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Davis v. Sukhra

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury

May 2, 2017

Denisha Davis
v.
Nindkumarie Sukhra et al

          MEMORANDUM OF DECISION RE MOTION TO DISMISS #101

          Brazzel-Massaro, Barbara, Judge

         On February 28, 2017, the defendant filed a motion to dismiss the action for failure to file the Writ, Summons and Complaint six days before the Return Date of February 28, 2017. The defendant contends that C.G.S. § 52-46a controls and requires dismissal of the action for a failure to file the Writ, Summons and Complaint with the court on or before February 22, 2017. The plaintiff has filed a memorandum in opposition to the motion to dismiss dated March 14, 2017. The matter was paced as a non-arguable motion on the April 24, 2017 short calendar.

         The defendant contends that the return date as noted in the court file docket entry #101 was filed only five days before the February 28, 2017 return date on the complaint. The defendant argues that C.G.S. § 52-46a applies to the Return of Process. This statute provides in relevant part: " Process in civil actions . . . if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, to the clerk of such court at least six days before the return day." As noted, this statute establishes the requirement to return process in civil actions to the clerk of the superior court at least six days before the return date. The plaintiff contends that the return was timely made because he was able to e-file the return after several attempts but did so at 6:35 p.m. after the clerk's office closed. The plaintiff includes a confirmation of the filing from the court dated February 22, 2017 at approximately 6:35 p.m.

         Practice Book Sec. 4-4 provides as to electronic filing that: " Papers may be filed, signed or verified by electronic means that comply with procedures and technical standards established by the office of the chief court administrator, which may also set forth the manner in which such papers shall be kept by the clerk. A paper filed by electronic means in compliance with such procedures and standards constitutes a written paper for the purpose of applying these rules." Section 7-17 of the Practice Book further states that: " Except as provided below, a document that is electronically received by the clerk's office for filing after 5 o'clock in the afternoon on a day on which the clerk's office is open or that is electronically received by the clerk's office for filing at any time on a day on which the clerk's office is closed, shall be deemed filed on the next business day upon which such office is open. If a party is unable to electronically file a document because the court's electronic filing system is nonoperational for thirty consecutive minutes from 9 o'clock in the forenoon to 3 o'clock in the afternoon or for any period of time from 3 o'clock to 5 o'clock in the afternoon of the day on which the electronic filing is attempted, and such day is the last day for filing the document, the document shall be deemed to be timely filed if received by the clerk's office on the next business day the electronic system is operational." Neither of these Practice Book Sections addresses a technical difficulty for the filer or the extension of a filing limitation that would permit a filing before midnight. Additionally, there is no case law which addresses the modern day of electronic filing and the myriad of issues that may arise. This court is not of the opinion that exceptions should be made for filings after 5 p.m. to satisfy any statutory or court ordered filings. Instead, the court in viewing the specific facts of this action notes that the plaintiff placed himself in a difficult position of filing at the last hours before the six-day deadline. At no time did counsel for the plaintiff attempt to contact the clerk's office to address the difficulties which would have provided filing options to assure a timely filing but instead caused a late filing in accordance with the statute and the Practice Book. The plaintiff argues that the changes requiring electronic filing foreclosed him from being able to timely file the return and thus this court should exercise discretion to cure the defect alleged by the defendant. However, the plaintiff's argument is not factually accurate in that the clerk's office would not prohibit the filing in another form if the plaintiff had contacted the office to relay that he was having a problem filing. Counsel did not take this step. Additionally, as stated above, counsel created a difficult situation for himself by waiting until hours before the close of business for the clerk in attempting to file the return.

         The argument by the defendant is simply that the statute is mandatory and thus the court must dismiss the action. He cites the case of Rogozinski v. American Food Service Equipment Corporation, 211 Conn. 431 (1989) in support of this position. The defendant in his memorandum does not address the application of C.G.S. § 52-72a nor does he address the plaintiff's reliance upon Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998).

         Our Supreme Court has held that the failure to comply with the mandate of § 52-46a " renders the proceeding voidable, rather than void and subject to [dismissal]." Coppola v. Coppola, 243 Conn. 657, 662, 707 A.2d 281 (1998). General Statutes § 52-72(a) provides in relevant part that " [a]ny court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective . . ." Coppola provides that the statute should not be applied in a manner that will thwart the intended purpose or lead to absurd results. In the instant action, the dismissal when the defendant was well aware of the action and had filed a decision actually on the return date of February 28, 2017 along with a motion to dismiss without allowing an opportunity to amend would be an absurd result.[1]

         It is undisputed that the defendant received actual notice of the cause of action within the statutory time frame, suffered no prejudice as a result of the late return of process and already had filed an appearance and this motion all by the actual return date. To grant the dismissal would permit what Coppola expressed were the " inequities inherent in the eighteenth century common law that denied the plaintiff's cause of action if the pleadings were technically imperfect." (Internal quotation marks omitted.) Id., 666. The defendant in this action had notice of the complaint and has not argued any prejudice by a filing five days instead of six before the return date.

         The motion to dismiss is granted without prejudice to permit the plaintiff to file a motion to amend the return date within 45 days of this decision. If no motion is properly filed the complaint shall be dismissed.

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Notes:

[1]Neither of the parties has argued the application of the accidental failure of suit statute, C.G.S. ...


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