Opinion
No. CV03 040 43 11 S
April 7, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Before the court are two motions to dismiss filed by the defendants, Bess Gilmore, Douglas Gilmore, Keith Gilmore and Community Club Awards, Inc. The defendants move to dismiss the action brought against them commenced by the plaintiff, Connecticut Light Power Company, for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of service of process and insufficiency of process.
By way of background, on June 4, 2003 the plaintiff served the individually named defendants with an application for a prejudgment remedy. On June 30, 2003, an appearance was filed on behalf of these defendants. On September 29, 2003, the court, Dewey, J., issued a prejudgment remedy in the amount of $22,993.18. The plaintiff then served the corporate defendant with the writ of attachment, order for prejudgment remedy, certificate of attachment of real estate, summons, complaint and statement of amount in demand on October 6, 2003.
This was the first time that the corporate defendant was named as a defendant.
On December 1 and 3, 2003, the defendants filed two motions to dismiss the complaint, accompanied by memoranda of law. On December 9, 2003, the plaintiff filed a memorandum of law in opposition to the motions to dismiss. On December 12, 2003, the defendants filed a reply thereto.
"In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003).
The defendants move to dismiss the complaint on several grounds. First, they contend that the court lacks subject matter jurisdiction because they were not properly served. Improper service of process, however, implicates personal jurisdiction and not subject matter jurisdiction. "[E]xcept in the special circumstances of administrative appeals, defects in process do not deprive a court of subject matter jurisdiction . . . [J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . 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.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). The court therefore denies the defendants' motions to dismiss on the ground of lack of subject matter jurisdiction.
The defendants also move to dismiss the complaint on the ground of lack of personal jurisdiction, insufficiency of process and insufficiency of service of process. The defendants argue that service was improper because the plaintiff only served three writ, summons and complaint for four defendants. The plaintiff argues that the defendants' motions to dismiss were untimely because they were filed more than thirty days after an appearance was filed on the defendants' behalf.
As to the individually named defendants, the court finds that their motions to dismiss challenging personal jurisdiction, insufficiency of process and insufficiency of service of process are untimely. In Boyles v. Preston, 68 Conn. App. 596, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002), the court stated: "Our courts have held that where a party has submitted to the court's jurisdiction by contesting an application for prejudgment remedy on the merits, that action will suffice as a general appearance in the case-in-chief . . . Once the application for prejudgment remedy and the accompanying documents are filed properly with the clerk of the court, the case is then pending in court . . . The court becomes seized of the matter by virtue of the filing of the application, and the hearing on the application should be treated like any other interlocutory proceeding in a pending case . . . Thus, having failed to seek to dismiss the action within thirty days of filing his appearance to contest the application for prejudgment remedy, the defendant's motion properly was denied as untimely." (Citations omitted; internal quotation marks omitted.) Id., 602.
While the application of such a rule may be questioned, the trial court is bound by that ruling. Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195-96 (1996); see also Brian's Floor Covering Supplies v. Spring Meadow Elderly Apartments, 33 Conn.L.Rptr. 615 (2003) (Levin, J.).
In the present case, an appearance was filed on behalf of the individually named defendants on June 30, 2003. The motions to dismiss were filed on December 1 and 3, 2003, well beyond the thirty-day requirement. The motions to dismiss as to the individually named defendants are therefore denied.
With regard to the defendant corporation, the court finds that the motions to dismiss challenging personal jurisdiction, insufficiency of process and insufficiency of service of process, were timely filed. Service upon this defendant was not improper, however.
General Statutes § 52-57(c) provides in pertinent 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 . . . or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. 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."
The marshal's return indicates that on October 6, 2003, he served the defendant corporation by leaving the original letter of attachment, order of prejudgment remedy, certificate of attachment of real estate, summons, complaint, and statement of amount in demand by leaving three true and attested copies of the original to Bess Gilmore, as president, Douglas Gilmore, as secretary, and Keith Gilmore, as treasurer. Based on the requirements set forth in § 52-57, the court finds that service, was proper, and, therefore, the motions to dismiss as to the defendant corporation are denied.
Accordingly, the court denies the defendants' motions to dismiss.
RUSH, J.