Opinion
CV176028790
11-14-2017
Stacey Santos v. 1145 Poquonnock Road Operations, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#102)
Timothy D. Bates, J.
On December 30, 2016, the plaintiff employee, Stacey Santos, filed her complaint against the defendant employer, 1145 Poquonnock Road Operations, LLC. The complaint consisted of one count for statutory wrongful discharge under General Statutes § 31-51m, Connecticut's " whistle-blower" protection statute. Section 31-51m requires that a plaintiff bring an action within ninety days from the date of the alleged violation. At issue for the purposes of this decision is not the substance of the allegations, but the procedure under which the action was brought, namely whether the action was timely. The undisputed facts are as follows.
Section 31-51m, titled " [p]rotection of employee who discloses employer's illegal activities or unethical practices or reports a suspected incident of child abuse or neglect, " provides in relevant part the following:
This pending case is the second action the plaintiff has brought for the same underlying conduct. In her initial action filed June 22, 2016, the plaintiff named the wrong defendant and served the summons and complaint on the wrong person. The defendant does not challenge that this occurred within ninety days of the alleged violation. The defendant's attorney learned of the action a month later in July of 2016, and informed the plaintiff's attorney of the error, providing the plaintiff's attorney with the correct legal name of the defendant. The defendant's attorney also offered to accept service on behalf of the defendant. There was then some back and forth between attorneys that is not relevant for the purposes of the present motion, but in the end, the plaintiff's attorney withdrew the initial action in October of 2016. The plaintiff's attorney then filed the present second action on December 30, 2016, alleging the same underlying conduct and violation of § 31-51m, with a return date of January 31, 2017. The plaintiff's attorney did not serve the defendant until January 19, 2017. In the current complaint, the plaintiff claims that her action is filed pursuant to General Statutes § 52-592, which enables parties, when there has been an " accidental failure of suit, " to institute actions despite the expiration of time within which the plaintiff would ordinarily be authorized to bring such an action.
Section 52-592, titled " [a]ccidental failure of suit, " provides in relevant part: " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or . . . for any matter of form; . . . or if a judgment of nonsuit has been rendered . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
The defendant filed the present motion to dismiss, or in the alternative, motion for summary judgment (Docket Entry no. 102), on March 1, 2017, along with a supporting memorandum of law (Docket Entry no. 103). On April 28, 2017, the plaintiff filed her objection (Docket Entry no. 106), opposing memorandum of law (Docket Entry no. 107), and exhibits (Docket Entry no. 108). The defendant filed a reply (Docket Entry no. 112) on July 28, 2017. The court grants the defendant's motion to dismiss because the plaintiff voluntarily withdrew her initial action, precluding her reliance on § 52-592.
DISCUSSION
I
PROCEDURE
General Statutes § 31-51m, Connecticut's " whistleblower statute, " " protects the employee from retaliatory discharge when the employee has complained, in good faith, about a suspected violation of state or federal law or regulation." (Footnote omitted.) Arnone v. Enfield, 79 Conn.App. 501, 506-07, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003). Specifically, § 31-51m(b) describes the prohibited conduct, and § 31-51m(c) creates the cause of action. Section 31-51m(b) provides in relevant part: " No employer shall discharge, discipline or otherwise penalize any employee because . . . the employee . . . reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . . or . . . the employee reports a suspected incident of child abuse or neglect . . ." Section 31-51m(c) provides in relevant part: " Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may . . . bring a civil action, within . . . ninety days of such violation . . . in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred." (Emphasis added.)
" Generally, limitations on actions . . . are considered procedural or personal and thus subject to waiver . . . This is so because it is considered that the limitation merely acts as a bar to a remedy otherwise available . . . Such is not considered to be the case, however, where a specific limitation is contained in the statute which establishes the remedy . . . In such situations the Statute of Limitations is considered substantive or jurisdictional rather than procedural or personal . . ." (Emphasis in original; internal quotation marks omitted.) L.G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511, 356 A.2d 144 (1975). The ninety day time limitation on an action under § 31-51m is contained within the statute that sets forth the remedy, and is, therefore, jurisdictional, and properly the subject of a motion to dismiss. See L.G. DeFelice & Son, Inc. v. Wethersfield, supra, 511. See also Morin v. Athena Health Care, Superior Court, judicial district of New Britain, Docket No. CV-16-6033956-S (March 6, 2017, Wiese, J.) [64 Conn. L. Rptr. 163, ]. Because the court must properly dispose of the jurisdictional issue before it by way of a motion to dismiss when it is presented as an alternative to summary judgment; (see Dorry v. Garden, 313 Conn. 516, 521 n.7, 98 A.3d 55 (2014)); the court will apply the motion to dismiss standard.
II
STANDARD
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
" [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . .
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader . . .
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein . . . Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts . . . Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits." (Citations omitted; emphasis in original; footnotes omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-53, 974 A.2d 669 (2009). The evidence submitted by both parties does not raise any disputed issues of material fact, and thus, the court can properly dispose of the motion to dismiss without an evidentiary hearing.
III
ACCIDENTAL FAILURE OF SUIT
Connecticut General Statutes § 52-592, titled " [a]ccidental failure of suit, " provides in relevant part: " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident . .., or because the action has been dismissed for want of jurisdiction, or . . . for any matter of form; . . . or if a judgment of nonsuit has been rendered . . . the plaintiff . .., may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . ."
The defendant does not challenge that the original action brought against the wrong party was done so within the prescribed ninety days for an action under § 31-51m, but argues that the plaintiff cannot avail herself of the saving statute, § 52-592, because she was dilatory in filing and serving the second summons and complaint upon the correct party once she was notified of her error by the defendant, and moreover, she voluntarily withdrew the first action.
The plaintiff argues that she had a right to withdraw the suit, noting she filed the new suit within a year of accidental failure of suit, thereby complying with § 52-592.
Contrary to the plaintiff's understanding, the defendant is correct in that the plaintiff's voluntary withdrawal of the action precludes the availability of General Statutes § 52-592. See Parrott v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971) (voluntary withdrawal of an action cannot constitute accidental failure of suit); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948) (same). See also Richey v. Cellmark Pulp & Paper, Inc., Superior Court, judicial district of Tolland, Docket No. CV-04-4000319-S, (April 22, 2005, Scholl, J.), in which the court concludes " that the nonsuit was entered not because of excusable neglect by the Plaintiff but as a matter of strategy since he believed he had sued the wrong party, a determination not made by the court but by the Plaintiff himself. In light of that, the Plaintiff cannot avail himself of the provisions of § 52-592 since the situation here is more akin to a voluntary withdrawal of an action as opposed to a disciplinary nonsuit." As the statute of limitations for this action was ninety days, by withdrawing the first suit rather than revising it, the plaintiff failed to file the present suit within the ninety days statute of limitations. The accidental failure of suite statute does not pertain to this action.
CONCLUSION
Accordingly, the court grants the defendant's motion to dismiss.
(b) No employer shall discharge, discipline or otherwise penalize any employee because . . . the employee . . . reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body . . . or . . . the employee reports a suspected incident of child abuse or neglect . . . (c) Any employee who is discharged, disciplined or otherwise penalized by his employer in violation of the provisions of subsection (b) may . . . bring a civil action, within . . . ninety days of such violation . . . in the superior court for the judicial district where the violation is alleged to have occurred or where the employer has its principal office, for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if such violation had not occurred.