Opinion
FBTCV135030028
01-29-2016
Lisa Lee Whitnum v. Town of Greenwich
UNPUBLISHED OPINION
Filed February 1, 2016
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Richard E. Arnold, J.
The proposed defendants, John Crary, Diane Fox, William Marr, John Valerie a/k/a John Valarie, as well as, the Greenwich Police Department have moved to dismiss the plaintiff's amended complaint dated August 24, 2015 for lack of personal jurisdiction. On June 30, 2015, the plaintiff had filed a motion to cite additional parties. The purpose of the amended complaint was to include additional parties as defendants to the plaintiff's action if the court granted the plaintiff's motion to cite additional parties. The defendants argue that pursuant to Practice Book § 10-60, the plaintiff was entitled to amend her complaint by order of the judicial authority. In this matter the court (Arnold, J.) on July 27, 2015, ordered that " on or before August 24, 2015, the plaintiff amend her complaint to state facts showing the interest of John Crary, Diane Fox, William Marr, and John Valerie . . ." The defendants do not dispute that pursuant to Practice Book § 10-60, the plaintiff was entitled to amend her complaint by order of the judicial authority. However, when the plaintiff filed her amended complaint dated August 24, 2015, contrary to the court's order, the plaintiff also added the Greenwich Police Department as an additional defendant. Also as part of the same order of the court dated July 27, 2015, the court required that plaintiff summon the proposed additional defendants Crary, Fox, Marr and Valerie to " appear in this action on or before the second day following September 8, 2015, by causing some proper officer to serve on each of them in the manner prescribed by law a true attested copy of this order, a true and attested copy or certified copy of the complaint in this action, as amended, and a Summons Civil Form JD-CV-1 and due return make." The defendants argue that again, contrary to the court's order, the plaintiff issued a summons dated September 4, 2015, and unilaterally changed the return to September 29, 2015 in violation of the court's order. The defendants argue that the amended complaint should be dismissed for insufficiency of process and insufficiency of service of process for the following reasons:
The plaintiff, on January 5, 2016, moved to transfer this matter to the Judicial District of Stamford at Stamford. The court (Bellis, J.) granted the motion to transfer on January 19, 2016, while this decision was pending. Oral argument on the motion to dismiss was heard by this court on November 2, 2016, prior to the transfer order. The Docket No. in the Judicial District of Fairfield at Bridgeport was FBT CV13 5030028. It has been assigned a new docket number at the Judicial District of Stamford at Stamford. That Docket No. is FST-CV-13 5015301S.
The plaintiff attempted to correct her failure to comply with the court's order by filing a motion for extension of time, on September 8, 2015, which the court denied on September 28, 2015.
1. The plaintiff failed to provide a recognizance or certification;
2. Failure to make proper service on the individual defendants in their official capacities and on the Town of Greenwich and the Greenwich Police Department.
3. Failure to make proper service on the individual defendants in their personal capacities
The defendants have submitted a memorandum of law, dated September 16, 2015, in support of their motion to dismiss the proposed amended complaint. The plaintiff has not filed a memorandum of law objecting to the motion to dismiss, but she did appear for oral argument on the motion. On November 2, 2015, the court heard argument from the defendants' counsel in support of the motion to dismiss the amended complaint and argument from the plaintiff, objecting to the motion.
A " motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . ." Practice Book § 10-30. " [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Alldred v. Alldred, 132 Conn.App. 430, 434, 31 A.3d 1185 (2011), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). " [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." (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 or 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.
The defendants argue that the plaintiffs' failure to provide a signed recognizance on the summons rendered service of process deficient, and the amended complaint subject to dismissal for lack of personal jurisdiction. The court agrees. Practice Book § 8-4 provides that " no mesne process shall be issued until the recognizance of a third party for costs has been taken, unless the authority signing the writ shall certify thereon that he or she has personal knowledge as to the financial responsibility of the plaintiff and deems it sufficient." Interpreting this provision, " the Superior Court has consistently held that the failure of a plaintiff to comply with § 8-4 results is insufficient service, and consequently a defendant's motion to dismiss should be granted." Lowery v. Shea, Superior Court, judicial district of New Haven, Docket No. CV 09 4037443 (January 4, 2010, Keegan, J.); 49 Conn.L.Rptr. 132, citing Guilani v. Bak, Superior Court, judicial district of Windham, Docket No. CV 09 5004519 (August 31, 2009, Riley, J.); 48 Conn. L. Rptr. 430; Barr, Inc. v. Central Construction Industries, LLC, Superior Court, judicial district of Windham, Docket No. CV 06 4004596, (September 1, 2006, Riley, J.); Hyman v. National Association for the Advancement of Colored People, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0195524, (May 6, 2004, Lewis, J.T.R.), Accord Buehler v. Greenspan, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 11 5013680 (September 12, 2011, Adams, J.T.R.); 52 Conn. L. Rptr. 576; Cherry v. City of New Haven, Superior Court, judicial district of New Haven, Docket No. CV 10 5033080, (April 23, 2010, Wilson, J.); see also Royster v. Crown Towing, Superior Court, judicial district of New Haven, No. CV 115033931, (Dec. 21, 2011, Gold, J.).
The present matter is not a summary process action.
The plaintiff's summons does not contain a recognizance of a third party. Accordingly, because the plaintiff has failed to comply with Practice Book § 8-4 by failing to provide a recognizance, the court grants the defendants' motion to dismiss the amended complaint for insufficiency of process.
The plaintiff has not moved to cure the defect as provided by Practice Book § 8-5(b) contains a remedy for failing to post a bond. " If the judicial authority, upon the hearing of the motion to dismiss, directs the plaintiff to file a bond to prosecute in the amount deemed sufficient by the judicial authority, the action shall be dismissed unless the plaintiff complies with the order of the judicial authority within two weeks of such order." A similar remedy is also found in General Statutes § 52-185(d) [:1] " If there has been a failure to comply with the provisions of this section, or if the authority signing a writ has failed to certify in accordance with any statute or rule that he has personal knowledge as to the financial responsibility of the plaintiff and deems it sufficient, the validity of the writ and service shall not be affected unless the failure is made a ground of a plea in abatement. If such plea of abatement is filed and sustained or if the plaintiff voluntarily elects to cure the defect by filing a bond, the court shall direct the plaintiff to file a bond to prosecute in the usual amount."
The court also notes that the plaintiff attempted to make service on the additional individual defendants, Crary, Fox, Marr and Valerie and the Town of Greenwich and the Greenwich Police Department by having an individual identified as " Jason Walsh, Assistant to L. Lee Whitnum, deliver to the town attorney, a copy of the amended complaint and other related documents. This was not effective service on individual defendants in their official capacities as required by General Statutes § 52-50, which requires that " [a]ll process be directed to a state marshal, constable or other proper officer authorized by statute or subject to the provisions of subsection (b) of this section, to an indifferent person. Delivery of the amended complaint and related materials by John Walsh, an assistant to the plaintiff does not meet the requirements of section 52-50. Additionally, there is no proof or proper return of service indicating that the proposed individual defendants Fox, Marr and Valerie were ever served in their individual capacities. Thus there is no way of knowing whether there was any compliance with General Statutes § 52-50, § 52-46 and § 52-46a.
Lastly, regarding the proposed individual defendant, Crary, it appears that he is a nonresident of Connecticut, presently residing in the State of New York. Service on a non-resident is governed by General Statutes § 52-59b. There is no proof of statutory compliance.
The plaintiff's amended complaint is dismissed on the grounds of insufficiency of process and insufficiency of service of process, as well as for the plaintiff's failure to abide by the court's orders of July 27, 2015. The underlying matter remains as a pending action with the prior operative complaint, as the proposed amended complaint has now been dismissed.