Opinion
No. CV 11-6017844-S
May 17, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The plaintiff commenced this action by service of process on the commissioner of the department of motor vehicles and by certified mail to a Massachusetts address, on January 4, 2011. The defendant's attorney filed an appearance on his behalf, on January 19, 2011 and filed a motion for an extension of time to plead, on January 21, 2011, which was granted, on January 31, 2011. He filed a second motion for an extension of time to plead, on January 25, 2011, which was granted, on February 8, 2011; filed a third motion for an extension of time to plead, on February 14, 2011, which he withdrew, on February 28, 2011 and filed this motion to dismiss on the grounds of improper service of process, on February 28, 2011.
It is clear that the motion to dismiss was filed forty days after the defendant's appearance.
The plaintiff filed an objection to the motion to dismiss, on March 7, 2011, arguing that the filing or granting of a motion for extension of time to plead does not extend the thirty-day time limit of Practice Book § 10-30 for filing a motion to dismiss. At oral argument, the defendant's attorney explained that he inadvertently filed the wrong form on February 14, 2011. He had intended to file a motion to dismiss instead of a third motion for an extension of time to plead. He argues that his motions for extensions of time to plead extended the thirty-day deadline of Practice Book § 10-30 for his motion to dismiss, and the motion was, therefore, timely.
Practice Book § 10-30 provides, in pertinent part: "Any 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." Practice Book § 10-32 provides: "Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30."
Practice Book § Section 10-6 provides: "The order of pleading shall be as follows: (1) The plaintiff's complaint. (2) The defendant's motion to dismiss the complaint. (3) The defendant's request to revise the complaint. (4) The defendant's motion to strike the complaint. (5) The defendant's answer (including any special defenses) to the complaint. (6) The plaintiff's request to revise the defendant's answer. (7) The plaintiff's motion to strike the defendant's answer. (8) The plaintiff's reply to any special defenses."
Practice Book § Section 10-7 provides: "In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section."
There appears to be a split in Superior Court decisions on the issue of whether a motion for an extension of time to plead extends the thirty-day deadline of § 10-30.
This court has previously ruled that the time sequence set forth in Practice Book Sections 10-32 and 10-6 does not mitigate the strict requirement of filing a motion to dismiss within thirty days of filing an appearance. Open Solutions, Inc. v. Credit Union of Johnson County, Superior Court, CV 10-6011409 (April 4, 2011, Wagner, J.).
That decision is supported by the Supreme Court case of Pitchell v. Hartford, 247 Conn. 422 (1999).
Defendant's motion to dismiss is untimely and therefore dismissed.