Superior Court of Connecticut, Judicial District of New London, New London
RULING ON DEFENDANTS' MOTION TO DISMISS
F. Vacchelli, Judge, Superior Court.
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.
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).
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
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).
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:
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.
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.
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' ...