Opinion
No. CV 00 0159163
March 13, 2001
MEMORANDUM OF DECISION RE: DEFENDANTS' MOTION TO DISMISS
This is an action for wrongful discharge brought by the plaintiff against the defendants pursuant to Section 46a-100, et seq. of the General Statutes.
The defendants have filed a motion to dismiss due to alleged jurisdictional defects in the complaint.
On May 4, 2000, the plaintiff filed a one-count complaint against the defendants, SMR Management (SMR), Connecticut Physical Therapy, LLC (CPT), Robert Recklett and Josephine Ballard. The plaintiff alleges that on August 9, 1998, she was fired from her job with the defendants SMR and CPT, as a result of discrimination based on her pregnancy. On July 7, 2000, the defendants, Josephine Ballard, SMR and Robert Recklett (collectively, the defendants) filed a motion to dismiss. In response, on September 9, 2000, the plaintiff filed a memorandum in opposition to the defendant's motion to dismiss. This motion is now before the court.
SMR Management is a New York corporation conducting business in Connecticut. (Complaint, ¶ 5.) CPT is a Connecticut limited liability company. (Complaint, ¶ 6.) SMR operates and controls CPT, which is a sister company, as well as other physical therapy offices. (Plaintiff's affidavit, ¶ 2.) People who work in these offices are employees of SMR. Id.
Recklett is an employee of SMR and a member of CPT. (Complaint, ¶ 7.) He is authorized to hire and fire employees of both companies. Id. Ballard is Secretary/Treasurer of SMR and is authorized to hire and fire employees in conjunction with Recklett for both companies. (Complaint, ¶ 8.)
Prior to commencing this suit, the plaintiff filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CCHRO). Subsequently, on December 9, 1999, the CCHRO determined that there is "reasonable cause to believe discrimination has occurred." (Memorandum in opposition, Exhibit 6, p. 6.) On January 19, 2000, the plaintiff obtained a release of jurisdiction from the CCHRO.
"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). "The motion to dismiss shall be used to assert (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." Practice Book § 10-31; see also Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, (1988).
It is a "well-established principle that every presumption favoring jurisdiction should be indulged." Connecticut Light Power Co. v. Costle, 179 Conn. 415, 421 n. 3, 426 A.2d 1324 (1979). "In evaluating a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor. . . ." (Citations omitted; internal quotation marks omitted.)Thomas v. City of West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1239, 146 L.Ed.2d 99 (2000).
In the present case, Ballard and SMR argue that service was defective because it lacked an endorsement as required by General Statutes § 52-59b (c). "[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process. (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101, 733 A.2d 809 (1999). "When service is authorized to be made outside Connecticut, the same methods of service may be used as those which are lawful within this state. Anderson v. Schibi, 33 Conn. Sup. 562, 567, 364 A.2d 853 (1976). "It is clear that 52-59b (c) provides only one of many methods of giving notice and is not exclusive." (Emphasis added.) Id., 566. For example, General Statutes § 52-57 provides that a defendant in a civil action may be served by either personal or abode service. Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962); Anderson v. Schibi, supra, 33 Conn. Sup. 567.
General Statutes § 52-59b (c) provides in relevant part that "process shall be served by the officer . . . upon the Secretary of the State by leaving with or at the office of the Secretary of the State . . . a true and attested copy thereof, and by sending to the defendant at his last-known address . . . a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State. . . ."
In the present case, the service of process upon Ballard and SMR was valid. A New York process server, by hand delivery, and a Fairfield County deputy sheriff, by certified mail, served Ballard. (Memorandum in opposition, Exhibits 9, 10.) Similarly, a New York process server and a Fairfield County deputy sheriff served SMR. (Memorandum in opposition, Exhibits 8, 10.) Because these defendants were properly served by a valid method other than the one proscribed in General Statutes § 52-59b (c), this court has personal jurisdiction over Ballard and SMR. Anderson v. Schibi, supra, 33 Conn. Sup. 567.
Second, SMR argues that it was never served at all. Rather, a corporation referred to as SMR Managment, Inc., was the alleged recipient of whatever notice may have been sent. "The chief purpose of service is to ensure actual notice that an action is pending. . . ." Genung's Inc. v. Rice, 33 Conn. Sup. 554, 558, 362 A.2d 540, cert. denied, 171 Conn. 739, 358 A.2d 700, cert. denied, 429 U.S. 929, 97 S.Ct. 336, 50 L.Ed. 300 (1976). As indicated above, a New York State process server and a Fairfield County deputy sheriff served SMR. (Memorandum in opposition, Exhibits 8, 10.) Additionally, Ballard stated, in her own affidavit, that "[b]oth SMR and I were served with a copy of the Writ, Summons and Complaint. . . ." (Ballard Affidavit, ¶ 11.) There is no indication that SMR believed that it was not an intended defendant in this lawsuit. Accordingly, because SMR received actual notice of this pending lawsuit, it is submitted that this court has personal jurisdiction over it.
SMR contends that its correct name is SMR Management, LLC.
The plaintiff requests that if the real name of the defendant is "SMR, LLC," she be allowed to amend her complaint to reflect the proper name. (Memorandum in opposition, p. 3, fn. 1.) From the evidence provided, there is inconclusive proof as to what the real name of the company is. For example, in both its findings of fact and its release of jurisdiction, the CCHRO referred to SMR as simply "SMR Management." (Memorandum in opposition, Exhibit 6, 7.) Ballard contends that the company name is "SMR, LLC." (Ballard affidavit, ¶ 4.). The plaintiff, on the other hand, contends that SMR used the name SMR Management in its business operations. (Memorandum in opposition, p. 3, fn. 1.) Accordingly, there is no conclusive answer on this matter.
At this time the court is not taking any action regarding the plaintiff's request to amend the complaint. "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted) Baldwin Piano and Organ Co. v. Blake, 186 Conn. 295, 297, 442 A.2d 183 (1982). Accordingly, it would be improper for the court to permit a revision of the plaintiff's complaint at this juncture.
Third, Ballard and SMR argue that they have insufficient contacts with Connecticut to support the assertion of jurisdiction. "[I]n order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" (Emphasis in original.)International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); see also Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 51-52, 459 A.2d 503 (1983). "[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." (Internal quotation marks omitted.) Burger King Corp. v. Rudzewicz. 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). "[A] determination of whether sufficient minimum contacts with Connecticut exist is a fact question."Standard Tallow Corporation v. Jowdy, supra, 190 Conn. 56.
In the present case, both Ballard and SMR have sufficient "contacts with Connecticut to support the assertion of personal jurisdiction. In her affidavit, the plaintiff states that she was employed by SMR and worked in Connecticut. (Plaintiff's affidavit, ¶¶ 2, 4.) She also states that, in addition to being her boss, Ballard routinely traveled to Connecticut. (Plaintiff's affidavit, ¶ 4.) Accordingly, by having employees in Connecticut, SMR has purposefully availed itself of the privilege of conducting business within Connecticut. Burger King Corp. v. Rudzewicz, supra, 471 U.S. 462, 475; see also Hill v. W.R. Grace Co., 42 Conn. Sup. 25, 32, 598 A.2d 1107 (1991) (finding that the defendant's physical presence, manufacturing of goods and having employees in Connecticut is sufficient to confer jurisdiction.) Similarly, by routinely traveling in Connecticut, and thereby being physically present, Ballard has sufficient minimum contacts with the State. By taking the evidence offered by the plaintiff as true and interpreting it in the light most favorable to the plaintiff, the court has jurisdiction over SMR. Thomas v. City of West Haven, supra, 249 Conn. 392
Fourth, Ballard and Recklett argue that they both were acting in their representative capacities with respect to this matter and are not themselves, directly or indirectly, the plaintiff's employer. In response, the plaintiff argues that she is suing Ballard and Recklett in their personal capacities under the theory of pregnancy discrimination. General Statutes § 46a-51 (10) defines "employer" as "any person or employer with three or more persons in his employ." Further, General Statutes § 46a-60 prohibits an employer from engaging in discriminatory employment practices. Despite the defendant's argument, a motion to dismiss is not the proper vehicle to make this assertion. The grounds which may be asserted in a motion to dismiss are lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process and insufficiency of service of process. Zizka v. Water Pollution Control Authority, supra, 195 Conn. 687. Ballard's and Recklett's assertion that they are not "employers," as defined by General Statutes § 46a-51 (10), does not fall within one of the aforementioned grounds for dismissal. Accordingly, the defendant's motion to dismiss should be denied as to this ground as well.
The plaintiff further notes that if it pleases the court, she will revise the complaint to name these defendants in individual counts. As indicated above, it would be improper for the court to permit a revision of the plaintiff's complaint at this juncture. Baldwin Piano and Organ Co. v. Blake, supra, 186 Conn. 297; see also note 5.
The proper vehicle to make this assertion is a motion to strike. "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.)Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see also Walters v. Homestaff Health Care, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 146961 (February 8, 1996, Tobin, J.) (granting a motion to strike a count of the plaintiff's complaint because the defendant did not fall within the statutory definition of "employer.")
Finally, the defendants argue that the court does not have subject matter jurisdiction to hear this case. Specifically, the defendants argue that they were not respondents in the underlying administrative proceedings and, therefore, unaffected by the CCHRO's release of jurisdiction. General Statutes § 46a-101 (a) provides that "[n]o action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section." Because the individual defendants were not named in the administrative action, there is no reason for them to be released. The question then becomes whether they were required to be named, thus implicating the court's subject matter jurisdiction, because the plaintiff failed to exhaust administrative remedies.
General Statutes § 46a-100 provides that "[a]ny person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82 and who has obtained a release from the commission in accordance with section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford."
In the present case, although Ballard and Recklett were not parties in the CCHRO proceeding, the plaintiff may still bring a cause of action against them in their individual capacity for pregnancy discrimination. A cause of action does not exist under General Statutes § 46a-100 for the plaintiff against Ballard and Recklett in their individual capacities. Accordingly, she is not required to file an administrative complaint against the two individuals first. Indulging the presumption that the plaintiff seeks to sue Ballard and Recklett in their individual capacities, this court has subject matter jurisdiction over these claims. Connecticut Light Power v. Costle, supra, 179 Conn. 421 n. 3.
The court further finds that SMR was a party in the prior administrative proceeding. It is apparent, on the face of the CCHRO's reasonable cause finding, that SMR was a named respondent. (Memorandum in opposition, Exhibit 6, p. 1.) Furthermore, the plaintiff was successful in obtaining a release of jurisdiction to bring suit against SMR. (Memorandum in opposition, Exhibit 7, p. 1.) See General Statutes § 46a-100. Accordingly, SMR's argument that it was not a party is unpersuasive.
For the foregoing reasons, the motion to dismiss is hereby denied.
By the Court,
Joseph W. Doherty, Judge