Opinion
No. 4000389
May 17, 2005
MEMORANDUM OF DECISION
This is the plaintiff Tak Wing Chan's (Chan) second action against the defendants, Evan B. Carter (Carter), Gao Hua Ke (Ke) and Chase Manhattan Automotive Finance Corp. (Chase). The plaintiff first brought his initial action against the defendants by a complaint dated March 21, 2003 and filed on May 5, 2003, with assigned Docket Number CV 03 0565690. In the original action, Chan alleged in his complaint that he sustained personal injuries during a motor vehicle collision involving the defendants. Subsequently, on June 30, 2003, Chan filed an amended four-count complaint sounding in negligence and recklessness against said defendants. On October 16, 2003, Ke and Chase filed a motion for nonsuit on the ground that Chan had failed to answer their standard interrogatories and requests for production. On October 20, 2003, Carter also filed a motion for nonsuit on the same ground. On January 5, 2004, without any response from Chan, this court granted Carter's motion for nonsuit. On March 29, 2004, this court entered a judgment of nonsuit against Chan. On that same day, but after entry of this court's judgment of nonsuit, Chan filed a motion for extension of time to respond to the defendants' interrogatories and requests for production.
On August 10, 2004, Chan filed a new action by a four-count complaint sounding in negligence and recklessness against the same defendants, pursuant to General Statutes § 52-592, Connecticut's accidental failure of suit statute. In his present complaint, Chan utilizes the same facts and legal claims as in his original action. On September 16, 2004, Ke and Chase filed, with an accompanying memorandum of law, a motion to dismiss the plaintiff's complaint on the ground that the "[c]ourt does not have subject matter jurisdiction due to the fact that the [present] matter does not come within the scope of the accidental failure of suit statute § 52-592." On September 27, 2004, Carter filed a motion to dismiss on the same ground articulated in Ke and Chase's motion to dismiss. With his motion to dismiss, Carter filed an abbreviated memorandum of law stating his intent to adopt and incorporate as his own, Ke and Chase's memorandum of law in support of their motion to dismiss. On October 8, 2004, the plaintiff filed a memorandum of law in opposition to the motions to dismiss. The defendants' motions to dismiss are now presently before this court. In light of Carter's adoption of Ke and Chase's memorandum of law in support of their motion to dismiss, and the fact that each defendant has moved to dismiss on identical grounds, this court will address both motions to dismiss in a single discussion of the merits and the law.
I 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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon-that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The defendants, in their memorandum of law, argue that Chan, in bringing the present action pursuant to § 52-592, has not pleaded in his complaint "facts sufficient to establish that the [present] matter falls within the scope of . . . statute [§ 52-592.]" In addition, the defendants argue that if the court should determine that sufficient facts are not required in the complaint, the court is still without subject matter jurisdiction because "the facts and circumstances surrounding the entry of non-suit judgment against the [p]laintiff in the underlying case do not bring the present action within the scope of General Statute § 52-592."
In McKeever v. Fiore, 78 Conn.App. 783, 829 A.2d 846 (2003), the court held that "[w]hile it has been suggested that it might be desirable for the plaintiff to plead sufficient facts necessary to bring the matter within the purview of § 52-592 . . . [our Supreme Court] has never held this to be a requirement . . . It has been and is the holding of [our Supreme Court] that matters in avoidance of the Statute of Limitations need not be pleaded in the complaint but only in response to such a defense properly raised." Id., 795-96. Therefore, in the present case, Chan is not required to plead sufficient facts necessary to bring a cause of action within the purview of § 52-592.
Section 52-592(a) provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . for any matter of form . . . or if a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
General Statutes § 52-592(a) provides: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
"Deemed a `saving statute,' § 52-592 enables plaintiffs to bring anew causes of action despite the expiration of the applicable statute of limitations . . . Although § 52-592 should be broadly construed because of its remedial nature, it should not be construed so broadly as to hamper a trial court's ability to manage its docket by dismissing cases for appropriate transgressions." (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., 72 Conn.App. 601, 607, 806 A.2d 567 (2002). "Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor." (Citation omitted; internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 243-44, 789 A.2d 1142 (2002).
"[W]hether [§ 52-592] applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a `matter of form' in the sense that the plaintiff's noncompliance with the court occurred in circumstances such as mistake, inadvertence or excusable neglect. A determination of the applicability of § 52-592 depends on the particular nature of the conduct involved." (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc, supra, 72 Conn.App. 607.
It has not been "often decided that a plaintiff, after a dismissal under an applicable rule of practice, should be denied access to the statute because the prior judgment was not a `matter of form.' When we have done so, our decision has focused on conduct other than mistake, inadvertence or excusable neglect. For example, we have held that § 52-592(a) affords no relief in cases in which a plaintiff's prior action was dismissed because the plaintiff withdrew it voluntarily . . . or consented to its dismissal. Such consent may be inferred from a plaintiff's failure to file a memorandum in opposition to a defendant's motion to strike . . . or from a plaintiff's inordinate delay in appointing an administrator or executor." (Citations omitted.) Ruddock v. Burrowes, 243 Conn. 569, 577-78, 706 A.2d 967 (1998). See also Skibeck v. Avon, 24 Conn.App. 239, 243, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991) (summary judgment against a plaintiff was upheld because her conduct of not prosecuting her claims and trying her case on the merits for over ten years was egregious and § 52-592 could not save her case for further litigation); Gillum v. Yale University, 62 Conn.App. 775, 783-84, 773 A.2d 986, cert. denied, 256 Conn. 929, 776 A.2d 1146 (2001) (after three dismissals and plaintiffs' lackadaisical behavior in hampering their case's movement to resolution, the court found that this "pattern of conduct, evidenced by the court file, far surpasses mistake, inadvertence or excusable neglect"); Cf. Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 601, (where plaintiff's counsel failed to respond to discovery requests and motion for judgment of nonsuit, and counsel's secretary failed to prepare motion to open judgment, as directed, the court found this conduct not to rise to the level of egregiousness required to prevent plaintiff from availing himself of § 52-592(a)); Marino v. McAneany, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285666 (August 30, 2004, Frazzini, J.) (where the plaintiff misplaced file resulting in noncompliance of court order, the court held such conduct was not egregious to render savings statute unavailable, instead conduct was more in the nature of mistake, inadvertence or excusable neglect.)
In Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 601, the Appellate Court reversed a trial court's granting of the defendant's motion to dismiss, holding that the trial court had "improperly dismissed this matter and concluded that the plaintiff could not avail himself of the accidental failure of suit statute, § 52-592" Id., 610. In that case, the plaintiff filed an action against the defendants, Peerless, Inc. (Peerless) and Bar, Inc. (Bar), alleging, in part, negligent manufacturing, design and installation of a television stand. Peerless filed a request to revise the complaint, to which the plaintiff failed to respond. Peerless sent discovery requests to which the plaintiff also failed to respond. Subsequently, Peerless and Bar filed separate motions for judgment of nonsuit; the plaintiff again failed to respond to defendants' motion, nor attempted to open the judgment. On July 8, 1999, the court entered judgment of nonsuit. Id., 603-04.
On July 6, 2000, the plaintiff commenced a second action alleging identical allegations and claims against Peerless and Bar, pursuant to § 52-592. Peerless filed a motion to dismiss the complaint arguing that the plaintiff could not avail himself of § 52-592 because the plaintiff's failure to prosecute his case diligently was not due to mistake, inadvertence or excusable neglect. The plaintiff contended that he had failed to respond to discovery requests because of miscommunications with his attorney, that his attorney did not understand the procedural time limitations to respond to discovery requests, and that the attorney's secretary failed to prepare a motion to open the judgment. Id. The court held that the "plaintiff's actions in this case constitute the type of excusable neglect to which our Supreme Court referred in Ruddock and did not rise to the level of egregious conduct. This is not a situation beset by years of unnecessary litigation and cumulative transgression . . ." (Internal quotation marks omitted.) Id., 607. The Appellate Court reversed the trial court's dismissal and remanded the case with directions to reinstate it to the docket. Id., 610.
In the present case, a review of the record indicates that the plaintiff, in his original action, had attempted on March 29, 2004, to respond to the defendants' motions for nonsuit by filing a motion for extension of time to respond to defendants' discovery requests. In his motion, the plaintiff's attorney indicated the following reasons for his failure to comply with the discovery requests: (1) his secretary was away from January 2004 until March 2004; (2) his computer suffered a major malfunction; (3) he was required to serve several days on active duty; and (4) a family member was taken seriously ill. Although the plaintiff filed his motion for extension of time to respond to the defendants' discovery requests after this court had already entered judgment of nonsuit against him, the plaintiff had nonetheless tried to apprise the defendants of his willingness to comply with their discovery requests. Nothing in the record suggests that the plaintiff's conduct was so egregious as to prevent the plaintiff from availing himself of § 52-592. "This is not a situation beset by years of unnecessary litigation and cumulative transgression." (Internal quotation marks omitted.) Stevenson v. Peerless Industries, Inc., supra, 72 Conn.App. 607. The circumstances in the present case are more akin to the circumstances in Stevenson v. Peerless Industries, Inc. Therefore, this court concludes that the plaintiff may avail himself to the provisions of § 52-592.
Moreover, "[t]his decision is in keeping with the general philosophy of the Connecticut Supreme Court regarding use of the accidental failure of suit statutes. The court has recently reiterated this philosophy stating: The accepted policy is to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . 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 . . . Rocco v. Garrison, 268 Conn. 541, 558, 848 A.2d 352 (2004)." (Internal quotation marks omitted.) Laperuta v. State, Superior Court, judicial district of New Britain, Docket No. CV 04 0525115 (May 19, 2004, Cohn, J.).
Furthermore, this court finds that the proper procedural instrument for challenging the applicability of § 52-592(a) is through a properly pleaded special defense, and not through a motion to dismiss. See LaBow v. LaBow, 85 Conn.App. 746, 750, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). In the present case, Chan, in his memorandum of law in opposition, has adequately objected to the use of a motion to dismiss as a procedural instrument. Therefore, the defendants' motions to dismiss are denied.
II CONCLUSION
For all the foregoing reasons, the defendants' motions to dismiss are hereby denied.
D. Michael Hurley, JTR