PJR] was allowed, the court shall dismiss the [PJR]." C.G.S. § 52-278j(a).
This provision requiring post-PJR service of the complaint ought not be deemed to apply, plaintiffs urge, when the complaint itself precedes into court the PJR application, as occurred here. Plaintiff points the court to § 52-278h which appears to allow flexibility where the complaint is filed first.
C.G.S. § 52-278h — "The provisions of this chapter shall apply to any application for [PJR] filed by the plaintiff at any time after the institution of the action, and the forms and procedures provided therein shall be adapted accordingly."
This court reads this to be a suggestion of flexibility in the setting of a filed case preceding and this fact moves the court to its result, as does the ostensibly hollow gesture of strictly demanding that a party re-serve a complaint already in defendant's hand. None of the cases defendant cites which dismiss the PJR appear to have involved a filed suit pre-existing the application for a prejudgment remedy.
It has been noted that, via what has been alleged to be a "word processing" error, the latter complaint (the unsigned one accompanying the PJR application) CT Page 13938-fi contains an earning capacity claim missing from the served, earlier, pre-PJR version. Because this court's decision essentially sounds in the total lack of prejudice to defendants and the § 52-278h-based probable absence of any procedural violation it would be possibly inimical to that spirit to also tolerate that earnings complaint claims going unserved, and the court will entertain motions with regard to it being outside the continuing vitality and parameters seen in the first, and only, served complaint.
The motion to dismiss is denied.