Opinion
HHDCV176085853S
09-07-2018
Anthony CHAMBERS v. Michelea DEAN
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE
The court heard oral argument concerning the defendant’s motion to dismiss (# 101) on August 13, 2018. The defendant contends that the court lacks personal jurisdiction over the defendant because of improper return of process, since the plaintiff filed this matter on December 11, 2017, one day before the December 12, 2017 return date, in violation of General Statutes § 52-46a.
In response, the plaintiff filed a request for leave to amend the return date to December 26, 2017. See # 103.
Practice Book § 10-30(a) provides, in relevant part,: "A motion to dismiss shall be used to assert ... (2) lack of jurisdiction over the person ... [and] (3) insufficiency of process ..." "[A] defect in process ... implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011).
General Statutes § 52-46a provides, in relevant part, "Process in civil actions ... shall be returned ... to the clerk of [the Superior Court] at least six days before the return day." General Statutes § 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 ..."
The court is guided by appellate authority concerning amending process. See Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998) and Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn.App. 617, 117 A.3d 965 (2015). In Ribeiro, the Appellate Court discussed both Coppola and the Supreme Court’s earlier decision in Rogozinski v. Am. Food Serv. Equip. Corp., 211 Conn. 431, 559 A.2d 1110 (1989), cited by the defendant here in support of her motion. See Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn.App. 621-23, 629-30.
"[T]he 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 661-62.
In Coppola, process could be amended so as to comply with the statutory requirements of both § 52-48(b) and § 52-46a, because amending the return date on the summons did not violate § 52-48(b). By extending the return date, the return of process still complied with the mandatory requirements of § 52-46a.
In Riberio, the issue before the Appellate Court was one of statutory construction, and "whether the date a writ is returned to court constitutes ‘process’ and therefore is amendable pursuant to § 52-72." Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn.App. 625. In construing the statute, the court noted that the legislative intent behind § 52-72 "was to permit cure of technical, rather than substantive defects in civil process ... Historically, § 52-72 has been applied to cure only technical defects in the return date or the late return of process to the court." (Emphasis in original; internal quotation marks omitted.) Id., 627.
There, the plaintiff’s return date, at the outset, was outside the statutory two-month period under § 52-48(b). If the court were to have amended the defective return date, the date the plaintiff returned process to the court would then be deemed as having been returned five days before the return date, thus violating § 52-46a. The court held that the date process was returned to court could not be amended, because that date is a historical fact which may not be altered. Therefore, there was no way to amend the process to comply with both § 52-48(b) and § 52-46a. See id., 630-31.
In the present case, process was signed on November 10, 2017 (see summons and complaint); the return date is December 12, 2017; and process was returned to court one day before the return date, on December 11, 2017. See return (# 100.30.)
Under Coppola and Ribeiro ’s construction of the applicable statutory scheme, "process" may be amended so long as both § 52-48(b) and § 52-46a are satisfied. Permitting the plaintiff to amend the return date as requested would satisfy § 52-46a and comply with the statutory two-month period under § 52-48(b), since the new return date would make process "returnable not later than two months after the date of the process."
Accordingly, the request to amend the return date to December 26, 2017 is granted. For the reasons stated above, the defendant’s motion to dismiss is denied.