Opinion
No. CV08-5016778S
November 25, 2008
MEMORANDUM OF DECISION ON MOTION TO DISMISS #101
BACKGROUND PROCEDURAL HISTORY
On January 7, 2008, the plaintiff, Dawn Williams, on her own behalf and as temporary administratrix of the estate of her husband, Soliu Arowojeka, filed a twelve-count complaint with a January 29 return date against Village Medical Associates, Bjorn Ringstaad, Montowese Health Care Center (Montowese), Broadway Medical Group (Broadway), Michael Baumgaertner and Yale University (Yale). Counts one, three, five, seven, nine and eleven are brought by the administratrix, and allege wrongful death based on General Statutes § 52-555 against each defendant. Counts two, four, six, eight, ten and twelve are brought by Williams on her own behalf and allege loss of consortium against each defendant. Additionally, Williams attached a probate certificate to her January 7 complaint. The certificate, dated December 7, 2007, appointed Williams as temporary administratrix of the decedent's estate, but included the following restriction: "This certificate is for the sole purpose of retrieving medical [r]ecords [o]nly."
The counts against Broadway (namely, counts seven and eight) have been withdrawn.
General Statutes § 52-555(a) states that "[i]n any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
On January 18, 2008, defendants Yale and Baumgaertner filed a motion to dismiss counts nine through twelve on the ground that the court lacked subject matter jurisdiction. More specifically, the defendants contended that because Williams only had authority to retrieve medical records when she filed the wrongful death claims, her complaint was fatally defective. Defendants Ringstaad and Village Medical Associates later filed a motion to dismiss counts one through four based on the same ground, while defendant Montowese filed a similar motion to dismiss counts five and six.
On February 6, 2008, Williams filed a request to amend the complaint as a matter of right by substituting an amended appointment, dated December 7, 2007, reflecting her status as temporary administratrix of the decedent's estate without any medical records limitation. According to Williams, the medical records restriction had been included in the original certificate solely due to a clerical error made by the Probate Court.
On February 21, 2008, Yale and Baumgaertner filed an objection to the February 6 request to amend, which the court, Holden, J., sustained on March 7, 2008. Defendants Ringstaad and Village Medical Associates also objected on February 25, 2008; the court, Holden, J., sustained that objection as well on April 14, 2008. On March 7, 2008, defendant Montowese filed an objection, followed by a supplemental objection on March 13, which the court, Holden, J., sustained on March 25, 2008. On April 7, 2008, the court, Holden, J., granted Williams's March 14, 2008 motion for reconsideration of the court's March 7 ruling.
On April 9, 2008, Williams filed a memorandum in opposition to Baumgaertner and Yale's January 18, 2008 motion to dismiss. The court heard oral argument on the motions to dismiss on April 28, 2008.
DISCUSSION
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . ." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
The defendants assert that a court must rule on a motion to dismiss before addressing an amended complaint filed after the motion to dismiss. This court agrees with the defendant.
In Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 96-97, 680 A.2d 1321 (1996), after the state defendant moved to dismiss the plaintiff's third-party complaint for lack of subject matter jurisdiction due to sovereign immunity, the plaintiff filed an amended third-party complaint, which the Superior Court considered when acting on the defendant's motion. On appeal, our Supreme Court stated that "[i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court." (Internal quotation marks omitted.) Id., 99. It then reinforced this rule by adding that "[w]henever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction . . ." (Internal quotation marks omitted.) Id. Accordingly, the Court determined that "when the state moved to dismiss [the plaintiff's] initial third-party complaint because of a lack of subject matter jurisdiction, the trial court was obligated to construe that complaint in the manner most favorable to [the plaintiff] and to rule upon the state's motion before considering [the plaintiff's] motion to amend." Id. Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985), is instructive and relevant. In Isaac, following the death of her father, the plaintiff filed a wrongful death suit against numerous defendants on March 30, 1981. Id., 599. Although the plaintiff alleged in her complaint that she had been appointed administratrix of her father's estate on May 17, 1979, she discovered in 1982 that her authority extended only to handling survivorship property, and that she had actually not been appointed as administratrix. Id. The plaintiff then attempted to remedy this problem, and was appointed administratrix on September 28, 1982. Id. The defendants filed a motion to dismiss on February 4, 1983 on the ground that the wrongful death statute only allows recovery by an executor or administrator, and the court lacked subject matter jurisdiction because the plaintiff was not actually the administratrix when she filed the complaint. Id. On March 25, 1983, the plaintiff sought permission to amend her complaint to reflect her appointment as administratrix on September 28, 1982 "and moved to be substituted, in her capacity as administratrix, as party plaintiff." Id., 600. The Superior Court then granted the defendants' motion to dismiss. Id.
On appeal, the Appellate Court affirmed. Id., 602. It first noted that "[t]he trial court correctly considered the defendants' motion to dismiss before reaching the plaintiff's request to amend and motion to substitute. When a question of jurisdiction is brought to the court's attention, that issue must be resolved before the court can move on to other matters." Id., 600. The Court further observed that "[i]t is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue." Id. It then determined that because the plaintiff lacked standing under General Statutes § 52-555 to bring suit when she filed her initial complaint, and because the statute of limitations had passed by the time she was properly appointed administratrix, the motion to dismiss was properly granted. Id., 601-02.
The foregoing cases clearly direct this court to rule on the defendants' motion to dismiss before reviewing Williams's motion to file an amended complaint. Williams attempts, however, to counter the plain language of Federal Deposit Ins. Corp. and Isaac, citing Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005), for the proposition that her amended complaint may be considered notwithstanding the motion to dismiss. Williams is correct that there are certain instances when an amended complaint may be considered even if a motion to dismiss was previously filed. The problem here is that Williams's amended complaint does not fall within the exception articulated in Dauti.
In Dauti, an administrator and two other plaintiffs filed a four-count complaint on October 7, 2002 against various defendants, the third count of which alleged interference with receipt of workers' compensation benefits. Id., 628. On November 1, 2002, one of the defendants filed a motion to dismiss the plaintiffs' complaint on the ground that the court lacked subject matter jurisdiction due to the exclusivity of the Workers' Compensation Act. Id. On November 12, 2002, the plaintiffs filed an amended complaint as of right. Id. The defendant then filed an objection to the amended complaint, arguing that the issue of subject matter jurisdiction remained outstanding. Id. On December 10, 2002, the other defendants filed motions to dismiss similar to their co-defendant's November 1 motion, which the Superior Court granted as to the third count of the initial complaint. Id. In granting the motion, the court relied solely on the original October 7, 2002 complaint, as opposed to the amended complaint filed after the motion to dismiss. Id., 629. On appeal, the Appellate Court, citing General Statutes § 52-128 and Practice Book § 10-59, found that the amended complaint was in fact the operative complaint, because unlike the amended complaint filed in Federal Deposit Insurance Corp., the amended complaint before it was submitted as of right within thirty days of the return date and took effect ab initio. Id., 639-41.
General Statutes § 52-128 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint, declaration or petition, and insert new counts in the complaint or declaration, which might have been originally inserted therein, without costs, within the first thirty days after the return day and at any time afterwards on the payment of costs at the discretion of the court; but, after any such amendment, the defendant shall have a reasonable time to answer the same." Practice Book § 10-59 contains similar language.
Like the Dauti plaintiffs, Williams filed her amended complaint within thirty days of the return date. Nevertheless, Dauti is inapposite. There was no issue in Dauti as to whether any plaintiff had authority to sue in the first instance. The rule articulated in Federal Deposit Ins. Corp. and Isaac that an amended complaint cannot be considered before assessing a motion to dismiss controls.
The last day Williams could have filed a timely claim was January 16, 2008; she filed her amended complaint on February 6.
Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, makes clear that a party cannot attempt, by way of an amended complaint filed as of right or otherwise, to establish legal capacity to sue when such authority was absent in the initial complaint. As the Isaac Court succinctly stated, "[t]he plaintiff's argument that the court should have permitted her to amend the complaint is without merit. The named plaintiff in the original complaint never existed. As a consequence, there was no legally recognized entity for which there could be a substitute." Id., 602; see also Estate of Simmons v. Lee, Superior Court, judicial district of Windham, Docket No. CV 99 0060312 (May 10, 1999, Sferrazza, J.) [ 24 Conn. L. Rptr. 403] ("the original plaintiff must possess legal capacity to sue or else the legal action is a nullity, and there exists no plaintiff to replace by way of substitution"); Cofrancesco v. Smith, 29 Conn.Sup. 139, 143, 275 A.2d 608 (1971) ("[w]hile an amendment to a complaint relates back in time to the institution of the action for some purposes, it does not do so when it sets up a new and different cause of action").
On its face, the record as of January 18, 2008 reflects that Williams did not have legal authority to sue as administratrix of the decedent's estate when the wrongful death claims were initially filed, and therefore "there [is] no legally recognized entity for which there could be a substitute" via an amended complaint. Isaac v. Mount Sinai Hospital, 3 Conn.App. 602. While the court is sympathetic to Williams's claim that she did in fact have full authority on the date that she originally filed suit, no such authority is reflected in the contemporaneous documents.
CONCLUSION
Based on the foregoing the motion to dismiss is granted as the court lacks subject matter jurisdiction. Further, in light of this, Williams's outstanding motion for reconsideration of the denial of her motion to amend her complaint is moot.
Because Williams lacks standing to bring the wrongful death suits as administratrix, the loss of consortium claims filed on her own behalf also fail. "As a derivative cause of action, loss of consortium is `dependent on the legal existence of the predicate action . . . that is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well.'" Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 n. 5, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005).
The court notes that under these circumstances, Williams may be able to maintain a new action under General Statutes § 52-592.
NOTE
Although the filing date of this memorandum is clearly today's date, the memorandum was completed, and the court believed, it was filed on August 25th.
This file had been inadvertently returned to the vault and the court was unaware that this memorandum had not been filed in the clerks' office on August 25th, 2008.