Opinion
No. CV 08 5020220 S
December 4, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#106)
In this personal injury action, the defendants move to dismiss the case on the grounds that the plaintiff used a fictitious name to bring the action so as to avoid detection of his criminal record. For the reasons set forth below, the motion is granted.
FACTS
On May 20, 2008, an individual falsely using the name "Jose Davila" commenced this action against the defendants, Kenneth Morris and Roy Williams. The plaintiff's complaint alleges the following facts. On September 10, 2006, the plaintiff was driving eastbound on Brown Street in Hartford when he slowed down to make a left hand turn. As the plaintiff began to make the turn, Morris, who was driving Williams' car, suddenly crossed the yellow line and struck the driver's side of the plaintiff's car. As a result of the collision, the plaintiff suffered physical injuries. The plaintiff seeks money damages.
On July 17, 2008, the plaintiff filed a request for leave to amend his complaint. The request indicated that the plaintiff's counsel had learned that the plaintiff in addition to using the name "Jose Davila," also is known by the name "Pedro Gomez." The proposed amended complaint sought to change the plaintiff's name to read "Jose Davila, aka Pedro Gomez," instead of simply "Jose Davila." The amended complaint is, for all other relevant purposes, the same as the first complaint. The request for leave to amend was deemed to have been filed by consent, as no objection was filed by the defendant within fifteen days.
Practice Book § 10-60(a) provides in relevant part: "[A] party may amend his or her pleadings . . . at any time subsequent to that stated in the preceding section in the following manner: (3) By filing a request for leave to file such amendment, with the amendment appended . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party."
On December 4, 2008, the plaintiff responded to interrogatory questions proposed by the defendants. In his response, he attested that his name was "Jose Davila a/k/a Pedro Gomez," and that his date of birth was May 14, 1981. The defendants relied on this information in order to conduct a background search of the plaintiff which revealed no criminal history.
Later, at a deposition held on March 27, 2009, the plaintiff admitted that portions of his responses to the interrogatories were false. While under oath, the plaintiff disclosed that his real date of birth is in fact December 10, 1980, that his legal name is actually Pedro Gomez, and that the name "Jose Davila" is a fake name used by the plaintiff when he buys car parts or cell phones. With the plaintiff's true identity revealed, the defendants were eventually able to conduct an accurate background check that disclosed that the plaintiff, in fact, has a lengthy criminal record.
Following the revelations made at the plaintiff's deposition, the defendants filed a motion to dismiss on May 20, 2009. In their memorandum of law, which was later supplemented by another memorandum in support, filed September 4, 2009, the defendants claim that the plaintiff does not have standing because he has commenced an action using a pseudonym without prior permission from the court. The plaintiff has filed two memoranda in opposition, the first on July 16, 2009, and the second on September 10, 2009. The parties were heard at oral argument on August 31, 2009, when the plaintiff's counsel conceded that the plaintiff uses the name "Jose Davila" in order to conceal his actual criminal record.
DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). A plaintiff may file a motion to dismiss on the ground of lack of subject matter jurisdiction. Practice Book § 10-31. "In the absence of standing on the part of the plaintiff the court has no jurisdiction. Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570-71, 651 A.2d 1246 (1995). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003).
The defendants argue that, because "Jose Davila" is not a real person in law, he cannot have standing to sue, and therefore this court lacks subject matter jurisdiction over his complaint. They claim that not only is the original complaint inadequate to confer subject matter jurisdiction on this court, but so is the amended complaint because it continues to inadequately identify the actual party in interest. The defendants also assert that the plaintiff has not received permission from the court to commence an action using a pseudonym, as required pursuant to Practice Book § 11-20A(h). Lastly, the defendants argue that the plaintiff's lack of candor itself provides an adequate basis for dismissal.
The plaintiff contends that he has standing, regardless of the name he uses, because he is still the same person who has been aggrieved by the defendants, and that any defect in standing was cured at the time he filed his amended complaint. Finally, in the event this court determines that the plaintiff lacks standing, he requests additional leave to amend the complaint to fix any problems.
"It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that he is or it must be a person in law or a legal entity with legal capacity to sue." (Internal quotation marks omitted.) Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024 (1985). In Isaac, the Appellate Court affirmed the dismissal of a wrongful death suit that was commenced by a person who erroneously believed at the time of filing that she had been appointed administratrix for her late father's estate. Id., 598. Upon realizing that she did not have administrative powers over the estate, the plaintiff sought appointment as full administratrix and then requested leave to amend her complaint to be substituted as the proper plaintiff. Id., 599-600. The Isaac court denied her request for substitution, finding that an amendment was impossible because the original plaintiff never existed and "[a]s a consequence, there was no legally recognized entity for which there could be a substitute." Id., 602.
The holding in Isaac has been applied by the Appellate Court more recently in situations where a plaintiff commences an action under a fictitious trade name. See America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 477, 866 A.2d 698 (2005) ("Because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing action solely in the trade name cannot confer jurisdiction on the court."). In America's Wholesale Lender, the Appellate Court found that Countrywide Home Loans, Inc., lacked standing to proceed in a foreclosure action in which it originally initiated proceedings using only its trade name, "America's Wholesale Lender." Id.; see also America's Wholesale Lender v. Silberstein, 87 Conn.App. 485, 489, 866 A.2d 695 (2005) ("because [America's Wholesale Lender] had no standing to bring an action, no action in this case ever was commenced, as it was void ab initio"). The argument that the use of the plaintiff's trade name did not deprive the court of jurisdiction because the mistake amounted to a curable misnomer under General Statutes § 52-123, was rejected by the court, even in light of the fact that the plaintiff identified itself as "Countrywide Home Loans, Inc., d/b/a America's Wholesale Lender," in subsequent filings. America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 477-78. In reversing the lower court's decision denying the defendant's motion to dismiss, the Appellate Court expressly declined to extend the use of § 52-123 to cure a complaint where "a plaintiff . . . has used a fictitious name for itself when commencing an action." (Emphasis in original.) America's Wholesale Lender v. Pagano, supra, 478. Dismissal was warranted even in the absence of a showing of harm or confusion on the part of the defendant, as the court provided that "[a] lack of subject matter jurisdiction . . . requires dismissal, regardless of whether prejudice exists." Id., 480.
General Statutes § 52-123 provides: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court."
In the companion case to America's Wholesale Lender v. Pagano, the Appellate Court alternatively rejected the argument that General Statutes § 52-109 permitted a substitution of a proper plaintiff where suit was initially commenced under a trade name. America's Wholesale Lender v. Silberstein, supra, 87 Conn.App. 485. The court specifically held that a "wrong person," who is able to substitute itself for a proper plaintiff pursuant to § 52-109, "while perhaps not aggrieved in the manner necessary to have standing, possesses the legal capacity to sue. No such person commenced action in this case, as a trade name is not a recognized legal entity or person." (Emphasis in original.) America's Wholesale Lender v. Silberstein, supra, 488-89.
General Statutes § 52-109 provides: "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it was so commenced through mistake, and that is necessary for the determination of the real matter in dispute to do so, allow any other person to be substituted or added as plaintiff."
In contrast to America's Wholesale Lender v. Pagano, supra, 87 Conn.App. 474, is Dyck O'Neal, Inc. v. Wynne, 56 Conn.App. 161, 742 A.2d 393 (1999), a case in which the Appellate Court permitted a corporate plaintiff that was not described as an "Inc." in a deficiency judgment it had obtained to use § 52-123 to open the judgment and correct the mistake. The Appellate Court distinguished the facts of Dyck O'Neal, Inc. v. Wynne, supra, 56 Conn.App. 161, from America's Wholesale Lender v. Pagano, supra, 478 n. 5, by noting that the omission, at no time had the effect of concealing the plaintiff's true identity, and also that it was "not an action necessarily attributable to the plaintiff." (Emphasis added.)
Comparing the two cases, it is clear that America's Wholesale Lender v. Pagano, supra, 474, rests on the proposition that commencement of an action with a fictitious name is fundamentally fatal to a complaint, whereas Dyck O'Neal Inc. v. Wynne, supra, 161, stands for the proposition that a change pursuant to § 52-123 is permissible if it does not affect the identity of the party sought to be described, but simply corrects the description in the name of the party. Viewed this way, the omission in Dyck O'Neal, Inc. is best viewed as a clerical or scrivener's error because it is one that "does not challenge the court's ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court." (Internal quotation marks omitted.) Maguire v. Maguire, 222 Conn. 32, 40, 608 A.2d 79 (1992). In contrast, the present case involves a plaintiff who concealed his true identity for over nine months by intentionally misleading the court and the defendants by filing under an alias.
Finally, lower courts have almost uniformly held, consistent with the Appellate Court, that a complaint filed by a plaintiff who lacks the legal capacity to sue at the commencement of an action must be dismissed for lack of subject matter jurisdiction and that the jurisdictional deficiency cannot be remedied by a later substitution or amendment. See Williams v. Village Medical Ass'n., Superior Court, judicial district of New Haven, Docket No. CV 08 5016778 (November 25, 2008, Holden, J.) [ 46 Conn. L. Rptr. 700] (" Isaac v. Mount Sinai Hospital . . . makes clear that a party cannot attempt, by way of an amended complaint filed as of right or otherwise, to establish legal capacity to sue when such authority was absent in the initial complaint"). See also Century 21 Access America v. McGregor-Mclean, Superior Court, judicial district of Fairfield, Docket No. CV 04 4000764 (July 20, 2005, Doherty, J.) [ 39 Conn. L. Rptr. 639] (motion to dismiss granted where action commenced by plaintiff using trade name); Rodriguez v. Marlborough Health Care Center, Superior Court, judicial district of Hartford, Docket No. CV 04 0831030 (July 29, 2004, Beach, J.) [ 37 Conn. L. Rptr. 574] (motion to dismiss granted where purported executor did not have standing at commencement); Estate of Johnson v. Roth, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 0132809 (July 5, 1995, D'Andrea, J.) [ 14 Conn. L. Rptr. 542] (motion to dismiss granted where purported executor did not have standing at commencement); Estate of Boulais v. Boulais, Superior Court, judicial district of New Haven, Docket No. CV 94 0368009 (February 3, 1995, Hodgson, J.) [ 13 Conn. L. Rptr. 462] (motion to dismiss granted where complaint filed under name of estate and not by executor).
The plaintiff has already conceded that "Jose Davila" is not a legal person both during his deposition and again at oral argument before the court. The decision to file under the name "Jose Davila" was not the product of a misnomer or scrivener's error on the part of the court, but was the result of an intentional act of deception on the part of the plaintiff for the purposes of misleading the court and the defendants. "Jose Davila," although merely another name used by Pedro Gomez, is analogous to the fictitious trade name used by Countrywide in the America's Wholesale Lender cases. Thus, Pedro Gomez cannot use the name "Jose Davila" to enforce his legal rights. It is therefore clear that the plaintiff's first complaint was insufficient to confer subject matter jurisdiction on this court. Because this defect in jurisdiction relates back to the filing of the original complaint, this court is precluded from evaluating the adequacy of the amended complaint, and also from permitting any curative amendments or substitutions. Consequently, the court must grant the defendants' motion to dismiss.
Even if this court were to consider the amended complaint in this instance, the finding would remain the same. The amended complaint suffers the same defect as the original in that it purports to be brought by Jose Davila, an individual who does not legally exist.
Substantial policy considerations also support this court's decision to grant the motion to dismiss. First, "[t]he presumption of openness of court proceedings . . . is a fundamental principle of our judicial system." Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 65, 818 A.2d 14 (2003). Critical to the presumption of openness is the disclosure of who is using the system; Vargas v. Doe, 96 Conn.App. 399, 407, 900 A.2d 525 (2006); as reflected in Practice Book § 11-20A(h)(1), which specifies that a party using a pseudonym must have a necessary interest to override the public's interest in knowing the name of the parties. In order to proceed anonymously, such interest must involve "matters of a highly sensitive and personal nature . . . A plaintiff's desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity." (Citation omitted; internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. 70. Clearly no such interest has been articulated by the plaintiff in the case at hand.
Practice Book § 11-20A(h)(1) provides in relevant part: "Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in knowing the name of the party or parties."
Second, the plaintiff's actions in this case constitute a fraud upon the court, which simply cannot be tolerated. This court's decision sends a clear message that the use of a false and fictitious name will result in the dismissal of the claim regardless of the strength of the plaintiff's case.
The court acknowledges that the statute of limitations may now bar the plaintiff from commencing a new action using his legal name. This matter, however, need not be addressed today as it is beyond the scope of this decision and is a matter best left for subsequent litigation.
CONCLUSION
Based on the foregoing, the defendant's motion to dismiss is hereby granted.
Judgment shall enter accordingly.