Opinion
No. CV 09-5028272-S
June 10, 2010
MEMORANDUM OF DECISION ON MOTION TO DISMISS
In this action seeking damages for personal injuries suffered when the plaintiff's motor vehicle drove over a metal shaft which fell off defendant's truck, defendant on February 24, 2010 moved to dismiss the claims of Suleana Grande and Wendolis Grande because they were minors. The defendants rely on Newman v. Newman, 235 Conn. 82, 95 (1995), and several other Supreme Court decisions which hold that an action by a minor for damages must be brought through a guardian or best friend.
Following the filing of this motion, the plaintiff submitted a motion to substitute a party plaintiff pursuant to General Statutes § 52-109 for the purposes of substituting either the minors' older brother or mother as their representative.
General Statutes § 52-109 provides that "[w]hen 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 it is necessary for the determination of the real matter in dispute so to do, allow any other person to be substituted or added as plaintiff."
The general rule established in Figueroa v. C S Ball Bearing, 237 Conn. 1, 4 (1996), is that questions of jurisdictions raised before a court must be immediately resolved. Additionally, the Supreme Court, in Gurliacci v. Mayer, 281 Conn. 531 (1991), overturned the decision of the trial court to consider a motion to amend a complaint prior to ruling on a challenge to the court's subject matter jurisdiction. The court in Gurliacci held that "[it] is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court . . . In [the subject] case, the trial court allowed the plaintiff to amend her complaint prior to ruling on the motion to dismiss. By considering the motion to amend prior to ruling on the challenge to the court's subject matter jurisdiction, the court acted inconsistently with the rule that, as soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made."
Nevertheless Connecticut trial courts have not necessarily followed suit. "Many Superior Courts have ruled on a motion to substitute a party plaintiff while motions to dismiss for lack of subject matter jurisdiction are pending. See, e.g., Weiss v. Weiss, Superior Court, judicial district of Windham, Docket No. CV 0065932, 2002 WL 180902 (January 9, 2002) (Kocay, J.) (considering motion to dismiss and motion to substitute concurrently) . . . Reiner v. West Hartford, Superior Court, judicial district of New Britain, Docket No. CV 00-0502686-S, 2001 WL 357093 (March 22, 2001) (Aronson, JTR) (permitting substitution of party plaintiff where motion to dismiss was filed prior to motion to substitute); DiLieto v. County Obstetrics Gynecology Group, Superior Court, judicial district of Waterbury, Docket No. (X02) CV 97-0150435-S, 2000 WL 157538 (January 31, 2000) (Sheldon, J.) [ 26 Conn. L. Rptr. 345] (concluding court has subject matter jurisdiction for limiting purpose of determining if action should be saved from dismissal by substitution of plaintiffs); First Federal Bank v. Rock Hill Ass'n., Inc., Superior Court, judicial district of New Haven, Docket No. CV 93-0354947-S, 1994 WL 65291 (February 25, 1994) (Celotto, STR) [ 11 Conn. L. Rptr. 30] (granting motion to substitute before addressing motion to dismiss); ITT Semiconductors v. Matheson Gas Products, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 1991 WL 209446 [ 5 Conn. L. Rptr. 80] (allowing substitution of party plaintiff to save action from dismissal)." Lupinacci v. Stamford, 48 Conn.Sup. 1, 3, 823 A.2d 456 [ 32 Conn. L. Rptr. 672] (2002).
The court in Lupinacci reasoned that as a remedial statute, § 52-109 must be construed liberally in favor of those whom the law is intended to protect. Relying on the Appellate Court's decision in Johndrow v. State, 24 Conn.App. 719, 722 n. 1, (1991), Lupinacci held that if substitution is necessary for the determination of the real matter in dispute, the issues of substitution may be addressed under the reasoning that the courts should liberally interpret the rules of practice in any case where it shall be manifest that a strict adherence to them would work injustice. The court in Lupinacci also noted that "[a] court may order substitution of plaintiffs in lieu of dismissal whenever the statute's [§ 52-109] conditions are met."
It is true that other courts have strictly followed the rule that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court" citing Gurliacci v. Mayer, supra. See, e.g., Estate of Simmons v. Lee, Superior court, judicial district of Windham at Putnam, Docket No. CV 99-0060312 (May 10, 1999, Shortall, J.) ( 24 Conn. L. Rptr. 403) (denying motion to substitute where original plaintiff did not have standing); Palmieri v. Relende, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 97-0341312 (June 27, 1997, Maiocco, J.) [ 19 Conn. L. Rptr. 682] (same). The rationale underlying this line of cases is the old traditional notion at common law which prohibits an entire change of plaintiffs by the substitution of new persons in the place of those who originally brought suit.
The court in Doyon v. Ladson, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05-4003728 (January 27, 2006, Schluger, J.) analyzed the rationale behind the abandonment of the strict rule put forth in Gurliacci, noting that the "[a]pplication of the rigid common law approach strips the statute of its remedial purposes in that [s]trict application of the `decide jurisdiction first' rule would appear to require dismissal whenever the statutes criteria are satisfied . . . Moreover, the legislatures provision of this statutory remedy would be completely undermined by any rule requiring the immediate dismissal for lack of subject-matter jurisdiction of any action commenced in the name of the wrong person as plaintiff . . . [W]here substitution is necessary for the determination of the real matter in dispute, the issues of substitution may be addressed under the reasoning that the courts should liberally interpret the rules of practice in any case where it shall be manifest that a strict adherence to them would work injustice . . . The rules of practice are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law . . . Moreover, [a]s long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected . . . Thus, if the defendant has notice of the conduct that gave rise to the claims and substitution is necessary to determine the real matter in dispute, a motion to substitute may be granted over a motion to dismiss.
In summary, while our Supreme Court has established that a motion to dismiss for lack of subject matter jurisdiction should be resolved before proceeding further with any other matter, the modern trend among the majority of Connecticut Superior Courts has been to allow a motion to substitute. Those decisions reason that to not allow such a motion would be to undermine the purpose of § 52-109, and that the court has limited subject matter jurisdiction for purposes of determining whether a plaintiff may be substituted under the provisions of § 52-109. This court, with all due deference to higher authority joins this trend. General Statutes § 52-109; Practice Book § 9-20.
Motion to dismiss denied.