Opinion
No. FST CV 07 5003898 S
October 17, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS (123.00)
I. Background
This case involves a claim by the plaintiff Wells Fargo Bank, NA., as trustee for an entity named in part as "Morgan Stanley, Dean Witter Capital I, Inc. Trust . . ." A second entity, Chicago Title Insurance Company, is also named a plaintiff, but the allegations of the complaint do not indicate its interest in the case. The plaintiff Wells Fargo (herein sometimes referred to as "plaintiff") sues the defendant Candace Pampoukidis for payment of the proceeds of a note, now purportedly owned by Wells Fargo. Pampoukidis has moved to dismiss the cause pursuant to Practice Book § 10-30. The essence of the motion is that the plaintiff failed to return to court the writ of summons and complaint within thirty days after a prejudgment remedy (PJR) sought by Wells Fargo had been granted on June 11, 2007. The defendant also contends that this case was never actually commenced because the record does not reflect that a signed writ of summons and signed complaint was ever served on Pampoukidis, and such a writ of summons and complaint were never timely returned to court.
Wells Fargo opposed the motion to dismiss on the grounds the writ of summons and complaint was served on the defendant within thirty days of the granting of the PJR and returned to court as evidenced by the notation on the court's electronic case file of receipt of a "Supplemental Return" on July 3, 2007, although the "supplemental return" "is not in the physical case file, cannot be located, and the contents thereof do not appear in the electronic file."
As of December 1, 2009 filings in civil cases in Connecticut were (with a few exceptions not material here) required to be filed electronically. At present the court maintains both an electronic and a physical file in this case.
II. Scope of Review
A motion to dismiss attacks the jurisdiction of the court to hear and decide a case. When a jurisdictional question is raised, the court must assume the allegations of the complaint are true. The appropriate grounds for a motion to dismiss are: (1) lack of subject matter jurisdiction, (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. All such grounds except lack of subject matter jurisdiction are waived unless they are raised by a motion to dismiss filed in accordance with the time limits established in the Practice Book § 10-32. In this case, counsel for Pampoukidis represented her in the hearing on the application for the PJR in June 2007 and filed a formal appearance on her behalf on September 11, 2009. In accordance with Practice Book §§ 10-30, 10-32 and 10-33, the defendant's motion to dismiss, not filed until May 20, 2011, must be limited to whether subject matter jurisdiction exists. Manifold v. Ragaglia, 94 Conn.App. 103, 116 (2006). It is well recognized that in determining whether it has the requisite subject matter jurisdiction, "every presumption favoring jurisdiction should be indulged." Connor v. Statewide Grievance Committee, 260 Conn. 435, 443 (2002).
III. The Court File
The court file consists of (1) the traditional manila folder containing documents physically filed up to December 2009 and some documents that were electronically filed thereafter, and (2) the electronic file which indicates the existence of all physically filed documents and allows one to read the electronically filed documents.
The court file in this case contains the papers necessary, including an unsigned complaint, to obtain a court order setting down the plaintiff's application for a PJR for a hearing on June 11, 2007, and Judge Tobin's order granting the PJR on that date. The file also indicates that a "supplemental return" of service was filed physically on July 3, 2007. The return of service is not present in the file.
The manila folder court file also contains a signed writ of summons dated April 19, 2007 and unsigned complaint. The signed writ of summons has a clerk's office date stamp of July 6, 2007 and a scratched out return date of May 22, 2007 with a second date of July 10, 2007 written in.
IV. Discussion
The court will discuss the arguments of the defendant in the order they are presented in the memorandum of law supporting the motion to dismiss. The court notes, with appreciation, that both parties have filed carefully researched and well written papers.
A. Service and Return of Papers Supporting PJR. CT Page 21726
General Statutes § 52-278j(a) requires the plaintiff, when a PJR is granted, to "serve and return to court the writ, summons and complaint" within thirty days of the granting of the PJR or otherwise the PJR shall be dismissed. The defendant contends that since no return of service of the PJR, on her after Judge Tobin's order is in the file, the PJR must be dismissed. In response the plaintiff contends that a return of appropriate service was filed with the clerk's office as evidenced by the notations of "supplemental return" noted on the docket sheet on July 3, 2007, but the served papers and marshal's return are missing. In support of this contention the plaintiff attached to its memorandum opposing dismissal a copy of a return made by Marshal Timothy Poeti attesting that on June 28, 2007 he served the "original: Writ, Summons and Complaint, Unsigned Order and Proposed Order for Prejudgment Remedy" on the defendant Candace Pampoukidis at her usual place of abode at "89 Strawberry Hill Avenue, Norwalk, CT 06854." Exhibit A to Plaintiff's Memorandum in Opposition to Motion to Dismiss dated July 15, 2011. Dkt. Entry 125.00. Judge Tobin had signed the "Proposed Order."
The defendant correctly notes that Connecticut's PJR procedure is solely a creature of statute, and a PJR may only be granted when the applicant "strictly follows the applicable statute." Feldman v. Sebastiani, 261 Conn. 721, 725 (2002). Both parties concede that no return of service is in the court file. Nevertheless, the plaintiff has produced an apparent copy of the marshal's return of service along with copies of the papers served on the defendant. Pl. Memo, Exhibits A and B. The defendant has not contended she was not timely served. It might have clarified matters if the plaintiff had at least attempted to avail itself of Practice Book § 7-8 (procedure for correcting the file when a document supposed to be in the file is lost or mislaid). But that did not occur. In light of the docket entry at 107.00 indicating that some kind of return was filed in court within 30 days of Judge Tobin's order, and the existence of the marshal's return of service showing abode service of a signed order of PJR, the court concludes there is sufficient evidence that the mandate of Section 52-278j(a) has been met.
B. Service and return of complaint.
The defendant contends that since no signed complaint has ever been returned to court, this case has never been commenced, and the court lacks jurisdiction over it. General Statutes § 52-45a says "[c]ivil actions shall be commenced by a writ of summons or attachment describing the parties, the court to which it is returnable, the return date . . . The writ shall be accompanied by the plaintiff's complaint."
In Shokite v. Perez, 19 Conn.App. 203 (1989), the Appellate Court was faced with a situation somewhat akin to this case where the defendant made a motion to dismiss a case for lack of subject matter jurisdiction nearly four years after an unsigned complaint had been filed (along with a signed writ of summons). The trial court granted the motion and the Appellate Court reversed, stating that General Statutes § 52-45a "contains no language directing counsel to sign the complaint as well . . . Therefore, we cannot impose on the plaintiff the additional requirement of signing the complaint. We conclude that compliance with the statute was all that was required to give the court subject matter jurisdiction." Id. 205.
The defendant contends that the court lacks subject matter jurisdiction because of a lack of a signed complaint in the file. The cases cited to support this point are Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548 (2008) and Raynor v. Hickock Realty Corp., 61 Conn.App. 234 (2000). Both of these cases involved an unsigned writ of summons and therefore are inapplicable to this case where the file contains a signed writ of summons.
Finally, the defendant argues that the signed writ of summons is dated April 19, 2007, the return date is July 10, 2007 and the summons is date stamped by the court clerk's office on July 6, 2007; therefore, the summons was not returned to court at least six days prior to the return date in violation of General Statutes § 52-46a, and the requirement that all process be made returnable within two months of the date of process, was unmet, General Statutes § 52-48(b).
The court finds there is substantial evidence to establish that the process was returned on July 3, 2007 based on the "supplemental return" entry on the court docket. Therefore, the mandate of Section 52-46a was met. In Coppola v. Coppola, 243 Conn. 657, 661-62 (1998), the Connecticut Supreme Court described a violation of Section 52-46a as "render[ing] the proceeding as voidable, rather that void." More specifically, the Connecticut Supreme Court has held that a claim of insufficiency of process is waived if not raised within thirty days of an appearance being filed on behalf of the defendant. Pitchell v. Hartford, 247 Conn. 422, 433 (1999); Citibank v. Wonoski, Superior Court, judicial district of New Haven at New Haven, CV 11 6021938 (September 12, 2011, Young, J.); see also Practice Book §§ 10-30, 10-32. Therefore, even if the July 6, 2007 date stamp is considered the date of return, this defect was waived.
As to the claimed violation of Section 52-48(b) the plaintiff claims that the "date of process" means the date of service of process which, in this case they contend is June 28, 2007. This appears to be contrary to authority. Haylett v. Comm. on Human Rights and Opportunities, 207 Conn. 547, 554-55 (1988). Nevertheless, the defendant's Section 52-48(b) argument is essentially another claim of insufficiency of process, and the court finds these potential attacks on jurisdiction over the person have been waived based on the authorities cited in the preceding paragraph.
V. Conclusion
For the reasons stated above the motion to dismiss is denied.