Opinion
No. CV 06 4004751
February 20, 2007
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS (#108)
On August 7, 2006, the plaintiff, Darlene A. Chapdelaine, proceeding pro se, filed a complaint against the defendants, Joseph L. Vinagro, Joseph R. Vinagro, and two Rhode Island Corporations, the Patriot Disposal Company, Inc., and the Patriot Hauling Company, Inc. The complaint alleged sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., General Statutes § 46a-60 et seq. and Rhode Island General Laws § 28-5-1 et seq., a violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq., breach of contract and unjust enrichment. On September 25, 2006, the plaintiff filed an amended complaint against the defendants seeking recovery for the defendants' alleged breach of an oral and written contract unfair trade practices, violation of the Whistleblower Protection Act of 1989, violation of the Family Medical Leave Act, violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., sexual harassment, unjust enrichment, fraud, promissory estoppel, suit for an accounting and the imposition of a constructive trust and a request for declaratory relief.
On September 25, 2006, the plaintiff filed a companion case entitled Chapdelaine v. Vinagro, Superior Court, judicial district of Windham, Docket No. CV 06 5000711, in which the plaintiff has sued Joseph L. Vinagro for unjust enrichment, breach of contract, sexual harassment, copyright infringement and unfair trade practices in violation of the Connecticut Unfair Trade Practices Act.
On September 28, 2006, the defendants filed a motion to dismiss the plaintiff's amended complaint on the grounds that: (1) the court lacks personal jurisdiction over the defendants as the plaintiff failed to comply with General Statutes § 52-45a and Practice Book § 8-1; (2) the court lacks personal jurisdiction over the Patriot Hauling Company, Inc. and the Patriot Disposal Company, Inc. because "they do not fall within the Connecticut long-arm statute," General Statutes § 33-929; and (3) the court lacks subject matter jurisdiction over the plaintiff's sexual harassment claims as the plaintiff has failed to exhaust her administrative remedies.
On October 5, 2006, the plaintiff filed a memorandum of law in opposition and a request for leave to file a second amended complaint in accordance with Practice Book § 10-60(a)(3). In her second amended complaint, the plaintiff appears to have withdrawn the claims of sexual harassment and a violation of the Whistleblower Protection Act. The plaintiff also appears to have added claims for unfair trade practices in violation of the Connecticut Unfair Trade Practices Act and copyright infringement. In her memorandum in opposition, the plaintiff also concedes that she failed to exhaust her administrative remedies in regard to her claim of sexual harassment. On October 30, 2006, during oral argument, the plaintiff further conceded that she had "pulled all of . . . [the other claims] out" and that she had decided to retain "just . . . the unjust enrichment . . . and breach of contract [claims]." (Transcript p. 5, lines 11-15.) In her memorandum in opposition to the defendants' motion to dismiss, the plaintiff argues that her failure to have the summons signed by a commissioner of the Superior Court, a judge or a clerk of the court as required by § 52-45a and Practice Book § 8-1 amounts to a "circumstantial defect" under General Statutes § 52-123 that, in the absence of prejudice to the moving party, does not deprive the court of personal jurisdiction over the defendants.
In light of both the plaintiff's oral and written concessions and the defendants' failure to object to the plaintiff's request for leave to file a second amended complaint within fifteen days, in accordance with Practice Book § 10-60(a)(3), the court will treat the plaintiff's October 5, 2006 second amended complaint as the operative complaint. Pursuant to Practice Book § 10-61, the court will consider the defendants' September 28, 2006 motion to dismiss in relation to the second amended complaint. See Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 641 n. 14, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). Practice Book § 10-30 provides that "[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." See Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 551, 610 A.2d 1260 (1992).
In support of their motion to dismiss the plaintiff's complaint for lack of personal jurisdiction, the defendants argue that the plaintiff's failure to have the summons signed by a commissioner of the court, a judge or clerk of the court in accordance with § 52-45a and Practice Book § 8-1 deprives this court of personal jurisdiction over the defendants. In response, the plaintiff appears to argue that her failure to attain the required signature on the summons amounts to a "circumstantial defect" under § 52-123 that, as evidenced by the appearance of counsel for the defendant in the present action, did not prejudice the defendants.
"A defect in process . . . such as an improperly executed writ, implicates personal jurisdiction . . . [T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction . . ." (Citation omitted; internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415-16, 885 A.2d 768 (2005); see also Practice Book § 10-32; Practice Book § 10-30. The defendants filed an appearance on August 29, 2006 and filed their motion to dismiss on September 28, 2006. Therefore, there has been no waiver of the right to contest personal jurisdiction.
Practice Book § 8-1 provides, in relevant part, "[m]esne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable." (Emphasis added.) Similarly, § 52-45a, provides, "[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment . . . The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable." (Emphasis added.)
"[A] writ of summons is a statutory prerequisite to the commencement of a civil action . . . [I]t is an essential element to the validity of the jurisdiction of the court." (Citations omitted.) Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991). "A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court." (Internal quotation marks omitted.) Boyles v. Preston, 68 Conn.App. 596, 605, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002).
Our Supreme Court has indicated that a summons is analogous to the citation used to commence an administrative appeal. See Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 550. "A citation is a writ issued out of a Court of competent jurisdiction commanding a person therein named to appear on a day named to do something therein mentioned . . . The citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . . Without it, the officer would be little more than a deliveryman . . . [Additionally, the] citation is a matter separate and distinct from the sheriff's return and is the important legal fact upon which the judgment rests." (Internal quotation marks omitted.) Gadbois v. Planning Commission, 257 Conn. 604, 607, 778 A.2d 896 (2001); Raynor v. Hickock Realty Corp., 61 Conn.App. 234, 241, CT Page 3159 763 A.2d 54 (2000). "Although the Superior Court has general subject matter jurisdiction . . . it may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Citations omitted.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., Inc., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993). Thus, our Supreme Court case law confirms that "an improperly executed citation implicates the personal jurisdiction of the court." Fedus v. Planning Zoning Commission, 278 Conn. 751, 778, 900 A.2d 1 (2006).
As conceded by the plaintiff, a review of the signature line of the summons reveals that the plaintiff failed to have a commissioner of the Superior Court, a judge or a clerk sign the document. Therefore, it is undisputed that the summons was defective as improperly executed. In the absence of the required signature, the summons provided no legal authority to the marshal to serve the defendants with process. Such a defect implicates the court's personal jurisdiction over the defendants. See Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 550-51. A review of other Superior Court decisions supports the conclusion that a plaintiff's failure to have the summons signed in accordance with the express language of § 52-45a and Practice Book § 8-1, which has resulted in the unauthorized service of process upon a defendant, renders the plaintiff's complaint subject to dismissal pursuant to a timely motion to dismiss for lack of personal jurisdiction. See, e.g., Eichler v. Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 06 4009653 (September 28, 2006, Karazin, J.); Buckner v. Buckner, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4004932 (May 24, 2006, Dooley, J.) [ 41 Conn. L. Rptr. 387]; Hyman v. National Ass'n. for the Advancement of Colored People, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0195524 (May 6, 2004, Lewis, J.T.R.); Karpinski v. Spodick, Superior Court, judicial district of New Haven, Docket No. 329355 (August 20, 1992, Maiocco, J.) ( 7 Conn. L. Rptr. 250); McDaniel v. McDonald, Superior Court, judicial district of Litchfield, Docket No. 0060222 (October 14, 1992, Pickett, J.).
Although it has been recognized that "[g]reat latitude is normally given to a litigant who represents himself in legal proceedings . . . [and that] [s]uch a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party . . . [e]ven pro se litigants, however, [are] bound by the same rules of . . . procedure as those qualified to practice law." (Citations omitted; internal quotation marks omitted.) Mantell v. Greene, 15 Conn.App. 1, 5, 542 A.2d 1169, cert. denied, 209 Conn. 805, 548 A.2d 441 (1988).
The court finds that the plaintiff's apparent contention that such an omission amounts to a circumstantial defect that should be overlooked in the absence of prejudice to the moving party is without merit. While the plaintiff argues that § 52-123 provides for jurisdiction notwithstanding her failure to obtain the necessary signature, our Supreme Court has determined that "[t]his statute has been in existence [over three hundred years] and has been preserved [essentially] unaltered during this long period of time, though revision after revision of the statutes has been made . . . It was designed to ameliorate the rigors of the common law that required the precise designation of all persons, whether or not parties to an action . . . The statute is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process. We have never held to the contrary." (Citations omitted; emphasis added; internal quotation marks omitted.) Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433-34, 559 A.2d 1110 (1989).
Accordingly, the defendants' motion to dismiss the plaintiff's complaint for lack of jurisdiction over the person is granted.
Because the defendants' first ground is dispositive of the motion to dismiss, the court will not address the defendants' other grounds.