Opinion
No. CV08-5020500S
August 4, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)
FACTS
The case presently before the court arises out of a January 27, 2004 accident. The complaint, dated May 1, 2008, alleges that the plaintiff, Tonya Younger, was a pedestrian at a bus stop in New Haven, when she was struck and injured by a motor vehicle operated by the defendant John Kraszewski. The complaint further alleges that at the time, Kraszewski was involved in a motor vehicle pursuit through the streets of East Haven, into New Haven, by the defendants David Cari, a police officer employed by the City of East Haven, and "John Doe", a police officer employed by the City of New Haven.
The action, brought pursuant to Connecticut General Statutes § 52-592, the Accidental Failure of Suit Statute, is comprised of ten counts. Count one is a negligence claim against Cari; count two is a claim against the City of East Haven on behalf of Cari pursuant to Connecticut General Statutes § 7-465, an indemnification statute; count three is a negligence claim against Leonard Gallo, the Chief of Police for the City of East Haven; count four is a claim against the City of East Haven on behalf of Gallo pursuant to Connecticut General Statutes § 7-465; count five is a negligence claim against "John Doe"; count six is a claim against the City of New Haven on behalf of "John Doe" pursuant to Connecticut General Statutes § 7-465; count seven is a negligence claim against Francisco Ortiz, the Chief of Police for the City of New Haven; count eight is a claim against the City of New Haven on behalf of Ortiz pursuant to Connecticut General Statutes § 7-465; count nine is a negligence claim against Kraszewski; and count ten is a recklessness claim against Kraszewski.
Although captioned as a negligence claim, the allegations in Count Ten are of recklessness.
On July 1, 2008, the defendants City of New Haven, Leonard Gallo, and John Doe (the New Haven defendants) moved to dismiss counts five through eight of the complaint on the grounds of lack of subject matter jurisdiction and/or personal jurisdiction. No objection or motion or request for extension of time was filed by the plaintiff. The motion was on the short calendar as a non-arguable matter on July 16, 2008.
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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983). "The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper avenue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book 10-31. "Jurisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179, 554 A.2d 728 (1989).
FIFTH COUNT AS TO JOHN DOE
The New Haven defendants argue that the court lacks jurisdiction over John Doe because he was not properly served, and that count five should therefore be dismissed. Additionally, the New Haven defendants argue that the fifth count should be dismissed as Connecticut practice does not permit actions to be initiated against fictitious defendants. The court agrees with the New Haven defendants on both points.
Here, the marshal's return of service dated May 5, 2008 indicates that service of process was made on Ronald Smith, City Clerk, Agent for Service on behalf of John Doe.
"General Statutes § 52-45a provides that [c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties . . . Unlike some jurisdictions, Connecticut has no statutory provision for suing an unidentified John Doe defendant.[fn. 7]." Tarnowsky v. Socci, 271 Conn. 284, 292 (2004) (Citations omitted; internal quotations omitted).
[7] For example, California law provides that "[w]hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated . . . by any name . . ." Cal.Civ. Proc. Code § 474 (Deering Sup. 2004).
General Statutes § 52-68, entitled, "Notice to non-resident adverse or interested parties and interested parties unknown to plaintiff," has been used in actions in rem; as pointed out by the Tarnowsky court, the statute generally has not been used as a substitute for making personal service on unidentified tortfeasors.
"The Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." Jimenez v. DeRosa, 109 Conn.App. 332, 338 (2008) (citation omitted).
"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 . . . [S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of in personam jurisdiction over that party . . . [N]o principle is more universal than that the judgment of a court without jurisdiction is a nullity . . . Such a judgment, whenever and wherever declared upon as a source of right, may always be challenged . . . If a court has never acquired jurisdiction over a defendant or the subject matter . . . any judgment ultimately entered is void and subject to vacation or collateral attack. A challenge to the jurisdiction of the court presents a question of law . . . [T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Citations omitted; internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 712-14 (2007).
In Angiolillo v. Buckmiller, supra, the Appellate Court held that the trial court properly dismissed, sua sponte, the plaintiff's claims against a defendant who had been identified as "John Doe One" in the original complaint. The original complaint contained one hundred twenty-six counts, nine of which were directed against the defendant "John Doe One"; the marshal's return of service indicated that service of process was made on one David Buckmiller who accepted service for John Doe One. Subsequently, an amended complaint was filed, directed counts one through nine as to one Joseph A. Corona. A certificate of service on Corona was not filed, no appearance was filed for either John Doe One or Corona, nor was a default ever filed against Corona for failure to appear. The trial court, sua sponte, ruled that Corona was not a party to the action because he was never served and never filed an appearance, and dismissed the claims against him. The trial court noted, inter alia, that there was no indication as to who John Doe One was at the time of the original complaint or that Buckmiller had authority to accept service for anyone known as John Doe One.
The majority of superior courts faced with issues relating to "John Doe" defendants have generally disallowed the actions, whether on a motion to dismiss based on lack of jurisdiction for improper service, see Crooker v. Allen, Superior Court, judicial district of Hartford, Docket No. 07 5011602 (March 27, 2008, Dubay, J.); Brook v. A1 Auto Service, Inc., Superior Court, judicial district of New Haven, Docket No. 414991 (December 11, 1998, Blue, J.); Marinelli v. Newtown Park and Recreation, Superior Court, judicial district of Danbury, Docket No. 324703 (March 18, 1997, Moraghan, J.) [19 Conn. L. Rptr. 300] (granting motion to dismiss, where action was brought against two counselors, "Michelle Moe" and "Richard Doe" employed by the town, service was made on the town clerk, and the plaintiff subsequently amended his complaint as of right to include the correct names of the two individuals); Bellino v. DOC, Superior Court, judicial district of New Haven, Docket No. 379427 (August 7, 1996, Zoarski, J.); Hackett v. State of Connecticut, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 352161 (November 28, 1990, Stengel, J.); or on a motion for summary judgment on the basis of the statute of limitations, see Chaouki v. City of New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. 97 0407166 (November 16, 2001, DeMayo, J.) (where defendants included the City of New Haven and its police officer "John Doe #1", denying the plaintiff's motion to substitute the correct name for "John Doe #1" and granting the City's motion for summary judgment on the basis of the statute of limitations); Sandig v. Dubrevil Sons, Inc., Superior Court, judicial district of New London at Norwich, Docket No. 93 0104218 (May 7, 1999, Parker, J.) (granting motion to dismiss on basis of statute of limitations by defendant which had originally been identified as "John Doe," and where the plaintiff's subsequently filed and served an amended complaint upon the proper defendant after the statute of limitations had expired). See also Allen v. Transportation General, Superior Court, judicial district of New Haven, Docket No. 99 0423757 (August 13, 1999, Zoarski, J.) (denying motion to dismiss claim against John Doe because the attorney who had filed the motion, had not appeared on John Doe's behalf, noting that ordinarily the motion would have been granted, and finding that identifying a defendant as "John Doe" is not in accordance with Connecticut law). For other decisions disallowing actions against unknown defendants, see Himmelstein v. Town of Windsor, Superior Court, judicial district of Hartford; Docket No. 05 4013928 (May 16, 2006, Keller, J.); O'Donnell v. State of Connecticut, Superior Court, judicial district of New Haven, Docket No. 03 0482928 (September 14, 2004, Corradino, J.) [37 Conn. L. Rptr. 884], (granting motion to dismiss as to unknown "Jane and John Doe" State of Connecticut collections officers); Gregory v. City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 97 0341425 (May 5, 1999, Skolnick, J.) [24 Conn. L. Rptr. 454], (granting motion for summary judgment filed by defendants as to "John Doe" defendant); Kerr v. Doe, Superior Court, judicial district of Waterbury, Docket No. 0117897 (April 15, 1994, Sullivan, J.) [11 Conn. L. Rptr. 375], (granting motion to dismiss filed by John Doe); and Douglas v. Town of Hartford, 542 F.Sup. 1267, 1270 (1982) (dismissing claims against "John Doe" and "Richard Roe" police officers unless the plaintiff's identify and properly serve the actual police officers by a date definite, stating that "[t]his court has consistently taken the position that the use of fictitious names in a pending litigation causes uncertainty and possible prejudice to the unnamed defendants"); Farmers Mechanics Bank v. Nellis, Superior Court, judicial district of Middlesex, Docket No. 63451 (December 21, 1992, Higgins, J.) [8 Conn. L. Rptr. 105], (vacating ruling of first judge granting motion to cite in "John Doe" and "Jane Doe" defendants, and denying second motion to cite in which referred to the defendants as "John Doe aka Melvin Jenkins" and "Jane Doe aka Joyce Spiry," citing a prohibition against "John and Jan (sic) Doe" pleadings in Connecticut); CRRA v. Refuse Gardens, Superior Court, judicial district of Hartford-New Britain, Docket No. 364240 (March 25, 1992, Schaller, J.), (denying plaintiff's motion to substitute true names in lieu of the defendants "John Doe I" and "John Doe II" named in the original complaint; "[t]here is no authority to proceed against unknown persons in actions in Connecticut courts"). But see Barber v. City of Hartford, Superior Court, judicial district of Hartford-New Britain, Docket No. 93 529115 (December 21, 1993, Freed, J.) [10 Conn. L. Rptr. 523], (denying motion to dismiss filed by defendants City of Hartford and five police officers, where three of the police officers were unknown and identified in the complaint as "John, Sam and Henry Doe," holding that "the court is authorized to allow a plaintiff to bring a lawsuit naming defendants as fictitious persons when such names are unknown to the plaintiff, and when it is necessary to further the litigation . . . the defendants must have actual notice of the institution of the action, know further that they are proper defendants and are not misled to their prejudice by the use of such fictitious names").
Additionally, there are a myriad of cases following in the wake of Tort Reform I and Tort Reform II dealing with "John Doe" apportionment defendants. For examples of cases holding that apportionments complaints cannot be filed against John Doe defendants, see Andretta v. Rudig, Superior Court, judicial district of Ansonia-Milford, Docket No. 99 065340 (December 14, 1999, Arnold, J.) [26 Conn. L. Rptr. 110]; Catalan v. Mahnik Construction Company, Superior Court, judicial district of New London, Docket No. 535192 (March 2, 1996, Austin, J.)
Also, Bauer v. Pounds, 61 Conn.App. 29 (2000) involved an unidentified "John Doe" defendant, who was operating a bus owned by one of the co-defendants. The jury returned a verdict in favor of the plaintiff against all defendants, including John Doe. The issue regarding the propriety of the John Doe defendant was not addressed.
Simply put, the jurisdiction of this court, like all trial courts, extends only to those parties who have been specifically named in the action and properly served with process. An individual or entity who is not served with process is not accorded the status of a party to the proceeding; one is entitled to notice of the actions or proceedings and an opportunity to appear and be heard. There is no statute or rule in Connecticut which specifically authorizes the use of the fictitious name procedure employed here, which is totally lacking in fundamental fairness to the real defendant, whoever he may be. John Doe, whoever he is, has the right to be identified by correct name, served in accordance with Connecticut law, and properly made a party. As the unidentified "John Doe" was improperly included in this action, any purported service upon him was insufficient. The New Haven defendants' motion to dismiss count five is therefore granted.
SIXTH COUNT AS TO CITY OF NEW HAVEN
The New Haven defendants move to dismiss count six of the complaint, which seeks indemnification from the City pursuant to Connecticut General Statutes § 7-465 for the alleged tortious conduct of "John Doe." "Section 7-465, although entitled assumption of liability for damages caused by employees, imposes no liability upon a municipality for breach of any statutory duty of its own." Ahern v. New Haven, 190 Conn. 77, 82 (1983). As the movants correctly point out, under § 7-465, a municipality's liability is derivative. "A plaintiff bringing suit under General Statutes Section 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability for indemnification." (Emphasis in original; internal quotations omitted). Wu v. Fairfield, 204 Conn. 435, 438 (1987). In effect, the statute indemnifies a municipal employee under certain conditions if a judgment is obtained against him. See Kostyal v. Cass, 163 Conn. 92, 97 (1972).
In light of the court's dismissal of count five as to John Doe, the plaintiff cannot in this action obtain a judgment against "John Doe" that would give rise to indemnification under § 7-465. For these reasons, the sixth count of the complaint is dismissed.
SEVENTH COUNT AS TO ORTIZ EIGHTH COUNT AS TO CITY OF NEW HAVEN
Finally, the New Haven defendants move to dismiss counts seven and eight of the complaint. A myriad of arguments are made, none of which are grounds for a motion to dismiss or supported by any case law to suggest otherwise. "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A2.3 1322 (1993). As such, the motion to dismiss as to counts seven and eight is denied.
The New Haven defendants argue that count seven, directed against Ortiz, the New Haven Chief of Police, should be dismissed because a cause of action cannot be made against a fictitious defendant; this court is reasonably certain that former Chief of Police Francisco Ortiz is in fact an actual person. The New Haven defendants also argue that Ortiz cannot be responsible for the actions of Doe; count seven, however, includes claims such as failure to train and supervise his officers. They also argue that Ortiz had no authority over Cari. Clearly, these are not appropriate basis for a motion to dismiss.
CONCLUSION
Accordingly, the New Haven defendants' motion to dismiss counts five and six is granted; the motion to dismiss counts seven and eight is denied.