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Rigos v. JDLR, LLC

Superior Court of Connecticut, Judicial District of New London, New London

July 25, 2016

Louis Rigos
v.
JDLR, LLC et al

          RULING ON DEFENDANTS' MOTION TO DISMISS

          Robert F. Vacchelli, Judge, Superior Court.

         This case is an action by Louis Rigos, seeking money damages due to his alleged ouster from a restaurant venture called the Equinox Diner in Mystic, CT. The complaint is in five counts. The defendants are JDLR, LLC, the limited liability company formed to operate the business of which he was a member, and James Doukas, its managing member. Pending before the court is the defendants' motion to dismiss on the grounds that none of the plaintiff's alleged injuries are separate and distinct from those of the limited liability company and, therefore, the plaintiff lacks standing to sue. For the following reasons, the motion is denied.

         I

         " 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." (Citation omitted; internal quotation marks omitted.) RC Equity Group, LLC v. Zoning Commission of Borough of Newtown, 285 Conn. 240, 248, 939 A.2d 1122 (2008). " Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Internal quotation marks omitted; citation omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 701, 945 A.2d 927 (2008). The issue of standing implicates subject matter jurisdiction and is, therefore, a basis for granting a motion to dismiss. Practice Book § 10-30(a); McWeeny v. City of Hartford, 287 Conn. 56, 63, 946 A.2d 862 (2008).

         In deciding this motion to dismiss, the court is obligated to, " 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 . . . [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts . . . If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken., " (Citation omitted; internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 108-09, 967 A.2d 495 (2009). " [I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted; citations omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).

         " Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests . . ." (Internal quotation marks omitted; citation omitted.) St. Germain v. Labrie, 108 Conn.App. 587, 591, 949 A.2d 518 (2008).

         " Standing is established by showing that the party . . . is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006). " [I]t is [t]he plaintiff [who] bears the burden of proving subject matter jurisdiction, whenever and however raised." (Citation omitted; internal quotation marks omitted.) Deutsche Bank Nat. Trust Co. v. Thompson, 163 Conn.App. 827, 836, 136 A.3d 1277 (2016).

         II

         Three main issues are presented by the parties. The first is whether the motion to dismiss is timely. The second is whether the provisions of the operating agreement between the parties confer standing. The third is whether the complaint alleges damages to the plaintiff that are separate and distinct from those sustained by the limited liability company. The issues are addressed seriatim:

         A

         As to the first point, the plaintiff argues that the defendants' motion to dismiss is not timely. The complaint was commenced on October 15, 2010. Defendants appeared on December 2, 2010. They filed an Answer and a counterclaim on January 31, 2011. The motion to dismiss was filed on July 3, 2012. The plaintiff contends that the motion is late and out of order of pleadings insofar as it was filed more than 30 days after entering an appearance and after the filing of the answer, in violation of Practice Book § § 10-6, 10-7 and 10-30.

         The court is not persuaded. The issue of standing challenges the subject matter jurisdiction of the court to hear the matter. McWeeny v. City of Hartford, supra, 287 Conn. 63. A motion to dismiss on that issue is an exception to the ordinary time limits on motions set forth in the practice book. The issue cannot be waived. Practice Book § 10-33. It can be raised at any time, even on appeal. Williams v. Commission on Human Right and Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001). " Once a question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Citations omitted; internal quotation marks omitted; emphasis added.) Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003). The issue can be raised by the court sua sponte. See, e.g., Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 618, 577 A.2d 1017 (1990). Therefore, the court can consider the issues raised by the defendants at this time.

         B

         Next, the plaintiff argues that the operating agreement which the parties entered into in formation of the venture is a " legitimate basis" for denying the defendants' ...


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