Opinion
No. X04-CV 00-0103577 S
June 4, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Is a court deprived of subject matter jurisdiction when a summons form fails to contain the name of a third plaintiff, although that plaintiff is identified and named on the first page of the complaint attached to the summons? Jessica C. Laudette is the mother of the minor plaintiff in this action. She claims damages for the loss of consortium of her husband who suffered bystander emotional dismiss while their son was hit and partially run over in a parking lot while leaving a school-sponsored soccer game in which he had been playing. Defendants claim that the failure to list this plaintiff as the third identified plaintiff on the summons form means that the court is without jurisdiction to hear her claims and must now dismiss those claims. They argue that even if amendment were now permitted, this would state a new cause of action for which the statute of limitations would have run. The court concludes, after an examination of the complaint. that the failure to name Jessica C. Laudette on the summons form while naming her in the body of the complaint is not fatal to her claims. And as found below, her claims are not a new cause of action which the applicable statute now bars. For the reasons set forth in detail below, the motion to dismiss is denied.
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 A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002).
In this case, Jessica Laudette is not listed on the 2nd page of the summons form as the third plaintiff in the case. Nonetheless, attached to the summons form when served was the complaint which on page one states in paragraph 3: "The plaintiff Jessica Laudette, is the mother of James Laudette, and also resides at 23 Thomson Road, Franklin, Connecticut." Count Ten again identifies her and clearly states her claims for loss of consortium.
Statutes and a corresponding section of the Connecticut Practice Book govern how civil actions are to be commenced. Connecticut General Statutes § 52-45a states that:
Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint.
Connecticut Practice Book § 8-1 also requires that:
Mesne 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 . . . [T]he writ of summons shall be on a form substantially in compliance with the following judicial branch forms prescribed by the chief court administrator . . .
Assuming for a moment that the failure to list Mrs. Laudette in the summons is a defect, it could have been cured by a timely filed amendment. See General Statutes § 52-128 (plaintiff may amend any defect without costs within thirty days after the return date). Second, if the defect is found to be a circumstantial one, then General Statutes § 52-123 applies. That statute states: "No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." Section 52-123 is used to provide relief from defects in the text of the writ itself. Rogozinski v. American Food Service Equip. Corp., 211 Conn. 431, 434 (1989). Any amendment of such a circumstantial defect would relate back to the date of service of the original writ. Pack v. Burns, 212 Conn. 381, 386 (1989).
On the other hand, if the defect is deemed jurisdictional and not circumstantial, dismissal would be required. In such a case, General Statutes § 52-72 permits amendment, but such amendment requires service in the same manner as other civil process, and as claimed by the defendants, it would appear that the applicable statute of limitations would bar these claims.
As noted in the superior court case of Cordero v. American Medical Response, No. CV 02-0458609 S, judicial district of New Haven at New Haven (October 14, 2003, Devlin, J.) ( 35 Conn. L. Rptr. 645), whether the defect is deemed jurisdictional or circumstantial is the crucial distinction. The case notes:
Superior Court decisions have come to different views on this issue and the analogous situation where the defendant's name is left off the writ. Compare Coiro v. Duran, 4 Conn. L. Rptr. 17, 569 (September 9, 1991, Wagner, J.) (defendant named in complaint but not named in the writ of summons held to be jurisdictional defect beyond scope of § 52-123); Mason Contractors, Inc. v. Tower Shopping Plaza, 6 Conn. L. Rptr. 9, 260 (May 4, 1992, Curran, J.) (plaintiff failed to name defendant in writ of summons and failed to serve defendant held not a circumstantial defect and claim against defendant was dismissed); Bethea v. Gray, 7 Conn. L. Rptr. 157 (July 24, 1992, Maiocco, J.) (plaintiff named defendant in the complaint but not in writ, held to be circumstantial defect and no prejudice to defendant); Allen v. Freedman, 11 Conn. L. Rptr. 504, 1994 Ct. Sup. 4531 (DeMayo, J.) (one plaintiff not named in writ held to be a jurisdictional defect that could not be cured by hand delivery of amended summons to defendant's counsel); Coburn v. Quaratella, 34 Conn. L. Rptr 32, 2003 (Corradino, J.) (one plaintiff omitted from writ of summons but named in complaint held to be a circumstantial defect not going to jurisdiction).
See also Coburn v. Universal Foods Stores of Noank, Inc., No. 563074, judicial district of New London (February 13, 2003, Corradino, J.).
In Coburn v. Quaratella, 34 Conn. L. Rptr 32 (January 27, 2003, Corradino, J.), the court conducted a careful analysis of the pleadings to determine whether the common-law purposes of mesne process had been achieved. It relied in its analysis on the case of Hillman v. Greenwich, 217 Conn. 520, 587 A.2d 99 (1991), where a plaintiff was not named in the writ of summons nor identified a claimant against the defendants in a "cryptic complaint." The Coburn court stated of Hillman: "The court said a writ of summons need not be "technically perfect" and examined the complaint to see if it could be said to have informed the defendant of rights and obligations that would otherwise have been included in the absent writ of summons . . ." The issue, Coburn noted, is "to determine whether the defendants in a practical sense were given notice and informed of their rights and obligations . . ."
In the case before this court, the summons does indeed contain the other required information concerning the return date, the court to which the process is returnable and, as noted, clearly identified the third plaintiff in the first page of the complaint as well as her detailed claims in count ten. Any of the named defendants could clearly understand her claims against them from a review of the complaint. Under such circumstances, the court concludes that the defect in the writ is circumstantial in nature and that General Statutes § 52-123 applies. The court concludes that the "person and the cause may be rightly understood."
Recently our Supreme Court had occasion on a different issue to review the purposes of this statute. In the case of Rocco v. Garrison, 268 Conn. 541, 588 (2004), the court noted:
It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects . . . Indeed, § 52-123 . . . protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties. 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 . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice . . . 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.
(Citations omitted; internal quotation marks omitted.) The court concludes that its interpretation of the defect as circumstantial supports the policies articulated in Rocco and with fairness to all parties, who had received timely notice of the claim, preserves their respective rights to a trial on the merits of the issues. The court further concludes that the defect is therefore not jurisdictional in nature. The court does not require an amendment to correct the omission, but if a request were filed, would permit it and in accord with Pack v. Burns, supra, such amendment would relate back to the date of service of the original writ, since the defendants have had timely notice of the claims made against them by Jessica Laudette. For all the foregoing reasons, the court denies the motion to dismiss count ten of the complaint.
BY THE COURT
BARBARA M. QUINN, Judge