Opinion
No. CV06 5001032
August 18, 2006
MEMORANDUM OF DECISION MOTION TO DISMISS RE UNIVERSAL MUSIC GROUP, INC.
The plaintiff has filed a complaint bearing the return date of January 10, 2006. The named defendants are Brian Jones, Nelly, Inc., Universal Music Group, Inc., Arena at Harbor Yard, Centerplate, Inc., formerly known as, Volume services America, Inc., City of Bridgeport, USA Securities Services, Inc., and Cornell Haynes II. Counts One through Three against the defendant Jones allege negligence, assault and battery and "wanton and reckless misconduct" respectively. Counts Four through Seven against Nelly, Inc. allege negligence, assault and battery, "reckless and wanton misconduct" and vicarious liability, respectively. Counts Eight through Ten against the Arena at Harbor Yard allege negligence, assault and battery and "wanton and reckless misconduct," respectively. Counts Eleven, Twelve and Thirteen allege negligence, assault and battery and "wanton and reckless misconduct" respectively against the defendant Centerplate, Inc. Counts Fourteen, Fifteen and Sixteen against the City of Bridgeport allege negligence, assault and battery and "wanton and reckless misconduct," respectively. Counts Seventeen through Nineteen allege similar acts by the defendant USA Security Services, Inc. Finally, Counts Twenty through Twenty-Two allege identical causes of action against the defendant Universal Music Group, Inc.
The defendant Universal Music Group, Inc. has moved to dismiss the plaintiff's complaint claiming a lack of subject matter jurisdiction due to the plaintiff's lack of standing and a lack of jurisdiction over the person due to a claimed insufficiency of process, late return of service to the court and the untimeliness of service of process.
The motion to dismiss is dated February 8, 2006 and was accompanied by a memorandum of law also dated February 8, 2006. The parties appeared for oral argument on May 22, 2006, at which time the plaintiff had filed neither a written objection or memorandum of law opposing the motion to dismiss. The court heard the oral argument of the parties and granted the plaintiff's request that he be allowed to file a memorandum of law in opposition within two days. The court received the plaintiff's memorandum of law on May 25, 2006.
The plaintiff's "Response to the Defendants' Motion to Dismiss" is one memorandum of law consisting of four pages, which the plaintiff states "respectfully responds to the defendants' motions to dismiss." Apparently the one memorandum of law is meant to respond to the instant motion to dismiss filed by the Universal Music Group, as well as, a motion to dismiss filed by defendants Arena at Harbor Yard, Centerplate, Inc. and the City of Bridgeport. It is noted that the plaintiff has filed no memorandum of law or written objection addressed to motions to strike filed by USA Securities Services, Inc. and Brian Jones and Cornell Haynes d/b/a/ Nelly, Inc. The merits of those motions to strike will be a addressed in separate opinions by the court.
I Factual Summary
This case arises out of an alleged assault and battery of the plaintiff's employee Livingston, at a concert performed by the defendant Cornell Haynes, II (a.k.a. "Nelly") which took place on April 2, 2005 at the Arena at Harbor Yard in Bridgeport, Connecticut. The plaintiff is allegedly the owner of a news publication named the Chocolate City News. In his capacity as owner, the plaintiff alleges he employed Livingston as a photographer. It is noted that Livingston is not a party to this action.
Livingston has asserted his own rights by his filing of a separate legal action. See Livingston v. Jones, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV05 4008920. The defendants in Livingston's complaint are identical to the present action. The allegations against the various defendants are very similar, though not identical, and include various counts grounded in allegations of negligence, assault and battery, wanton and reckless misconduct. Livingston's complaint bears a return date of June 21, 2005.
The plaintiff alleges on the evening in question, his employee Livingston attended the "Nelly" concert as a patron, guest or business invitee. During said concert, the plaintiff claims that the defendant Jones, allegedly an employee of the defendant Nelly, Inc., dragged Livingston onto the rear of the stage and proceeded to hit, strike, push and pull on Livingston after Livingston approached the performance stage.
The plaintiff claims that as a result of this incident, his employee sustained serious personal injuries. The plaintiff also claims that as a result of these injuries, the plaintiff sustained a business loss due to Livingston's inability to take photographs at the concert and Livingston's reduced capacity to work as the plaintiff's employee.
On January 4, 2006, the plaintiff had the writ, summons and complaint served on the defendant Universal Music Group, Inc. A review of the complaint reveals that it contains a return date of January 10, 2006 and was returned to the Superior Court on January 5, 2006. The recognizance on the summons that was served on Universal Music was not signed by a clerk, a judge or a Commissioner of the Superior Court.
II Standard of Law A. Motion to Dismiss
Before proceeding further the court reviews the relevant standard of law when entertaining motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "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." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298, 18 Conn. L. Rptr. 409 (1997); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 14 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989).
"[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case . . . Jurisdiction over the subject matter is the court's power to hear and decide cases of the general class to which the proceedings at issue belong . . . Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 307, 763 A.2d 1055 (2001), quoting, Haigh v. Haigh, 50 Conn.App. 456, 460-61, 717 A.2d 837 (1998).
"Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . ." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52, 794 A.2d 498 (2002). Accordingly, "[t]he 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, including on appeal." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005); Manifold v. Ragaglia, 94 Conn.App. 103, 116-17, 891 A.2d 106 (2006).
Although subject matter jurisdiction maybe challenged at any stage of the proceedings, it has been addressed almost exclusively through a motion to dismiss. "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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Manifold v. Ragaglia, supra, 94 Conn.App. 116-17, quoting McIntosh v. Sullivan, 274 Conn. 262, 267, 875 A.2d 459 (2005).
"A defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction. The defendant's claims concerning service of the summons and complaint implicate personal, rather than subject matter, jurisdiction. 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 . . . Personal jurisdiction is not like subject matter jurisdiction, which can be raised at any time and by the court on its own motion . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." (Internal citations omitted; internal quotation marks omitted.) Rock Rimmon Grange v. Bible Speaks Ministries, 92 Conn.App. 410, 415-16, 885 A.2d 768 (2005); see also Practice Book § 10-32; Practice Book § 10-30.
B. Standing
"[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he 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.) American States Ins. Co. v. Allstate Ins. Co., 94 Conn.App. 79, 83, 891 A.2d 75 (2006), quoting Fleet National Bank v. Nazareth, 75 Conn.App. 791, 793, 818 A.2d 69 (2003). Standing focuses on whether the party initiating the action is the proper party to request an adjudication of the issues. Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985). Generally, a party does not have standing to raise rights belonging to another. Third Taxing District v. Lyons, 35 Conn.App. 795, 798, 647 A.2d 32, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994).III Discussion
The plaintiff, Alan Lane lacks standing to bring the subject action against the defendant. Thus the court lacks subject matter jurisdiction, and accordingly the complaint must be dismissed.
"One cannot rightfully invoke the jurisdiction of the court unless he 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." Unisys Corp. v. Dept. Of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991). In order to have standing the plaintiff must show that he has a colorable claim of direct injury, which cannot be remote or indirect with respect to the defendant's conduct. Ganim v. Smith Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001). "If the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant's conduct, the plaintiff is not the proper party to assert them and lacks standing to do so." Id., 348.
In the present case, the directly injured party, Livingston, has asserted his own claim to remedy the harm. He has filed a lawsuit against many of the defendants also named in the presentation. There is no need for Livingston's employer, the plaintiff, to do so, as well.
The essence of the plaintiff Lane's action is to assert an independent cause of action to recover for the loss of his employee who was allegedly injured by the act of third-party tortfeasor. Lane alleges that he lost profits and the services of his employee due to the defendant's negligence. While Connecticut has not directly addressed the question of whether an employer can maintain a cause of action against a third-party tortfeasor for loss of services or profits resulting from an employee's injuries due to the tortfeasor's negligence courts in other jurisdictions have answered this question in the negative. See Castle v. Williams, 338 Ill.App.3d 708 (2003) (the employee's injury not reasonably foreseeable because it is too remote and indirect from the negligent act.); see also, Herrick v. Superior Court, 188 Cal.App.3d 787 (1987) (citing unending possible chain of economic consequences resulting from a negligent act, possible proliferation of fraudulent claims, remoteness of injury and public policy factors.)
The plaintiff is also attempting to assert a claim for intentional torts allegedly inflicted on Livingston, his employee, who is not a party to this action. However, the allegations are too remote and indirect to be raised by an employer if the harm inflicted is not intended upon that employer, and there are no allegations that the actions which allegedly harmed the plaintiff's employee Livingston were intended to harm the plaintiff employer, as well. As such, plaintiff Lane does not have standing as Livingston's employer, to assert an intentional tort allegedly inflicted on his employee.
The court also finds that the service of process and its return to court were untimely. Thus, the court lacks personal jurisdiction over the defendant Universal. This provides an additional reason for dismissing the complaint as it pertains to the defendant Universal.
General Statutes § 52-46 provides that civil process be served at least 12 days, inclusive, prior to the return date. In the present case, Universal's registered agent for service received process on January 4, 2006, which was 6 days prior to the return date of January 10, 2006. Additionally, service was returned to the Clerk of the Court on January 5, 2006, five days prior to the return date. General Statutes § 52-46a states that process "shall be returned to the clerk of such court at least six days before the return day." This statute is mandatory, and failure to comply with the requirements of the statute renders the proceedings subject to dismissal. Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998). "[O]nce an action has been brought by service of process on the defendant, a trial court may thereafter dismiss the action for failure to return the service of process within the mandated time period." Rana v. Ritaco, 236 Conn. 330, 339, 672 A.2d 946 (1996).
Sec. 52-46. Time for service.
Civil process, if returnable to the Supreme Court, shall be served at least thirty days, inclusive, before the day of the sitting of the court, and, if returnable to the Superior Court, at least twelve days, inclusive, before such day.
Service was made on Universal pursuant to General Statutes § 33-929 providing for service on a foreign corporation. Section 33-929 provides in relevant potion as follows:
(a) The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the foreign corporation. When the registered agent is other than the Secretary of the State and his successors in office, service may be effected by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state.
(b) A foreign corporation may be served by any proper officer or other person lawfully empowered to make service by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent annual report if the foreign corporation: (1) Has no registered agent or its registered agent cannot with reasonable diligence be served; (2) has withdrawn from transacting business in this state under section 33-932; or (3) has had its certificate of authority revoked under section 33-936.
(c) When the Secretary of the State and his successors in office have been appointed a foreign corporation's registered agent, a foreign corporation may be served by any proper officer or other person lawfully empowered to make service by leaving two true and attested copies thereof together with the required fee at the office of the Secretary of the State or depositing the same in the United States mail, by registered or certified mail, postage prepaid, addressed to said office. The Secretary of the State shall file one copy of such process and keep a record of the date and hour of such receipt. He shall, within two business days after such service, forward by registered or certified mail the copy of such process to the corporation at the address of its principal office as last shown on his records.
(d) Service is effective under subsection (b) of this section at the earliest of: (1) The date the foreign corporation receives the mail; (2) The date shown on the return receipt if signed on behalf of the foreign corporation; and (3) five days after its deposit in the United States mail, as evidenced by the postmark if mailed postage prepaid and correctly addressed. In the case of service on the Secretary of the State, service made shall be effective as of the date and hour received by the Secretary of the State as shown on his records . . .
Sec. 52-46a. Return of process.
Process in civil actions returnable to the Supreme Court shall be returned to its clerk at least twenty days before the return day and, if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day.
No motion to amend the return date has been filed by the plaintiff.
"[W]e note that 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 [8] is mandatory and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement." Coppola v. Coppola, supra, 243 Conn. 661-62.
IV Conclusion
Accordingly, for the reasons stated herein, the court grants the motion to dismiss the Twentieth, Twenty-First and Twenty-Second Counts of the plaintiff's complaint relating to the defendant Universal Music Group.