Opinion
No. CV06-5005756S
February 11, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#126)
FACTS
The matter presently before the court arises out of a September 22, 2004 incident. The plaintiff, Gloria Palmieri, alleges in her complaint that she was injured by the automatic doors when exiting Ferraro's Food Market. Named as defendants are Ferraro's Foodland of New Haven, Inc. dba Ferraro's Food Market and Salvatore F. Ferraro, Jr. (collectively, "Ferraro's"). Ferraro's, by apportionment complaint dated September 21, 2006 and returnable October 31, 2006, brought in as apportionment defendants General Glass Services ("General Glass"), Automatic Door Systems, Inc., ("ADS") and George Esposito ("Esposito"). The law firm of Milano and Wanat filed an appearance on behalf of General Glass and Esposito on October 18, 2006.
There appears to have been some confusion, at least on the part of Ferraro's, as to whether Milano and Wanat also represented the third apportionment defendant, ADS; all of Ferraro's court filings from the time of Milano and Wanat's appearance on October 18, 2006 to the present certify service to Milano and Wanat as "Attorney for Apportionment Defendants, General Glass Services, Automatic Door Systems and George Esposito" when in fact Milano and Wanat did not file an appearance on behalf of ADS. To compound the potential confusion, the appearance actually filed by Milano and Wanat was a full appearance for General Glass and Esposito; the appearance was not limited to representation for General Glass and Esposito on the apportionment claims.
On November 15, 2006, the plaintiff filed an amended complaint, bringing direct claims against all three apportionment defendants. The plaintiff's certificate of service indicated service to counsel representing the defendants, as well as to Milano and Wanat.
On November 15, 2007, Tyler, Cooper Alcorn, LLP filed an appearance on behalf of "Apportionment Defendant Automatic Door Systems, Inc." and a motion to dismiss the plaintiff's amended complaint for lack of personal jurisdiction, on the basis that the plaintiff failed to serve ADS with the amended complaint. The plaintiff filed her objection on December 17, 2007; ADS filed its reply on January 2, 2008. The matter was argued at the short calendar on January 28, 2008.
As such, it appears that the appearance for ADS was not intended to be limited to the defense of ADS on the apportionment claim.
DISCUSSION
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983).
"The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31.
"A defendant may contest the personal jurisdiction of the court 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." (Internal quotation marks omitted.) Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992). See also Knipple v Viking Communications, supra, 236 Conn. 605-06.
Our apportionment statute, C.G.S. § 52-102b, provides in subsection (a) that "[a] defendant in any civil action . . . may serve a writ, summons and complaint upon a person not a party to the action . . . within one hundred twenty days of the return date specified in the plaintiff's original complaint." (Emphasis added.) Subsection (a) further provides that the apportionment defendant "shall be a party for all purposes." Subsection (d) of the statute states that "the plaintiff may, within sixty days of the return date of the apportionment complaint . . . assert any claim against the apportionment defendant arising out of the transaction or occurrence that is the subject matter of the original complaint" (emphasis added).
In Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 35-36 (2004), the Connecticut Supreme Court held that the 120-day time limitation was a mandatory time limitation which must be complied with, unless there is an equitable reason such as waiver or consent of parties to excuse the compliance. The Lostritto decision resolved the split of authority in the trial courts as to whether the 120-day limitation was mandatory or directory. The court found no equitable reason to excuse compliance with the 120-day limitation in that case, rejecting the argument of the apportionment plaintiffs that the uncontested extension of time to file an apportionment complaint granted by the trial court had operated as a waiver, as the apportionment defendants were not parties at the time and had no notice of the motion for extension of time. Id. The Lostritto court, after careful analysis, determined that the failure to comply with the 120-day window of § 52-102b implicated personal jurisdiction rather than subject matter jurisdiction and affirmed the judgments of the trial court granting the motions to dismiss the apportionment complaint. Id. at 33.
In Pedro v. Miller, 281 Conn. 112 (2007), the Connecticut Supreme Court, once again faced with the issue of non-compliance with the 120-day time limitation, allowed for another equitable reason to excuse compliance with the 120-day time limit, beyond waiver and consent. In Pedro, the plaintiff filed a lawsuit, returnable February 18, 2003, against the owner and operator of a motor vehicle for injuries allegedly sustained in a motor vehicle accident; by Amended Complaint June 29, 2004, the plaintiff alleged that during her treatment for the injuries she sustained in the motor vehicle accident, she suffered from a cerebrospinal fluid leak. The defendants/apportionment plaintiffs served an apportionment complaint for medical malpractice against the treating physician on October 22, 2004. The trial court granted the motion to dismiss the apportionment complaint, on the basis that it was served more than 120-day after the return date of the original complaint. The Connecticut Supreme Court reversed, finding compelling equitable considerations to toll the 120-day time limit. The court, noting that it was impossible for the defendants/apportionment plaintiffs to serve the apportionment complaint within the 120-day because the apportionment plaintiffs had no factual or legal basis for seeking apportionment until the plaintiff filed the amended complaint after the 120-day adding the additional injury, found the new claims alleged in the Amended Complaint to be an equitable reason justifying excusal from compliance with the 120-day limit. Id. at 118-19. Importantly, the court in Pedro made clear that while waiver and consent are classic exceptions to lack of personal jurisdiction, they are merely examples of equitable exceptions.
Following the Pedro decision, at least two trial courts have addressed the issue of whether to excuse compliance with the 120-day time limitation. In Frey v. Escalante, Superior Court, judicial district of New London at New London, Docket No. CV06 5100303 (May 2, 2007, Hurley, J.), the court granted the apportionment defendant's motion to dismiss the apportionment complaint for lack of personal jurisdiction, where the apportionment complaint was not filed within the 120-day; the court, while recognizing that equitable considerations other than waiver or consent could toll the 120-day limit, was not presented with any equitable considerations to take into account. In Joseph v. UIL Holdings Corp., Superior Court, judicial district of New Haven, Docket No. 07 2010389 (October 19, 2007), this court granted the apportionment defendant's motion to dismiss the apportionment complaint, where the apportionment complaint was placed in the hands of the sheriff on the 121st day and served on the 126th day; the "savings statute," C.G.S. § 52-593(a) did not apply as the apportionment complaint was not given to the marshal in advance of the 120-day, and the court was not presented with any equitable considerations to toll the 120-day requirement.
The Frey court also held that because it had no personal jurisdiction over the apportionment defendant, the plaintiff could not amend her complaint to add a direct claim against the apportionment defendant.
C.G.S. § 52-593(a) provides in relevant part as follows:
Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery.
In its motion to dismiss, ADS posits that the court lacks personal jurisdiction over ADS because the plaintiff failed to serve ADS with the amended complaint. ADS points to the amended complaint, which lacks an officer's return. ADS argues that for the same reasons the Connecticut Supreme Court, in Lostritto v. Community Action Agency of New Haven, Inc., supra, concluded that the 120-day time limitation within which to serve the apportionment claim is mandatory, so, too, is the 60-day time limitation within which the plaintiff can make a direct claim, mandatory. ADS takes the position that C.G.S. § 52-102b(d) requires the plaintiff to have the amended complaint served upon the defendant within the 60 days pursuant to C.G.S. § 52-57(c), and as the plaintiff has not done so, the court is without personal jurisdiction over ADS. ADS pointed out at oral argument that the direct claim was never served upon ADS in any fashion — not only was the complaint not served by a marshal, but as the certification shows, it was not even mailed to ADS.
C.G.S. § 52-57(c) provides in relevant part as follows. "In actions against a private corporation, service of process 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 the principal office or place of business is located.
The plaintiff, on the other hand, argues that pursuant to C.G.S. § 52-102b(a), once ADS was served with the apportionment complaint, ADS became "a party for all purposes." The plaintiff claims that as such, it is unnecessary for the plaintiff to serve and file mesne process to bring a direct claim against an apportionment defendant. The plaintiff argues that ADS should have filed an appearance if it wanted to receive a copy of the amended complaint, and that a review of the court file by ADS and/or its counsel would have revealed the existence of the direct claim.
The majority of the courts that have confronted the issue have concluded that the 60-day requirement is mandatory. See e.g., Kowalczyk v. New Milford Board of Education, Superior Court, judicial district of Litchfield, Docket No. 0440000806 (September 11, 2006) (Prescott, J.) (granting apportionment defendants' motion for summary judgment on basis of statute of limitations; here, the plaintiff filed a direct claim against the apportionment defendants through a request for leave to amend the complaint, the objection to which had been overruled by the court, and where the request for leave to amend was filed more than three months after the return date of the apportionment complaint); Schupp v. Golba, Superior Court, judicial district of New Haven, Docket No. 054005234 (February 15, 2006) (Robaina, J.) (granting apportionment defendant's motion for summary judgment on basis of lack of subject matter jurisdiction, where although plaintiff had filed two motions to extend time within which to plead, the direct claim was not filed within the 60 days); Serrano v. Haag, Superior Court, judicial district of New Britain, Docket No. 044000658 (June 27, 2005) (Burke, J.) (granting apportionment defendant's motion to strike direct claim of plaintiff filed beyond the 60 days, rejecting the plaintiff's claim that the period of time during which the plaintiff had been nonsuited should be excluded from the 60-day calculation); Demers v. Demers, Superior Court, judicial district of Waterbury, Docket No. 01 0166813 (June 8, 2004) (Matasavage, J.) [37 Conn. L. Rptr. 230] (granting the apportionment defendant's motion for summary judgment on the basis of the statute of limitations, where plaintiff had moved to cite in the apportionment defendant as "an additional defendant" beyond the 60 days, and where the claim was brought beyond the two-year statute of limitations contained in C.G.S. § 52-584); Perazelli v. Tilcon Connecticut, Inc., Superior Court, judicial district of Waterbury, Docket No. 990154903 (November 6, 2000) (Rogers, J.) (granting apportionment defendant's motion to strike the plaintiff's complaint against it, where the complaint was filed months after the 60 days); Becker v. Cody, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 970348815 (March 31, 1999) (Nadeau, J.) [24 Conn. L. Rptr. 323] (granting apportionment defendant's motion to dismiss direct claim, which was not asserted until 249 days after the initial 60-day deadline, rejecting the plaintiff's argument that she did not need to file the direct claim while there was a "pleadings battle" involving the apportionment complaint). Some courts have recognized that waiver and consent as well as equitable considerations may excuse compliance with the 60-day requirement. See Demers v. Demers, supra; Angelone v. Conn. Oil Recycling Serv., Superior Court, judicial district of Waterbury, Docket No. 06 5002890 (October 22, 2007) (Roche, J.) [44 Conn. L. Rptr. 415] (overruling apportionment defendant's objection to plaintiff's request to amend complaint to add direct claim of negligence against apportionment defendant where plaintiff filed direct claim on 73rd day; while the court held that the plaintiff presented no equitable reasons to excuse compliance with C.G.S. § 52-102b(d), it allowed the amendment pursuant to C.G.S. § 52-102a(c)).
In Kelsey v. Cowern, Superior Court, judicial district of New Haven, Docket No. 02-470620 (September 30, 2005) (Silbert, J.), the court allowed a direct claim beyond the 60 days, where the plaintiffs availed themselves of the savings statute. In Kelsey, the plaintiff had placed the amended complaint in the hands of the sheriff within the 60-days, and the complaint was timely served pursuant to C.G.S. § 52-593a. Additionally, the intervening plaintiff filed an "ineptly" worded "intervening plaintiff's apportionment complaint" against the apportionment defendants, but prior to the return date of the apportionment complaint; the court found that the pleading was a direct claim, filed well within the 60 days. The court also rejected the apportionment defendant's claims that the certifications were defective in that counsel for the apportionment defendants was not included in the certifications, as it was undisputed that counsel for the apportionment defendants received copies of the amended complaints and were not prejudiced by the failure to name counsel in the certifications.
Judge Matasavage, in Demers v. Demers, supra, gives a well-reasoned and concise synopsis of the 60-day requirement:
The recent decision of the Supreme Court in Lostritto v. Community Action Agency of New Haven, Inc., supports as well as directs this court's conclusion that the sixty-day time limitation contained in § 52-102b(d) is mandatory. In Lostritto, the court construed as mandatory the limitation in § 52-102b(a) that requires a defendant who elects to serve an apportionment complaint to serve such complaint "within one hundred twenty days of the return date specified in the plaintiff's original complaint," absent an equitable reason for excusing compliance, including waiver or consent by the parties. Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 35-36. In so finding the court noted: "[Section 52-102b delineates] proper timing and method of service of an apportionment complaint. Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized. Section 52-102b gives tangible force to the right to apportionment created in § 52-572h." Id., 26. This court finds no logical reason to hold that the time limitation of § 52-102b(a) is mandatory, but that the time limitation of § 52-102b(d) is directory.
This court agrees that the 60-day time requirement is mandatory. The question becomes the method a plaintiff is to employ in order to assert a claim over within the 60 days.
While C.G.S. § 52-102b(a) clearly requires a defendant to serve process on an apportionment defendant within 120-day, no similar requirement is stated within subsection (d) of the statute as to the method a plaintiff should employ in order to bring a direct claim against an apportionment defendant. Instead, § 52-102b(d) merely requires that the plaintiff "assert any claim" within the 60 days. ADS has not provided any basis for its argument that in order for a plaintiff to bring a direct claim against an apportionment defendant, process should be served upon the apportionment defendant. A review of the legislative history for Public Act 95-111 indicates that there were discussions relating to the time frame within which to assert the direct claim, but provides no guidance as to the method a plaintiff should employ in order to assert a direct claim. The Appellate Courts have not addressed the issue; the only Superior Court case that has directly confronted the issue appears to be Luckingham v. Campbell, Superior Court, judicial district of Tolland, Docket No. 05 5000129 (October 10, 2006) (Sferrazza, J.) In Luckingham, the parties agreed that it was unnecessary to utilize mesne process to start a § 52-102b(d) claim, and that the correct method of service is set forth in Practice Book §§ 10-12 and 10-13. The court noted that "§ 52-102b(d) fails to prescribe the method by which a plaintiff `asserts' a claim against an apportionment defendant. This submission does not, for example, use either the word `serve' or `file' with respect to initiating a claim." Id.
In Kelsey v. Cowern, infra, the court discussed the fact that the plaintiff had a marshal serve the apportionment defendant; however, the court did not in its holding indicate that marshal service was required under the statute.
P.B. § 10-12 provides in relevant part as follows: (a) it is the responsibility of counsel or a pro se party filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion other than one in which an order is sought ex parte and every paper relating to discovery, request, demand, claim, notice or similar paper. When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority . . . (c) Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties. (Emphasis added).
P.B. § 10-13 provides in relevant part as follows: service upon the attorney or upon a pro se party, except service pursuant to Section 10-12(c), may be by delivering a copy or by mailing it to the last known address of the attorney or party. Delivery of a copy within this section means handing it to the attorney or to the party; or leaving it at the attorney's office with a person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the usual place of abode . . . Service pursuant to section 10-12(c) shall be made in the same manner as an original writ and complaint is served or as ordered by the judicial authority. (Emphasis added).
The court in Luckingham denied the apportionment defendant's motion to dismiss the plaintiff's direct claim, where the plaintiff attempted to assert the direct claim within the 60-day window, before an appearance was filed by the apportionment defendant or counsel. The plaintiff filed with the court an unsigned amended complaint, which was rejected by the clerks' office and erroneously sent by the clerks' office to counsel for the original defendant, who placed it in his own file. When it was discovered that the amended complaint was not in the court file, the plaintiff filed a signed amended complaint, well beyond the sixty days. The court, while pointing out that typically an apportionment defendant can examine the court file to determine if a direct claim has been asserted, denied the apportionment defendant's motion, even though the apportionment defendant in that case did not have the opportunity to discover the existence of the direct claim by examining the court file. In the decision, Judge Sferrazza, noting that there was "ample blame to go around" due to the lack of clarity in the statute regarding how a plaintiff "asserts" a claim, the mistakes made by the clerk's office including returning the complaint to the wrong party, and the failure of the plaintiff to sign the amended complaint, found that by filing the unsigned amended complaint within the 60 days, the plaintiff asserted a claim under the statute.
Verner v. Lovallo, Superior Court, judicial district of Stamford, Docket No. 970161204, (October 13, 1998) (D'Andrea, J.), presents a similar fact pattern. In Verner, the defendants served the apportionment defendants with a complaint dated December 5, 1997 and returnable January 20, 1998. The plaintiff filed an amended complaint on December 22, 1997, adding a direct claim against the apportionment defendants; the amended complaint was not served on the apportionment defendants. The plaintiff, on March 25, 1998, more than 60 days following the January 20, 1998 return date, did fax a copy to counsel who subsequently, on April 1, 1998, filed an appearance on behalf of the apportionment defendants. The apportionment defendants moved for summary judgment on the basis, inter alia, that the court lacked subject matter jurisdiction, as the plaintiff failed to serve the apportionment defendants with the amended complaint. The court, in granting the motion, noted that faxing the amended complaint to counsel for the apportionment defendants could constitute proper service if counsel had filed an appearance prior to the fax; here, however, the fax was sent beyond the 60 days, and before counsel had filed its appearance on behalf of the apportionment defendants.
In the present case, while the amended complaint was filed with the court within the 60 days, the question the court is faced with is whether the plaintiff properly asserted her claim, and complied with the rules of practice relating to service of that claim on the apportionment defendant. Clearly, ADS was a non-appearing party at the time the amended complaint was filed with the court. Just as clear is the fact that the amended complaint brings a new claim by the plaintiff against ADS. While the court agrees with the plaintiff's argument that ADS became "a party for all purposes," when it was apportioned in, the plaintiff fails to distinguish the fact that ADS was a non-appearing party, and fails to recognize the obligations she has in order to assert a new claim against ADS. The plaintiff cannot circumvent the rules of practice relating to service of this new claim on the non-appearing apportionment defendant by attempting to shift the responsibility to ADS to discover the existence of the amended complaint by reviewing the court file and the court rejects the plaintiff's argument in that regard. Simply put, filing the amended complaint with the court, where the apportionment defendant is not appearing, is simply not enough. The court recognizes that pleadings may be filed and not immediately matched to the court file or inputted into the computer system due to overburdened clerks offices, and a review of the court file cannot substitute for the obligation of a party to make proper service. While ADS argues that the plaintiff failed to serve it with the amended complaint, neither party addresses the applicable practice book sections which control. P.B. § 10-12(c) requires that the plaintiff, by asserting a new claim against a non-appearing party, "shall" serve such party. P.B. § 10-13 explicitly requires that "[s]ervice pursuant to Section 10-12(c) shall be made in the same manner as an original writ and complaint . . ." That procedure was not followed here.
The plaintiff has not argued that waiver, consent, or equitable considerations apply. No argument was made that equity requires an exception to the 60-day requirement due to the fact that the amended complaint was sent to Milano Wanat, who, according to Ferraro's pleadings, represented all the apportionment defendants. Even assuming there was confusion with regard to the certification, it would not rise to the level of an equitable reason to toll the 60-day requirement. The court is not presented with the situation, as in Kelsey v. Cavern, supra, where the amended complaint was placed in the hands of the sheriff within the 60 days here, mesne process was not utilized at all — or where counsel for the apportionment defendant was not listed on the certification but received a copy of the amended complaint; here, counsel for the apportionment defendant did not receive a copy of the amended complaint and was not listed on the certification.
The plaintiff has failed to properly assert the claim against ADS within the 60 days and has presented no reasons to excuse the 60-day limitation.
For the foregoing reasons, the motion to dismiss is granted