Washington v. Tracey

Full title: BASIL C. WASHINGTON ET AL. v. JOHN TRACEY ET AL

Court: Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Aug 3, 2011

2011 Ct. Sup. 16874 (Conn. Super. Ct. 2011)

52 CLR 404

Opinion

No. CV 10-5034700-S

August 3, 2011

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS (#144)

DOMNARSKI, J.

At issue is whether the court should grant the defendant's motion to dismiss the on the ground that the court lacks subject matter jurisdiction because the plaintiff brought suit under the defendant's trade name.¹

1 The defendant also provides other grounds for the court to grant its motion to dismiss, including: 1) the plaintiff lacks standing; 2) the plaintiff's cause of action for defamation of credit is not ripe; and 3) the plaintiff's cause of action for defamation of credit is preempted by federal law. This memorandum only addresses whether the court should grant the defendant's motion to dismiss on the ground that the court lacks subject matter jurisdiction because the plaintiff brought suit under the defendant's trade name.

FACTS

On March 23, 2010, the pro se plaintiff, Basil² and Annette Washington, filed a complaint³ against the defendants, John Tracey of B J Auto Repair, Inc. (B J), the Manchester Police Department and Toyota Financial Services (Toyota). The complaint alleges the following facts. On February 2, 2010, the plaintiff was traveling in an unregistered motor vehicle owned by his wife when he was stopped and arrested by the Manchester Police Department. The Manchester Police Department contacted B J to tow the vehicle. On February 3, 2010, the plaintiff went to B J to retrieve his keys and other private documents; however, the plaintiff was denied access to his vehicle by Tracey, the owner of B J. The plaintiff made several other unsuccessful attempts to retrieve his items from the vehicle by contacting Tracey, the Manchester Police Department, the state's attorney's office and the mayor's office.

2 The summons lists both Basil Washington and his wife, Annette, as plaintiffs; however, Basil has continued to represent himself and his wife throughout the litigation. Basil will be referred to as the plaintiff in this memorandum of decision.

3 The document labeled "Affidavit of Fact" presumably is the complaint in this action and will be referred to as the complaint in this memorandum.

The plaintiff alleges that he was wrongfully denied access to the motor vehicle to retrieve keys, private documents and tools. The plaintiff further alleges that Tracey violated § 14-63-37b of the Regulations of Connecticut State Agencies. On March 2, 2011, Toyota filed a motion to dismiss and a memorandum in support. The plaintiff submitted three objections to the defendant's motion to dismiss.⁴ This matter was heard at short calendar on July 5, 2011.

4 The plaintiff's objections do not contain memoranda of law as required by Practice Book § 10-31. "Practice Book § 10-31(b) provides that [a]ny adverse party who objects to . . . [the motion to dismiss] shall, at least five days before the motion is to be considered on the short calendar, file and serve . . . a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record. The Supreme Court, however, has determined that a party who filed an untimely memorandum is no longer deemed to consent to the granting of a motion [to dismiss] . . . Further, in most cases, the Superior Court has used its discretion to reach the merits of the motion, rather than granting the motion solely on the basis that a party failed to comply with § 10-31 (b)." (Citation omitted; internal quotation marks omitted.) Roberts v. Area Cooperative Education Services, Superior Court, judicial district of New Haven, Docket No. 5031646 (January 28, 2010, Wilson, J.) ( 49 Conn. L. Rptr. 369 n. 1). Thus, the court may use its discretion to reach the merits of the motion to dismiss.

STANDARD OF REVIEW

"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.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "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 § 143, which is now § 10-31.

DISCUSSION

The defendant argues that it is not a proper party to the lawsuit because the plaintiff brought suit against its trade name. To support its argument, the defendant relies on America Wholesale Lender v. Pagano, 87 Conn.App. 474, 866 A.2d 698 (2005), in which it was held that a suit cannot be brought by or on behalf of a trade name because a trade name "is not an entity with legal capacity to sue." Id., 475. The Appellate Court noted that "in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue . . . Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name." (Citation omitted; internal quotation marks omitted.) Id., 477.

In the present case, the plaintiff has brought suit against "Toyota Financial Services/Toyota Motor Credit Legal Department." Toyota Financial Services is a trade name of Toyota Motor Credit Corporation (TMCC), and Toyota Motor Credit is a department within TMCC. Consequently, neither Toyota Financial Services nor Toyota Motor Credit Legal Department has the legal capacity to sue or be sued. See State v. Lamar Advertising of Hartford, Superior Court, judicial district of Hartford, Docket No. CV 08-5020325 (April 5, 2011, Sheldon, J.) ( 51 Conn. L. Rptr. 661) (holding that a suit must be dismissed for lack of subject matter jurisdiction where the plaintiff brings a suit against a non-existing legal entity that is no more than a trade name). In addition, the plaintiff has not requested to amend his complaint to substitute TMCC in lieu of TMCC's trade name.

For the foregoing reasons, the defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED.