Opinion
CV185042249S
12-07-2018
Marco MICHALSKI v. Scott ERFE et al.
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Marco A. Michalski, commenced this action against the six named defendants-Scott Erfe, warden at Cheshire Correctional Institution (institution); Scott Semple, commissioner of the Department of Correction (department); Amonda Hannah, deputy warden of treatment and programs at the institution; Monica Rinaldi, deputy commissioner of treatment and programs for the department; Bryon Viger, deputy warden of operations at the institution; and Angel Quiros, district administrator for the department-in their official capacities on April 12, 2018. Further, the plaintiff commenced the action against the six defendants in their individual capacities on April 13, 2018. The summons served on the defendants and filed with the court was not signed by a commissioner of the Superior Court or an assistant clerk; that line on the document was left blank. See Docket Entry No. 100.30. The plaintiff, who is self-represented, and an inmate at the institution, alleges that the defendants violated his U.S. and state constitutional rights to freedom of religion in not offering secular addictive services programs at the institution.
The defendants entered their appearance on May 9, 2018, and subsequently filed this motion to dismiss on June 6, 2018. The plaintiff filed his objection on June 20, 2018. Oral argument was heard on the motion at short calendar on November 13, 2018.
DISCUSSION
"A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a). Generally, "[a] defect in process ... such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). "[A writ of summons] is an essential element to the validity of the jurisdiction of the court ... Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book ... the plaintiff’s complaint must contain the basic information and direction normally included in a writ of summons." (Citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991). A defendant who wishes to contest the court’s jurisdiction must file a motion to dismiss within thirty days of filing an appearance. Practice Book § 10-30(b).
The defendants’ motion to dismiss was timely filed pursuant to Practice Book § 10-30 which provides: "(b) Any defendant, wishing to contest the court’s jurisdiction shall do so by filing a motion to dismiss within thirty days of filing an appearance."
The movant-defendant argues that the summons is defective pursuant to General Statutes § 52-45a, as the summons served on the defendants and filed with the court was not signed by a commissioner of the Superior Court or judge or clerk to the court to which it is returnable. The plaintiff argues in opposition that the original summons was indeed signed by a commissioner of the Superior Court and that the marshal, not the plaintiff, erred in serving an unsigned summons.
Section 52-45a states in relevant part: "Civil actions shall be commenced, by legal process consisting of a writ of summons or attachment ... The writ ... shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable." See also Practice Book § 8-1(a). "A summons is part of a citation. The citation ... is a command to a duly authorized officer to summon the [defendant] ... to appear in court on a specific day to answer the [complaint] ... [T]he citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command ... Without it, the officer would be little more than a deliveryman." (Citations omitted; emphasis added; internal quotation marks omitted.) Hillman v. Greenwich, supra, 217 Conn. 52425. "The standard civil summons form [the JD-CV-1, upon which the plaintiff in the present case relied] ... plainly requires two signatures, one for the writ of summons and one for the recognizance. The failure to affix two signatures on the form renders the writ defective." Sargent v. Capital Airlines, Inc., 96 Conn.App. 320, 323, 901 A.2d 55 (2006).
Connecticut courts have differentiated between fatal and circumstantial defects with respect to a summons, forgiving the latter. In Sargent, for example, the plaintiff’s attorney identified himself as a commissioner of the Superior Court, typed his name next to the signature box, and dated the summons but did not sign it; the court forgave the defect, noting also, language in the plaintiff’s signed complaint which directed the process server to make service. Sargent v. Capital Airlines, Inc., supra, 96 Conn.App. 321-22, 324-25. In the present case, the plaintiff’s complaint contains no such language and the relevant portion of the summons is entirely blank. There is no signature, no identification of whether the person signing is a commissioner of the Superior Court or assistant clerk, no name of the person signing, nor a date. "Without the signature of a commissioner of the Superior Court or a judge or an assistant clerk, [the summons] provided no legal authority to the marshal to serve the defendants with process. The defect in the summons utilized by the plaintiff affected the court’s personal jurisdiction over the defendants ... The court never acquired personal jurisdiction over the defendants because service of process upon them was unauthorized." (Citations omitted.) Falcon Paving, Inc. v. Koch Builders, Superior Court, judicial district of Hartford, Docket No. CV-05-4008930-S (August 1, 2005, Shapiro, J.) (39 Conn.L.Rptr. 640, 641-42) (granting the defendants’ motion to dismiss).
In the present case, the summons was defective pursuant to § 52-45a, as it was not signed by a commissioner of the Superior Court or judge or clerk to the court to which it is returnable. The unique facts that could render the defect circumstantial rather than fatal, as are present in Sargent, do not exist here. Accordingly, the court lacks personal jurisdiction over the defendants.
CONCLUSION
For the foregoing reasons, since the court lacks jurisdiction over the defendants, the motion to dismiss is granted.