Opinion
No. CV 04 4001618
January 3, 2005
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS
The complaint in this action is dated April 16, 2004. The return date is June 8, 2004. Service of the writ of summon and complaint was made on the defendants on April 22, 2004, according to the marshal's return.
The defendant, Craig Mancivilano, has moved the court to dismiss the complaint of the plaintiff, Katherine Frankowski, P.P.A., for the reason the plaintiff failed to return the process to court within six days prior to the return date, as required by P.B. § 10-31(a)(4).
The plaintiff has filed an objection to the relief sought in the defendant's motion to dismiss for the reason that, if there was such insufficiency of process, that defect was waived by the defendant pursuant to P.B. § 10-32, because the motion to dismiss was not filed by the defendant within 30 days after his appearance in the case. The plaintiff claims that appearance by the defendant was filed on or about May 13, 2004.
A review of the pleadings indicates that the case was not returned to court until August 25, 2004. It is further disclosed that the one and only appearance by the defendant in this case was filed by facsimile copy on October 15, 2004. The defendant's motion to dismiss was filed on November 8, 2004 — well within 30 days after the appearance was filed.
The plaintiff would have the court take notice of an appearance by the defendant which is not part of the court file. The obvious reason it is not part of the file is that there was no case pending in this court on May 13, 2004, because, notwithstanding the return date of June 8, 2004, the case was not returned to court until August 25, 2004.
The purpose of a motion to dismiss is to "properly [attack] 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." Blumenthal v. Barnes, 261 Conn. 434, 442 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773 (2003).
In cases involving the same set of facts, our courts have consistently held that unless and until the case is actually returned to court, it is not possible for a defendant to file an appearance. In Arpaia v. Corrone, 18 Conn.App. 539 (1989), the Appellate Court noted that "the plaintiff had not yet returned the process to the court, thus, no legal proceeding or suit existed in which the defendant could file his appearance. "[I]t is the actual return of the writ to the court which really puts the action before the court and empowers the court to proceed . . ." Arpaia, supra, p. 541, as cited in Batura v. Turk, 2003 Conn.Sup. 10878-dr, 35 CLR 509, judicial district of Fairfield, Sept. 18, 2003 (Rush, J.) at 10878-dt.
"Thus, even if the defendant sent his [May 13, 2004] appearance to the court, it was not "filed" as that term is used to calculate the time within which he was required to file a motion to dismiss for lack of personal jurisdiction. Therefore, the court concludes that the defendant timely filed the motion to dismiss because he filed it within thirty days of the date that he filed his [October 15, 2004] appearance." Batura, supra, p. 10878-du.
Having considered the claims of the parties, the pleadings and the applicable statutes and case law, the court grants the defendant's motion to dismiss for three reasons:
(1) the writ was not returned to court within six days of the return date as required by § 52-46a, C.G.S., and
(2) the writ was not amended to change the return date within two months of the date of process pursuant to § 52-48(b), as articulated in Coppola v. Coppola, 243 Conn. 657 (1998).
(3) the court finds that it cannot properly be claimed that the defendant filed an operative appearance in a case before that case was returned to court by the plaintiff and, therefore, there was no waiver by the defendant of the jurisdictional defect.
BY THE COURT
JOSEPH W. DOHERTY, JUDGE