Dias v. Dias, No. Fa 91-39966 (Oct. 23, 1991) ( 1991 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS This court finds that the above-captioned action is identical to Sharon K. Dias v. John R. Dias, Doc. No. FA 91-0048315S pending between the same parties in the Tolland Judicial District.

The plaintiff John R. Dias initiated the present action in Hartford Superior Court on August 12, 1991 and managed to have process served on the defendant Sharon K. Dias at their marital home just one hour prior to being served himself by the Sheriff in the Tolland action. His service of process was returned to the Hartford court on August 14, 1991.

The defendant in the matter before the court, Sharon K. Dias, docketed her Tolland Judicial District suit and paid the requisite filing fee at Rockville on August 8, 1991, at which time a show cause hearing was set for August 19, 1991. The Sheriff served process upon the plaintiff in this action, John R. Dias, five days later on August 12, 1991. The service was returned to the Tolland Judicial court at Rockville on August 13, 1991.

This court has examined Connecticut case law to determine when a case is "pending" before the courts, and has found no strict definition of "pending" that will control here. The court has examined the facts of the two actions, and finds it must choose among three factors in deciding which action is "pending:" The factors are: 1. Citation 2. Service of Process and 3. Return of Service.

In this case:

1.) The plaintiff, John R. Dias began this action in Hartford Superior Court five days after the defendant Sharon K. Dias filed and docketed her action in Tolland Judicial District.

2.) The plaintiff John R. Dias had process served on the defendant Sharon K. Dias one hour before the defendant had process served upon the plaintiff in the Tolland action.

3.) The plaintiff's service of process was returned to court in Hartford one day after the defendant's service of process was returned to the court in CT Page 9056 the Tolland Judicial District.

In weighing the three factors involved in determining which case was "pending," this court finds that the defendant Sharon K. Dias' action in the Tolland Judicial District, having been filed first and returned to court first, must prevail despite the fact that the plaintiff's service of process preceded that of the defendant by one hour. To do otherwise would render all filings prior to service as having no significance what-so-ever. If service alone was the issue it would be easy to find that the first served would prevail. However here with the Tolland case being docketed first, fees paid and citation issued, to ignore those acts would relegate form over substance. The motion to dismiss is granted.

Norko, J.