Mosby v. Bd. of Educ. of Norwalk , 187 Conn. App. 771 ( 2019 )

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JOHN MOSBY v. BOARD OF EDUCATION
OF THE CITY OF NORWALK
(AC 39959)
DiPentima, C. J., and Elgo and Harper, Js.
Syllabus
The plaintiff sought to recover damages for, inter alia, alleged discrimination
from the defendant Board of Education of the City of Norwalk. After
receiving a release of jurisdiction from the Commission of Human Rights
and Opportunities on February 18, 2016, to file a complaint in the Supe-
rior Court, the plaintiff delivered the process to be served to a constable
on May 27, 2016, who then served the defendant on May 31, 2016.
Thereafter, the trial court granted the defendant’s motion to dismiss the
action on the ground that it was untimely because the plaintiff had failed
to commence the action within ninety days of receiving the release of
jurisdiction from the commission, as required by statute (§ 46a-101 [e]).
On appeal to this court, the plaintiff claimed that his action was timely
and, in the alternative, that it fell within the remedial savings statute
(§ 52-593a). Held that the trial court properly dismissed the plaintiff’s
action as untimely: having received the release of jurisdiction on Febru-
ary 18, 2016, the plaintiff was required to commence his action by May
18, 2016, and although the plaintiff claimed that his action was timely
because the complaint was dated May 9, 2016, and the summons was
signed by the clerk on May 9, 2016, 2016, the record indicated that the
defendant was not served until May 31, 2016, which commenced the
action and occurred after the expiration of the statute of limitations;
moreover, the action could not be saved by application of the remedial
savings statute, which required that process be delivered to the constable
by May 18, 2016, ninety days from the date of the release of jurisdiction
from the commission, as the constable averred in his affidavit that he
did not receive the process from the plaintiff until May 27, 2016, after
the expiration of the statute of limitations, which made the remedial
savings statute inapplicable.
Argued October 25, 2018—officially released February 5, 2019
Procedural History
Action to recover damages for, inter alia, the defen-
dant’s alleged discrimination, and for other relief,
brought to the Superior Court in the judicial district of
Stamford, where the court, Lee, J., granted the defen-
dant’s motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this
court. Affirmed.
John Mosby, self-represented, the appellant
(plaintiff).
M. Jeffry Spahr, for the appellee (defendant).
Opinion
PER CURIAM. The self-represented plaintiff, John
Mosby, appeals from the judgment of the trial court
dismissing his action against the defendant, the Board
of Education of the City of Norwalk, alleging discrimina-
tion in violation of General Statutes §§ 46a-58, 46a-64
and 46a-82, and retaliation in violation of General Stat-
utes § 46a-60. On appeal, the plaintiff claims that the
court improperly dismissed his complaint as untimely.
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On February 18, 2016, the plaintiff
received a release of jurisdiction from the Commission
on Human Rights and Opportunities (commission), with
which he had filed a complaint. On May 27, 2016, the
plaintiff delivered the process to be served to Constable
Ernie Dumas, who then served the defendant on May
31, 2016. The plaintiff’s complaint was returned to the
court on June 13, 2016. On July 8, 2016, the defendant
filed a motion to dismiss the complaint, arguing that
the plaintiff had failed to commence his action within
ninety days of receiving the release of jurisdiction from
the commission as required by General Statutes § 46a-
101 (e).1 By order dated November 8, 2016, the court
granted the defendant’s motion to dismiss. From that
judgment, the plaintiff now appeals.
‘‘Before addressing the plaintiff’s claims on appeal,
we address the applicable standard of review, which is
well settled. A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . [O]ur review of the court’s ultimate
legal conclusion and resulting [determination] of the
motion to dismiss will be de novo. . . . When a . . .
court decides a . . . question raised by a pretrial
motion to dismiss, it must consider the allegations of
the complaint in their most favorable light. . . . In this
regard, a court must 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. . . . The motion to dismiss
. . . admits all facts which are well pleaded, invokes
the existing record and must be decided upon that
alone.’’ (Internal quotation marks omitted.) Bennett v.
New Milford Hospital, Inc., 300 Conn. 1, 10–11, 12 A.3d
865 (2011).
On appeal, the plaintiff argues that his action was
commenced in a timely manner. Additionally, the plain-
tiff indicates that he believes his action falls within the
remedial savings statute, General Statutes § 52-593a,2
which would render his action timely commenced if
process had been delivered to the constable prior to
the expiration of the statute of limitations and served
within thirty days. The defendant disagrees, arguing
that the commencement of an action under Connecticut
law occurs with the service of the writ upon the defen-
dant and that the defendant was served after the expira-
tion of the statute of limitations. The defendant also
argues that the remedial savings statute does not apply
to the plaintiff’s case because the plaintiff delivered
the service to the constable after the expiration of the
statute of limitations. We agree with the defendant.
Pursuant to General Statutes §§ 46a-100 and 46a-101
(e),3 the plaintiff had ninety days from the date in which
he received the release of jurisdiction from the commis-
sion to commence his action in the Superior Court. The
plaintiff received the release of jurisdiction from the
commission on February 18, 2016. The plaintiff, there-
fore, was required to commence his action by May 18,
2016. In his brief, the plaintiff indicates that his action
was filed and served on May 9, 2016, and it was, thus,
commenced in a timely manner. Although the plaintiff’s
complaint is dated May 9, 2016, and the summons was
signed by a clerk of court on May 9, 2016, the record
indicates that neither was the action filed nor was the
defendant served on May 9, 2016.
It is well established that, in Connecticut, ‘‘an action
is commenced not when the writ is returned but when
it is served upon the defendant.’’ (Internal quotation
marks omitted.) Rocco v. Garrison, 268 Conn. 541, 549,
848 A.2d 352 (2004); see General Statutes § 52-45a.4 The
return of service indicates that Constable Dumas served
the defendant on May 31, 2016. Accordingly, the plaintiff
commenced his action on May 31, 2016, after the expira-
tion of the statute of limitations.
The plaintiff is correct in that, pursuant to the reme-
dial savings statute, his action would not be lost if he
had delivered the process to be served to Constable
Dumas by May 18, 2016, ninety days from the date he
received the release of jurisdiction from the commis-
sion. See General Statutes § 52-593a. In his affidavit,
however, Constable Dumas averred that he received
the summons and complaint from the plaintiff on May
27, 2016. As such, the plaintiff delivered the process to
Constable Dumas after the expiration of the statute of
limitations, making the remedial savings statute inappli-
cable to his case. We conclude, therefore, that the court
properly dismissed the plaintiff’s action.5
The judgment is affirmed.
1
General Statutes § 46a-101 (e) provides: ‘‘Any action brought by the
complainant in accordance with section 46a-100 shall be brought not later
than ninety days after the date of the receipt of the release from the com-
mission.’’
In its motion to dismiss, the defendant also argued that its motion to
dismiss should be granted because the plaintiff had failed to return the
process in a timely fashion and had failed to serve the appropriate individual.
In its appellate brief, the defendant argues that the court could have dis-
missed the claim on the alternative ground that the plaintiff failed to make
proper service of process. Because we agree with the court that the plaintiff
did not commence his action in a timely manner, we need not address
this issue.
2
General Statutes § 52-593a provides in relevant part: ‘‘(a) . . . [A] cause
or right of action shall not be lost because of the passage of the time limited
by law within which the action may be brought, if the process to be served
is personally delivered to a state marshal, constable or other proper officer
within such time and the process is served, as provided by law, within thirty
days of the delivery.
‘‘(b) In any such case, the officer making service shall endorse under oath
on such officer’s return the date of delivery of the process to such officer
for service in accordance with this section.’’
3
General Statutes § 46a-100 provides in relevant part: ‘‘Any person who
has filed a complaint with the commission in accordance with section 46-
82 and who has obtained a release of jurisdiction in accordance with section
46a-83a or 46a-101, may bring an action in the superior court for the judicial
district in which the discriminatory practice is alleged to have occurred,
the judicial district in which the respondent transacts business or the judicial
district in which the complainant resides . . . .’’ Pursuant to General Stat-
utes § 46a-101(e), such action must be brought within ninety days of the
receipt of the release of jurisdiction. See footnote 1 of this opinion.
4
General Statutes § 52-45a provides: ‘‘Civil actions shall be commenced
by legal process consisting of a writ of summons or attachment, describing
the parties, the court to which it is returnable, the return day, the date and
place for the filing of an appearance and information required by the Office
of the Chief Court Administrator. The writ shall be accompanied by the
plaintiff’s complaint. The writ may run into any judicial district and shall
be signed by a commissioner of the Superior Court or a judge or clerk of
the court to which it is returnable.’’
5
In its order granting the defendant’s motion to dismiss, the court con-
cluded that its ‘‘lack of jurisdiction . . . is a result of untimely service of
the summons and complaint by [the] plaintiff.’’ While the plaintiff has not
challenged this determination, we note that our Superior Court has been
divided over whether the time limit in § 46a-101 (e) is jurisdictional. See
Sempey v. Stamford Hospital, 180 Conn. App. 605, 616 n.8, 184 A.3d 761
(2018) (comparing Superior Court cases). ‘‘Although . . . mandatory lan-
guage may be an indication that the legislature intended a time requirement
to be jurisdictional, such language alone does not overcome the strong
presumption of jurisdiction, nor does such language alone prove strong
legislative intent to create a jurisdictional bar. In the absence of such a
showing, mandatory time limitations must be complied with absent an equita-
ble reason for excusing compliance, including waiver or consent by the
parties. Such time limitations do not, however, implicate the subject matter
jurisdiction of the agency or the court.’’ Williams v. Commission on Human
Rights & Opportunities, 257 Conn. 258, 269–70, 777 A.2d 645, aff’d after
remand, 67 Conn. App. 316, 786 A.2d 1283 (2001). Because the plaintiff
presents no argument as to whether the time limit of § 46a-101 (e) is either
mandatory or jurisdictional and presents no claim of waiver, consent, or
equitable tolling, we conclude that ‘‘the court properly dismissed . . . the
[plaintiff’s] claim regardless of whether the time limit is jurisdictional.’’
Sempey v. Stamford Hospital, supra, 616; see White v. Dept. of Children &
Families, 136 Conn. App. 759, 767, 51 A.3d 1116 (trial court properly dis-
missed complaint because failure to comply with ninety day deadline renders
action ‘‘barred by the statute of limitations’’), cert. denied, 307 Conn. 906,
53 A.3d 221 (2012).