Opinion
No. CV 04 0199239
March 14, 2005
MEMORANDUM OF DECISION
I. INTROCUCTION
The defendants, Kevin D. Plancher, M.D. ("Plancher"), and his practice group, NY-Conn Orthorpaedic Rehabilitation Specialists, PLLC dba Orthopaedic and Rehabilitation Associates ("Orthopaedic Associates"), move to dismiss, for subject matter and personal jurisdictional deficiencies, the medical malpractice action brought against them by the plaintiff Scott McEvoy. The defendants seek to dismiss the action for the following reasons: (1) failure to serve the defendants with process in accordance with the relevant service statutes; and (2) a defective return date in violation of General Statutes § 52-48(b).
The plaintiff commenced the action by service of writ of summons and complaint dated January 7, 2004, which process sets forth a return date of March 9, 2004. The defendants were purportedly served with process by a state marshal on January 8, 2004. The complaint was filed with the court on February 17, 2004.
The defendants claim that the action should be dismissed for lack of subject matter jurisdiction because the process was returned to court more than two months after the date of the process in violation of General Statutes § 52-48(b). The defendants further argue that the action should be dismissed for lack of personal jurisdiction because neither Plancher, individually, nor Orthopaedic Associates, were served in accordance with the applicable statutory requirements.
The marshal's return states that he served Plancher by giving the process to a "bookkeeper and supervisor" who "accepted service for Kevin D. Plancher." The marshal's return further states that he served Orthopaedic Associates by serving an "office supervisor" who "accepted service" for that defendant.
The plaintiff objects to the defendants' motions. Part and parcel of the plaintiff's objection is his request to amend the complaint to cure the defective return date pursuant to General Statutes § 52-72.
The defendants' motion to dismiss raises an issue of subject matter jurisdiction relating to the claim that the return date is defective. Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 307 (2001); Haigh v. Haigh, 50 Conn.App. 456, 458-60 (1998). "[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 . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver . . . Jurisdiction over the subject matter is the court's power to hear and decide cases of general class to which the proceedings at issue belong . . . Where a decision as to whether a court has subject matter jurisdiction is required, every reasonable presumption favoring jurisdiction should be indulged. (Citations omitted; internal quotation marks omitted.)" Olympia Mortgage Corp. v. Klein, supra, 61 Conn.App. 307, citing Haigh v. Haigh, supra, 50 Conn.App. 460-61. Therefore, the court will first address the defendants' argument concerning the defective return date.
II. DEFECTIVE RETURN DATE
General Statutes § 52-48(b) mandates that civil process be returnable no more than two months after the date of process. In the event the return date is "for any reason defective," the court has the authority to "allow proper amendment to [the] civil process . . ." General Statutes § 52-72.
There is no dispute that the return date is defective. The plaintiff made the process returnable to the court more than two months after the date of process in contravention of the statutory requirement. The only issue implicated by the defendants' subject matter jurisdiction argument is whether, under the procedural facts of this case, the defect in the return date is curable by amendment pursuant to General Statutes § 52-72(a). The court holds that the process at issue is properly amenable to correct the otherwise defective return date.
In Coppola v. Coppola, the Supreme Court allowed amendment of a return date to comply with the statutory requirement that process be returned to court at least six days prior to the return date. Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998). The court noted that `[t]he apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." (Internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 663-64. "The legislature, in enacting § 52-72, expressed an intent to reject the draconian result of dismissal of the plaintiff's cause of action because of a defect involving the return date." Id., 665. "[S]uch an interpretation is consistent with our expressed policy preference to bring about a trial on the merits of a dispute wherever possible and to secure for the litigant his day in court." (Internal quotation marks omitted.) Id.
In Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 763 A.2d 1055 (2001), a case involving essentially identical procedural facts, the defendant moved to dismiss the complaint in a legal malpractice action for insufficiency of process because process was not made returnable within two months of the date of process pursuant to § 52-48(b). As in the present case, the plaintiff in Olympia Mortgage filed a request to amend the return date after the two-month time period had expired. Olympia Mortgage Corp. v. Klein, supra, 61 Conn.App. 307. The trial court granted the motion to dismiss on the ground that it did not have subject matter jurisdiction. Id. In reversing the ruling of the trial court, the appellate court emphasized the remedial nature of § 52-72. As a remedial statute, "§ 52-72 must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Id., 308, quoting Concept Associates, Ltd. v. Board of Tax Review, 229 Conn. 618, 642 A.2d 1186 (1994). Furthermore, our courts "[do] not favor terminating proceedings without an examination of the merits of the controversy." Olympia Mortgage Corp., supra, 61 Conn.App. 309.
Recent superior court holdings further support such a liberal interpretation of that curative statute. See Abbels v. Zaretzky, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 02 0078142 (January 12, 2004, Nadeau, J.); CT Department of Social Services v. Carpenter, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0390240 (May 21, 2003, Doherty, J.) (34 Conn. L. Rptr. 700); Shahnaz v. Patrons Mutual Insurance Co., Superior Court, judicial district of New London at New London, Docket No. 563041 (March 10, 2003, Hurley, J.T.R.). Superior court cases that did not allow an amendment of the return date when the request to amend was made after the two-month period had expired did so only because it was impossible to amend the return date to comply with the two-month limitation set by 52-48(b), and twelve- and six-day time requirements set by § 52-46 and § 52-46a, respectively. See Batura v. Turk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 400165 (September 18, 2003, Rush, J.) ( 35 Conn. L. Rptr. 509); Lestor v. Mangar, Superior Court, judicial district of Danbury, Docket No. CV 01 0344146 (July 10, 2002, Doherty, J.) ( 32 Conn. L. Rptr. 479); Brague v. Nightingale, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 00 0087593 (October 11, 2002, DiPentima, J.).
Significantly, the defendants have not articulated any prejudice suffered by them as a result of the return date being later than two months after the date of process. The defendants timely filed an appearance on March 10, 2004, and thereafter promptly filed dismissal motions on April 8, 2004. The court cannot conceive of any actual prejudice to the defendants under these circumstances, other than the inconvenience inherent in litigation.
Based on the court's holding that the defective return date is curable under General Statutes § 52-72, the court grants the plaintiff's motion for leave to amend his complaint (108.00) to change the return date consistent with the court's decision. The procedural posture of this case is similar to the situation where a plaintiff receives back from the clerk an application for prejudgment remedy to be served. In such a situation, General Statutes § 52-278d(b) authorizes the plaintiff to alter the return date of the process, if necessary.
III. INSUFFICIENT SERVICE OF PROCESS
The defendants also assert that they were not validly served with legal process. General Statutes § 52-57(a), which governs the service upon Plancher, provides that "[e]xcept as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." (Emphasis added.) "There is no substitute for in hand or abode service . . . where jurisdiction over the person of a resident individual is sought unless a statute provides otherwise." (Internal quotation marks omitted.) Tarnapol v. Connecticut Siting Council, 212 Conn. 157, 163, 561 A.2d 931 (1989). "[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 jurisdiction." Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003). The motion to dismiss concerning personal jurisdiction raises issues of fact necessary to the determination of such jurisdiction. Therefore, the court ordered, and the parties conducted, an evidentiary hearing as required by Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56 (1983).
The defendant in the present case attempted to serve Plancher by giving the process in-hand to the bookkeeper and supervisor of Orthorpaedic Associates. The state marshal testified at the evidentiary hearing that he went to Plancher's medical office and asked for him or the office supervisor. The marshal further testified that one Ms. Stewart informed him that she was the office bookkeeper/supervisor. The marshal informed Ms. Stewart that he had a complaint for the Plancher and that Ms. Stewart accepted the complaint. The marshal admitted that he never made inquiry as to whether Plancher authorized Ms. Stewart to accept service on his behalf. There was no evidence from which the court could conclude that the marshal served Plancher in-hand, or that any abode service was made. In view of the foregoing, Plancher's motion to dismiss (103.00) the complaint for lack of personal jurisdiction is granted.
The plaintiff served Orthopaedic Associates by leaving legal process with the office supervisor. General Statutes § 52-57(c), which governs service of process on Orthopaedic Associates, provides that service of process on a private corporation "shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located." (Emphasis added.) "[W]hen a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate. Nelson v. Stop Shop Co., Inc., 25 Conn.App. 637, 641, 596 A.2d 4 (1991). Moreover, the Appellate Court has expressly stated that a plaintiff attempting service on a defendant under 52-57(c) has the burden of proving that the person served met the criteria required by statute . . ." (Internal quotation marks omitted.) Konover Construction Corp. v. Homesteads at Newtown, LLC, Superior Court, judicial district of Danbury at Danbury, Docket No. CV 02 0345986 (January 28, 2003, White, J.).
At the evidentiary hearing, the marshal testified that the individual served on behalf of Orthopaedic Associates identified herself as the office supervisor and accepted service for Orthopaedic Associates. Based on these facts, it was reasonable for the marshal to believe that the supervisor was "the person in charge of the office" at the time of service. Therefore, the motion to dismiss (101.00) the complaint against Orthopaedic Associates based on personal jurisdiction is denied.
IV. CONCLUSION
In view of the foregoing, the court orders as follows:
(1) Orothopaedic Associates' Motion to Dismiss (101.00) is denied;
(2) Plancher's Motion to Dismiss (103.00) is granted in part, and denied in part. The court grants the motion for lack of personal jurisdiction over Plancher. The court denies the motion of lack of subject matter jurisdiction.
(3) The plaintiff's Motion for Leave to Amend Complaint (108.00) as it applies to Orthopaedic Associates is granted consistent with this opinion.
(4) The plaintiff's Motion for Leave to Amend Complaint (109.00) as it applies to Plancher is denied consistent with this opinion.
BY THE COURT
TYMA, J.