Opinion
No. CV 06 5000380S
July 28, 2006
MEMORANDUM OF DECISION RE MOTION FOR ARTICULATION #113 REGARDING MOTION TO DISMISS #104
This case arises out of the alleged negligence of the defendant, XPect Discount Drugs, Ltd. On January 5, 2006, the plaintiff, Lucy Townsend, filed a one count complaint in which she alleges that the defendant, or its agents, servants or employees, negligently stacked cases of drinking water in such a way that the display toppled over and injured the plaintiff.
On January 16, 2006, the defendant filed a motion to dismiss the plaintiff's complaint, accompanied by a memorandum in support, on the grounds of improper service of process. On February 22, 2006, the plaintiff filed both a memorandum in opposition and a supplemental memorandum in opposition. On March 6, 2006, the court, Sylvester, J., denied the defendant's motion to dismiss. On July 11, 2006, the defendant filed a motion for articulation. The court hereby grants the defendant's motion for articulation and sets forth the basis of its decision.
The defendant also attached a copy of the marshal's return and a printout of the defendant's business information listed on the Connecticut secretary of state's website.
In its motion for articulation, the defendant notes that it did not receive notice of the denial of its motion to dismiss until June 9, 2006. Additionally, the defendant noted that on March 7, 2006, it had filed a reply to the plaintiff's memorandum in opposition.
Although the court did not review the defendant's reply prior to ruling on the motion to dismiss, it would not have impacted the court's decision. As discussed infra, the court is persuaded by the plain language of General Statutes §§ 52-57(c) and CT Page 13486 33-929(h).
"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.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The grounds which may be asserted in [a motion to dismiss include insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).
"One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
The defendant argues that it was not served in the manner required by General Statutes § 33-929. The defendant contends that since it is a foreign corporation, the plaintiff was required to effect service of process on its registered agent and since the plaintiff served the assistant manager of the store where the accident allegedly occurred, service of process was ineffective.
The plaintiff concedes that she did not effect service under the requirements of § 33-929, but argues that service was proper under General Statutes § 52-57(c). The plaintiff contends that service pursuant to § 52-57(c) was effective because service under § 33-929 is permissible, but not mandatory. Additionally, the plaintiff argues that § 33-929(h) is dispositive of the issue since it provides: "This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation."
General Statues § 52-57(c) provides in relevant part: "In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager the president . . . In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922."
General Statutes § 33-929(a) provides in relevant part: "The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the foreign corporation. When the registered agent is other than the Secretary of the State . . . service may be effected by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state."
The court agrees with the plaintiff's interpretation of §§ 52-57(c) and 32-929. General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. It after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
The court is persuaded that the language of § 52-57(c) makes service of process by the means proscribed in § 33-929 permissive, rather than mandatory. This is emphasized by the fact that § 33-929(h) provides: "This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation." (Emphasis added.) Therefore, the text of the two statutes is neither unclear nor ambiguous, nor would the court's reading of the statutes yield an absurd or unworkable result. A plaintiff may invoke means of service of process set forth in § 33-929 or comply with the requirements § 52-27. See Loughery v. Commissioner of Correction, Superior Court, judicial district of Hartford, Docket No. CV 01 0812161 (July 9, 2002, Hennessey, J.) (procedure for valid service of process on foreign corporation provided for in §§ 33-929 and 52-57).
In the present case, the record reflects that a proper officer was served pursuant to the requirements of § 52-57. For the foregoing reasons, the defendant's motion to dismiss is denied.
So ordered.