Opinion
TTDCV185009320S
06-12-2018
Steven K. STANLEY v. COMMISSIONER OF CORRECTION et al.
UNPUBLISHED OPINION
OPINION
Gordon, J.
The plaintiff, Steven K. Stanley, who is currently self-represented and incarcerated, filed this tort action against the defendants, Commissioner of Correction (the Commissioner), Moore Lisaison, LT. R. Burgos, and CO. Hesse. The plaintiff alleges that the defendants illegally violated his civil rights when they initiated and prosecuted a disciplinary proceeding against him. The defendants move to dismiss this action for lack of personal jurisdiction on the ground of insufficiency of process. For the reasons set forth below, the court grants the defendants’ motion.
I
FACTS
The following relevant facts are undisputed. On September 1, 2017, the plaintiff filed an application for waiver of fees that was initially denied by the court, Murphy, J., on September 6, 2017, and subsequently granted after hearing by the court, Farley, J., on November 30, 2017. The plaintiff commenced this action by service of process against the Commissioner on December 19, 2017; Burgos on December 19, 2017; Hesse on December 20, 2017; and Lisaison on December 20, 2017. The writ of summons is dated September 6, 2017, and the return date on the writ is January 2, 2018. Service of process was returned to the court on December 27, 2017.
Although the marshal’s return states that "Moore Liaison" was served with process, this appears to be a misnomer for the defendant "Moore Lisaison."
On January 19, 2018, the defendants filed a motion to dismiss and memorandum of law in support asserting that the court lacks personal jurisdiction over the defendants because the process is insufficient given that the return date is more than two months after the date of the writ of summons in violation of General Statutes § 52-48(b). On January 30, 2018, the plaintiff filed an opposition arguing that the return date was within two months of the date the court granted his fee waiver, and that General Statutes § § 52-72 and 52-123 permit the amendment of the return date. On March 29, 2018, the court heard argument regarding the defendants’ motions and the plaintiff’s objections.
II
DISCUSSION
"The grounds which may be asserted in [a motion to dismiss] are ... lack of jurisdiction over the person ... insufficiency of process [and] insufficiency of service of process." Ziska v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985); see Practice Book § 10-30. "[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). "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. "[A]n action commenced by improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
A
Improper Process
Section 52-48 provides in relevant part: "(a) Process in civil actions ... brought to the Superior Court may be made returnable on any Tuesday in any month ... (b) All process shall be made returnable not later than two months after the date of the process ..." " ‘[T]he date of the process,’ of course, refers to the date of the writ of summons ..." (Internal quotation marks omitted.) Prenderville v. Sinclair, 164 Conn.App. 439, 448, 138 A.3d 336 (2016); see Haylett v. Commission on Human Rights & Opportunities, 207 Conn. 547, 554-55, 541 A.2d 494 (1988). Section 52-48 (b) is mandatory and the plaintiff’s failure to comply with its requirements renders his action voidable. Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998); Prenderville v. Sinclair, supra, 452; Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn.App. 617, 624-25, 117 A.3d 965 (2015).
The plaintiff argues that he complied with § 52-48(b) because the January 2, 2018 return date is within two months of the court’s grant of his fee waiver application on November 30, 2017. The court disagrees because, as previously outlined, "the date of the process" is the date of the writ of summons. The plaintiff fails to cite any authority to the contrary and the court could find none. Accordingly, the date of process in the present case is September 6, 2017, because that is the date of the writ of summons. Therefore, the court concludes that the plaintiff failed to comply with the mandate of § 52-48(b) since the January 2, 2018 return date is more than two months after the September 6, 2017 writ of summons.
B
Potential Amendment of Improper Process
The plaintiff argues that the court retains personal jurisdiction over the defendants because § § 52-72 and 52-123 permit the amendment of the return date. The defendants contend that the court must dismiss the plaintiff’s action because the plaintiff cannot amend the return date and remain in compliance with the mandatory service of process requirements of General Statutes § § 52-46 and 52-46a.
1
Amendment Pursuant to § 52-72
Section 52-72 provides in relevant part: "[A]ny court shall allow a proper amendment to civil process which is for any reason defective ..." Our Supreme Court has held that § 52-72 "must be liberally construed in favor of those whom the legislature intended to benefit," and "is mandatory rather than directory." (Internal quotation marks omitted.) Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 623, 626, 642 A.2d 1186 (1994). "[T]he purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction ... The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." (Citation omitted; internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 663-64. "[S]uch an interpretation is consistent with our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court." (Internal quotation marks omitted.) Id., 665.
Although § 52-72 permits the amendment of a return date, in order for an amended return date to be "proper" within the meaning of § 52-72, the proposed amended return date must comply with the mandatory requirements of § § 52-48(b), 52-46, and 52-46a. Id., 666-67; Prenderville v. Sinclair, supra, 164 Conn.App. 451; Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn.App. 631. Section 52-46 provides in relevant part: "Civil process ... if returnable to the Superior Court, [shall be served] at least twelve days, inclusive, before [the sitting of the court]." Our Appellate Court has interpreted this to mean that "[a]ll process must be served at least twelve days before the return date, including the day of service and excluding the return day." Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003). Section 52-46a provides in relevant part: "Process in civil actions ... returnable to the Superior Court ... [shall be returned] to the clerk of such court at least six days before the return day."
In the present case, there is no return date that could satisfy all three statutory requirements. In order to comply with § 52-48(b), the January 2, 2018 return date would need to be amended to Tuesday, October 31, 2017, or earlier, to be less than two months after the September 6, 2017 writ of summons. However, such an amended return date would result in the plaintiff’s service and return of process violating § § 52-46 and 52-46a because under those circumstances the defendants would have been served and the process returned to court after the amended return date. In order for the plaintiff’s service and return of process to comply with both § § 52-46 and 52-46a, the earliest possible amended return date would need to be January 1, 2018; but as previously explained, any return date after October 31, 2017, would violate § 52-48(b).
Section 52-48 (a) requires that the return date be a Tuesday, but even if the return date was amended to be Monday, November 6, 2017, exactly two months from the date of the writ of summons, the plaintiff’s service of process and return of service would still violate both § § 52-46 and 52-46a.
2
Amendment Pursuant to § 52-123
Section 52-123 provides: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." "[Section] 52-123 embodies a public policy favoring the resolution of a case on its merits and allowing the amendment of circumstantial errors ... Nevertheless, [o]ur Supreme Court has repeatedly held that § 52-123 is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process. [It never has] held to the contrary." (Citations omitted; internal quotation marks omitted.) Prenderville v. Sinclair, supra, 164 Conn.App. 445-46, citing Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434, 559 A.2d 1110 (1989); see Ryan v. Cassella, 180 Conn.App. 461, 473 (2018) (§ 52-123 is mandatory, not directory).
"[Section] 52-123 only allows for the amendment of circumstantial defects in pleadings and, thus, does not apply to jurisdictional defects ..." New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 193, 61 A.3d 505 (2013); see State v. Gillespie, 92 Conn.App. 143, 149-50, 884 A.2d 419 (2005). As previously outlined, the requirement of § 52-48(b) that the return date be not later than two months after the date of process is jurisdictional. Prenderville v. Sinclair, supra, 164 Conn.App. 452. Accordingly, § 52-123 cannot be utilized to amend an improper return date. See e.g., Coombs v. Department of Mental Health & Addiction Services, Superior Court, judicial district of Fairfield, Complex Litigation Docket, Docket No. X07-CV-12-6036359-S (March 27, 2013, Dubay, J.); Howard v. Albertus Magnus College, Superior Court, judicial district of New Haven, Docket No. CV-03-0472650-S (July 2, 2003, Harper, J.); Midlantic National Bank v. Bridgeport Testing Labs, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-300641 (June 30, 1993, Ballen, J.) (9 Conn.L.Rptr. 341). The court concludes that § 52-123 does not permit amendment of the improper return date in the present case.
III
CONCLUSION
The court lacks personal jurisdiction over the defendants because the return date is more than two months from the date of the writ of summons in violation of § 52-48(b), and this defect cannot be cured through amendment pursuant to § § 52-72 or 52-123. The present action is therefore dismissed.
So ordered.