Opinion
No. CV 10 5033390
September 21, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#102)
PROCEDURAL AND FACTUAL HISTORY
The plaintiff, Frank McGee, commenced the current action, a petition for a new trial, on May 25, 2010. In that petition, the plaintiff named the State of Connecticut as the defendant. However, on the accompanying summons, the plaintiff listed Cynthia Serafini as the sole defendant. In his petition for a new trial, the plaintiff alleges that reasonable cause for a new trial exists because a jury verdict convicting him of robbery in the second degree was "against the evidence." Service was made upon the defendant on July 8, 2010.
On August 5, 2010, the defendant filed a motion to dismiss the plaintiff's petition on the grounds that: (1) the court lacks subject matter jurisdiction; (2) the court lacks personal jurisdiction; (3) improper venue; and (4) insufficiency of service of process. That motion is accompanied by a memorandum of law. The plaintiff appeared at short calendar on August 23, 2010.
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.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "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 insufficiency of service of process. Practice Book § 10-31(a). "[A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
In her memorandum, the defendant makes several arguments in support of her motion to dismiss. She argues that, if she has been sued in her official capacity as a state's attorney, this court lacks subject matter jurisdiction because the claim is barred by the doctrines of sovereign and statutory immunity, and personal jurisdiction over her because she was improperly served. She also argues that plaintiff's petition for a new trial must be dismissed because it has been filed in the wrong venue. The defendant did not appear at oral argument.
At oral argument, the plaintiff correctly stated that his petition for a new trial was subject to a three-year limitations period. Pursuant to General Statutes § 52-582, "[n]o petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of . . ." The judgment is considered rendered in a criminal case on the date the defendant is sentenced. Summerville v. Warden, 229 Conn. 397, 426, 641 A.2d 1356 (1994).
General Statutes § 52-64 provides in relevant part: "Service of civil process in any civil action . . . against . . . the state . . . or against any officer, servant, agent or employee of the state . . . may be made by a proper officer (1) leaving a true and attested copy of the process, including the declaration or complaint, with the Attorney General at the Attorney General's office in Hartford, or (2) sending a true and attested copy of the process, including the summons and complaint, by certified mail, return receipt requested, to the Attorney General at the Attorney General's office in Hartford."
This court holds that the present case must be dismissed for insufficiency of process. Section 52-64 prescribes the means of service of civil process in a civil action against the state or a state employee. There is no dispute that the plaintiff did not serve the defendant by serving process on the Attorney General at the Attorney General's office. Rather, the defendant was served at her place of employment in the state's attorney's office in Waterbury. As a result, this court lacks personal jurisdiction over the defendant. Despite the defendant's failure to appear at oral argument in support of her motion to dismiss, this court cannot maintain an action against a defendant over whom it does not have jurisdiction.
Based upon the defect in service of process, this court need not address the defendant's arguments pertaining to sovereign and statutory immunity or improper venue. This court is compelled to note that there has been some confusion regarding the proper venue for the plaintiff's petition for a new trial. The plaintiff originally attempted to file his petition for a new trial in the judicial district of Waterbury. Thereafter, on May 14, 2010, the clerk's office in Waterbury returned his papers to him and erroneously advised the plaintiff that the matter would be properly filed in the judicial district of New Haven since the plaintiff is incarcerated at Cheshire Correctional Institute. The proper venue, however, is the judicial district of Waterbury. See Ellard v. Barrabee, 14 Conn.Sup. 102, 103 (1946); Mackniak v. Ostrum, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV05-4004483 (July 14, 2006, Gallagher, J.) ("[a] petition for a new trial must always be addressed to the court in which the judgment that it seeks to set aside was rendered."); Smith v. Hall, 71 Conn. 427, 432, 42 A. 86 (1899), ("[t]he judgment against the defendant . . . can only be set aside by proceedings before the same court in the same county, or on appeal from such proceedings.").
CONCLUSION
For the foregoing reasons, the plaintiff's petition for a new trial is dismissed.