Silano v. Hammell

Virginia Silano v. Kevin Hammell et al

No. CV166061161S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

June 26, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTIONS TO DISMISS NOS 114, 130, 131

Barbara N. Bellis, J.

FACTS

The plaintiff, Virginia Silano, who is self-represented commenced this action by service of process on September 12 2016, against defendants Kevin Hammel, Daniel Silva, the town of Trumbull (the town), George Cooney, Diana Cooney, and Victoria Scarnuly-Grasso, and on September 14, 2016, against defendant Rocco Testi. In her complaint, the plaintiff alleges that the defendants " conspired to cause [the plaintiff's] malicious prosecution and continued prosecution to June of 2016 . . ."

A review of the procedural history of the present case is relevant to the resolution of the motions before the court. The original summons is dated September 9, 2016, and it included a return date of October 25, 2016. On October 12, 2016, defendants Silva, Hammel, the town, and Testi removed the action to federal court. The United States District Court for the District of Connecticut remanded the action to the Superior Court in December of 2016.^[1] On December 14, 2016, the plaintiff returned process to the Superior Court. On December 21, 2016, the plaintiff then requested leave to amend the return date to January 24, 2017. The plaintiff subsequently filed an " amendment as of right" on January 12, 2017, containing the same amendment. The defendants objected to both filings. Specifically, the defendants objected on the grounds that the summons and complaint could not be amended in compliance with both General Statutes § § 52-46^[2] and 52-48, ^[3] and because the plaintiff failed to comply with General Statutes § 52-72.^[4]

On January 20, 2017, Scarnuly-Grasso filed a motion to dismiss (entry #114) on the ground that the court lacked personal jurisdiction. The motion was accompanied by a memorandum of law. Diana and George Cooney each filed a motion to dismiss on February 1, 2017, (entry #130 and #131, respectively) for lack of personal jurisdiction. Diana and George Cooney adopted Scarnuly-Grasso's memorandum of law.^[5] On February 8, 2017, after the defendants had filed their motions to dismiss, the court overruled the defendants' objections to the plaintiff's amendments.

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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn 338, 350, 63 A.3d 940 (2013). " [A] defendant's claims concerning service of the summons and complaint [or defective process itself] implicate personal, rather than subject matter, jurisdiction . . . Thus, a motion to dismiss that attacks a defective return date, for example, implicates personal, rather than subject matter, jurisdiction, particularly because such a defect is curable." (Citations omitted; internal quotation marks omitted.) Adler v. Rosenthal, 163 Conn.App. 663, 679-80, 134 A.3d 717 (2016).

" [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." (Internal quotations marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31, 848 A.2d 418 (2004).

The defendants argue that the present case must be dismissed because the court lacks personal jurisdiction over them. First, the defendants argue that the plaintiff failed to comply with § 52-46a, which is mandatory and requires process to be returned to the court at least six days prior to the return date. Next, the defendants contend that the plaintiff is unable to amend the return date pursuant to § 52-72 in a manner compliant with the mandatory requirements of both § 52-46a and § 52-48(b); § 52-48(b) requires that all process be made returnable not later than two months from the date of process.^[6] Finally, the defendants argue that the present case must be dismissed because the plaintiff failed to comply with § 52-72(b) in her attempts to amend the complaint because, rather than attempting in-hand or abode service, the plaintiff mailed a copy of the December 21, 2016 amended summons and complaint and e-mailed the January 21, 2017 amended summons and complaint.

Although the plaintiff did not file a memorandum of law in opposition to the motions to dismiss, she did file a motion for order on February 21, 2017, requesting that the court deny the motions to dismiss " as each Motion based on lack of personal jurisdiction has been rendered moot by the Court's granting of Plaintiff's request to amend and/or amendment as of right."

Each of the defendants' arguments will be addressed in turn.

I. General Statutes § 52-46a

" [T]he requirement of § 52-46a to return process in civil actions to the clerk of the Superior Court at least six days before the return date is mandatory . . ." (Footnote omitted.) Coppola v. Coppola, 243 Conn. 657, 661-62, 707 A.2d 281 (1998). " [Section] 52-46a [is] mandatory, and failure to comply with [its requirement] as to the time when process shall be . . . returned renders the plaintiff's action vulnerable to a motion to dismiss for lack of personal jurisdiction." Prenderville v. Sinclair, 164 Conn.App. 439, 452, 138 A.3d 336 (2016). In computing the last day process can be returned to the Superior Court under § 52-46a, the return date is excluded. Brooklyn Trust Co. v. Hebron, 51 Conn. 22, 27 (1883); see also United States Equities Corp. v. Fedorovich, Superior Court, judicial district of Litchfield, Docket No. CV-11-6005056-S (September 1, 2011, Pickard, J.) .

In the present case, the defendants argue that the plaintiff failed to comply with § 52-46a because the original return date was October 25, 2016, and the plaintiff did not return process until December 14, 2016. It is undeniable that, on the face of the record, the plaintiff failed to return process at least six days before the original return date. The defendants, however, fail to address how the peculiar procedural history of the present case, in particular the removal to federal court and the subsequent remand to state court, impacts this apparent noncompliance.

" The federal removal statute, 28 U.S.C. § 1446(d), provides that, upon removal, 'the State court shall proceed no further unless and until the case is remanded.' When, however, a certified copy of a remand to state court is mailed to the state court clerk, 28 U.S.C. § 1447(c) authorizes the state court to proceed again with the case." (Footnote omitted.) Massad v. Greaves, 116 Conn.App. 672, 678, 977 A.2d 662, cert. denied, 293 Conn. 938, 981 A.2d 1079 (2009), cert. denied, 560 U.S. 904, 130 S.Ct. 3276, 176 L.Ed.2d 1183 (2010); see also Ins. Co. of Pennsylvania v. Waterfield, 102 Conn.App. 277, 283, 925 A.2d 451 (2007) (" compliance with the form and procedure of removal under [§ 1446] 'stays' any further action in the state court"). In consideration of the staying impact of removal, two recent Superior Court decisions, Traylor v. Parker, Superior Court, judicial district of New London, Docket No. CV-13-5014662-S (July 8, 2015, Zemetis, J.) , and Tortora v. Shelton Board of Fire Commissioners, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-12-6011979-S (August 23, 2013, Matasavage, J.) (56 Conn.L.Rptr. 735, ), have determined that the removal of an action to federal court tolls a state court's pleading deadlines.

The court considers the reasoning in Traylor and Tortora persuasive and agrees that the requirements of § 52-46a are tolled upon removal to federal court. As the Superior Court is not authorized to proceed upon removal, a plaintiff need not return process prior to remand. Dismissing a plaintiff's action for failure to return process in a timely manner would be inequitable where the delay is unavoidable due to a defendant's removal of the case.^[7] Accordingly, removal of the present case to federal court tolled the time available to the plaintiff to return process to the Superior Court.

In the present case, the plaintiff originally served the defendants with a complaint bearing a return date of October 25, 2016. Pursuant to the original return date, the last day the plaintiff could have returned process in conformity with § 52-46a was October 19, 2016. Accordingly, when the defendants filed the notice of removal on October 12, 2016, the plaintiff still had seven days to return process. This tolled period of seven days began to run when the state court regained jurisdiction. Even from the earliest possible remand date of December 8, 2016, ^[8] the plaintiff's return of process on December 14, 2016, was made within seven days. Thus, when the return of process in the present case is calculated with due regard to the tolling necessitated by the removal to federal court, it was timely under § 52-46a, and the amendment of the return date to January 24, 2017, cured any technical defects concerning the return of process.

II. General Statutes § 52-48(b)

Section 52-72 is the statute pursuant to which a return date may be amended. Section 52-72(a) provides in relevant part that " any court shall allow a proper amendment to civil process which is for any reason defective." " The apparent intent of the legislature in enacting § 52-72 was to prevent the loss of jurisdiction merely because of a defective return date." (Internal quotation marks omitted.) Coppola v....