Opinion
No. CV08-5008698
August 22, 2008
MEMORANDUM OF DECISION
ISSUE
Whether the court should grant the defendants' motion to dismiss the plaintiff's complaint on the ground that said complaint was untimely filed in court.
FACTS
On April 22, 2008, the plaintiff, Bonnie Cronin, instituted this action against the defendants, David Minnefield, Paul Brenner and Tribune Television Company, by way of a three-count complaint sounding in negligence against each defendant. The action arises out of injuries and losses allegedly sustained as a result of a motor vehicle accident.
On June 23, 2008, the defendants, Brenner and Tribune Television Company, filed a motion to dismiss the plaintiff's complaint. In the memorandum in support of their motion to dismiss, the defendants assert that because the plaintiff's complaint was not filed in court at least six days prior to the return date, as required by General Statutes § 52-46a, it must be dismissed. On July 2, 2008, the plaintiff filed a memorandum in opposition to the defendants' motion to dismiss. In the memorandum, the plaintiff counters that the timeliness issue was cured by her motion for leave to amend the return date, filed on July 2, 2008, and that motions to dismiss based on the grounds that process was not returned six days prior to the return date are routinely denied pursuant to General Statutes § 52-72. The court heard argument on the matter on July 21, 2008.
The third defendant, David Minnefield, was defaulted for failure to appear on July 3, 2008.
DISCUSSION
Section 52-46a provides in relevant part: "Process in civil actions . . . shall be returned . . . if returnable to the Superior Court . . . at least six days before the return day." Section 52-72 provides in pertinent part: "(a) Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement . . ."
In Coppola v. Coppola, 243 Conn. 657, 660, 707 A.2d 281 (1998), the plaintiff filed her complaint against the defendant on the same date as the return date. Thereafter, the defendant filed a motion to dismiss on the ground that process was not returned at least six days prior to the return date as required by § 52-46a. Id. Approximately one week later, the plaintiff filed a motion to amend the return date in order to satisfy the six-day requirement of § 52-46a. Id. The trial court denied the plaintiff's motion to amend based on its conclusion that a late return of process was not the type of defect that could be amended pursuant to § 52-72. Id. The trial court subsequently dismissed the plaintiff's action. Id. The decision was affirmed by the Appellate Court. Id., 660-61.
The Supreme Court, however, held that § 52-72 does in fact permit the amendment of the return date to correct a failure to return civil process at least six days prior to the return date as required by § 52-46a. The Court reasoned: "The legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date . . . The construction of the term defective to permit an amendment of the return date to correct the plaintiff's failure to return process six days prior to the return day effectuates the statute's remedial purpose and statutory policy of amend[ing] . . . otherwise incurable defects that go to the court's jurisdiction . . .
"The plaintiff's motion to amend would not deprive the defendant of any substantive rights and would simply correct the return date so that the return of process met the statutory six-day period required by § 52-46a. It is undisputed that the defendant received actual notice of the cause of action within the statutory time frame, suffered no prejudice as a result of the late return of process, and already had filed an appearance and had served the plaintiff with interrogatories . . . Allowing an amendment of the return date under the circumstances of the present case does not render § 52-46a meaningless. A return date may be amended but it still must comply with the time limitations set forth in [General Statutes] § 52-48(b)." (Citations omitted; internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 665-66. Accordingly, the Court reversed the Appellate Court and remanded the case to the trial court with direction to grant the plaintiff's motion to amend. Id., 667.
Section 52-48(b) requires that "[a]ll process shall be made returnable not later than two months after the date of the process . . ."
Similarly, in the present case, the plaintiff did not adhere to § 52-46a because she returned process to the court on the same date as the return date, April 22, 2008. The plaintiff has requested permission, pursuant to § 52-72, to amend the return date to April 29, 2008, so that the action will have been returned to the court at least six days prior to the return date, as required by § 52-46a. As in Coppola, allowing the plaintiff to amend the return date with a correct date in this matter would not deprive the defendants of any substantive rights. The defendants have received actual notice, have filed an appearance and have served the plaintiff with interrogatories. Under these circumstances, the defendants would not be prejudiced by a simple and technical change to the return date. Moreover, the plaintiff's proposed amended return date, April 29, 2008, would fall within two months of the date of process, thereby fulfilling the requirements of § 52-48(b). As such, the motion to dismiss on the basis that the complaint was not timely returned to the court is denied.
The court would like to note that it did not forget the defendants' argument that once a motion to dismiss is filed, it needs to be dealt with before a plaintiff can attempt to amend the complaint. This court has found, however, that in other cases where the motion to dismiss was filed before the motion to amend the return date, the motion to dismiss was denied on the basis that the plaintiff was eligible to amend the return date in accordance with Coppola and had properly requested to do so. See, e.g., Bernardo v. Correira, Superior Court, judicial district of Fairfield, Docket No. CV 07 5008270 (October 30, 2007, Hiller, J.); Johnson v. Connecticut Steel Corporation, Superior Court, judicial district of New London at Norwich, Docket No. CV 5100938 (August 24, 2007, Hurley, J.T.R.).