Opinion
CV166061161S
06-26-2017
Virginia Silano v. Kevin Hammell et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS NOS. 114, 130, 131
Barbara N. Bellis, J.
FACTS
The plaintiff, Virginia Silano, who is self-represented, commenced this action by service of process on September 12, 2016, against defendants Kevin Hammel, Daniel Silva, the town of Trumbull (the town), George Cooney, Diana Cooney, and Victoria Scarnuly-Grasso, and on September 14, 2016, against defendant Rocco Testi. In her complaint, the plaintiff alleges that the defendants " conspired to cause [the plaintiff's] malicious prosecution and continued prosecution to June of 2016 . . ."
A review of the procedural history of the present case is relevant to the resolution of the motions before the court. The original summons is dated September 9, 2016, and it included a return date of October 25, 2016. On October 12, 2016, defendants Silva, Hammel, the town, and Testi removed the action to federal court. The United States District Court for the District of Connecticut remanded the action to the Superior Court in December of 2016. On December 14, 2016, the plaintiff returned process to the Superior Court. On December 21, 2016, the plaintiff then requested leave to amend the return date to January 24, 2017. The plaintiff subsequently filed an " amendment as of right" on January 12, 2017, containing the same amendment. The defendants objected to both filings. Specifically, the defendants objected on the grounds that the summons and complaint could not be amended in compliance with both General Statutes § § 52-46 and 52-48, and because the plaintiff failed to comply with General Statutes § 52-72.
The federal docket sheet (entry #104) indicates that on December 8, 2016, an order was signed in the federal court remanding the present case and that on December 23, 2016 the docket sheet indicated that the case was remanded. The memorandum concerning the remand that was sent to the Office of the Clerk of the Superior Court is dated December 28, 2016.
General Statutes § 52-46a provides in relevant part: " Process in civil actions . . . returnable to the Superior Court . . . [shall be returned] to the clerk of such court at least six days before the return day."
General Statutes § 52-48(b) provides in relevant part: " All process shall be made returnable not later than two months after the date of the process . . .'
General Statutes § 52-72 provides in relevant part: " [A]ny court shall allow a proper amendment to civil process which is for any reason defective. Such amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of the service, as if originally proper in form . . ."
On January 20, 2017, Scarnuly-Grasso filed a motion to dismiss (entry #114) on the ground that the court lacked personal jurisdiction. The motion was accompanied by a memorandum of law. Diana and George Cooney each filed a motion to dismiss on February 1, 2017, (entry #130 and #131, respectively) for lack of personal jurisdiction. Diana and George Cooney adopted Scarnuly-Grasso's memorandum of law. On February 8, 2017, after the defendants had filed their motions to dismiss, the court overruled the defendants' objections to the plaintiff's amendments.
George Cooney, Diana Cooney, and Victoria Scarnuly-Grasso are the movants, and for simplicity, shall be referred to collectively as the defendants in this memorandum.
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " [A] defendant's claims concerning service of the summons and complaint [or defective process itself] implicate personal, rather than subject matter, jurisdiction . . . Thus, a motion to dismiss that attacks a defective return date, for example, implicates personal, rather than subject matter, jurisdiction, particularly because such a defect is curable." (Citations omitted; internal quotation marks omitted.) Adler v. Rosenthal, 163 Conn.App. 663, 679-80, 134 A.3d 717 (2016).
" [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 . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Internal quotations marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004).
The defendants argue that the present case must be dismissed because the court lacks personal jurisdiction over them. First, the defendants argue that the plaintiff failed to comply with § 52-46a, which is mandatory and requires process to be returned to the court at least six days prior to the return date. Next, the defendants contend that the plaintiff is unable to amend the return date pursuant to § 52-72 in a manner compliant with the mandatory requirements of both § 52-46a and § 52-48(b); § 52-48(b) requires that all process be made returnable not later than two months from the date of process. Finally, the defendants argue that the present case must be dismissed because the plaintiff failed to comply with § 52-72(b) in her attempts to amend the complaint because, rather than attempting in-hand or abode service, the plaintiff mailed a copy of the December 21, 2016 amended summons and complaint and e-mailed the January 21, 2017 amended summons and complaint.
The defendants also argue that § 52-72 does not permit the plaintiff to amend the date on which process was signed. In her amended filings, the plaintiff crossed-out and wrote, by hand, the proposed return date; she also crossed-out the date on the complaint and replaced it with the date process was returned to the Superior Court. The plaintiff's second amendment--" amend as of right" --explicitly seeks to amend not only the return date, but also what the plaintiff refers to as the " initiation date, " which is the date of process. As resolution of the motions to dismiss can be determined without deciding whether § 52-72 permits amendment of the date of process, the court need not address this argument.
Although the plaintiff did not file a memorandum of law in opposition to the motions to dismiss, she did file a motion for order on February 21, 2017, requesting that the court deny the motions to dismiss " as each Motion based on lack of personal jurisdiction has been rendered moot by the Court's granting of Plaintiff's request to amend and/or amendment as of right."
Each of the defendants' arguments will be addressed in turn.
I. General Statutes § 52-46a
" [T]he requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory . . ." (Footnote omitted.) Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998). " [Section] 52-46a [is] mandatory, and failure to comply with [its requirement] as to the time when process shall be . . . returned renders the plaintiff's action vulnerable to a motion to dismiss for lack of personal jurisdiction." Prenderville v. Sinclair, 164 Conn.App. 439, 452, 138 A.3d 336 (2016). In computing the last day process can be returned to the Superior Court under § 52-46a, the return date is excluded. Brooklyn Trust Co. v. Hebron, 51 Conn. 22, 27 (1883); see also United States Equities Corp. v. Fedorovich, Superior Court, judicial district of Litchfield, Docket No. CV-11-6005056-S (September 1, 2011, Pickard, J.) [52 Conn.L.Rptr. 573, ].
In the present case, the defendants argue that the plaintiff failed to comply with § 52-46a because the original return date was October 25, 2016, and the plaintiff did not return process until December 14, 2016. It is undeniable that, on the face of the record, the plaintiff failed to return process at least six days before the original return date. The defendants, however, fail to address how the peculiar procedural history of the present case, in particular the removal to federal court and the subsequent remand to state court, impacts this apparent noncompliance.
" The federal removal statute, 28 U.S.C. § 1446(d), provides that, upon removal, 'the State court shall proceed no further unless and until the case is remanded.' When, however, a certified copy of a remand to state court is mailed to the state court clerk, 28 U.S.C. § 1447(c) authorizes the state court to proceed again with the case." (Footnote omitted.) Massad v. Greaves, 116 Conn.App. 672, 678, 977 A.2d 662, cert. denied, 293 Conn. 938, 981 A.2d 1079 (2009), cert. denied, 560 U.S. 904, 130 S.Ct. 3276, 176 L.Ed.2d 1183 (2010); see also Ins. Co. of Pennsylvania v. Waterfield, 102 Conn.App. 277, 283, 925 A.2d 451 (2007) (" compliance with the form and procedure of removal under [§ 1446] 'stays' any further action in the state court"). In consideration of the staying impact of removal, two recent Superior Court decisions, Traylor v. Parker, Superior Court, judicial district of New London, Docket No. CV-13-5014662-S (July 8, 2015, Zemetis, J.) [60 Conn.L.Rptr. 614, ], and Tortora v. Shelton Board of Fire Commissioners, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-12-6011979-S (August 23, 2013, Matasavage, J.) (56 Conn.L.Rptr. 735, ), have determined that the removal of an action to federal court tolls a state court's pleading deadlines.
The court considers the reasoning in Traylor and Tortora persuasive and agrees that the requirements of § 52-46a are tolled upon removal to federal court. As the Superior Court is not authorized to proceed upon removal, a plaintiff need not return process prior to remand. Dismissing a plaintiff's action for failure to return process in a timely manner would be inequitable where the delay is unavoidable due to a defendant's removal of the case. Accordingly, removal of the present case to federal court tolled the time available to the plaintiff to return process to the Superior Court.
Although it was the nonmoving defendants who filed the notice of removal in the present case, removal transfers the entire case to the federal court. Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 877 (1st Cir. 1983).
In the present case, the plaintiff originally served the defendants with a complaint bearing a return date of October 25, 2016. Pursuant to the original return date, the last day the plaintiff could have returned process in conformity with § 52-46a was October 19, 2016. Accordingly, when the defendants filed the notice of removal on October 12, 2016, the plaintiff still had seven days to return process. This tolled period of seven days began to run when the state court regained jurisdiction. Even from the earliest possible remand date of December 8, 2016, the plaintiff's return of process on December 14, 2016, was made within seven days. Thus, when the return of process in the present case is calculated with due regard to the tolling necessitated by the removal to federal court, it was timely under § 52-46a, and the amendment of the return date to January 24, 2017, cured any technical defects concerning the return of process.
See footnote 1.
II. General Statutes § 52-48(b)
Section 52-72 is the statute pursuant to which a return date may be amended. Section 52-72(a) provides in relevant part that " any court shall allow a proper amendment to civil process which is for any reason defective." " The 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.
In Coppola v. Coppola, supra, 243 Conn. 658-59, the court determined that § 52-72 permitted a plaintiff to amend a return date where process was not returned at least six days prior to the return date, in violation of § 52-46a. After making this determination, the court noted that the defendant had argued, and the trial court had agreed, that this construction of § 52-72 undermined § 52-46a. Id., 666. Nevertheless, the Supreme Court determined that " [a]llowing an amendment of the return date under the circumstances of the present case does not render § 52-46a meaningless. A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b). Section 52-48(b) requires that '[a]ll process shall be made returnable not later than two months after the date of the process . . .' Section 52-48(b), therefore, with its two month limit, circumscribes the extent to which a return date may be amended." (Footnote omitted.) Id., 666-67.
Essentially, the court in Coppola restricted the plaintiff's ability to comply with § 52-46a by means of an amended return date by emphasizing the statutory time limit set forth in § 52-48(b). Coppola v. Coppola, supra, 243 Conn. 666-67. Section 52-48(b) restricts the amendment of a return date to within two months of the date of process; id.; and, " [a]s used in § 52-48(b), [t]he 'date of the process, ' of course, refers to the date of the writ of summons or attachment which must be accompanied by the complaint." (Internal quotation marks omitted.) Prenderville v. Sinclair, supra, 164 Conn.App. 448.
Consequently, courts have required an amended return date to comply with both § 52-46a and § 52-48(b). See Prenderville v. Sinclair, supra, 164 Conn.App. 448-49; Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn.App. 617, 624-25, 117 A.3d 965 (2015) (" as a general rule, a trial court should permit a plaintiff to amend the return date when, on the basis of the facts of a particular case, the amendment brings process into compliance with the mandatory requirements of both § 52-46a and § 52-48[b]"). In Prenderville v. Sinclair, supra, 164 Conn.App. 446-49, the court determined that the return date could not be amended to be in compliance with both § 52-46a and § 52-48(b) because the plaintiff returned process more than two months after the date of process. Accordingly, the proposed amended return date--which would have brought the plaintiff into compliance with § 52-46a--would necessarily have been outside the two-month limit in § 52-48(b). Id. Similarly, the court in Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn.App. 631, determined that the plaintiff could not successfully amend the return date because there was no possible date that would be in compliance with both statutes. The plaintiff's return of process violated, inter alia, § 52-46a, and after determining that § 52-72 cannot be used to amend the date process was returned; id., 629; the court concluded that the return date could not be amended because no date within two months of the date of process would bring the return of process into compliance with § 52-46a. Id., 630-31.
In the present case, it is undeniable that the amended return date of January 24, 2017, is more than two months from the date of process, which is September 9, 2016. Given the plaintiff's compliance with § 52-46a, however, the amended return date's noncompliance with § 52-48(b) does not necessarily compel dismissal.
The plaintiff's compliance with § 52-46a distinguishes the present case from the cases relied upon by the defendants-- Coppola, Prenderville, and Ribeiro --because each of those cases involved a plaintiff seeking to amend a return date in order to bring an action into compliance with § 52-46a. Those cases are guided and informed by the need to constrain a plaintiff's ability to amend a return date in order to bring the return of process into compliance with § 52-46a; by highlighting the two-month limit in § 52-48(b), Coppola, Prenderville, and Ribeiro establish a fixed range for the otherwise unbounded time available to a plaintiff to correct an untimely return of process. The concern permeating Coppola, Prenderville, and Ribeiro, therefore, is not implicated in the present case. In the present case, because tolling from removal until remand renders the plaintiff's return of process timely, the two-month limit established by § 52-48(b) stands on its own as a mandatory time limit rather than serving as an end-point to limit the extent to which § 52-72 can allow an amendment to satisfy § 52-46a. Accordingly, the appropriate inquiry is whether the mandatory time limit imposed by § 52-48(b) prohibits a return date from being amended, pursuant to § 52-72, to a date more than two months after the date of process.
" [Section] 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit . . . [S]tatutes such as § 52-72 were intended to take the sharp edges off the common law: Over-technical formal requirements have ever been a problem of the common law, leading [the legislature] at periodic intervals to enact statutes . . . which, in substance, told the courts to be reasonable in their search for technical perfection." (Internal quotation marks omitted.) New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180, 187, 61 A.3d 505 (2013). " The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . Rules are a means to justice, and not an end in themselves . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure." (Citation omitted; internal quotation marks omitted.) Coppola v. Coppola, supra, 243 Conn. 665.
Additionally, although compliance with § 52-48(b) is mandatory; see Ribeiro v. Fasano, Ippolito & Lee, P.C., supra, 157 Conn.App. 625; mandatory time limits imposed by statute that do not implicate subject matter jurisdiction are subject to equitable considerations. Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 284, 777 A.2d 645 (2001) (" a complaint that is not filed within the mandatory time requirement is dismissible unless waiver, consent, or some other compelling equitable tolling doctrine applies"). In Lostritto v. Community Action Agency of New Haven, Inc., supra, 269 Conn. 14, the court determined that the statutory time limit for serving an apportionment complaint implicated personal jurisdiction and that compliance was mandatory. The court then acknowledged that " [m]andatory time limits must be complied with absent an equitable reason for excusing compliance, including waiver or consent by the parties." (Internal quotation marks omitted.) Id., 35-36. The Supreme Court later clarified that Lostritto did not establish an exhaustive list and that other equitable reasons permit a court to retain personal jurisdiction regardless of noncompliance with a mandatory time limit. Pedro v. Miller, 281 Conn. 112, 118-21, 914 A.2d 524 (2007) (legal basis for liability arising after time limit elapses constitutes equitable reason justifying noncompliance).
As discussed previously, the amended return date in the present case does not comply with the two-month limit imposed by § 52-48(b). Rigid adherence to this rule would require the court to find that the latest possible return date would be November 8, 2016. Due to the defendants' removal to federal court, however, the Superior Court had no authority to proceed with the present case from October 12, 2016, until December of 2016. To determine that the return date may not be amended to a date later than two months from the date of process, which was November 8, 2016, irrespective of this court's inability to exercise jurisdiction for approximately one month prior to and one month after that latest possible return date, would run contrary to the remedial purpose of § 52-72. Moreover, although the defendants correctly argue that the time limit imposed by § 52-48(b) is mandatory, the court notes that because defective process implicates personal jurisdiction; see Adler v. Rosenthal, supra, 163 Conn.App. 679-80; noncompliance may be justified for equitable reasons. Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 284. In the present case, the removal to federal court caused the return date to become defective; both the removal itself and the resulting difficulties in amending the return date in compliance with § 52-48(b) are matters wholly outside of the plaintiff's control. It is therefore apparent that, in fairness, the mandatory time limit imposed by § 52-48(b) should not bar the present case.
III. General Statutes § 52-72(b)
As discussed in the previous section, § 52-72(a) allows " proper amendment to civil process which is for any reason defective." Section 52-72(b) provides in relevant part: " Such amended process shall be served in the same manner as other civil process . . ." There is a split of authority in the Superior Court concerning the service that § 52-72(b) requires; although some judges have determined that the in-hand or abode service that is essential for an initial complaint and summons is required, others have permitted service by mail. See Fisher v. Clark, Superior Court, judicial district of New Haven, Docket No. CV-12-6034947 (May 13, 2013, Nazzaro, J.) [56 Conn.L.Rptr. 114, ] (discussing the " conflict within the Superior Court" concerning service required by § 52-72).
The rules of practice are instructive concerning this issue. Practice Book § 10-60 provides in relevant part: " [A] party may amend his or her pleadings . . . The party shall file the request and accompanying documents after service upon each party as provided by Sections 10-12 through 10-17, and with proof of service endorsed thereon." (Emphasis added.) Practice Book § 10-13 provides in relevant part: " Service upon the attorney or upon a self-represented 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 . . . 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." Practice Book § 10-12(c) provides: " 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."
Looking to these provisions of the rules of practice, some judges have determined that formal service is not necessary when the only difference between the original complaint and the amended complaint is an amended return date. See e.g. Ruff v. Riedl, Superior Court, judicial district of Hartford, Docket No. CV-08-4034568-S (October 6, 2008, Miller, J.) [46 Conn.L.Rptr. 448, ]; see also Simsbury v. Silver, Superior Court, judicial district of Hartford, Docket No. CV-05-4013486, (October 3, 2006, Satter, J.T.R.).
In the present case, the plaintiff mailed a copy of the December 21, 2016 amended summons and complaint rather than providing in-hand or abode service. The amended summons and complaint, however, did not assert new or additional claims. Rather, the amendment merely changed the return date from October 25, 2016, to January 24, 2017. Pursuant to Practice Book § 10-13, and with due consideration to the fact that defendants do not argue that any prejudice resulted from the plaintiff's mailing of the amended pleading, the method of service used was sufficient.
CONCLUSION
For the foregoing reasons, the court denies the defendants' motions to dismiss.