Opinion
No. CV07-75005465S
January 3, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#101)
FACTS
This action arises from an employment dispute between the plaintiff, Alexander Perez, an employee of Waterbury Hospital, and the defendants Waterbury Hospital and Gail Snow, Perez's supervisor at the hospital. On August 8, 2007, the plaintiff filed a four-count complaint alleging malicious prosecution on the part of each defendant, and wrongful termination and theft on the part of Waterbury Hospital. The following facts are undisputed. In November 2004, the defendant Snow accused the plaintiff of distributing cocaine inside Waterbury Hospital to another hospital employee. The plaintiff was arrested and prosecuted on charges of selling narcotics, and the plaintiff's employment was terminated. The narcotics prosecution was "nolled" by the state in January 2005. The plaintiff's termination was grieved by his union pursuant to the terms of a collective bargaining agreement (agreement) between the hospital and the plaintiff's union, and eventually proceeded to arbitration as called for in the agreement. On November 7, 2005, the arbitrator determined that the plaintiff was not discharged for just cause under the agreement, that he should be reinstated, and that the hospital should repay his lost benefits, including back pay and seniority, minus interim earnings. The plaintiff was reinstated shortly after the arbitration award. It is unknown whether the defendant hospital complied with all of the terms of the arbitration award, but, for the reasoning outlined herein, it is not an essential fact in determining this motion.
"The parties incorrectly refer to the vexatious litigation claim in the present case as a malicious prosecution claim. Malicious prosecution lies, however, only in an action arising in a criminal context. Vexatious litigation is reserved for an action, such as the present one, arising in a civil context." Rioux v. Barry, 283 Conn. 338, 340 n. 3, 927 A.2d 304 (2007).
On September 14, 2007, the defendants filed a motion to dismiss on various grounds. The defendants move to dismiss the malicious prosecution charge against defendant Snow on the ground that the court lacks personal jurisdiction because the plaintiff failed to serve defendant Snow in person or at her abode. The defendants move to dismiss the third count of the complaint, which alleges wrongful termination by defendant Waterbury Hospital, on the grounds that the court lacks subject matter jurisdiction because: (a) disputes regarding the plaintiff's employment are governed by the mandatory grievance and arbitration procedures in the collective bargaining agreement, to which this claim must be submitted, (b) the plaintiff's claim is res judicata because an arbitrator already issued an award on an identical claim, or (c) the plaintiff's claim is preempted under federal labor law and therefore the National Labor Relations Board has exclusive jurisdiction to hear the matter. The defendants also moved to dismiss the fourth count which alleges theft against the defendant Waterbury Hospital, but the plaintiff withdrew the count after the hearing on the defendants' motion. The defendants filed a memorandum of law in support of their motions, along with supporting affidavits and exhibits, and the plaintiff timely filed a brief in opposition.
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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006); see also Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a 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.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003); Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
"Proper service of process is not some mere technicality. Proper service of process gives a court power to render a judgment which will satisfy due process under the 14th amendment of the federal constitution and equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the full faith and credit clause of the federal constitution." (Internal quotation marks omitted.) Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003). "A proper officer serving process must comply with the provisions of § 52-57(a), which require that process be served by leaving it `with the defendant, or at his usual place of abode . . .' If [the marshal] simply left the papers at a place where the defendants did not live, service would not have been effective and jurisdiction would not have vested in the court . . . Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed." (Citation omitted; internal quotation marks omitted.) Id., 463.
The defendants move to dismiss count one against defendant Snow on the ground that the court lacks personal jurisdiction because of insufficient service of process under General Statutes § 52-57(a). According to State Marshal Mark J. White's return of service, which is present in the court's file, the defendant Gail Snow was served by leaving a copy of the original writ, summons, and complaint with Mary O'Hara. Director of Risk Management, at 64 Robbins Street in Waterbury. Defendant Snow was not served in person, nor at her abode, and the plaintiff does not seriously contest these facts. As was aptly noted in a case with similar facts, and in terms equally applicable to this case, "[t]he plaintiff has cited no authority and the court is aware of none which provides that service on an office manager of a corporation is sufficient to confer personal jurisdiction as to individual defendants, as opposed to on a corporate entity." DaSilva v. Sanitary Maintenance Service, Inc., Superior Court, judicial district of Hartford, Docket No. CV 04 0835037 (July 6, 2005, Shapiro, J.) (39 Conn. L. Rptr. 556, 558). The court grants the defendants' motion to dismiss as to the first count of the complaint because the court lacks personal jurisdiction over the defendant Gail Snow due to insufficient service of process.
The defendant Waterbury Hospital moves to dismiss the third count of wrongful termination on various grounds. The first ground is that the court lacks subject matter jurisdiction because disputes regarding the plaintiff's employment are governed by the mandatory grievance and arbitration procedures in the collective bargaining agreement, and this dispute falls under the terms of the agreement. The plaintiff, in his brief in opposition to the motion to dismiss, fails to specifically rebut the defendant's argument that the grievance and arbitration clauses deprive this court of jurisdiction, but claims that "[t]he issues in the arbitration were not the issues raised in this litigation, although this suit refers to the arbitration."
"`It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the defendant and the plaintiffs' union.' Daley v. Hartford, 215 Conn. 14, 23, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990). Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction. Id., 22-23; see also Neiman v. Yale University, 270 Conn. 244, 253, 851 A.2d 1165 (2004). `The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it . . . [I]t would deprive employer and union of the ability to establish a uniform and exclusive method for orderly settlement of employee grievances. If a grievance procedure cannot be made exclusive, it loses much of its desirability as a method of settlement. A rule creating such a situation would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.' (Internal quotation marks omitted.) Labbe v. Pension Commission, 229 Conn. 801, 811-12, 643 A.2d 1268 (1994)." Sobczak v. Board of Education, 88 Conn.App. 99, 103, 868 A.2d 112, cert. denied, 273 Conn. 941, 875 A.2d 43 (2005).
The question for this court is whether the collective bargaining agreement between the parties applies to the plaintiff's wrongful termination claim and thus deprives the court of subject matter jurisdiction over the claim. Accepting for the purposes of this motion that the plaintiff's statement in his memorandum in opposition to the defendant's motion that "[t]he issues in the arbitration were not the issues raised in this litigation" is true, the allegation of wrongful termination as pleaded in the complaint nonetheless falls within the parameters of the definition of "grievance" under § 1 of Article XXIII of the agreement, thus triggering the grievance and arbitration requirements for dispute resolution. The plaintiff has failed to exhaust his remedies pursuant to the agreement and therefore this court is deprived of subject matter jurisdiction.
The arbitrator assessed the issues of whether the discharge was for just cause under the agreement, and if not, what the remedies should be under the agreement.
"[A]rbitration is a creature of contract . . . It is designed to avoid litigation and secure prompt settlement of disputes . . . [A] person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do . . . No one can be forced to arbitrate a contract dispute who has not previously agreed to do so . . . The issue of whether the parties to a contract have agreed to arbitration is controlled by their intention . . . The parties' intent is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms . . . Although the intention of the parties typically is a question of fact, if their intention is set forth clearly and unambiguously, it is a question of law." (Citations omitted; internal quotation marks omitted.) State v. Philip Morris, Inc., 279 Conn. 785, 796-97, 905 A.2d 42 (2006). "[B]ecause we favor arbitration, we will defer to this alternative method of dispute resolution if the contractual arbitration provisions fall within the grey area of arbitrability . . . An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 797 n. 10; see Rapaport Benedict, P.C. v. Stamford, 39 Conn.App. 492, 501, 664 A.2d 1193 (1995).
The arbitrator's authority is set forth in § 5 of Article XXIV of the agreement, which states: "The arbitrator shall have jurisdiction only over disputes concerning grievances as defined in Section 1 of Article XXIII, and he shall have no power or authority to add to, subtract from, or modify in any way any of the terms of this Agreement." The key question in this analysis is whether the claim as alleged by the plaintiff falls within the definition of "grievance" in § 1 of Article XXIII of the agreement, which provides in relevant part: "A grievance shall be defined as any controversy or claim arising between any Employee or the Union and the Hospital out of or relating to the interpretation, application, or breach of this Agreement, and shall be processed and disposed of in the following manner: . . ." It is undisputed that at the time of the plaintiff's termination that he was an employee of the hospital, that the agreement was applicable to the parties at the time of the termination, and that the ongoing controversy is between them. Count three is a claim "arising . . . out of or relating to the interpretation, application, or breach of [the] Agreement," namely the "Discharge and Penalties" section of Article XXI as read in congruence with § 1 of Article XXIII.
Count three of the complaint alleges that the plaintiff suffered emotional distress and economic harm when the defendant terminated his employment and refused to reinstate him after the criminal charges were nolled by the prosecutor, and that the termination was "contrary to the public policy of the State of Connecticut." Article XXI of the agreement is titled "Discharge and Penalties" and provides in § 1 that "[t]he Hospital shall have the right to discharge, suspend or discipline any Employee for cause." Section 2 of Article XXI provides the timing and procedure for contesting a suspension or discharge, and provides that, following written notice, "the dispute shall be submitted and determined under the grievance and arbitration procedure hereinafter set forth, however commencing at Step 3 of the grievance machinery." The plaintiff alleges no facts that indicate that his claim of wrongful termination was not a "discharge" under Article XXI, and the terms "discharge" and "termination" are synonymous in the context of this case.
The court cannot say with positive assurance that the grievance definition is not susceptible of an interpretation that covers the plaintiff's claim, and the court must resolve any doubts in favor of coverage. The contract language is clear and unambiguous, and it should be given effect according to its terms: § 1 of Article XXIII encompasses this dispute and the plaintiff must exhaust the parties' contracted-for dispute resolution procedures before this court can have jurisdiction.
The defendant also moves the court to dismiss the wrongful termination count under the doctrine of res judicata. This is an improper vehicle for such a claim, because "[r]es judicata does not provide the basis for a judgment of dismissal; it is a special defense that is considered after any jurisdictional thresholds are passed." Labbe v. Pension Commission, 229 Conn. 801, 816, 643 A.2d 1268 (1994); see also Practice Book § 10-50. "[E]ven if the court did possess subject matter jurisdiction to entertain the type of claims asserted by the plaintiffs, the matter of collateral estoppel was still not properly before the court. Our courts have long recognized that the doctrine of res judicata `must be raised as a special defense and may not be raised by a motion to dismiss, which is the appropriate vehicle to assert a lack of jurisdiction.'" Tuchman v. State, 89 Conn.App. 745, 763 n. 7, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).
The court does not need to address the defendants' third ground for dismissal, federal preemption, because the court is deprived of subject matter jurisdiction until such time as the plaintiff has exhausted his administrative remedies.