Opinion
HHDCV156062624
10-04-2016
Marianne Arnold v. FYC Entertainment, LLC dba Russian Lady et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion to dismiss filed on March 24, 2016, by the apportionment-defendant, Brenda Noiva, [Noiva] claiming that this court lacks personal jurisdiction based on improper service of process. The defendants/apportionment-plaintiffs, FYC Entertainment, LLC DBA The Russian Lady Hartford, Russian Lady Assoc., LLC and John Rimscha, [collectively " FYC" ] object to the motion to dismiss because they claim that the motion was untimely filed and that therefore, Noiva has waived this claim.
The plaintiff, Marianne Arnold, initiated this premises liability lawsuit against FYC on October 20, 2015, as a result of injuries she allegedly sustained at the Russian Lady, an establishment operated by FYC Entertainment in Hartford, Connecticut. On February 9, 2016, FYC filed their apportionment complaint along with the marshal's return of service which indicated that service was made at 136 Willie Circle, Tolland, Connecticut, represented as " the usual place of abode" of Brenda Noiva.
On February 19, 2016, counsel for Noiva filed an appearance and motion to extend time of thirty days to file a responsive pleading, which was granted by the court (Huddleston, J.) to April 19, 2016. On March 24, 2016, Noiva filed her motion to dismiss based on lack of personal jurisdiction and attached an affidavit asserting that she was never served either by abode or personally and that since 2010, she has lived at 96 Orcuttville Road, Stafford Springs. In response, FYC objects to the motion to dismiss because notwithstanding the court order granting an extension to April 19, 2016, it was filed thirty-four days after counsel's appearance and therefore, in violation of Practice Book § 10-30(b), which requires that such motions be filed within thirty days of counsel's appearance.
" [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).
Practice Book § 10-30 provides in relevant part: " (a) A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." " [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). " [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.
The sole basis for FYC's objection to the motion to dismiss rests on the fact that the motion was filed thirty-four days after counsel for Noiva filed an appearance. The court notes that because the thirty-day deadline occurred on a Sunday, the due date for a timely motion to dismiss, in the absence of an extension, would have been March 21, 2016, which means that Noiva's motion to dismiss was filed three days beyond the original deadline date. Indeed, Practice Book § 10-30(b) provides that " [a]ny defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." At the same time, both parties acknowledge that there is no definitive appellate authority which addresses the question of whether a court order extending the deadline by which to file a responsive pleading includes extending the deadline by which a defendant may file a motion to dismiss. Moreover, a plethora of superior court decisions which have considered this matter reveals that our trial courts are divided on the issue.
The starting point for this court's analysis is our Supreme Court's decision in Pitchell v. Hartford, 247 Conn. 422, 722 A.2d 797 (1999). In that case, the court held that the attorney's appearance on behalf of the defendant, Gregory Sargis, a police officer with the city of Hartford, required that a motion to dismiss for lack of personal jurisdiction be filed within thirty days of that appearance. In so holding, the court observed that " the rules of practice are unambiguous. Its provisions create evenhanded, easy to follow procedures that all litigants must follow . . . [T]o allow a party to compromise these well established, unambiguous Practice Book provisions would lead to a case-by-case analysis by the courts, which would lead to uncertainty of application." Id., 436.
A number of our superior courts have interpreted this language in Pitchell to compel the conclusion that the thirty-day rule is an inflexible one, even when a motion to extend has been filed or even granted. For example, the court in State v. Four Health Drugs, LLC, Superior Court, judicial district of Hartford, Docket No. CV-01-0807586-S (March 30, 2004, Sheldon, J.) (36 Conn.L.Rptr. 748, 749, ) concluded that " [t]he upshot of Pitchell could hardly be clearer. The 30-day deadline for filing motions to dismiss based on alleged lack of personal jurisdiction is a mandatory deadline that must be complied with or the defendant will be deemed to have waived all challenges he might have to the Court's jurisdiction over his person. Extension of the deadline for any reason, on a motion for extension of time to file a responsive pleading or otherwise, would be completely inconsistent with the relevant language of the Practice Book, which makes no provision whatsoever for such extensions."
The court has considered the analysis in State v. Four Health as well as the numerous, other superior court authority interpreting Pitchell and § 10-30. " Compare Maccarone v. Golioto, Superior Court, judicial district of Hartford, Docket No. CV-11-6019721-S (September 16, 2011, Peck, J.) (52 Conn.L.Rptr. 628, 630, ) ('it would be unjust . . . for the court to grant a party an extension of time to file a responsive pleading and then, only after the party acted in reliance upon the extension, deem it ineffective and deny the responsive pleading as untimely'); Dorry v. New Milford Hospital, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X-10-CV-09-6004823-S, (April 29, 2011, Dubay, J.) ('Construing the court's extension of time narrowly would prevent the merits of the defendant's argument regarding personal jurisdiction from being reached. Such a result would be unjust.'); and Medina v. Garcia, Superior Court, judicial district of New Britain, Docket No. CV-06-5000784-S (October 31, 2006, Pittman, J.) (42 Conn.L.Rptr. 260, 261, n.1) ('[t]he court finds no authority for the proposition that the time limit in this rule of practice is mandatory and thus concludes that is directory'); with Fairley v. Hennessey, Superior Court, judicial district of Hartford, Docket No. CV-11-6017844-S (May 17, 2011, Wagner, J.T.R.) (51 Conn.L.Rptr. 635, 635, ) ('the time sequence set forth in Practice Book [§ § ]10-32 and 10-6 does not mitigate the strict requirement of filing a motion to dismiss within thirty days of filing an appearance'); Consiglio v. Streeto, Superior Court, judicial district of New Haven, Docket No. CV-06-5001967-S, (April 11, 2008, Bellis, J.) (defendant had filed motion for extension of time to plead which was never granted, but court concluded that even if it had been granted, it would not have permitted defendant to file motion to dismiss challenging personal jurisdiction beyond mandatory thirty-day period set forth in Practice Book § 10-30); Mazzone v. Carranza, Superior Court, judicial district of New Britain, Docket No. CV-07-5004401-S (October 19, 2007, Shapiro, J.) (44 Conn.L.Rptr. 546, 547, ) ('[t]he extension of time to file a responsive pleading which was granted could not modify the mandatory requirements of Practice Book § § 10-30 and 10-32') . . ." Ingersoll Auto of Danbury v. Weis, Superior Court, judicial district of Hartford, Docket No. HHD-CV-14-6053880-S (August 4, 2015, Huddleston, J.) (60 Conn.L.Rptr. 785, 788, n.6). Having reviewed these decisions and mindful of Pitchell 's holding and the context in which Pitchell was decided, this court concludes that the reasoning in both Maccarone v. Golioto and Dorry v. New Milford Hospital persuades this court that it would be unjust to refuse to consider the merits of the motion to dismiss.
As the Maccarone court observed, " Pitchell v. Hartford, supra, 247 Conn. 422, does not explicitly state that the court may not extend the time to file a motion to dismiss for the purpose of filing a challenge to the court's personal jurisdiction. There was no motion for extension of time filed in that case and the court never ordered any extension of time." Maccarone v. Golioto, supra, 52 Conn.L.Rptr. 630, . Moreover, the court cannot ignore the fact that in contrast to circumstances in Pitchell as well as in State v. Four Health, in which the defendant's motion to dismiss was filed over seventeen months after its appearance, Noiva filed her motion to dismiss a mere three days after it would have originally come due.
In fact, what is notable in Pitchell and completely absent here, is the degree to which the court found fault on the part of counsel for the defendant in Pitchell . Indeed, the court's decision incorporates a detailed account of a complicated series of events in which counsel for Sargis, who also represented the codefendant, city of Harford, apparently intended to withdraw as to Sargis but filed " an amended appearance" rather than a motion to withdraw, within three days of the initial appearance due to a conflict of interest relative to the city of Hartford. Only after the court's denial of two motions to default Sargis for failure to appear, the latter of which was due in part to counsel's appearance still on record for Sargis, did counsel then file a proper motion to withdraw appearance. When the motion to dismiss was eventually filed, the court noted that it was filed more than four months after the original appearance and three months after the court's notification that counsel was still the attorney of record. Also relevant to the court was Sargis' concession that when the same claims were previously heard and ultimately dismissed in federal court, counsel had represented Sargis, as well as the city of Hartford, throughout the pendency of the proceedings in federal court.
Notably, the Pitchell court acknowledged Practice Book § 1-8's exhortation that " [t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." Because the Pitchell court was clearly troubled by what it viewed as " the inaction of [the defendant's] attorneys of record as an abandonment of his right to make such a claim, which resulted in a waiver of that right, " it concluded that it perceived no such surprise or injustice. Pitchell v. Hartford, supra, 247 Conn. 434.
In contrast, Noiva sought and was granted by this court an extension of time. The motion to dismiss was filed only three days beyond the original thirty-day deadline and well within the order extending the time to file a responsive pleading. The circumstances of this case suggest that far from waiving the right to consider and file the appropriate pleading, counsel intended to preserve that right and duly exercised the obligation to file the appropriate motion and memorandum of law with requisite affidavit. Moreover, the fact that our superior courts are divided on the issue suggests that under these facts, Practice Book § 1-8's call to interpret the rules liberally where a strict adherence will work surprise or injustice seems especially appropriate. As the court in Dorry v. New Milford Hospital concluded in a similar case, " the [r]ules of practice must be construed reasonably and with consideration of this purpose . . . Rules are a means to justice, and not an end in themselves; their purpose is to provide for a just determination of every proceeding . . . Construing the court's extension of time narrowly would prevent the merits of the defendant's argument regarding personal jurisdiction from being reached. Such a result would be unjust." Dorry v. New Milford Hospital, supra, Superior Court, Docket No. X-10-CV-09-6004823-S.
This court thus concludes that whether or not an order granting a motion to extend the time to file a responsive pleading encompasses a motion to dismiss, Practice Book § 1-8 allows this court to consider the underlying merits of the motion to dismiss.
In turning to Noiva's motion to dismiss, the court notes that there is evidence by way of an amended affidavit that Noiva was never served with the apportionment complaint because her residence since 2012 is 96 Orcuttville Road, Stafford Springs, Connecticut. Per the marshal's return, abode service was made at 136 Willie Circle, Tolland, Connecticut, on February 4, 2016.
The court notes that where a marshal's return avers that service was made by abode, the defendant bears the burden of disproving personal jurisdiction. " The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer's] return." (Internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007). " [A] defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction." (Emphasis omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008). A defendant can accomplish this by introducing sufficient evidence to prove otherwise. Id., 339.
" If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits; see Practice Book § 10-31(b) [now § 10-31(a)]; or other evidence, the trial court may dismiss the action without further proceedings." Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009). " [T]he due process requirement of a hearing is required only when issues of facts are disputed ." (Emphasis in original.) Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007). " [I]n the absence of any disputed issues of fact pertaining to jurisdiction, there [is] no need to hold an evidentiary hearing before deciding the motion to dismiss." Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994). " [W]here a jurisdictional determination is not dependent on the resolution of a meaningful factual dispute, there is no requirement that the court conduct a fact-based hearing." Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 47, 75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013). See also U.S. Bank, N.A. v. Ugrin, 150 Conn.App. 393, 403-04, 91 A.3d 924 (2014) (court not required to hold second evidentiary hearing if court able to resolve factual dispute on basis of evidence presented in first hearing).
FYC's objection has relied solely on its claim that the motion to dismiss was untimely filed and has not presented counteraffidavits or requested from this court an evidentiary hearing to establish this court's jurisdiction. Having provided evidence in support of her claim that she was not properly served, evidence which remains undisputed, Noiva has met her burden establishing that this court lacks personal jurisdiction over her. The court, therefore, grants the motion to dismiss.