Opinion
CV146047146S
02-23-2016
William Tywford v. Md Rahman et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #117
Brian T. Fischer, J.
FACTS
The present action is a consolidated matter that arises out of a motor vehicle accident where the plaintiff, William Tywford, alleges he suffered various injuries. The plaintiff has filed two complaints in two separate actions: (1) On May 19, 2014 (first action), alleging negligence against the defendants, Md Rahman and Salima Rahman; and (2) On December 10, 2014 (second action), claiming underinsured motorist benefits against the defendant, Middlesex Mutual Insurance Company (Middlesex).
Tywford v. Middlesex Mutual Assurance Co., Superior Court, judicial district of New Haven, Docket No. CV-14-6051539-S. Middlesex filed an appearance in the second action on December 19, 2014.
On May 4, 2015, the plaintiff filed a motion to consolidate the two actions, maintaining that they arose out of the same vehicle accident, and therefore there are common questions of law and fact. This court granted the motion on June 16, 2015. The plaintiff then filed a request for leave to amend the complaint in the first action on August 21, 2015, adding a second count against Middlesex. On September 16, 2015, Middlesex filed an appearance in the first action, and a motion to dismiss count two of the amended complaint on the grounds that the prior pending action doctrine applies, and service of process was insufficient. Middlesex submitted a memorandum of law and copies from the second action of the writ of summons and complaint. The plaintiff filed an objection and memorandum of law in opposition to the motion on November 23, 2015. This matter was heard at short calendar on December 14, 2015.
The only noted difference against Middlesex in both complaints is that the plaintiff added a paragraph in count two of the amended complaint alleging: " At the time of the accident the defendant Salima Rahman had limits of liability insurance in the amount of $50,000, and upon information and belief, the limits of said policy in the amount of $50,000 shall be exhausted and disbursed."
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." (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).
In its memorandum of law in support of the motion to dismiss, Middlesex argues that the claim against it in count two of the amended complaint in this first action is barred by the prior pending action doctrine because the plaintiff has already alleged an underinsured motorist claim against it in the second action. Middlesex further argues that the plaintiff never moved to cite in Middlesex as a defendant, and it was never served with a copy of the amended complaint. The plaintiff responds that he added the second count for convenience and judicial efficiency to have both counts in the same complaint but has not provided this court with any legal authority as to the prior pending action doctrine or the service of process on Middlesex. Practice Book § 10-32 provides in relevant part that, " [a]ny claim of lack of jurisdiction over the person . . . 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." " [A]ny defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30(b).
Although there is no dispute that Middlesex was properly served in the second action, it maintains that it never was properly served with the writ of summons and amended complaint in the first action. The plaintiff does not address this argument in its memorandum of law in opposition to the motion. Since this issue is dispositive as to whether count two must be dismissed, the court will address it first. " [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). " [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is founds lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . 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." (Internal quotation marks omitted.) Id., 401.
" We believe that fundamental fairness requires that service be made on the party . . . so that it can participate in the proceedings and have the opportunity to assert whatever defenses might apply." Bicio v. Brewer, 92 Conn.App. 158, 167, 884 A.2d 12 (2005). " The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Emphasis omitted; internal quotation marks omitted.) Id., 165.
The facts in the present case are similar to those in Tocco v. Wesleyan University, 112 Conn.App. 28, 961 A.2d 1009 (2009). In Tocco, the plaintiff filed an action against the first defendant, Wesleyan, and later filed a request to amend her complaint alleging an additional count against the apportionment defendant, the association, which the court granted. Id., 29-30. The plaintiff mailed a copy of the complaint to the association, and in turn, the association filed an appearance and a motion to dismiss claiming lack of personal jurisdiction due to improper service. Id., 30.
The Appellate Court in Tocco upheld the granting of the association's motion, looking first at the language of the rules of practice. The court observed that: " Practice Book § 10-12(c) provides: Any pleading asserting new or additional claims for relief against parties who have not appeared or who have been defaulted shall be served on such parties . . . Practice Book § 10-13 provides in relevant part: Service made pursuant to Section 10-12(c) shall be made in the same manner as an original writ and complaint is served . . . The meaning of Practice Book § § 10-12(c) and 10-13 is plain and unambiguous that a nonappearing party must be served in the same manner as required for service of an original complaint." (Emphasis in original; internal quotation marks omitted.) Id., 32.
In the instant case, the writ of summons on the marshal's return named only Md Rahman and Salima Rahman as having been served; moreover, they are the only two named parties in the first action. When the plaintiff requested leave to file his amended complaint to include a count against Middlesex in the first action, Middlesex had not yet filed an appearance. Because it had not yet filed an appearance, the amended complaint should have been served in the same manner as the original complaint in order for the court to acquire personal jurisdiction over Middlesex. There is no evidence that the plaintiff served Middlesex with a copy of the amended complaint in accordance with § § 10-12(c) and 10-13, and as a result, it does not have the status of a party to the proceeding. Accordingly, since this court lacks personal jurisdiction over Middlesex as a party to the first action, the court grants Middlesex's motion to dismiss count two.
Because the motion to dismiss has been resolved on this ground, the court does not need to address Middlesex' prior pending action doctrine argument.
CONCLUSION
For the foregoing reasons, the court grants Middlesex's motion to dismiss count two of the plaintiff's amended complaint.