Opinion
No. CV09-5025776S
December 8, 2009
MEMORANDUM OF DECISION
The plaintiff, Bank of the West, brought suit against the defendant Jack Hauser to enforce a judgment that was rendered in its favor by the Superior Court of the State of California, County of San Francisco. The defendant entered an appearance on March 13, 2009. On April 1, 2009, the plaintiff filed a demand for disclosure of defense pursuant to Practice Book § 13-19. The defendant failed to respond, and on April 13, 2009, the plaintiff filed a motion for default for failure to disclose a defense. The motion was granted by the court, Zoarski, J.T.R., on May 18, 2009.
Connecticut Weight Wellness, LLC was also named as a defendant. The present motions, however, are brought solely by Jack Hauser. Accordingly, reference to "the defendant" in this memorandum refers to Jack Hauser.
Judgment was rendered in Bank of the West v. Connecticut Weight Wellness, LLC, California Superior Court, County of San Francisco, Docket No. 08-476406 (October 2, 2008).
On May 15, 2009, the defendant filed a motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction and personal jurisdiction. In his memorandum of law in support of the motion, the defendant argues that judgment was improperly rendered against him as the defendant did not have sufficient contacts, ties or relations with California to allow the California Superior Court to exercise jurisdiction over him. On May 19, 2008, the plaintiff filed an objection to the motion to dismiss on the ground that the defendant had submitted to the jurisdiction of the California court by signing a lease and guaranty that contained a forum selection clause that placed jurisdiction in the Superior Court of California. In support of its objection, the plaintiff submitted a copy of a commercial lease agreement and a personal guaranty executed by the defendant. The defendant filed a response to the plaintiff's objection on May 29, 2009, arguing that the forum selection clause was unconscionable and therefore unenforceable.
On June 15, 2009, the defendant filed a motion to open the April 13, 2009 default for failure to disclose a defense on the basis that he should not be put in the position to disclose his defenses to the present action until such time as the court rules on the pending motion to dismiss. The plaintiff did not file a memorandum in opposition to the motion to open the default.
"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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). Further "[w]hen a [trial] 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.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).
The face of the defendant's motion to dismiss indicates that the defendant seeks a dismissal for lack of personal jurisdiction and subject matter jurisdiction. More specifically, the defendant seeks to have this court dismiss the current action for lack of subject matter jurisdiction on the basis that the defendant did not have sufficient contacts, ties or relations with California to allow the California court to exercise personal jurisdiction over him. "[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly . . . [T]he question of subject matter jurisdiction . . . once raised, either by a party or by the court itself . . . must be answered before the court may decide the case." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
While the defendant raises lack of subject matter jurisdiction as a ground for dismissal, in his memorandum in support of his motion for summary judgment, he recognizes that the plaintiff's action is in accord with General Statutes § 52-607. Section 52-607 provides: "The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52-604 to 52-609, inclusive, remains unimpaired." It is clear that this section allows the court to retain subject matter jurisdiction over the plaintiff's action to enforce a foreign judgment.
In the present case, the defendant's argument for dismissal is procedurally improper as the defendant seeks to challenge the California court's jurisdiction over him. The defendant's argument that the foreign court lacked personal jurisdiction is aimed at addressing the merits of the current action and is not procedurally proper. In J. Corda Construction, Inc. v. Zaleski Corp., 98 Conn.App. 518, 527-28, 911 A.2d 309 (2006), the Appellate Court stated that a party's challenge to a foreign court's exercise of personal jurisdiction over it is not properly accomplished through a motion to dismiss. Rather, a challenge to a foreign court's personal jurisdiction over a party should be raised as a special defense. "[A] debtor who seeks to challenge the validity of a foreign judgment . . . may do so only by raising [c]onstitutionally permissible defenses . . . that destroy the full faith and credit obligation owed to a foreign judgment . . . Such defenses include lack of personal jurisdiction or lack of due process . . . A party can therefore defend against the enforcement of a foreign judgment on the ground that the court that rendered the judgment lacked personal jurisdiction . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 523-24. The defendant may raise as a defense that the California court lacked personal jurisdiction over him, but may not seek a dismissal on such grounds. The motion to dismiss is therefore denied based upon lack of subject matter jurisdiction.
Further, any attempt by the defendant to challenge this court's personal jurisdiction over him must fail. In the present case, the defendant has waived his ability to claim that this court lacks personal jurisdiction over him as he has failed to comply with the timing requirement of Practice Book § 10-30. "It is fundamental that jurisdiction over a person can be obtained by waiver . . . Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, `[a]ny defendant, wishing to contest the court's jurisdiction, may do so 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.' Practice Book § 10-30 . . ." (Citations omitted; emphasis in the original.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 445, 797 A.2d 1081 (2002). In Connor, "[t]he court held that a party may contest the court's jurisdiction either prior to making an appearance or by filing a motion to dismiss within thirty day of filing an appearance . . . [The court] held that the fact that the defendant had failed to file a motion to dismiss within thirty days of filing an appearance constituted a waiver of its right to contest the court's personal jurisdiction over the defendant." Berzins v. Berzins, 105 Conn.App. 648, 649-50 n. 1, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008). See also Practice Book § 10-32.
The defendant entered an appearance on March 13, 2009. His motion to dismiss was not filed with the court until May 15, 2009, which was more than 60 days after his appearance. Because the defendant's motion to dismiss for lack of personal jurisdiction was untimely, the defendant has waived his right to claim that this court lacks personal jurisdiction over him. Consequently, the motion to dismiss is denied for lack of personal jurisdiction.
On May 18, 2009, this court, Zoarski, J.T.R., entered a default against the defendant for his failure to disclose any defenses pursuant to Practice Book § 13-19. Less than a month later, on June 15, 2009, the defendant filed a motion to open the default. In support of his motion, the defendant argues that a default was improperly granted as the defendant had filed a motion to dismiss prior to the court's decision to grant the plaintiff's motion for default. The defendant maintains that he should not be put in a position to disclose his defenses to the present action until such time as the court rules on his motion to dismiss.
Practice Book § 13-19 provides in relevant part: "In any action to foreclose or discharge any mortgage or lien or to quiet title, or in any action upon any written contract, in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve . . . a written demand that such attorney present to the court, to become a part of the file in such case, a writing signed by the attorney stating whether he or she has reason to believe and does believe that there exists a bona fide defense to the plaintiff's action and whether such defense will be made, together with a general statement of the nature or substance of such defense. If the defendant fails to disclose a defense within five days of the filing of such demand, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense."
Practice Book § 17-42 provides that "[a] motion to set aside a default where no judgment has been rendered may be granted by the judicial authority for good cause shown upon such terms as it may impose." "In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause . . . [but also] factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved . . ." (Citations omitted; internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998). The court should also look at the "totality of the circumstances [to determine] whether the delay has caused prejudice to the nondefaulting party." Id. Further, as "[the] determination of whether to set aside [a] default is within the discretion of the trial court . . . [it] will not be disturbed unless that discretion has been abused or where injustice will result . . ." (Citations omitted.) Id.
In the present case, the defendant's delay in responding to the plaintiff's demand for disclosure of defenses has not significantly delayed the proceedings or prejudiced the plaintiff. The filing of the defendant's motion to dismiss has put the plaintiff on notice of the defendant's intent to defend the present action on the ground that the foreign judgment is void because the California court lacked personal jurisdiction over him. Furthermore, the defendant did not delay in seeking to remedy the June 15, 2009 default as his motion to open was filed less than a month after the default had been granted by the court.
Looking at the totality of the circumstances, and considering this court's interest in permitting the parties their day in court, this court grants the defendant's motion to open default for failure to disclose defenses. This court also orders that the defendant disclose in a written statement any defenses he believes will present a bona fide defense to the plaintiff's action, and that such disclosure be in compliance with Practice Book § 13-19 by being filed within five days of the issuance of the court's decision.
For the foregoing reasons, the defendant's motion to dismiss is denied and the defendant's motion to open default is granted.