Opinion
CV166034898S
04-17-2017
Geraldine Smith v. Connecticut Department of Corrections
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS 101.00
PETER EMMETT WIESE, JUDGE.
I
PROCEDURAL HISTORY
In a single-count complaint dated August 26, 2016, the plaintiff, Geraldine Smith, alleges violation of the Connecticut Fair Employment Practices Act against the defendant, the state of Connecticut Department of Corrections (DOC). The complaint alleges the following facts. The plaintiff, a resident of New Britain, Connecticut, filed a complaint alleging discrimination pursuant to General Statues § 46a-60(a)(7) with the Commission on Human Rights and Opportunities (CHRO) and the Equal Employment Opportunity Commission (EEOC). The plaintiff subsequently obtained a release of jurisdiction from the CHRO. The plaintiff alleges that as a correctional officer, she was assigned to a Captain Paine, who was hostile and harassed her because of her race and gender. As a result, the plaintiff suffered damages and now seeks compensatory damages, attorneys fees, costs and " any other relief that the court deems appropriate and proper."
On October 21, 2016, the defendant filed a motion to dismiss and supporting memorandum of law (no. 101.00). The plaintiff filed her objection to the motion to dismiss on December 1, 2016 (no. 107.00). The defendant filed a reply on December 28, 2016 (no. 110.00). The parties presented oral argument at short calendar on January 17, 2017.
As a preliminary matter, in its reply brief, the defendant objects to the plaintiff's untimely filed objection pursuant to Practice Book § 10-31(a). According to § 10-31(a), the plaintiff had until November 21, 2016, to file an objection to the motion to dismiss. The plaintiff did not file her objection until December 1, 2016, forty-one days after the filing of the motion to dismiss; the plaintiff also did not seek any extensions of time. Nevertheless, our Supreme Court has stated, " when a party properly objects to a violation of the rules of practice, the trial court may disregard the improperly raised claim if doing so is not an abuse of discretion." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273-74, 819 A.2d 773 (2003). See also Prenderville v. Sinclair, Superior Court, judicial district of Middlesex, Docket No. CV-13-6010439-S, (May 16, 2014, Marcus, J.) (court exercised its discretion to consider the untimely objection to the motion to dismiss), aff'd, 164 Conn.App. 439, 138 A.3d 336 (2016); Southern New England/SBC v. Balf Co., Superior Court, judicial district of New Haven, Docket No. CV-03-0482272-S, (August 4, 2004, Skolnick, J.) and cited cases. As the plaintiff raised the same arguments during oral argument at short calendar, the court will exercise its discretion and consider the plaintiff's objections in its analysis.
Practice Book § 10-31(a) states: " Any adverse party shall have thirty days from the filing of the motion to dismiss to respond to the motion to dismiss by filing and serving in accordance with Sections 10-12 through 10-17 a memorandum of law in opposition and, where appropriate, supporting affidavits as to facts not apparent on the record."
Furthermore, " [the Supreme Court] previously [has] afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). See also Fennelly v. Norton, 103 Conn.App. 125, 146 n.4, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007). Here, because the defendant has raised an objection to the procedural deficiency, this contextual analysis is inapplicable.
II
DISCUSSION
Motion to Dismiss
" 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. " [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).
" [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 . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . 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." (Internal quotation marks omitted.) Id., 401.
Lastly, " [i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2014).
Parties' Arguments
In its motion to dismiss, the defendant raises the following grounds on which the action should be dismissed for lack of jurisdiction: (1) sovereign immunity bars the plaintiff's common-law claim; (2) the plaintiff has not met the statutory requirements for service pursuant to General Statutes § 46a-103 by failing to serve a copy of the complaint on the CHRO; (3) the complaint was returned one day prior to the return date in violation of General Statutes § 52-46a; (4) the judicial district of New Britain is the improper venue pursuant to General Statutes § 46a-100; and (5) the plaintiff only alleged that she exhausted her administrative remedies in regard to pregnancy discrimination, under General Statutes § 46a-60(a)(7).
In her objection, the plaintiff contends that the state explicitly waived its sovereign immunity in a cause of action pursuant to General Statutes § 46a-60 et seq. Secondly, service on the CHRO is not jurisdictional, and the plaintiff has provided supplemental service on the CHRO. Additionally, the plaintiff argues that she has filed a motion to amend the return date to comply with § 52-46a; the improper venue argument pursuant to § 46a-100 is permissive and not mandatory; and the plaintiff's allegation of a § 46a-60(a)(7) violation was a scrivener's error.
A. Waiver of Sovereign Immunity
As an initial matter, the defendant argues that the plaintiff's common-law claim is barred by the doctrine of sovereign immunity. The plaintiff contends that because the complaint is a statutory claim under General Statutes § 46a-60 et seq. the court has jurisdiction.
Our Supreme Court has stated: " [Section] 46a-100 represents an unambiguous waiver of sovereign immunity, authorizing actions against the state for alleged discriminatory employment practices in violation of § 46a-60. This conclusion is bolstered by our review of the operation of the carefully crafted statutory scheme." Lyon v. Jones, 291 Conn. 384, 397, 968 A.2d 416 (2009). Accordingly, as the state has waived its sovereign immunity under § 46a-100, the court retains subject matter jurisdiction over the present matter.
B. Improper Service of Process
The defendant asserts that the plaintiff failed to serve a copy of the complaint on the CHRO pursuant to General Statutes § 46a-103, which states: " The complainant or his attorney shall serve a copy of the complaint in an action brought in accordance with section 46a-100 on the commission at the same time all other parties in such action are served. Service on the commission shall be for the purpose of providing legal notice of the action and shall not thereby make the commission a necessary party to the action. The commission, through its counsel or the Attorney General, may intervene as a matter of right in any action brought in accordance with section 46a-100."
" Although the Connecticut appellate courts do not appear to have ruled on the issue . . . several judges of the Superior Court have found that a plaintiff's failure to provide the CHRO with such notice at the time the defendant is served is not jurisdictional." Williams v. Hy's Livery Service, Inc., Superior Court, judicial district of New Haven, Docket No. CV-95-5027762-S (October 16, 2012, Wilson, J.) (54 Conn.L.Rptr. 832, 835, ). See also McGill v. Colchester Dental Group, LLC, Superior Court, judicial district of New London, Docket No. CV-08-5007464-S (January 21, 2009, Abrams, J.) (47 Conn.L.Rptr. 77, 79, ) (" the [c]ourt finds that the simultaneous notice provision contained in § 46a-103 is directory rather than mandatory and that plaintiff's subsequent service on CHRO satisfied the statutory mandate"); Parrila v. DeLeon Funeral Home, Inc., Superior Court, judicial district of Hartford, Docket No. CV-02-0817549 (October 4, 2002, Booth, J.) (33 Conn.L.Rptr. 267, ) (same); Suarez v. State Judicial Dept., Superior Court, judicial district of Hartford, Docket No. CV-97-0567291 (January 7, 1998, Hennessey, J.) (21 Conn.L.Rptr. 183, 185, ) (" as long as the commission has adequate notice, even if not simultaneous with notice to the defendant, before the close of pleadings, providing sufficient time to intervene, such notice satisfies the intent of the legislature").
Although the plaintiff initially failed to serve a copy of the complaint on the CHRO, the plaintiff cured this defect by supplemental service of process on January 17, 2017 (see no. 112.00).
C. General Statutes § 52-46a
Next, the defendant avers that the complaint should be dismissed because the plaintiff failed to comply with General Statutes § 52-46a when the writ of summons and complaint was filed on September 19, 2016, one day before the return date of September 20, 2016. Section 52-46a provides: " Process in civil actions returnable to the . . . Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day."
On December 1, 2016, the plaintiff filed a motion to amend the return date to September 27, 2016, pursuant to General Statutes § 52-72 and Practice Book § 10-59 (see no. 106.00). The writ of summons and complaint was signed on August 29, 2016. The original return date was September 20, 2016, and the plaintiff returned the writ of summons and complaint to court on September 19, 2016, one day prior to the return date. The plaintiff seeks to amend the return date to September 27, 2016, thereby satisfying the requirements under § 52-46a. The amended return date also falls within the two-month time period prescribed under § 52-48(b), which is October 29, 2016.
General Statutes § 52-72 provides in relevant part: " (a) Upon payment of taxable costs, any court shall allow a proper amendment to civil process which is for any reason defective. (b) 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."
General Statutes § 52-48 provides: " (a) Process in civil actions, including transfers and applications for relief or removal, but not including summary process actions, brought to the Superior Court may be made returnable on any Tuesday in any month. The return day in any summary process action may be any week day, Monday through Saturday, except a holiday. (b) All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held."
The Supreme Court has noted that " the 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 and failure to comply with its requirements renders the proceeding voidable, rather than void, and subject to abatement." (Footnote omitted.) Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998). " Section 52-72 is a remedial statute that must be liberally construed in favor of those whom the legislature intended to benefit." Id., 664. " 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), therefore, with its two-month limit, circumscribes the extent to which a return date may be amended." (Footnote omitted.) Id., 666-67.
Despite the plaintiff's technical deficiencies, the motion to amend the return date would not deprive the defendant of any substantive rights. The defendant has received actual notice of the cause of action within the statutory time frame, has suffered no prejudice as a result of the late return of process, and has filed an appearance. Id., 666. See Merrill v. NRT New England, Inc., 126 Conn.App. 314, 322, 12 A.3d 575 (2011) (" plaintiff's amendment of the return date, although unartful, did not deprive the defendants of any substantive rights, nor did the defendants suffer any prejudice"), appeal dismissed, 307 Conn. 638, 59 A.3d 171 (2013). See also Todd v. Bradford Child Care Services, Inc., Superior Court, judicial district of Hartford, Docket No. CV-14-6049462-S (August 29, 2014, Peck, J.) (58 Conn.L.Rptr. 873, ); 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, ) and cited cases. Compare Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn.App. 617, 623, 117 A.3d 965 (2015) (affirming motion to dismiss because " there is no date to which the court can amend the return date and remain in compliance with the requirements of both § 52-48(b) and § 52-46a").
D. Improper Venue
Next, the defendant asserts that the plaintiff was required to bring this cause of action in the superior court for the judicial district of Hartford pursuant to General Statutes § 46a-100. Having failed to do so, the defendant claims that the matter should be dismissed or transferred. The plaintiff contends that § 46a-100 is permissive; permitting any action involving a state agency " may be brought into the superior court for the judicial district of Hartford."
General Statutes § 46a-100 provides: " Any person who has filed a complaint with the commission in accordance with section 46a-82 and who has obtained a release of jurisdiction in accordance with section 46a-83a or 46a-101, may bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred, the judicial district in which the respondent transacts business or the judicial district in which the complainant resides, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford." (Emphasis added.) Section 46a-100 was amended by No. 15-5 of the 2015 Public Acts (effective October 1, 2015).
" [S]tatutory venue provisions, which are merely for the convenience of the parties, should be presumed not to be jurisdictional in the absence of any clear expression of legislative intent to the contrary." Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 819, 925 A.2d 292 (2007). Additionally, when a venue provision is not jurisdictional, " the proper remedy under [General Statutes] § 51-351 for the plaintiff's failure to bring [an] action in the correct venue is to transfer the case to the [appropriate] judicial district . . . pursuant to General Statutes § 51-347b and Practice Book § 12-1." (Footnotes omitted.) Id., 820. In the present matter, the plaintiff is a resident of New Britain, Connecticut, thereby satisfying the " judicial district in which the complainant resides" requirement in § 46a-100. Accordingly, the motion to dismiss is denied on this basis.
E. General Statutes § 46a-60(a)(7)
Lastly, the defendant avers that the plaintiff cannot state a cause of action under § 46a-60(a)(7) as stated in her complaint because she has only alleged that Captain Paines' hostilities and actions against her was " due to the color of her skin and her gender." Section 46a-60(a)(7) prohibits employment discrimination based on pregnancy. The plaintiff contends that this was a scrivener's error, and intended to cite General Statutes § 46a-60(a)(1). In its reply, the defendant counters that this issue is jurisdictional, and that the plaintiff's action was commenced " under a statute for which she did not exhaust her administrative remedies."
General Statutes § 46a-60(a)(7)(A) provides in relevant part: " It shall be a discriminatory practice in violation of this section . . . [f]or an employer, by the employer or the employer's agent . . . [t]o terminate a woman's employment because of her pregnancy . . ."
General Statutes § 46a-60(a)(1) provides in relevant part: " It shall be a discriminatory practice in violation of this section . . . [f]or an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age, sex, gender identity or expression, marital status, national origin, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability . . ."
" Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). " Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim." (Internal quotation marks omitted.) Id. But see Johnson v. Rell, 119 Conn.App. 730, 733-34 n.4, 990 A.2d 354 (2010) (" prisoner's alleged failure to exhaust administrative remedies properly is the focus of a motion to strike rather than a motion to dismiss, as it does not implicate the subject matter jurisdiction of the court").
The first paragraph of the complaint states that the plaintiff is " an adult African American female" and " a member of a protected class . . ." Paragraph 3 provides that this is " an action authorized and instituted pursuant to [General Statutes] § 46a-60 et seq. and the common law of the state of Connecticut." Paragraph 5 additionally provides that " Ms. Smith timely filed a formal charge of discrimination under General Statutes § 46a-60(a)(7) . . ." Lastly, paragraph 8(e) states, in relevant part, that " Captain Paines' [hostile] behavior [towards the plaintiff] . . . was due to the color of her skin and her gender."
The court recognizes that in a motion to dismiss, " 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). Viewing the complaint in light most favorable to the plaintiff, apart from the misquoted subsection of § 46a-60(a), the complaint alleges discrimination due to the plaintiff's race and gender.
III
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is denied. The plaintiff's objection is sustained. The plaintiff is ordered to file an amended complaint on or before May 1, 2017, correcting the scrivener's error.
SO ORDERED.
Practice Book § 10-59 states:
" The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition . . . without costs, during the first thirty days after the return day."The court notes that the plaintiff did not file her motion to amend until December 1, 2016, well beyond the thirty-day period under Practice Book § 10-59 from the original return date of September 20, 2016.