Opinion
No. CV 11 6022598S
November 10, 2011
MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (#101)
FACTS
The plaintiff, Jeanine Fisher, brought this action against the defendant, Gerard Clark, for alleged injuries arising out of a June 13, 2009 motor vehicle accident in North Haven. The defendant, a Massachusetts resident, moves to dismiss on the grounds of lack of jurisdiction, insufficiency of process and insufficiency of service of process. The following facts are relevant to the disposition of the issue before the court. The writ of summons and complaint are dated June 13, 2011 and June 12, 2011, respectively. The summons is marked with a return date of August 9, 2011. On June 14, 2011, the marshal left an attested copy of the process with the office of the commissioner of motor vehicles and sent an attested copy of the process via certified mail, return receipt requested, to the defendant's last known address. Process was returned to the court on August 9, 2011. The defendant filed an appearance on August 15, 2011. The defendant filed this motion and a memorandum of law in support on August 16, 2011. The plaintiff did not file an objection to the defendant's motion. The matter was argued at short calendar on September 6, 2011.
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." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "The grounds which may be asserted in [a motion to dismiss] are . . . lack of jurisdiction over the person . . . insufficiency of process [and] insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "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." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
In the present case, the defendant moves to dismiss on the grounds of lack of jurisdiction, due to insufficiency of process and insufficiency of service of process. Specifically, the defendant argues that the plaintiff's writ and complaint violate General Statutes § 52-46a because process was returned to the court less than six days before the return date.
Section 52-46a provides in relevant part: "Process in civil actions returnable to the . . . Superior Court . . . [shall be returned to] the clerk of such court at least six days before the return day." According to the Supreme Court, "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." Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998). General Statutes § 52-72(a) provides that: "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." The remedial clause contained in § 52-72(a) is qualified, however, by General Statutes § 52-48(b), which requires that "[a]ll process shall be made returnable not later than two months after the date of process . . ."
"Although [§ 52-72(a] provides for a proper amendment to civil process under certain circumstances, a plaintiff must move to amend affirmatively." Abate v. AAF-McQuay, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 10 6006228 (June 27, 2011, Bellis, J.). See also Szeligowski v. Lowe's Co., Superior Court, judicial district of New Haven, Docket No. CV 06 5004607 (January 23, 2007, Holden, J.) ( 42 Conn. L. Rptr. 714, 715); Batura v. Turk, Superior Court, judicial district of Fairfield, Docket No. CV 02 400165 (September 18, 2003, Rush, J.) ( 35 Conn. L. Rptr. 509, 511). Here, the plaintiff's failure to file a motion to amend precludes her from subsequently amending her return date pursuant to the remedial clause contained in § 52-72(a).
Even if the plaintiff had moved to amend the return date, the plaintiff's motion would be denied under the rule articulated in Coppola v. Coppola, supra, 243 Conn. 657. The relevant facts in that case were briefly summarized by the Supreme Court: "[T]he writ of summons and complaint were dated June 25, 1995, with a return day of August 15, 1995. The defendant was served on June 28, 1995 . . . The plaintiff returned the process to the Superior Court on August 15, 1995." Id., 660. In that case, the plaintiff moved to amend the return date from August 15, 1995 to August 22, 1995 and the defendant moved to dismiss, citing § 52-46a. Id. The Supreme Court directed the trial court to grant the plaintiff's motion, holding: "Allowing an amendment of the return date under the circumstances does not render § 52-46a meaningless. A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b). Section 52-48(b) requires that all process shall be made returnable not later than two months after the date of the process . . . Section 52-48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended." (Internal quotation marks omitted.) Id., 666-67.
The Superior Court in Norwell v. Norwell, 24 Conn.Sup. 314, 315-17, 190 A.2d 233 (1963), held that in computing the last day process can be returned, the return date is excluded and the date of the return of process is included. Norwell has been followed in several recent Superior Court opinions. See, e.g., United States Equities Corp. v. Fedorovich, Superior Court, judicial district of Litchfield, Docket No. 11 6005056 (September 1, 2011, Pickard, J.) [ 52 Conn. L. Rptr. 573]; Long Shore, LLC v. Zoning Board of Appeals, Superior Court, judicial district of New Haven, Docket No. 08 4031857 (January 16, 2009, Corradino, J.) ( 47 Conn. L. Rptr. 124, 125).
In the present case, process was served on the defendant on June 14, 2011, pursuant to General Statutes § 52-62. Process was returned to the court on August 9, 2011, which is the return date. Thus, the plaintiff has not complied with § 52-46a because process was returned to the court less than six days before the return date. Moreover, the return date cannot be amended to simultaneously comply with § 52-46a and § 52-48(b). Pursuant to the rule articulated in Norwell, the return date would have to be amended to a Tuesday falling after August 15, 2011, which is outside the two month limit set forth in § 52-48(b). Accordingly, the defendant's motion to dismiss is granted.
General Statutes § 52-62 governs service upon a nonresident in an action for negligent operation of a motor vehicle.
General Statutes § 52-48(a) provides in relevant part: "Process in civil actions . . . brought to the superior court may be made returnable on any Tuesday in any month." This provision is mandatory and the return date must be a Tuesday. Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 620, 642 A.2d 1186 (1994) (providing that "[t]he plaintiff's summons specified as a return date May 28, 1992, a Thursday, rather than May 26, 1992, a Tuesday, in violation of [§ 52-48(a] ").