Opinion
No. HHB CV06 5000784
October 31, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The defendants Juan Garcia and Marisol Garcia move to dismiss this action for insufficiency of service of process. The plaintiff Jose Medina objects to the dismissal. For reasons stated herein, this court grants the motion.
The complaint in this matter alleges that on February 6, 2004, the plaintiff fell down and injured himself on an accumulation of ice and snow in the driveway of "56 Block Rock Avenue, Bristol, Connecticut," a premises owned and controlled by the defendants. The plaintiff could not locate either the defendants or their abode in the state of Connecticut. Accordingly at the direction of plaintiff's counsel, the marshal served the defendants under the provisions of Conn. Gen. Stat. § 52-63, by serving the Commissioner of Motor Vehicles and mailing a copy of the summons and complaint to the defendants at an address in New Britain. The return date was March 21, 2006.
The defendants filed an appearance by counsel on March 31, 2006. Simultaneously, their attorney then moved for an extension of time to plead. That motion was granted without objection from the plaintiff, and the time to plead was extended to June 5, 2006. On June 5, the defendants filed the instant motion to dismiss, alleging that the defendants, who are out of state residents, were not served in accordance with the statutory provisions governing service of process.
The defendants point to the fact that this is a defective premises lawsuit, so that the cause of action, though a tort, does not arise out of the operation of a motor vehicle. Accordingly, they argue, service of process, accomplished by delivery of process to the Commissioner of Motor Vehicles under Conn. Gen. Stat. § 52-63, is invalid as to them. That statute provides:
(a) Any operator or owner of a motor vehicle at the time of issuance of his license or registration shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action against him on account of any claim for damages resulting from his alleged negligence or the alleged negligence of his servant or agent in the operation of any motor vehicle in this state may be served upon the commissioner as provided in this section and shall have the same validity as if served upon the owner or operator personally, even though the person sought to be served has left the state prior to commencement of the action or his present whereabouts is unknown.
Rather, the Connecticut General Statutes provide for an alternative means of service of process on out of state residents who are responsible for the commission of a tort within the state, under Conn. Gen. Stat. § 52-59b which provides:
(a) As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state . . .
(c) Any [such] nonresident individual . . . over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident . . . personally. The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State.
The plaintiff argues that the statute permitting service of process on the Secretary of the State should be read broadly so that, in a slip and fall case, personal jurisdiction can also be obtained by service of process on the Commissioner of Motor Vehicles. Even under a broad construction of the statutes, this court cannot transform one state official into another. Proper service of process was not accomplished in this case.
Alternatively, since defects in service of process implicate only personal jurisdiction and not subject matter jurisdiction, the plaintiff argues that the defendants waived their jurisdictional challenge by their motion to dismiss too late. Indeed Conn. P.B. § 10-30 provides:
Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.
The problem with this argument is that the court (Shapiro, J.) granted the defendants an extension of time to plead. The motion for extension of time was filed on the same day as the filing of the appearance for the defendants, and the motion to dismiss was filed within the extended time set by the court. The extension was granted to the defendants without any objection by the plaintiff. Under these circumstances, the filing of the motion to dismiss was timely, and the defendants did not waive their jurisdictional challenge. Accord, Estefan v. Rolls, CV99 0336409, Judicial District of Danbury, 2000 Ct.Sup. 4716, 27 Conn. L. Rptr. 129 (April 28, 2000; Moraghan, J.).
The court finds no authority for the proposition that the time limit in this rule of practice is mandatory and thus concludes that it is directory. Cf., Carpenter v. Law Offices of Dressler Associates, 85 Conn.App. 655, 858 A.2d 820 (2004).
Because the defendants have not waived their challenge to personal jurisdiction and because there was indeed a failure to serve the defendants in accordance with the statutory provisions governing service of process on out of state residents in these circumstances, the court hereby grants the Motion to Dismiss (#108).