Opinion
No. LLI CV 10 6003438S
May 25, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #118 SHORT CALENDAR MAY 23, 2011
The issue before the court is whether to grant the defendant's motion to dismiss on the ground of insufficient process.
I
FACTS
On September 20, 2010, the plaintiff, Hector Pinney, instituted the present action by service of a writ of summons and complaint on the defendant, Adam Butkiewicz. The complaint is dated September 10, 2010, with a return date of October 19, 2010. The complaint was filed with the court on October 28, 2010. On May 6, 2011, the defendant filed the present motion to dismiss the plaintiff's complaint on the ground of insufficient process in that the process was not returned to the Superior Court clerk at least six days before the return date, pursuant to General Statutes § 52-46a. The plaintiff did not file an objection. The matter was assigned to the May 23, 2011 short calendar.
Raymond Pinney and StateFarm Mutual Automobile Insurance Company are also named defendants but are not parties to the present motion to dismiss.
II
DISCUSSION
A
Motion to Dismiss Standard
"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, CT Page 12171 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). Practice Book § 10-31(a) states: "The motion to dismiss shall be used to assert (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. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."
B
Analysis
General Statutes § 52-46a states that "[p]rocess in civil actions returnable to the supreme court shall be returned to its clerk at least twenty days before the return day and, if returnable to the superior court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day."
"[A]lthough we employ the long-standing rule that an action is deemed commenced for statute of limitations purposes on the date the defendant is served with process, and not when that process is returned to the court, the failure of the plaintiff to return properly that process to the clerk of the court is not without consequence. For example, the requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement . . . [O]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period . . . So, although an action may be commenced through the service of process for statute of limitations purposes, the action is subject to dismissal if the plaintiff fails to return that service in a timely manner." (Citations omitted; internal quotation marks omitted.) Stingone v. Elephant's Trunk Flea Market, 53 Conn.App. 725, 733 n. 8, 732 A.2d 200 (1999). "The late return of process renders the action voidable and, if the defendants choose not to waive the jurisdictional defect of a late return, the trial court must dismiss the action." Arpaia v. Corrone, 18 Conn.App. 539, 540, 559 A.2d 719 (1989).
In the present case, process was not returned to the clerk of the court until October 28, 2010, nine days after the return date of October 19, 2010, and fifteen days beyond that which is required by General Statutes § 52-46a. The defendant has chosen not to waive the jurisdictional defect and filed a timely motion to dismiss. Therefore, the motion to dismiss is hereby granted.
An appearance on behalf of the defendant was filed on April 19, 2011. The present motion to dismiss was filed on May 6, 2011.