Opinion
No. CV 08 5002484 S
March 26, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #107 OBJECTION TO MOTION TO DISMISS #108
The plaintiff filed this action to collect upon an alleged loan to the defendants on February 13, 2008 with a return date of March 11, 2008. The defendant Zavistroski filed an appearance by counsel on March 7, 2008 and the same counsel filed an appearance for the co-defendant Snowflake on April 8, 2008.
Answers to the complaint were filed by both defendants on July 9, 2008 and a Certificate of Closed Pleadings was filed on July 17, 2008.
On February 6, 2009 the defendants filed a Motion to Dismiss and a Special Defense. The Motion to Dismiss cites no Practice Book section as authority for the motion. It appears to the court that the defendants are relying on P.B. § 10-30 and are therefore contesting the court's jurisdiction to entertain the plaintiff's claimed causes of action. The defendant's motion argues that because the rate of interest charged for the loan is violative of § 37-4 C.G.S., that the plaintiff's cause of action is prohibited by § 37-8 C.G.S.
The plaintiff points out that P.B. § 10-30 requires that the Motion to Dismiss must be filed within 30 days of the filing of an appearance. The plaintiff posits that the defendant's motion is therefore, too late and should not be considered at this time.
Section 10-31(a) provides several grounds for the motion to dismiss, none of which were cited by the defendant. That practice book section also requires that the ". . . motion shall always be filed with a supporting memorandum of law . . ." No memorandum was provided, as required. The court also notes that P.B. § 10-6 provides for the order of pleadings and § 10-7 that the "filing of any pleading provided for by the previous section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." Here the filing of the Answer would waive the defendant's right to file the motion to dismiss without leave of court to do so, that leave has not been requested.
There are five subsections under P.B. § 10-31(a) which, if proven by the defendant, could provide grounds for a dismissal. The defendants do not make it clear what grounds they are relying upon to have the action dismissed. The motion was filed seven months after the answers in contravention of P.B. § 10-7 and nearly a year after the defendant's appearances in violation of P.B. § 10-31. The only ground pursuant to P.B. § 10-31 which would not be waived as a basis for dismissal would be subject matter jurisdiction [§ 10-31(a)(1)].
P.B. § 10-31(a) provides:
(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with support affidavits as to facts not apparent on the record.
This court's research has led to the conclusion that the defendant's allegation that the loan violated the usury laws of the State of Connecticut does not deprive the court of subject matter jurisdiction. Section 37-8 of the General Statutes mandates that no action shall be brought to recover the whole or any part of a usurious loan. Consequently, the complaint could not effectively serve as a means to recover the amount loaned " if in fact, the loan is shown to be usurious." (Emphasis added.) Wesley v. DeFonce Contracting Corporation, 153 Conn. 400, 405, 216 A.2d 811 (1966). In Wesley the question of whether the loan was usurious was a question to be determined by the fact-finder, rather than a jurisdictional concern. The defendants, of course, have not provided the court with any citations indicating that § 37-8 deprives the court of subject matter jurisdiction. Their motion is a riddle wrapped in a mystery, inside an enigma. That is probably the reason why the Practice Book requires that a Memorandum of Law be filed with such motions.
Due to the timing and order of the pleadings, the defendants have waived any challenges to personal jurisdiction, improper venue, insufficiency of process or insufficiency of service of process. Furthermore, the defendants have failed to make any claims or arguments that the court lacks subject matter jurisdiction over the plaintiff's action. Consequently the defendant's Motion to Dismiss is DENIED (#107) and the plaintiff's objection thereof (#108) is SUSTAINED.