ZOARSKI, JUDGE TRIAL REFEREE.
The present case is a federal civil rights action brought by the pro se plaintiffs, Margarite Hunt and Billy Hunt, pursuant to 42 U.S.C. § 1983. The following facts are alleged by the plaintiffs: On December 11, 2000, Billy Hunt was convicted of the sale of narcotics/amphetamines by a non-dependent person in violation of General Statutes § 21a-278b and sentenced to serve twenty-four years. He posted a $650,000 appeal bond by surrendering to the bondsman $30,000 in cash and his 1991 Toyota Landcruiser. On July 13, 2000, his criminal appeal bond was revoked and he was reincarcerated because the bondsman, Robert Wilson, did not have the authority to guarantee a bond of that size. A subsequent investigation of the bondsman revealed that he had filed false and fraudulent reports with the Superior Court and the department of public safety misrepresenting the amount of bond that he was authorized to guarantee.
On November 25, 2002, the plaintiffs filed a summons and complaint naming the following defendants: John Rowland, Arthur Spada, John Bradelli, James Daniels, Robert Kiehm, Roland Levesque and Tim Osika. These defendants were served as attested to in the marshall's return on November 20, 2002. On January 3, 2003, an appearance was entered for each of the defendants. On that same day, a motion to dismiss was filed based on sovereign and statutory immunity of the defendants in their individual and official capacities. On March 18, 2003, the court, Blue, J., granted the motion as to counts three, four, five and six of the complaint. As to count two, in which the plaintiffs allege violations of the United States constitution, the fourth, fifth, sixth and fourteenth amendments and a civil rights violation under 42 U.S.C. § 1983, the motion was denied. On February 19, 2003, the defendants filed a motion to strike count two, and memorandum of law in support thereof, on the ground that count two fails to state a cause of action. The plaintiffs, thereafter, filed an amended complaint on March 4, 2003, against the originally named defendants plus ten additional defendants and, included 154 paragraphs prior to stating four counts, beginning with "count two," and CT Page 11187 attaching sixteen exhibits. The plaintiffs also filed on March 4, 2003, a motion to cite in new parties to include the additional defendants named in the amended complaint. The defendants filed a memorandum in opposition to that motion and to the motion to amend the complaint. On March 20, 2003, the court, Blue, J., denied the defendants' motion to strike count two and overruled the defendants' objection to amend the complaint as to count two. On March 27, 2003, an appearance was entered on behalf of the additionally named defendants. Also on that date, the defendants filed a motion to dismiss on the ground that this court does not have personal jurisdiction over any of them, both the originally and newly named defendants, because of insufficient service of process. The plaintiffs filed a memorandum of law in opposition on April 4, 2003.
This original complaint, not the summons, includes the state of Connecticut as a defendant. It is the contention of the plaintiffs that each of the defendants acted jointly and in concert with each other in concealing the bondsman's criminal misconduct.
The court noted that the complaint failed to designate a count one.
The additional defendants include: David Shepack, department of public safety, state police department, Deidre Weiss, Christopher Morano, Stephen J. Sedensky, John Armstrong, John Bailey, Bridgeport Correctional Institution and the Bridgeport police department.
The defendants' counsel did not enter an appearance for the state of Connecticut, the state police department, department of public safety, Bridgeport Correctional Institution and the Bridgeport police department because he stated that these are not "persons" within the meaning of that term in 42 U.S.C. § 1983.
"The motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . ." Practice Book § 10-31(a)(2). "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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however, . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
"[A]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . ." Pitchell v. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999), quoting Practice Book § 10-20. "[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 . . . Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Citations omitted; internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999). "Thus, thirty-one days after the filing of an appearance . . . a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is CT Page 11188 waived if not sooner raised." Pitchell v. Hartford, supra, 433.
In the present case, the defendants claim in their motion to dismiss that the plaintiffs did not personally serve the defendants since the plaintiffs are suing the defendants not only in their official capacity but also in their individual capacity. The defendants argue that the plaintiffs' failure to comply with the proper service of process deprives the court of personal jurisdiction and is grounds for dismissal of this action. To counter the defendants' motion to dismiss, the plaintiffs set forth numerous arguments: (1) that the defendants, named in their motion to cite in new parties and in the amended complaint, were all properly served pursuant to Practice Book § 11-1; (2) that an entry of appearance by the defendants means that these parties have been served; (3) that as pro se litigants, the court should permit them more latitude to correct any defects in the service of process and pleadings; (4) that, inevitably, the defendants' claim of insufficient service of process will be "squashed" and the action preserved since there exists a reasonable prospect that the defendants will be able to be served properly and, as pro se litigants, they "did all that could be reasonably expected" for the court to have jurisdiction over the defendants: (5) that if the court had ruled on the motion to cite in new parties, the defendants would have been precluded from filing a motion to dismiss; (6) that the motion to amend a complaint cannot be "extinguished" by a motion to dismiss or for summary judgment; (7) that pursuant to the Federal Rules of Civil Procedure, Rule 4(m), a plaintiff is allowed to cure the defect and effectuate service within a specified period of time upon a showing of good cause, and, therefore, they should be permitted to do so; and (8) that the court must accept the amended complaint since the plaintiffs have a right to amend because their claims were dismissed without prejudice.
Practice Book § 11-1 provides: "Every motion, request, application or objection directed to pleading or procedure, unless relating to procedure in the course of a trial, shall be in writing and shall, except in the case of a request, have annexed to it a proper order, and a proper order of notice and citation, if one or both are necessary. Such motion, request, application or objection shall be served on all parties as provided in Sections 10-12 through 10-17 and, when filed, the fact of such service shall be endorsed thereon."
On the summons and complaint filed on November 25, 2002, the plaintiffs named the following defendants: Governor Rowland, Arthur Spada, John Bradelli, James Daniels, Robert Kiehm, Roland Levesque and Tim Osaka. The marshall's return statement indicates that each named defendant was served on November 20, 2002, by leaving a true and attested copy of the writ, summons, complaint, and prayer for relief in the hands of a person duly authorized to accept service for the named defendants. The service of process was filed on November 25, 2002. On January 3, 2003, counsel entered an appearance for each of the defendants and, thereafter, on January 14, 2003, filed a motion to dismiss on the grounds of sovereign and statutory immunity. The present motion to dismiss challenging personal jurisdiction was not filed until March 27, 2003, more than thirty days from the filing of an appearance. The time limit for filing a motion to dismiss is mandatory and is not modified by pending motions; the CT Page 11189 originally named defendants have waived any objection to the court's exercise of personal jurisdiction as to each of them regardless of whether service was only in their official, not individual, capacity.
With respect to the additional defendants named by the plaintiffs in their amended complaint, an appearance was entered on behalf of these defendants on March 27, 2003, and the motion to dismiss was filed on the same date, within the thirty-day time period for contesting personal jurisdiction. There is no evidence that any of these defendants were served with a writ, summons, amended complaint and prayer for relief. The file is absent of a marshal's return statement attesting to service of process. Mailing a copy of the amended complaint to each of the newly named defendants and counsel of record, pursuant to § 11-1 of the Practice Book, as the plaintiffs argue they did with the motion to cite in the new parties, is not sufficient service of process for this court to have personal jurisdiction of them. "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). The plaintiffs' failure to comply with the proper service of process deprives the court of personal jurisdiction of these newly or additionally named defendants and is a ground for dismissal of the plaintiff's action.
Based on the foregoing reasons, the defendants' motion to dismiss with regard to the originally named defendants, John Rowland, Arthur Spada, John Bradelli, James Daniels, Robert Kiehm, Roland Levesque and Tim Osika, is denied because the failure to timely file the motion serves as a waiver of any claim of insufficiency of process. With respect to the newly named defendants, David Shepack, Deidre Weiss, Christopher Morano, Stephen J. Sedensky, John Armstrong and John Bailey, the motion to dismiss is granted because there is no evidence that any of these defendants were properly served.
Howard F. Zoarski Judge Trial Referee