Opinion
No. CV 04-0527763
February 10, 2005
MEMORANDUM OF DECISION MOTION TO DISMISS #104
FACTS
The plaintiff, Mark Maile, alleges that on August 7, 2003, he opened a money market account on behalf of his business, Massimo Restaurant, LLC (the restaurant) with the defendant, Webster Bank. The plaintiff was the "only signatory on the bank's documentation creating the account and . . . the only person authorized to withdraw funds." On March 24, 2004, the plaintiff's former business partner allegedly made an unauthorized withdrawal of $2500 from that account. Even though the plaintiff provided the bank with a sworn affidavit establishing that an unauthorized withdrawal of funds had been made from the account at issue, the defendant has failed or refused to pay or credit the account in the amount of $2500.
The plaintiff filed a two-count complaint alleging negligence and a violation of the Connecticut Unfair Trade Practice Act (CUTPA), General Statutes § 42-110b et seq., respectively. On July 22, 2004, the defendant filed a motion to dismiss on the grounds that the court lacks subject matter jurisdiction and personal jurisdiction, the latter due to insufficiency of service of process. In response, the plaintiff filed a memorandum of law in opposition on August 13, 2004. Thereafter, the defendant filed a reply memorandum. At the November 1, 2004, oral argument, the defendant conceded that it was no longer contesting the service of process issue.
Discussion
"A motion to dismiss shall be used to assert lack of jurisdiction over the subject matter, 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." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 51, 794 A.2d 498 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736, 846 A.2d 831 (2004). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
"[I]n ruling on a motion to dismiss, the trial 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) Ganim v. Smith Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control, 261 Conn. 1, 21, 803 A.2d 879 (2002).
"The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." St. George v. Gordon, 264 Conn. 538, 544, 825 A.2d 90 (2003). "If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 485, 815 A.2d 1188 (2003). "Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has . . . some real interest in the cause of action . . . Standing is established by showing that the party claiming it is authorized by statute to bring suit . . ." (Citation omitted; internal quotation marks omitted.) Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., 77 Conn.App. 578, 581, 823 A.2d 1271 (2003).
"[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) St. George v. Gordon, supra, 264 Conn. 544-45. "[S]tanding does not hinge on whether the plaintiff will ultimately be entitled to obtain relief on the merits of an action, but on whether he is entitled to seek the relief." (Internal quotation marks omitted.) Lewis v. Swan, 49 Conn.App. 669, 675, 716 A.2d 127 (1998). "[W]here a statute . . . sets prerequisites to suit by a particular plaintiff, a plaintiff not meeting the statutory criteria lacks standing and the court is said to lack jurisdiction over the case." (Internal quotation marks omitted.) Gill v. Diorio, 51 Conn.App. 140, 145, 720 A.2d 526 (1998). "[S]tanding focuses on whether the party initiating the action is the proper party to request adjudication of the issues." (Internal quotation marks omitted.) U.S.T. Bank/Connecticut v. Davenport, 47 Conn.App. 459, 464, 705 A.2d 562 (1998).
The defendant argues that the complaint "addresses allegations concerning the management of bank accounts owned by Massimo Restaurant, LLC, and, as a result, the plaintiff is not the proper party to this action, lacking standing." In other words, the defendant argues that the limited liability company is the proper party to bring this cause of action. In his memorandum of law in opposition to the motion to dismiss, the plaintiff argues that "the claimed lack of standing" on his part "does not implicate the subject matter jurisdiction of the Superior Court, and, thus, is not properly the subject of a motion to dismiss." He further argues that he has sufficiently "suffered a direct injury and has a real interest in the action and a legal or equitable right, title or interest in the subject matter of the controversy to satisfy the standing requirement." This argument is based on the claim that, as the only member of the LLC, the plaintiff is the only person who has suffered the claimed injury and who has an interest in the outcome of this action.
In Connecticut, a limited liability company is regulated by General Statutes § 34-100 et seq. "A limited liability shall have power to [sue] and may sue and be sued . . . General Statutes § 34-124 (b). Suits may be brought by or against a limited liability company in its own name. General Statutes § 34-186. A member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company . . . General Statutes § 34-134." (Internal quotation marks omitted.) Randolph Foundation v. Appeal From Probate Court, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 98 0167903 (April 3, 2001, Tierney, J.) Because individual members of a limited liability company have no standing to sue, "[a] suit must be brought in the name of the limited company and not in the name of individual members." Id.
In the present case, the limited liability company is the proper party to bring suit since it suffered the alleged harm. The suit was filed, however, by Maile individually. Inasmuch as he does not meet the statutory criteria established in §§ 34-134, 34-186 and 34-187, he lacks standing, and thus, the court lacks subject matter jurisdiction. The defendant's motion to dismiss, therefore, is granted.
Burke, J.