Rivera v. Smith

Rafael Rivera v. Trevor A. Smith et al

No. FBTCV165031739

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

January 12, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO DISMISS

Richard E. Arnold, J.

The defendants, Trevor A. Smith and Engineers Welding, LLC have moved to dismiss the plaintiff's complaint, dated May 27 2016, and the plaintiff's Application for Prejudgment Remedy on the grounds that the court lacks subject matter jurisdiction due to the fact that the complaint was not returned to court at least six days before the return date and said process was returnable more than two months after the date of process. The defendants also claim the Application for Prejudgment Remedy must be dismissed as the Application was filed utilizing the procedures set forth in General Statutes § 52-278a-g, which govern applications for prejudgment remedies filed prior to the institution of suit. The defendants state that since the plaintiff has commenced suit, his Application is void. Additionally, since suit has been commenced, the plaintiff is required to follow the provisions of General Statutes § 52-278h in order to obtain a prejudgment remedy, which he cannot do, as the court lacks subject matter jurisdiction. The defendants have submitted a memorandum of law.

In response the plaintiff has filed an objection and his memorandum of law. The plaintiff objects for four reasons. First, although the defendants claim this is an issue of subject matter jurisdiction, it is, in fact, an issue of personal jurisdiction. The defendants' motion to dismiss is untimely, as the motion was filed more than thirty days after the defendants filed their appearances, which results in a waiver that the court lacks personal jurisdiction. Second, the plaintiff argues his action was timely commenced when the signed complaint was served at the same time that the Application for Prejudgment Remedy (" PJR") and supporting documents were served on the defendants. Plaintiff argues PJR applications may be properly served at the same time as the commencement of a civil action, as was done here. Third, the plaintiff argues that any alleged defect in the return date, should not be grounds for a loss of personal jurisdiction where there is actual notice of the lawsuit and there has been no prejudice to the defendants. Fourth, the accidental failure of suit statute would act to save this action for want of jurisdiction or for any matter of form. The court heard oral argument on the motion to dismiss on October 17, 2016.

I Procedural Background

This case stems from a motor vehicle accident, which is alleged to have occurred on May 31, 2014, on East Main Street in Bridgeport, Connecticut. The plaintiff was traveling in a southerly direction when his vehicle was struck from behind by a vehicle operated by defendant, Trevor A. Smith, causing the plaintiff to allegedly suffer personal injuries. Smith is alleged to have been operating a vehicle owned by Engineers Welding, LLC, of which Smith is the managing member.^[1] Following the collision, the plaintiff claims he was physically assaulted by two men, which he claims were acting as agents, servants and/or employees of the defendant Smith and who had the authority and permission of Smith to assault him. The plaintiff also claims that since the date of the accident, Smith has continued to have violated a " no contact" order issued by the court on May 31, 2014, ^[2] The complaint consists of thirty-one counts alleging negligence, statutory recklessness (§ 14-295), common-law recklessness, battery, assault and conduct violative of a court-issued " no contact" order.

The plaintiff filed an Application for Prejudgment Remedy dated May 27, 2016. On May 27, 2016, the plaintiff also filed an unsigned, proposed copy of his complaint, along with various other pleadings related to his Application for a PJR. On May 27, 2016, the Clerk of the Court set a hearing date of June 14, 2016, for the PJR hearing and ordered that service on the defendants be effectuated by June 10, 2016. On June 13, 2016, an Affidavit of the state marshal with respect to that service was filed. In the Affidavit, the marshal avers that he served the pleadings in connection with the PJR, as well as a signed copy of the writ, summons and complaint on the defendants. The defendants, Smith and Engineers Welding, LLC, filed their appearance in this matter on June 13, 2016. Subsequently, the plaintiff, on August 2, 2016, returned to court the signed writ, summons and complaint bearing a return date of July 12, 2016.^[3] The defendants filed their motion to dismiss on August 8, 2016. Thereafter, on September 29, 2016, the plaintiff, pursuant to Practice Book § 10-60 and General Statutes § 52-72, filed a motion to amend the return date on his complaint from July 12, 2016 to August 9, 2016 to comply with General Statutes § 52-46a. The defendants have filed an objection to the motion to amend the return date arguing that any such amendment would violate General Statutes § 52-48(b), which requires that process shall be made returnable not later than two months after the date of process.

II Standard of Law

" 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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). In deciding a " jurisdictional question raised by a pretrial motion to dismiss, [the Court] must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006).

" [J]urisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction . . . [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 . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citations omitted; internal quotations marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004); Adler v. Rosenthal, 163 Conn.App. 663, 674, 134 A.3d 717 (2016) " Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30(b).

III Discussion

A. Timeliness of Motion to Dismiss

As the defendants' motion to dismiss is directed to both the prejudgment remedy action and the civil action it is necessary to review the difference between the two actions. A party may seek prejudgment relief, such as an attachment on property, to secure the anticipated judgment. General Statutes § 52-278a et seq. That party submits a proposed unsigned copy of the writ of summons and complaint; General Statutes § 52-278c(a); but the civil action is not yet initiated. See Bernhard-Thomas Building Systems, LLC v Dunican, 286 Conn. 548, 560-61, 944 A.2d 329 (2008). It is not until after the prejudgment remedy proceeding is completed that the applicant serves a signed writ, summons and complaint, and returns them to court to officially commence the action. Id., at 555-56, 559; Adler v. Rosenthal, 163 Conn.App. 663, 676, 134 A.3d 717 (2016).

" [T]he language of the prejudgment remedy statutes, [General Statutes] § 52-278a et seq., in several instances . . . makes it clear that proceedings for prejudgment remedy applications and civil actions are separate and distinct, with a prejudgment remedy application generally preceding the filing of the civil action . . . [I]n addition to the differences regarding the process for initiating these two legal proceedings, the purpose of filing a civil action is fundamentally different from the purpose of obtaining a prejudgment remedy. A prejudgment remedy application is brought as a prelude to the filing of a civil action, and is meant to determine whether security should be provided for any judgment ultimately recovered by the plaintiff if he or she is successful on the merits of the civil action. A civil action, in contrast, resolves the merits of the parties' claims, and can be filed irrespective of whether the plaintiff was successful in his or her prior pursuit of a prejudgment remedy." Id., at 560-61, 944 A.2d 329. Adler v. Rosenthal, supra, 163 Conn.App. 674. As the prejudgment remedy proceedings and the commencement of civil actions are separate and distinct issues the court, the court will discuss them separately.

Before discussing the motion to dismiss as to how it might apply to the PJR proceedings, the court first addresses whether the motion to dismiss was timely filed. Practice Book § 10-30(b) provides:

(b) Any defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance.

From the recitation of...