Opinion
No. X02-UWY-CV-09-6004449-S
July 12, 2010
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS #102
On September 9, 2009, the plaintiffs, Driving Schools, Inc., Joaquim Sousa and Sharon Sousa, filed with the court a complaint seeking damages from the named defendants, Cooper Law, LLC, Isaiah Cooper, and Susan Panisch, as well as five unnamed defendants described as "John and Jane Does 1-5." The plaintiffs allege claims of legal malpractice, violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a, et seq., fraud, breach of fiduciary duty and breach of contract. While the summons listed a return date of September 29, 2009, the complaint showed a return date of October 6, 2009. The return of service dated August 26, 2009, and filed with the court on September 9, 2009, shows that the plaintiffs served process on Cooper Law, LLC, Isaiah Cooper, and Susan Panisch. The return is devoid of any reference to service upon any John or Jane Doe, however. On September 30, 2009, the defendants' counsel filed an appearance on behalf of "all defendants."
Thereafter, on October 28, 2009, the defendants filed a motion to dismiss the plaintiffs' complaint for lack of personal jurisdiction over "John and Jane Does 1-5." The defendants cite two grounds for their motion. They argue primarily that the plaintiffs had no authority to proceed against the "John and Jane Does" named as defendants as they were unknown or fictitious persons. Alternatively, they argue that under Practice Book § 10-30 et seq., there was insufficient service of process on any of the John and Jane Doe defendants. On November 6, 2009, the plaintiffs filed a pleading (#103) made up of three "cross motions," which effectively constituted an objection, relying solely on the argument that the defendants' counsel lacked standing to file an appearance or a motion to dismiss on behalf of the John and Jane Doe defendants. The defendants filed a reply brief (#104) on November 13, 2009, that addressed the standing issue and objected to the three "cross motions." On April 19, 2010, the plaintiffs filed a reply brief (#115) addressing the defendants' reply brief. Oral argument was held before the court on July 1, 2010.
These included motions to disqualify the defendants' counsel from representing the John and Jane Doe defendants, for attorneys fees relating to the motion to dismiss and to consolidate the present action with a related action.
In their reply brief, the plaintiffs withdrew the motions for attorneys fees and to consolidate, while retaining the motion to disqualify.
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). Under Practice Book § 10-31, "[t]he grounds which may be asserted in [a motion to dismiss] are . . . (2) lack of jurisdiction over the person . . . and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "[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." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999).
At oral argument, the plaintiffs' counsel conceded that the marshal's return failed to recite any service of the summons and complaint on any John or Jane Doe. The plaintiffs nonetheless contend that allowing such defendants to be named in the complaint is appropriate given that there are other unknown individuals who may have worked with the defendants and who might be subject to the claims set forth in the complaint. These individuals may not be discovered until a later date and that the naming of such possible defendants as John or Jane Doe would preserve the plaintiffs' claim against them. The defendants argue that the majority of trial courts addressing this issue have held that the naming of a John or Jane Doe defendant in a complaint and summons is not proper because our state does not have a general fictitious name statute and no provision of the rules of practice allows it.
The issue of insufficient service upon fictitious defendants has been addressed previously by our courts. In Brock v. A-1 Auto Service, Inc., 45 Conn.Sup. 525, 728 A.2d 1167 (1998), Judge Blue thoroughly discussed this issue and noted that § 52-45a of the General Statutes provides that civil suits shall be commenced by process "describing the parties . . ." Also, "[i]n dicta the court in Buxton v. Ullman, 147 Conn. 48, 59 [ 156 A.2d 508] (1959) [appeal dismissed, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961)] stated that this requirement[,] presumably, refers to a description of the parties by their real names, so that they may be identified. There are post-commencement of suit motions permitting, per Buxton, anonymous status for identified parties or even presuit procedures requesting permission to be allowed to proceed by anonymous designations but these are cases where the real parties are in fact known." (Internal quotation marks omitted.) O'Donnell v. State, Superior Court, judicial district of New Haven, Docket No. CV 03 0482928 (September 14, 2004, Corradino, J.) ( 37 Conn. L. Rptr. 884).
In Younger v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 08 5020500 (August 4, 2008, Bellis, J.) ( 46 Conn. L. Rptr. 84), the court performed an exhaustive review of cases dealing with the issue. In doing so, it quoted relevant appellate authority, stating as follows: "`The 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.)] Jinienez v. DeRosa, 109 Conn.App. 332, 338 [ 951 A.2d 632] (2008) . . .
"The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it . . . [S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of in personam jurisdiction over that party . . . Angiolillo v. Buckmiller, 102 Conn.App. 697, 712-14 [ 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243] (2007)." (Internal quotation marks omitted.) Younger v. East Haven, supra, 46 Conn. L. Rptr. 84.
After quoting the above authority, the court concluded that "[s]imply put, the jurisdiction of this court, like all trial courts, extends only to those parties who have been specifically named in the action and properly served with process. An individual or entity who is not served with process is not accorded the status of a party to the proceeding; one is entitled to notice of the actions or proceedings and an opportunity to appear and be heard. There is no statute or rule in Connecticut which specifically authorizes the use of the fictitious name procedure employed here, which is totally lacking in fundamental fairness to the real defendant, whoever he may be. John Doe, whoever he is, has the right to be identified by correct name, served in accordance with Connecticut law, and properly made a party." Id.
The unidentified "John and Jane Does 1-5" appear in the summons and complaint without any authority granted by the court or statute. Having been improperly included in this action, any purported service upon any such person is insufficient.
The court does note that under General Statutes § 47a-23, there is a statutory authorization for the naming individuals as John or Jane Doe in the service of notices to quit. However, such authorization is limited to matters under Title 47a (summary process actions) and the present case does not involve such a matter.
For the sake of argument, even if the court were to accept the plaintiffs' contention that the defendants' counsel had no standing to file an appearance on behalf of "John and Jane Does 1-5," the court notes it would have the authority to enter a dismissal sua sponte for insufficient service of process given there was no return of service as to any such individuals.
The defendants' motion to dismiss is granted.