Opinion
No. CV 03 0472650
July 2, 2003
MEMORANDUM OF DECISION RE MOTION TO DISMISS ALBERTUS MAGNUS COLLEGE
On December 31, 2002, the plaintiff, Carl Howard, filed a twenty-two-count complaint against the defendants, Albertus Magnus College (the college), Anthony DelVecchio and Susan Castaldi. The writ of summons, which bears no return date, was signed by an assistant clerk on December 12, 2002, because the plaintiff is proceeding pro se. The "certification of service" attached to the writ of summons and complaint indicates that the plaintiff, himself, made service of a true and exact copy of the summons and complaint to all defendants on December 12, 2002. In the box on the face of the summons reserved "for court use only" for the entry of the file date, the plaintiff has typed "true copy attest" signed by Andre Turner "an indifferent person." On February 19, 2003, the college filed a timely motion to dismiss the plaintiff's complaint against the college on the ground that the court lacks personal jurisdiction because of insufficiency of service of process. The plaintiff filed a memorandum in opposition on March 7, 2003, to which the defendant replied on March 21, 2003.
The plaintiff attached an unsigned "certification of service" to his "statement of truth" and a signed "certification of service" to his preliminary injunction, certifying that he served the defendants with those papers on December 27, 2002.
The college, in accordance with Practice Book § 10-30, filed their motion to dismiss within thirty days of the filing of their appearance.
"The motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . ." Practice Book § 10-31. The Superior Court "may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993). "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Coughlin v. Waterbury, 61 Conn. App. 310, 314, 763 A.2d 1058 (2001).
The college argues that the court lacks personal jurisdiction because: (1) the plaintiff failed to include a return date on the summons as required by § 52-45a; (2) service of process was not made by a marshal or other proper officer as required by § 52-50; (3) service of process was not made upon a proper agent of the defendant pursuant to § 52-57 (c); and (4) contrary to § 33-1053 (b) service was not made by a proper officer, nor addressed to the secretary of Albertus Magnus.
Section 52-45a states in relevant part: "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint."
The plaintiff argues in his memorandum of law in opposition to the defendant's motion to dismiss, filed on March 7, 2003, that he should be permitted, pursuant to General Statutes §§ 52-72 and 52-123, to amend and correct defects in service of process and the return date. He further argues that as a pro se party he "should not be required to strictly adhere to the rules of practice." The plaintiff concedes that he "was not aware that his method of delivery of process utilized and mailed could potentially be fatal to his . . . claim. In understanding this now [however] Plaintiff seeks to correct the alleged errors . . ."
Section 52-72 states in relevant part: "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 . . ."
Section 52-123 states: "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."
"There are no special rules authorizing a lesser standard of compliance for pro se parties. Any litigant may choose to proceed without representation, but all are bound by the same standards. While a trial court can exhibit some degree of leniency toward a pro se plaintiff, the court cannot disregard established and mandatory requirements which circumscribe jurisdiction in the first instance." Basilicato v. Department of Public Utility Control, 197 Conn. 320, 324, 497 A.2d 48 (1985).
The two errors that the plaintiff seeks to correct are the failure to include a return date on the writ and the method of service used to serve the defendant. In Minor v. Town of Manchester, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 93 0523280 (January 31, 1995, Corradino, J.), the court granted the defendant's motion to dismiss on the ground that the court lacked jurisdiction where the summons lacked a return date, a ground offered by the defendant in the present case. The court in Minor stated: "This motion rests on a claim that the court has no jurisdiction over this case. Here the summons attached to the amended complaint has no return date although the process is dated July 1, 1994. The motion to dismiss was filed more than two months after the date of process.
"Section 52-45a provides that: `Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for filing an appearance.'
"Section 52-48 provides that '[p]rocess in civil actions . . . brought to the Superior Court may be made returnable on any Tuesday . . .' and '[a]ll process shall be made returnable not later than two months after the date of the process . . .'
"To avoid the somewhat draconian results that the courts have attached for failure to comply with these statutory requirements even when no actual prejudice is shown; cf Concept Associates v. Board of Tax Review, 31 Conn. App. 793 (1993); Section 52-72 allows a party to move to amend a civil process `which has been made returnable to the wrong return day or is for any other reason defective.' The plaintiff did not seek to amend the complaint pursuant to the statute, however, and since over two months have passed since the date of process, the plaintiff can no longer take advantage of § 52-72. Section 52-123 is of no help to the plaintiff because its operation has been limited to defects in the text of the writ but not to defects in the service or return of process, Rogozonski v. American Food Service Equipment, 211 Conn. 431, 435 (1989)." Minor v. Town of Manchester, supra, Superior Court, Docket No. CV 93 0523280.
The position taken by the court in Minor that a plaintiff who seeks to amend pursuant to § 52-72 can no longer take advantage of the statute if over two months have passed since the date of the process is supported by the decision of the Supreme Court in Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998). In Coppola, the court stated that "[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 '[a]ll 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." Id., 666-67. The date of process in the present action is December 12, 2002. The plaintiff did not file a motion to amend the writ of summons to add a return date within two months of the date of process, but argues only in opposition to the defendant's motion to dismiss that he be permitted to correct the defect of the lack of a return date pursuant to § 52-72. Thus, under the reasoning of the court in Minor, as supported by the decision of the Supreme Court in Coppola, the plaintiff cannot avail himself of the relief provided by §§ 52-72 or 52-123.
The second error for which the plaintiff seeks the court's leniency is the improper service of process. General Statues § 52-50 (a) states in relevant part that "[a]ll process shall be directed to a state marshal, a constable or other proper officer authorized by statute, or subject to the provisions of subsection (b) of this section, to an indifferent person." Subsection (b) states in relevant part that "[p]rocess shall not be directed to an indifferent person unless more defendants than one are named in the process and are described to reside in different counties in the state . . ."
"[W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire [personal] jurisdiction." (Citations omitted; internal quotation marks omitted.) Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). Service of process by an indifferent person, if such service was made in the present case, would not be proper since none of the defendants named in the process reside in different counties within Connecticut; all named defendants are described as residing or being located in New Haven, Connecticut. The plaintiff does not dispute that he failed to direct process to a marshal, constable or other proper officer authorized by statute. Rather, the "certification of service" signed and filed by the plaintiff states that "I have on the 27th day of December 2002, made service of the foregoing via true and exact copy to the Defendant, Albertus Magnus College, 7000 Prospect Street, C/O Julia McNamara, President, New Haven, CT 06511."
In its memorandum of law in support of its motion to dismiss, the defendant has submitted as Exhibit A a copy of the certified mail envelope sent by the plaintiff and addressed to Albertus Magnus College, C/O Julia McNamara, President. Section 52-50 has no provision for service by certified mail, and process in the present case has not been directed to a state marshal, constable or other proper officer. Likewise, if service upon the defendant was being attempted under § 33-1053, and assuming without deciding that service by certified mail would be permitted under the circumstances of the present case, such service was also improper because the plaintiff failed to direct process to a person authorized to serve process.
General Statues § 33-1053, which provides in subsection (c) that "[t]his section does not provide the only means, or necessarily the required means, of serving a corporation, further provides in subsection (b) that "[i]f a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by any proper officer or other person lawfully empowered to make service by sending a true and attested copy of the process, notice or demand by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office."
The errors to which the plaintiff has conceded in this case, the failure to include a return date in the writ of summons and the improper service of process, are errors that deprive this court of personal jurisdiction over the defendant. As previously discussed, §§ 52-72 and 52-123 are not available to the plaintiff to correct these errors. The leniency that the plaintiff would have this court exercise in his favor would result in this court's "[disregarding] established and mandatory requirements which circumscribe jurisdiction in the first instance"; Basilicato v. Department of Public Utility Control, supra 197 Conn. 324; which this court cannot do. Accordingly, the defendant Albertus Magnus College's motion to dismiss the plaintiff's complaint as against the college is hereby granted.
Harper, J.