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NO.: (X06) UWY-CV21-5028294-S : SUPERIOR COURT
:
NANCY BURTON : COMPLEX LITIGATION DOCKET
:
VS. : AT WATERBURY
:
DAVID PHILIP MASON, ET AL. : SEPTEMBER 24, 2021
REPLY TO OBJECTION TO MOTION TO DISMISS
The Defendant, Susan Winters (the “Defendant”), hereby replies to the Objection
to the Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction (the “Objection”)
filed by the Plaintiff, Nancy Burton (the “Plaintiff”), on September 1, 2021. In the
Objection, the Plaintiff makes two meritless arguments. First, although she admits that she
did not serve the Defendant at the correct address, she nevertheless argues that the
Defendant consented to the Court’s exercise of jurisdiction when counsel for the Defendant
appeared and filed motions to dismiss. Second, she argues that the Court should allow her
to make unspecified amendments to her summons and complaint that would cure the
admittedly defective service. Her arguments are contrary to well-established princip les
regarding personal jurisdiction. Accordingly, the Objection should be overruled.
The Plaintiff’s firstargument fails in light of the rule that “[a] challenge to a court’s
personal jurisdiction . . . is
waived ifnot raised by a motion to dismiss within thirty days
[after the filing of an appearance].” Barr v. Barr, 195 Conn. App. 479, 482 (2019). Here,
Melick & Porter, LLP
900 M ain Street South, Southbury, CT 06488
Telephone: (203) 596-0500 • • Juris No.: 424553
Page 2 of 5
counsel for the Defendant appeared on July 19, 2021 and filed the Motion to Dismiss on
August 13, 2021, within thirty days of the appearance. Since the Motion to Dismiss was
timely filed, the argument that the Plaintiff consented to the Court’s exercise of jurisdic tio n
is without merit.
The Defendant also asserts, without citing any relevant authority, that “a defect in
service of process may be excused if no injustice to the defendant has occurred.” That
assertion is contrary to the well-established principle that “[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.” People’s United Bank, National Association v.
Purcell, 187 Conn. App. 523, 526 (2019). As the Plaintiff admits, the Defendant was not
properly served. Moreover, her timely Motion to Dismiss demonstrates that she does not
consent, and has not waived any objection, to the Court’s exercise of jurisdictio n.
Furthermore, none of the cases the Plaintiff cites stand for the proposition that “injustice ”
or “prejudice” are relevant considerations for a court deciding a timely filed challenge to
personal jurisdiction based on admittedly improper service. See New Haven Loan Co. v.
Affinito, 122 Conn. 151 (1936) (holding that Court of Common Pleas improperly denied
motion to amend circumstantial defect in defendant’s appeal from judgment of lower
Melick & Porter, LLP
900 M ain Street South, Southbury, CT 06488
Telephone: (203) 596-0500 • • Juris No.: 424553
Page 3 of 5
court); see also Connecticut Tool and Manufacturing Company, Inc. v. Bowsteel
Distributors, 24 Conn. Supp. 290, 294–95 (1963) (holding that failure to include foreign
corporation’s address in process served on the Secretary of State as foreign corporation’s
statutory agent for service of process was a circumstantial defect rather than a jurisdictio na l
defect); see also Andrews v. Hammond, 1 Conn. Supp. 21 (1935) (holding that omission of
plaintiff’s counsel’s name from copy of original process served on defendant was a
circumstantial defect not subject to a plea in abatement).
The Plaintiff’s second argument fails, because improper service of process is not a
defect that can be cured by amendment. See New England Road, Inc. v. Planning and
Zoning Com’n of Town of Clinton, 308 Conn. 180 (2013) (holding that “curative statutes”
such as General Statutes § 52-72 and § 52-123 can only be used to cure “circumstantia l
defects”). A failure to properly serve a defendant isnot a circumstantial defect, because
proper service is not a “mere technicality” but rather a “prerequisite” to a court’s exercise
of jurisdiction. See Mosby v. Bd. of Educ. of City of Norwalk, 191 Conn. App. 280, 284
(2019), cert. denied, 335 Conn. 939 (2020) (“[S]ervice of process on a party in accordance
with the statutory requirements is a prerequisite to a court's exercise of [personal]
jurisdiction over that party . . . . Therefore, [p]roper service of process is not some mere
Melick & Porter, LLP
900 M ain Street South, Southbury, CT 06488
Telephone: (203) 596-0500 • • Juris No.: 424553
Page 4 of 5
technicality”). Therefore, the Court should not (and likely could not) order an amendment
to the Plaintiff’s process that would cure the defective service.
In closing, it bears repeating that the Plaintiff does not challenge any of the facts in
the Affidavit the Defendant filed in support of her Motion to Dismiss for Lack of Personal
Jurisdiction. In fact, she refers to those facts as “undisputed.” See Plaintiff’s Objection,
Entry No. 185.00, p.2. As argued in the Motion to Dismiss, those facts establish that 50
Seventy Acre Road in Redding, Connecticut was not the Defendant’s usual place of abode
on the date the marshal attempted to serve process on the Defendant at that location. See
Defendant’s Motion to Dismiss, Entry No. 160.00, pp.10–11.
WHEREFORE, the Objection should be overruled.
DEFENDANT,
SUSAN WINTERS
By: /s/ Alexander W. Ahrens
Alexander W. Ahrens
Firm Juris No. 424553
MELICK & PORTER, LLP
900 Main Street South
Southbury, CT 06488
aahrens@melicklaw.com
Melick & Porter, LLP
900 M ain Street South, Southbury, CT 06488
Telephone: (203) 596-0500 • • Juris No.: 424553
Page 5 of 5
CERTIFICATION
This is to certify that on September 24, 2021 a copy of the foregoing was or will
immediately be mailed or delivered electronically or non-electronically to the following
attorneys and self-represented parties of record and that written consent for electronic
delivery was received from all attorneys and self-represented parties of record who
received or will immediately be receiving electronic delivery:
Nancy Burton, Pro Se Robert Scott Hillson, Esq.
154 Highland Avenue Michael D. Riseberg
Rowayton, CT 06853 53 State Street
NancyBurtonCT@aol.com Boston, MA 02109
rhillson@rubinrudman.com
mriseberg@rubinrudman.com
Jonathan Edward Harding, Esq. Steve Stafstrom, Esq.
Matthew Levine, Esq. Pullman & Comley, LLC
Carole Briggs, Esq. 850 Main Street, P.O. Box 7006
AG-Environmental Bridgeport, CT 06601
165 Capitol Avenue, 5th Floor sstafstrom@pullcom.com
Hartford, CT 06106
Jonathan.harding@ct.gov James N. Tallberg
Matthew.Levine@ct.gov Kimberly A. Bosse
Carole.Briggs@ct.gov Karsten & Tallberg, LLC
500 Enterprise Dr., Suite 4B
Philip T. Newbury, Jr., Esq. Rocky Hill, CT 06067
Howd & Ludorf, LLC jtallberg@kt-lawfirm.com
65 Wethersfield Avenue kbosse@kt-lawfirm.com
Hartford, CT 06114
pnewbury@hl- law.com
/s/ Alexander W. Ahrens
Alexander W. Ahrens
Melick & Porter, LLP
900 M ain Street South, Southbury, CT 06488
Telephone: (203) 596-0500 • • Juris No.: 424553
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Page 1 of 5 NO.: (X06) UWY-CV21-5028294-S : SUPERIOR COURT : NANCY BURTON : COMPLEX LITIGATION DOCKET : VS. : AT WATERBURY : DAVID PHILIP MASON, ET AL. : SEPTEMBER 24, 2021 REPLY TO OBJECTION TO MOTION TO DISMISS The Defendant, Susan Winters (the “Defendant”), hereby replies to the Objection to the Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction (the “Objection”) filed by the Plaintiff, Nancy Burton (the “Plaintiff”), on September 1, 2021. In the Objection, the Plaintiff makes two meritless arguments. First, although she admits that she did not serve the Defendant at the correct address, she nevertheless argues that the Defendant consented to the Court’s exercise of jurisdiction when counsel for the Defendant appeared and filed motions to dismiss. Second, she argues that the Court should allow her to make unspecified amendments to her summons and complaint that would cure the admittedly defective service. Her arguments are contrary to well-established princip les regarding personal jurisdiction. Accordingly, the Objection should be overruled. The Plaintiff’s firstargument fails in light of the rule that “[a] challenge to a court’s personal jurisdiction . . . is waived ifnot raised by a motion to dismiss within thirty days [after the filing of an appearance].” Barr v. Barr, 195 Conn. App. 479, 482 (2019). Here, Melick & Porter, LLP 900 M ain Street South, Southbury, CT 06488 Telephone: (203) 596-0500 • • Juris No.: 424553 Page 2 of 5 counsel for the Defendant appeared on July 19, 2021 and filed the Motion to Dismiss on August 13, 2021, within thirty days of the appearance. Since the Motion to Dismiss was timely filed, the argument that the Plaintiff consented to the Court’s exercise of jurisdic tio n is without merit. The Defendant also asserts, without citing any relevant authority, that “a defect in service of process may be excused if no injustice to the defendant has occurred.” That assertion is contrary to the well-established principle that “[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.” People’s United Bank, National Association v. Purcell, 187 Conn. App. 523, 526 (2019). As the Plaintiff admits, the Defendant was not properly served. Moreover, her timely Motion to Dismiss demonstrates that she does not consent, and has not waived any objection, to the Court’s exercise of jurisdictio n. Furthermore, none of the cases the Plaintiff cites stand for the proposition that “injustice ” or “prejudice” are relevant considerations for a court deciding a timely filed challenge to personal jurisdiction based on admittedly improper service. See New Haven Loan Co. v. Affinito, 122 Conn. 151 (1936) (holding that Court of Common Pleas improperly denied motion to amend circumstantial defect in defendant’s appeal from judgment of lower Melick & Porter, LLP 900 M ain Street South, Southbury, CT 06488 Telephone: (203) 596-0500 • • Juris No.: 424553 Page 3 of 5 court); see also Connecticut Tool and Manufacturing Company, Inc. v. Bowsteel Distributors, 24 Conn. Supp. 290, 294–95 (1963) (holding that failure to include foreign corporation’s address in process served on the Secretary of State as foreign corporation’s statutory agent for service of process was a circumstantial defect rather than a jurisdictio na l defect); see also Andrews v. Hammond, 1 Conn. Supp. 21 (1935) (holding that omission of plaintiff’s counsel’s name from copy of original process served on defendant was a circumstantial defect not subject to a plea in abatement). The Plaintiff’s second argument fails, because improper service of process is not a defect that can be cured by amendment. See New England Road, Inc. v. Planning and Zoning Com’n of Town of Clinton, 308 Conn. 180 (2013) (holding that “curative statutes” such as General Statutes § 52-72 and § 52-123 can only be used to cure “circumstantia l defects”). A failure to properly serve a defendant isnot a circumstantial defect, because proper service is not a “mere technicality” but rather a “prerequisite” to a court’s exercise of jurisdiction. See Mosby v. Bd. of Educ. of City of Norwalk, 191 Conn. App. 280, 284 (2019), cert. denied, 335 Conn. 939 (2020) (“[S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of [personal] jurisdiction over that party . . . . Therefore, [p]roper service of process is not some mere Melick & Porter, LLP 900 M ain Street South, Southbury, CT 06488 Telephone: (203) 596-0500 • • Juris No.: 424553 Page 4 of 5 technicality”). Therefore, the Court should not (and likely could not) order an amendment to the Plaintiff’s process that would cure the defective service. In closing, it bears repeating that the Plaintiff does not challenge any of the facts in the Affidavit the Defendant filed in support of her Motion to Dismiss for Lack of Personal Jurisdiction. In fact, she refers to those facts as “undisputed.” See Plaintiff’s Objection, Entry No. 185.00, p.2. As argued in the Motion to Dismiss, those facts establish that 50 Seventy Acre Road in Redding, Connecticut was not the Defendant’s usual place of abode on the date the marshal attempted to serve process on the Defendant at that location. See Defendant’s Motion to Dismiss, Entry No. 160.00, pp.10–11. WHEREFORE, the Objection should be overruled. DEFENDANT, SUSAN WINTERS By: /s/ Alexander W. Ahrens Alexander W. Ahrens Firm Juris No. 424553 MELICK & PORTER, LLP 900 Main Street South Southbury, CT 06488 aahrens@melicklaw.com Melick & Porter, LLP 900 M ain Street South, Southbury, CT 06488 Telephone: (203) 596-0500 • • Juris No.: 424553 Page 5 of 5 CERTIFICATION This is to certify that on September 24, 2021 a copy of the foregoing was or will immediately be mailed or delivered electronically or non-electronically to the following attorneys and self-represented parties of record and that written consent for electronic delivery was received from all attorneys and self-represented parties of record who received or will immediately be receiving electronic delivery: Nancy Burton, Pro Se Robert Scott Hillson, Esq. 154 Highland Avenue Michael D. Riseberg Rowayton, CT 06853 53 State Street NancyBurtonCT@aol.com Boston, MA 02109 rhillson@rubinrudman.com mriseberg@rubinrudman.com Jonathan Edward Harding, Esq. Steve Stafstrom, Esq. Matthew Levine, Esq. Pullman & Comley, LLC Carole Briggs, Esq. 850 Main Street, P.O. Box 7006 AG-Environmental Bridgeport, CT 06601 165 Capitol Avenue, 5th Floor sstafstrom@pullcom.com Hartford, CT 06106 Jonathan.harding@ct.gov James N. Tallberg Matthew.Levine@ct.gov Kimberly A. Bosse Carole.Briggs@ct.gov Karsten & Tallberg, LLC 500 Enterprise Dr., Suite 4B Philip T. Newbury, Jr., Esq. Rocky Hill, CT 06067 Howd & Ludorf, LLC jtallberg@kt-lawfirm.com 65 Wethersfield Avenue kbosse@kt-lawfirm.com Hartford, CT 06114 pnewbury@hl- law.com /s/ Alexander W. Ahrens Alexander W. Ahrens Melick & Porter, LLP 900 M ain Street South, Southbury, CT 06488 Telephone: (203) 596-0500 • • Juris No.: 424553