Opinion
No. CV04 4003140-S
May 19, 2005
MOTION TO DISMISS #110
FACTS
On September 20, 2004, the plaintiff, Joseph Gregory, filed a one-count complaint pursuant to the Product Liability Act, General Statutes § 52-572m and n against the defendant, Georgia-Pacific Corporation. The following facts are alleged in the complaint. "At all times relevant to this Complaint, the Plaintiff, Joseph Gregory and his mother, Plaintiff Cheryl Gregory, were individuals residing in the Town of Plainville, Connecticut." On September 8, 2001, at 8:50 a.m. at Plainville High School, Joseph Gregory participated in a supervised football team practice. While running relay wind sprints in the hallways, he put out his right hand through the glass portion of a door attempting to slow himself down. As a result he sustained serious injuries. Georgia-Pacific is a manufacturer, distributor and seller of glass for doors. On October 12, 2004, it entered an appearance.
Georgia-Pacific filed a motion for extension of time for sixty days on November 4, 2004. On January 6, 2005, it filed a motion to dismiss the complaint for lack of subject matter jurisdiction because, even though the complaint attempts to set forth allegations and a claim on behalf of Cheryl Gregory, the writ and summons fail to identify her as a plaintiff in this action. In support of the motion, Georgia Pacific has submitted a memorandum of law and various documents. On January 24, 2005, the "plaintiffs" filed a memorandum of law in opposition to the motion. At short calendar on February 22, 2005, both motions were before the court. Georgia Pacific requested the court to rule on the motion for extension of time, to which an objection was made.
The motion for extension of time requested sixty days to respond or file motion(s) in this case. It is within the discretion of the court to grant or deny this motion.
DISCUSSION CT Page 9253
A motion to dismiss is the appropriate means to raise the issue of standing. Cable Co. v. D'Addario, 268 Conn. 441, 445 n. 5, 844 A.2d 836 (2004). A plaintiff must have standing to assert the claims in a complaint, and without standing, the court has no jurisdiction over the subject matter of the case. Ganim v. Smith Wesson Corp., 258 Conn. 313, 346, 780 A.2d 98 (2001). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Arpaia, 55 Conn.App. 180, 183, 738 A.2d 715 (1999). The plaintiff has the burden of showing it has standing and that there is subject matter jurisdiction. Sadloski v. Manchester, 235 Conn. 637, 648-49, 668 A.2d 1314 (1995). "The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings . . ." Peters v. Dept. of Social Services, 273 Conn. 434, 441 (2005)."If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause . . . [T]he standing doctrine requires a plaintiff to demonstrate two facts. First, the complaining party must be a proper party to request adjudication of the issues . . . Second, the person or persons who prosecute the claim on behalf of the complaining party must have authority to represent the party . . . To demonstrate authority to sue . . . it is not enough for a party merely to show a `colorable claim' to such authority. Rather, the party whose authority is challenged has the burden of convincing the court that the authority exists . . . When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses . . . Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991)." (Citations omitted; internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 832-33, 826 A.2d 1102 (2003).
Georgia-Pacific argues that the court must dismiss this action for lack of subject matter jurisdiction because the plaintiffs identified in the complaint include Joseph Gregory and his mother, Cheryl Gregory, but the writ of summons identifies only Joseph Gregory as a plaintiff. It maintains that the failure to list Cheryl on the writ of summons is a jurisdictional defect that cannot be cured by General Statutes § 52-72 because her claims would be barred by the applicable statute of limitations. In response, the "plaintiffs" argue that Georgia-Pacific's motion to dismiss dated January 5, 2005 is untimely based on Practice Book § 10-30 which requires a defendant to file a motion to dismiss contesting the court's jurisdiction within thirty days of the filing of an appearance. The "plaintiffs" contend that since Georgia-Pacific filed its appearance on October 12, 2004, the motion to dismiss filed on January 6, 2005, challenging subject matter jurisdiction "was filed well after the thirty-day limit," and, therefore, should be denied.
Section 52-72 titled "Amendment of process" provides in relevant 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."
Georgia-Pacific's motion to dismiss is properly before the court since "[t]he issue of subject matter jurisdiction can be raised at any time . . . [and] [o]nce brought to the attention of the court, regardless of the form of the motion . . . must be acted upon." (Internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987); see also Practice Book § 10-33. The pivotal issue to be determined, however, is not merely whether Cheryl Gregory has been named in the writ of summons, but rather, whether this action, which names only Joseph Gregory in the writ and complaint, could be commenced by him, without having been brought by a parent, guardian, and/or next friend.
"[T]he general rule is well established that a child may bring a civil action only by a guardian or next friend, whose responsibility it is to ensure that the interests of the ward are well represented." (Internal quotation marks omitted.) Newman v. Newman, 235 Conn. 82, 95, 633 A.2d 980 (1995). "Under our common law an infant may sue either by next friend or by guardian, if one has been appointed." Lametta v. Connecticut Light Power Co., 139 Conn. 218, 220, 92 A.2d 731 (1952). "The next friend representing an infant plaintiff is in no sense a party to the action, nor has he any interest in the litigation, but the real party plaintiff in the suit is still the infant." (Internal quotation marks omitted.) Orsi v. Senatore, 31 Conn.App. 400, 423, 626 A.2d 750, cert. granted, 228 Conn. 908, 635 A.2d 1228 (1993), rev'd on other grounds, 230 Conn. 459, 645 A.2d 986 (1994).
In the present case, the mother, Cheryl Gregory, has no standing to litigate its merits and cannot be substituted under General Statutes § 52-109 because Joseph Gregory, assuming he was a minor, never possessed the legal capacity to sue on his own. As a result, Joseph Gregory did not have the authority to commence and does not have the authority to maintain this action.
Section 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 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."
An analogous issue was addressed recently in America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 866 A.2d 698 (2005). Therein, the court had to determine "whether a corporation that brings an action solely in its trade name, without the corporation itself being named as a party, has standing so as to confer jurisdiction on the court." Id., 475. It held "that, because a trade name is not an entity with legal capacity to sue, the corporation has no standing to litigate the merits of the case." Id. It agreed with the defendant's argument that "because [the corporation] initiated suit solely in its trade name, which is a fictitious name and not a legal entity, [the corporation] lacked standing and, consequently, the court lacked subject matter jurisdiction to decide the merits of [the corporations'] claim." Id. 477. The court reasoned that "[i]t is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue . . . [and] [b]ecause the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court." Id. In the present case, Joseph Gregory is a person without legal capacity to sue on his own, and, therefore, the court does not have subject matter jurisdiction to decide the merits of his claim against Georgia-Pacific. "[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." (Internal quotation marks omitted.) Peters v. Dept of Social Services, supra, 273 Conn. 441.
In addition, the Appellate Court in America's Wholesale Lender v. Pagano, supra, stated that regardless of whether prejudice does not exist, a lack of subject matter jurisdiction requires dismissal of the action. In the present case, even though it can be inferred that the defendant had notice as to who the real party in interest was, the name of the court where the defendant had to appear, and the nature of the claim, the motion to dismiss for lack of subject matter jurisdiction must be granted. See also LaChance v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 98 0148936 (August 22, 2001, Doherty, J.) ( 30 Conn. L. Rptr. 245).
There are some Superior Court cases which have held to the contrary, however, these cases all predate the appellate case. See Gomez v. Hartford, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 94 0532495 (June 21, 1994, Corradino, J.) ( 9 C.S.C.R. 782) ( 12 Conn. L. Rptr. 23). Other Superior Court cases finding subject matter jurisdiction have reasoned that where the name of the parent, guardian or next friend precedes the name of the parent, this is not a jurisdictional defect mandating dismissal. See Wilson v. Zemba, Superior Court, judicial district of New Haven, Docket No CV 03 0484071 (November 16, 2004, Corradino, J.) ( 38 Conn. L. Rptr. 272); Dellavallee v. D.C. Moore School, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0272084 (October 29, 2004, Frazzini, J.). Again, these cases all predate the appellate case.
For the reasons stated above, the motion to dismiss is granted.
BURKE, J.