Wylie v. Connecticut Dept. of Correction, No. 00-0434524s (Oct. 31, 2000) , 28 Conn. L. Rptr. 435 ( 2000 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS (#101) The pro se plaintiff obtained a February 29, 2000 return date from the court, but it was not inserted on the copy of process served on the defendants. The defendants filed a timely appearance and now move to dismiss arguing that the total absence of a return date is an incurable violation of § 52-45a warranting dismissal. More specifically, the defendant argues that § 52-72 cannot cure the total absence of a return date. There is no other alleged defect in the text, service or return of process.

This motion is denied. The plain unrestricted language of the clause "or is for any other reason defective" in § 52-72, by logic and reason, encompasses the problem in this case. Galluzzo v. Board of TaxReview, 44 Conn. Super. Ct. 39 (1995). Whether construed as a defect in text or in service, the broad unfettered language of § 52-72 covers the defect. Technical niceties exalting form over function should not defeat the remedial purpose of § 52-72. Id., p. 40.

To hold otherwise would thwart the clear modern policy of bringing about a trial on the merits whenever possible to secure a litigant's day in court. Id., p. 43. This court's interpretation of § 52-72 is consistent with that policy.

Moreover, § 52-123 precludes dismissal for any kind of circumstantial error in the text of process "if the person and the cause may be rightly understood and intended by the court." In the context here, absent any demonstrated prejudice, the defect is circumstantial.

Even if the court were to dismiss this action it would not do so with prejudice. There is nothing in the record warranting the loss of the plaintiffs constitutional right to have his day in court on the merits, if any, of his case. This court reaches no substantive 1 issue. Moreover, to dismiss with prejudice would violate whatever right the plaintiff has to sue again under § 52-592.

The original summons contains a correct return date. There is no claim of a wrong return day or late return. There is nothing to amend. Motion is denied.

Licari, J