Alvarado v. United States

1

JOSE ALVARADO, Plaintiff, v. UNITED STATES, Defendant.

No. 3:23-cv-331 (SRU)

United States District Court, D. Connecticut

September 28, 2024

RULING ON MOTION TO DISMISS

Stefan R. Underhill United States District Judge.

Third-party defendants Sandra Davis and EAN Holdings, LLC (“EAN”) have moved to dismiss the United States' third-party apportionment complaint for lack of personal jurisdiction. For the following reasons, I grant the motion, doc. no 24, and dismiss the third-party apportionment complaint, doc. no. 15. The dismissal is without prejudice to the United States showing that Davis and EAN forfeited the challenge to personal jurisdiction.

I. Background

This case arises out of an automobile accident in Windsor Locks Connecticut between a van operated by Sandra Davis and a tractor trailer rented by the United States Postal Service (“USPS”). Compl., Doc. No. 1 ¶¶ 6-8, 23; Third Party Compl., Doc. No. 15 ¶¶ 6, 11. Alvarado was a passenger in the van. Compl., Doc. No. 1 ¶ 6. Alvarado initiated a negligence action pursuant to the Federal Tort Claims Act (“FTCA”) against the United States to recover damages for his alleged injuries. Id. ¶¶ 9, 24.

The government alleges that Davis negligently caused the accident. Third Party Compl., Doc. No. 15 ¶ 10. It filed a third-party apportionment complaint against Davis and EAN, Davis's alleged employer. See generally id. EAN and Davis moved to dismiss the third-party complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Doc. No. 24.

II. Standard of Review

A plaintiff bears the burden of showing that the court has personal jurisdiction over each defendant. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). Where, as here, there has been no discovery on jurisdictional issues and the court is relying solely on the parties' pleadings and affidavits, the plaintiff need only make a prima facie showing that the court possesses personal jurisdiction over the defendants. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999).

III. Discussion

In the present motion to dismiss, EAN and Davis argue that the government failed to timely serve the third-party apportionment complaint. Doc. No. 24-1 at 1 (citing Conn. Gen. Stat. § 52-102b).

A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability.

Conn. Gen. Stat. § 52-102b(a). The statute sets a 120-day service deadline from the return date of the plaintiff's original complaint, id., and “shall be the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiffs damages as a party to the action.” Id. § 52-102b(f).

The FTCA adopts the “law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). “[S]tate law will apply only if it is substantive, rather than procedural, and district courts applying state law in FTCA suits must determine as a threshold matter whether that law is substantive.” Corley v. United States, 11 F.4th 79, 85 (2d Cir. 2021). The government argues I should not follow section 52-102b's 120-day apportionment service deadline because Erie^[1]and its progeny require me to instead follow Federal Rule of Civil Procedure 14. Doc. No. 25 at 1-2, 11.

If section 52-102b's 120-day apportionment service deadline is substantive, I must apply that deadline. See Corley, 11 F.4th at 85. If, however, the service deadline is procedural, I must exclusively look to Federal Rule of Civil Procedure 14. “[I]t is beyond dispute that the FTCA preserves the requirement that federal courts apply the Federal Rules of Civil Procedure.” Shields v. United States, 436 F.Supp.3d 540, 547 (D. Conn. 2020). “[T]he FTCA was intended to incorporate state law only to the extent that state law bears on the elements of substantive liability.... [T]he FTCA does not license federal courts to,” for example, “displace the Federal Rules of Civil Procedure with contrary state law pleading rules.” Id. at 544-45.

In a recent FTCA action with an identical substantive-procedural issue, District Judge Omar A. Williams concluded that section 52-102b's 120-day deadline was substantive and thus incorporated by the FTCA. Roegiers v. United States, 2023 WL 6200389, at *7 (D. Conn. Sept. 22, 2023). Judge Williams concluded that section 52-102b is substantive state law because “[w]hile § 52-102b may not have any effect on the standard of liability or types of evidence required to adjudicate a medical malpractice complaint, it does have an effect of the standard of liability for an apportionment complaint.” Id. at *6. Judge Williams applied section 52-102b's service deadline and dismissed the government's third-party apportionment complaint as untimely. Id. at *7, *11.

The government argues Roegiers was incorrectly decided and urges me to deviate from its holding. Doc. No. 25 at 1, 3, 10. For the reasons that follow, I reach the same conclusion as Roegiers and apply section 52-102b's service deadline.

A. Section 52-102b(a)'s Service Deadline is Substantive

“Whether a particular state rule of decision is ‘substantive' under Erie is a question of federal law, and is decided by examining whether application of the State's rule . . . would have so important an effect upon the fortunes of one or both of the litigants that failure to enforce it would be likely to cause a plaintiff to choose the federal court.” Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 152 (2d Cir. 2013) (citing Hanna v. Plumer, 380 U.S. 460, 465-66 (1965), and quoting Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 428 n.8 (1996)) (cleaned up). Based on a thorough examination of Lostritto v. Cmty. Action Agency of New Haven, Inc., 269 Conn. 10 (2004), and related cases, I conclude that section 52-102b's service deadline is substantive state law and incorporated by the FTCA.

Lostritto contains three holdings pertinent to the present dispute. The Court first held that section 52-102b's service deadline implicated personal jurisdiction. Id. at 14. “The vast majority” of prior state courts had determined that the service deadline was “substantive and jurisdictional, thus implicating a court's subject matter jurisdiction.” See Estate of Nobile v. United States, 193 F.R.D. 58, 61 (D. Conn. 2000). But “because . . . § 52-102b is a service provision,” the Lostritto court “determine[d] that it implicates personal jurisdiction rather than subject matter jurisdiction.” Lostritto, 269 Conn. at 33.

Second, “compliance with § 52-102b(a) is mandatory.” Id. at 35. Trial courts have no discretion to extend the 120-day service deadline. Id. Because section 52-102b “establishes the right to apportion liability, .... if a defendant seeks to apportion liability, he must comply with § 52-102b(a).” Id. at 21 (citations omitted).

Third, and most importantly, the Lostritto court probed “whether the time limitation contained in § 52-102b(a) is procedural or substantive.” Id. at 22. “A statute of limitations is generally considered to be procedural,” under Connecticut law, but when “a statute gives a right of action which did not exist at common law, . . . the time fixed is a limitation or condition attached to the right-it is a limitation of the liability itself as created, and not of the remedy alone.” Id. at 22-23 (cleaned up).

[Section] 52-102b was designed to create an effective means of accomplishing apportionment with reasonable certainty. This was not possible prior to § 52-102b, which delineated the proper timing and method of service of an apportionment complaint. Although § 52-102b contains some procedural aspects, its substantive purpose and effect cannot be minimized. Section 52-102b gives tangible force to the right to apportionment created in § 52-572h. Conversely, failure to comply with its requirements prevents a defendant from exercising the right to apportion liability.

Lostritto v. Cmty. Action Agency of New Haven, Inc., 269 Conn. 10, 26 (2004).

The government cites to Angersola, decided fourteen years after Lostritto, as support that section 52-102b's 120-day service limitation is merely procedural. “[W]aivable service of process” rules “are ‘generally considered to be procedural,' and do not alter underlying substantive liability.” Doc. No. 25 at 26 (quoting Angersola v. Radiologic Associates of Middletown, P.C., 330 Conn. 251, 265-66). The government implicitly argues that, under Connecticut law, all procedural time limitations must be waivable, and all substantive time limitations must be non-waivable. Id. at 23-26.

Connecticut time limitations generally fall into two buckets: (1) substantive, non-waivable limitations implicating subject matter jurisdiction, or (2) procedural, waivable limitations bearing no implication on subject matter jurisdiction. Angersola, 330 Conn. at 265-66. Lostritto deviated from those two discrete categories by holding that section 52-102b is a substantive, waivable time limitation implicating personal jurisdiction. See Lostritto, 269 Conn. at 33, 35-36. It appears that Lostritto created a third category of time limitation(s) that are ultimately substantive under Connecticut law, yet share both procedural and substantive characteristics. Nothing in Angersola displaces Lostritto's third category:

It is well established that a statute of limitations is generally considered to be procedural, especially when the statute contains only a limitation as to time with respect to a right

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