On April 21, 2021 a
Motion,Ex Parte
was filed
involving a dispute between
Nancy Burton,
and
Bryan Hurlburt,Commissioner,Ct Dept Of Agriculture,
Building Department, Town Of Redding Ct,
Charles Dellarocco, Animal Control Officer,Ct Dept. Of Agriculture,
David Philip Mason,
Dennis Gibbon,
Department Of Agriculture,State Of Connecticut,
Elinore Carmody,
Health Department,Town Of Redding Ct Town Hall,Redding,
Julia Pemberton First Selectman,Town Or Redding,
Mark O'Donnell Chief Of Police,
Police Department,Town Of Redding Ct Town Hall,
Susan Winters,
Town Of Redding,Connecticut C O Town Clerk,
for M00 - Misc - Injunction
in the District Court of New Haven County.
Preview
DOCKET NO. (X06) UWY-CV21-5028294-S
NANCY BURTON : SUPERIOR COURT
Plaintiff :
: COMPLEX LITIGATION
v. : DOCKET
: AT WATERBURY
DAVID PHILIP MASON, Et Al. :
Defendants : SEPTEMBER 17, 2021
OBJECTION TO MOTION FOR ORDER (ENTRY NO. 191.00)
Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P.
Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State
Animal Control Officer (hereinafter referred to collectively as “State Defendants”) hereby object
to Plaintiff’s Motion for Order – Motion for Leave to Serve (Entry No. 191.00). 1
In this Motion for Order, Plaintiff seeks “leave to serve State Defendants Bryan P.
Hurlburt and Charles DellaRocco in their individual capacities.” By Connecticut State Marshal’s
return of service, service upon State Defendants was made on April 6, 2021 by leaving a true and
attested copy with Erik T. Lohr, Associate Attorney General, of the Connecticut Office of the
Attorney General. The Office of the Attorney General is authorized to accept service in any civil
action against the State of Connecticut, its departments, and agents. Conn. Gen. Stat. § 52-64.
“A plaintiff, who serves a state defendant pursuant to § 52-64(a) by leaving a copy of the process
with the attorney general at the Office of the Attorney General, has properly served the defendant
only in his or her official capacity and has failed to properly serve the defendant in his or her
individual capacity.” Harnage v. Lightner, 163 Conn. App. 337, 344-45, (2016). By Plaintiff’s
1
Despite the representation made in Plaintiff’s certification, attached to this motion, State Defendants did
not receive electronic notice of this filing.
1
method of service, she has only made service upon Commissioner Hurlburt and Officer
DellaRocco in their official capacity. Plaintiff now seeks leave of court to make new service
upon these State Defendants in their individual capacities.
Plaintiff may not make additional service upon Commissioner Hurlburt and Officer
DellaRocco, in their individual capacities, five months after the date of process of this cause of
action. The date of process refers to the date of the writ of summons or attachment, which must
be accompanied by the complaint. Prenderville v. Sinclair, 164 Conn. App. 439, 448 (2016).
The summons in the present cause of action is dated April 5, 2021 with a return date of May 11,
2021. Pursuant to Conn. Gen. Stat. §52-46, civil process, if returnable to the to the Superior
Court, shall be served at least twelve days, inclusive, before the sitting of the court. By any
calculation, Plaintiff is well beyond the date permissible to make and return service in this cause
of action, five months after the date of process. Request of leave to make additional service must
be denied.
Additionally, to permit leave to make additional service would be futile. Plaintiff cannot
return new service of process and Plaintiff is not permitted to amend the summons to correct for
this deficiency in the contemplated service of process. Because the date of the summons and
complaint are dated April 5, 2021, Plaintiff cannot amend the return date to account for new
service without running afoul of Conn. Gen. Stat. § 52-48(b). Id. at. 449. Doing so would place
the date of return greater than two months after the date of process. Pursuant to Conn. Gen. Stat.
§ 52-48(b), all process shall be made returnable not later than two months after the date of
process. This directive is mandatory and not permissive. Furthermore, this defect would not be
curable pursuant to Conn. Gen. Stat. §52-72 (which permits for amendment of defects). Id. at
448. That statute was enacted in response to decisions holding that an improper return date was
2
a jurisdictional defect that could not be corrected. Galluzzo v. Board of Tax Review, 44 Conn.
Supp. 39, 40 (1995), citing Concept Associates v. Board of Tax Review, 229 Conn. 618, 621
(1994). There is no error in Plaintiff’s return date; rather, the error is in the service of process
and, therefore, there is no basis for amendment of the return date, pursuant to Conn. Gen. Stat.
§52-72. Because the Plaintiff cannot return service of process and the date of process cannot be
amended, there is no reason to permit additional service.
It was Plaintiff’s responsibility to effectuate the appropriate service of process to
commence the present cause of action. As a former attorney, Plaintiff has an understanding of
civil practice and its requirements. The effort to make new service is an effort to overcome a
lack of subject matter jurisdiction because the complaint was insufficiently pled.2 There is no
justification for permitting additional service to be made at this stage of the proceeding.
Furthermore, as State Defendants have already argued (Reply, Entry No. 155.00), both
Commissioner Hurlburt and Officer DellaRocoo are both protected by statutory immunity and
this Court would still lack subject matter jurisdiction if additional service was made.
For all the foregoing reasons, this Motion for Order should be DENIED.
2
Plaintiff has filed three complaints in this matter: Complaint (Entry No. 100.31), Amended Complaint
(Entry No. 116.00), and Amended Complaint (Entry No. 120.00).
3
DEFENDANTS
STATE OF CONNECTICUT
DEPARTMENT OF AGRICULTURE
BRYAN P. HURLBURT, COMMISSIONER OF
AGRICULTURE
CHARLES DELLAROCCO, STATE ANIMAL
CONTROL OFFICER
WILLIAM TONG
ATTORNEY GENERAL
BY: ___434270_____________________________
Jonathan E. Harding
Assistant Attorney General
Juris No. 434270
165 Capitol Ave.
Hartford, CT 06106
4
CERTIFICATION
I hereby certify that a copy of the forgoing Objection was delivered electronically to the
following counsel and self-represented parties September 17, 2021:
Nancy Burton
154 Highland Ave.
Rowayton, CT 06853
NancyBurtonCT@aol.com
Robert Scott Hillson, Esq.
53 State Street
Boston, MA 02109
rhillson@rubinrudman.com
Philip T. Newbury, Jr., Esq.
Howd & Ludorf, LLC
65 Wethersfield Avenue
Hartford, CT 06114
pnewbury@hl-law.com
Steve Stafstrom, Esq.
Pullman & Comley, LLC
850 Main Street, P.O. Box 7006
Bridgeport, CT 06601
sstafstrom@pullcom.com
James N. Tallberg, Esq.
Kimberly A. Bosse, Esq.
Karsten & Tallberg, LLC
500 Enterprise Dr., Suite 4B
Rocky Hill, CT 06067
jtallberg@kt-lawfirm.com
kbosse@kt-lawfirm.com
Alexander William Ahrens, Esq.
Melick & Porter, LLC
900 Main Street South
Suite 102
Southbury, CT 06488
____434270_________________________
Jonathan E. Harding
Commissioner of the Superior Court
5
Related Content
in New Haven County
Preview
DOCKET NO. (X06) UWY-CV21-5028294-S NANCY BURTON : SUPERIOR COURT Plaintiff : : COMPLEX LITIGATION v. : DOCKET : AT WATERBURY DAVID PHILIP MASON, Et Al. : Defendants : SEPTEMBER 17, 2021 OBJECTION TO MOTION FOR ORDER (ENTRY NO. 191.00) Defendants, State of Connecticut Department of Agriculture (“Department”), Bryan P. Hurlburt, Commissioner of Agriculture (“Commissioner”), and Charles DellaRocco, State Animal Control Officer (hereinafter referred to collectively as “State Defendants”) hereby object to Plaintiff’s Motion for Order – Motion for Leave to Serve (Entry No. 191.00). 1 In this Motion for Order, Plaintiff seeks “leave to serve State Defendants Bryan P. Hurlburt and Charles DellaRocco in their individual capacities.” By Connecticut State Marshal’s return of service, service upon State Defendants was made on April 6, 2021 by leaving a true and attested copy with Erik T. Lohr, Associate Attorney General, of the Connecticut Office of the Attorney General. The Office of the Attorney General is authorized to accept service in any civil action against the State of Connecticut, its departments, and agents. Conn. Gen. Stat. § 52-64. “A plaintiff, who serves a state defendant pursuant to § 52-64(a) by leaving a copy of the process with the attorney general at the Office of the Attorney General, has properly served the defendant only in his or her official capacity and has failed to properly serve the defendant in his or her individual capacity.” Harnage v. Lightner, 163 Conn. App. 337, 344-45, (2016). By Plaintiff’s 1 Despite the representation made in Plaintiff’s certification, attached to this motion, State Defendants did not receive electronic notice of this filing. 1 method of service, she has only made service upon Commissioner Hurlburt and Officer DellaRocco in their official capacity. Plaintiff now seeks leave of court to make new service upon these State Defendants in their individual capacities. Plaintiff may not make additional service upon Commissioner Hurlburt and Officer DellaRocco, in their individual capacities, five months after the date of process of this cause of action. The date of process refers to the date of the writ of summons or attachment, which must be accompanied by the complaint. Prenderville v. Sinclair, 164 Conn. App. 439, 448 (2016). The summons in the present cause of action is dated April 5, 2021 with a return date of May 11, 2021. Pursuant to Conn. Gen. Stat. §52-46, civil process, if returnable to the to the Superior Court, shall be served at least twelve days, inclusive, before the sitting of the court. By any calculation, Plaintiff is well beyond the date permissible to make and return service in this cause of action, five months after the date of process. Request of leave to make additional service must be denied. Additionally, to permit leave to make additional service would be futile. Plaintiff cannot return new service of process and Plaintiff is not permitted to amend the summons to correct for this deficiency in the contemplated service of process. Because the date of the summons and complaint are dated April 5, 2021, Plaintiff cannot amend the return date to account for new service without running afoul of Conn. Gen. Stat. § 52-48(b). Id. at. 449. Doing so would place the date of return greater than two months after the date of process. Pursuant to Conn. Gen. Stat. § 52-48(b), all process shall be made returnable not later than two months after the date of process. This directive is mandatory and not permissive. Furthermore, this defect would not be curable pursuant to Conn. Gen. Stat. §52-72 (which permits for amendment of defects). Id. at 448. That statute was enacted in response to decisions holding that an improper return date was 2 a jurisdictional defect that could not be corrected. Galluzzo v. Board of Tax Review, 44 Conn. Supp. 39, 40 (1995), citing Concept Associates v. Board of Tax Review, 229 Conn. 618, 621 (1994). There is no error in Plaintiff’s return date; rather, the error is in the service of process and, therefore, there is no basis for amendment of the return date, pursuant to Conn. Gen. Stat. §52-72. Because the Plaintiff cannot return service of process and the date of process cannot be amended, there is no reason to permit additional service. It was Plaintiff’s responsibility to effectuate the appropriate service of process to commence the present cause of action. As a former attorney, Plaintiff has an understanding of civil practice and its requirements. The effort to make new service is an effort to overcome a lack of subject matter jurisdiction because the complaint was insufficiently pled.2 There is no justification for permitting additional service to be made at this stage of the proceeding. Furthermore, as State Defendants have already argued (Reply, Entry No. 155.00), both Commissioner Hurlburt and Officer DellaRocoo are both protected by statutory immunity and this Court would still lack subject matter jurisdiction if additional service was made. For all the foregoing reasons, this Motion for Order should be DENIED. 2 Plaintiff has filed three complaints in this matter: Complaint (Entry No. 100.31), Amended Complaint (Entry No. 116.00), and Amended Complaint (Entry No. 120.00). 3 DEFENDANTS STATE OF CONNECTICUT DEPARTMENT OF AGRICULTURE BRYAN P. HURLBURT, COMMISSIONER OF AGRICULTURE CHARLES DELLAROCCO, STATE ANIMAL CONTROL OFFICER WILLIAM TONG ATTORNEY GENERAL BY: ___434270_____________________________ Jonathan E. Harding Assistant Attorney General Juris No. 434270 165 Capitol Ave. Hartford, CT 06106 4 CERTIFICATION I hereby certify that a copy of the forgoing Objection was delivered electronically to the following counsel and self-represented parties September 17, 2021: Nancy Burton 154 Highland Ave. Rowayton, CT 06853 NancyBurtonCT@aol.com Robert Scott Hillson, Esq. 53 State Street Boston, MA 02109 rhillson@rubinrudman.com Philip T. Newbury, Jr., Esq. Howd & Ludorf, LLC 65 Wethersfield Avenue Hartford, CT 06114 pnewbury@hl-law.com Steve Stafstrom, Esq. Pullman & Comley, LLC 850 Main Street, P.O. Box 7006 Bridgeport, CT 06601 sstafstrom@pullcom.com James N. Tallberg, Esq. Kimberly A. Bosse, Esq. Karsten & Tallberg, LLC 500 Enterprise Dr., Suite 4B Rocky Hill, CT 06067 jtallberg@kt-lawfirm.com kbosse@kt-lawfirm.com Alexander William Ahrens, Esq. Melick & Porter, LLC 900 Main Street South Suite 102 Southbury, CT 06488 ____434270_________________________ Jonathan E. Harding Commissioner of the Superior Court 5