Opinion
No. CV 06-5002018 S
August 6, 2009
MEMORANDUM OF DECISION REARGUMENT MOTION TO DISMISS #130
FACTUAL BACKGROUND
The apportionment defendant, Lucy Oldrin, has requested that the court reconsider its' decision denying her motion to dismiss the complaint against a third party dated August 30, 2007. This court, (Downey, J.) heard the original motion to dismiss. A memorandum of decision was issued by the court on March 26, 2008. Counsel for Lucy Oldrin filed a motion to reargue on January 12, 2009, based upon the January 6, 2009 decision by the appellate court in Tocco v. Wesleyan University, 112 Conn.App. 28, 961 A.2d 1009 (2009).
On January 26, 2009, the court granted the motion to reargue. Counsel for the parties appeared and reargued the motion to dismiss on July 20, 2009.
The factual background for the court's ruling is set forth in the March 26, 2008 memorandum of decision. [ 45 Conn. L. Rptr. 247]
LEGAL DISCUSSION
After the decision issued by this court, the Appellate Court ruled on a similar matter in the case of Tocco v. Wesleyan University, 112 Conn.App. 28, 961 A.2d 1009 (2009). In Tocco, the court addressed the method of service upon a non-appearing apportionment defendant for a subsequent direct claim against the apportionment defendant. The factual scenario in Tocco is very similar to the instant action where Lucy Oldrin was served as an apportionment defendant but did not appear at any time before the filing of further pleadings.
The plaintiff attempts to distinguish the instant scenario by arguing that the Practice Book applies only to new parties and thus does not apply to a situation such as the instant case where the parties have already been named in the action.
This argument ignores the factual question of non-appearing parties and the court ruling in Tocco that analyzed Practice Book § 10-12(c) and § 10-13 as applied to a similar scenario. The court quoted § 10-12(c) which provides in relevant part: "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." This section requires service in the same manner as the original complaint pursuant to Practice Book § 10-13. No parties in the instant action dispute the fact that at the time the complaint against a third party was filed, it was mailed only to the appearing apportionment defendants. The certification accompanying the filing of the complaint against a third party by plaintiff's counsel indicated that: "This is to certify that a copy was mailed on August 29, 2007 to: Wilson, Fusco, Beyer Lynch, 2 Whitney Avenue, 4th Floor, New Haven, [Connecticut] 06510; Heller, Heller McCoy, 736 Norwich New London Turnpike, Uncasville, [Connecticut] 06382; Diserio, Martin, O'Connor Catiglioni, 1 Atlantic Street, Stamford, [Connecticut] 06901; and to Paul J. Pacifico, Esq. 327 Riverside Avenue, Westport, [Connecticut] 06880." Conspicuously absent from the certification is any notice by mail or otherwise to Lucy Oldrin at the address in the original complaint or to any representative on her behalf. In this action, the failure to notify the apportionment defendant is even more pronounced than in Tocco, where that defendant was served by mail at the time the amended complaint was filed.
The plaintiff's argument that the appearance of the law firm of Murphy and Karpie, LLC for the apportionment defendant preempts the requirement for service pursuant to § 10-12(c) is misguided. The appearance of counsel to contest jurisdiction cannot correct the apparent failure to comply with service of the complaint against a non-appearing third party. In Tocco, the non-appearing apportionment defendant also filed an appearance along with a motion to dismiss for lack of personal jurisdiction after the complaint had been improperly served. Tocco v. Wesleyan University, supra., 112 Conn. 30. The court in Tocco viewed the status at the time the complaint was mailed to the apportionment defendant and determined that at that time of the original service, the apportionment defendant was a non-appearing party and service should have been made in accordance with Practice Book §§ 10-12(c) and 10-13. Id., 32. In this action, at the time of the mailing on August 29, 2007, Lucy Oldrin was a non-appearing party. The first appearance for Lucy Oldrin was January 28, 2008. The appearance was followed with the motion to dismiss dated February 27, 2008. This appearance was long after the original filing of a complaint against third party and thus in accordance with Tocco does not change the requirement to serve this complaint in the same manner as required for service of the original complaint. The plaintiff failed to serve the complaint against third party to this non-appearing party in accordance with Practice Book § 10-12(c) and § 10-13.
CONCLUSION
Therefore, based upon the ruling of the Appellate court in Tocco, the motion to dismiss the plaintiff's complaint against third parties directed to Lucy Oldrin for lack of personal jurisdiction is granted.