NO. NHH-CV19-5003875 : SUPERIOR COURT/ : HOUSING SESSION NYRIEL SMITH, et al., : J.D OF NEW HAVEN Plaintiffs : v. CITY OF NEW HAVEN, et al., : Defendants : JULY 16, 2019 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION To DISMISS The plaintiffs filed this class action Complaint on May 16, 2019, alleging that defendants have violated various laws related to protection from lead-paint. Their initial pleadings included a summons, complaint, application for preliminary injunction, request for waiver and bond and order to show cause. On May 20, they filed those papers as served, with the marshal's certification. Not a single one of those documents contained the retum date required by Connecticut statute in order to initiate civil process, creating a fatal defect that deprives this Court of personal jurisdiction over the defendants. As stated by the Connecticut Appellate Court, “The absence of a return date on the writ, whether the fault of a plaintiff or a court clerk, is unforgivable.” Raynor v. Hickock Realty Corporation, 61 Conn. App. 234, 242 (2000), As a result, this lawsuit should be dismissed. “A motion to dismiss is used to assert jurisdictional flaws that appear on the record... .” Villager Pond, Inc. v. Darien, 54 Conn. App. 178, 182 (1999). “[Once the question of lack of jurisdiction of a court is raised, ‘[it] must be disposed of no matter in what form it is presented.” Castro _v. Viera, 207 Conn. 420, 429 (1988). This holds true for questions of personaljurisdiction as well as subject matter jurisdiction. Steiman v. Pitkoff, Superior Court of Connecticut, Docket No. CV000373683 (Nov. 9, 2000) (2000 WL 1838691) (Exhibit 1), “Whenever a lack of jurisdiction appears on the record, the court must consider the question. The court must address itself to that issue and fully resolve it before proceeding further with the case.” Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 303 (1978) (citations omitted) (with regard to a motion to dismiss for defective process, thus implicating personal jurisdiction). As the court stated in Walker v. Supeau, 134 Conn. App. 444, 446 (2012), when faced with a motion to dismiss for lack of personal jurisdiction, a court must rule on the motion, “without ever considering, much less ruling on. . . the underlying claims.” Moreover, the party who seeks the exercise of jurisdiction bears the burden of clearly demonstrating its basis. Electrical Contractors, Inc. v. Department _of Education, 303 Conn. 402, 413-14 (2012). Connecticut General Statutes section 52-45a requires that “[clivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is retumable, the return day, the date and place for the filing of an appearance . . . ." (emphasis added); accord, Practice Book section 8-1(a). A proper writ of summons “is a statutory prerequisite to the commencement of a civil action. Hillman _v. Greenwich, 217 Conn. 520, 526 (1991). Although a writ of summons “need not be technically perfect . . . it must contain the basic information and direction normally included in a writ of summons.” Id. (emphasis added). A “retum date by which the defendant would have to file anappearance . . . . is a necessary component of a writ by which a civil action is commenced,” Howard v Robinson, 27 Conn. App 621, 626 (1992). The Appellate Court considered this exact issue in Raynor _v. Hickock Realty Corporation, 61 Conn. App. 234 (2000). In that case, the Court evaluated two related defects in the summons and complaint filed by plaintiff with its request for a prejudgment remedy: (1) lack of signature; and (2) lack of return date. Plaintiff asked the Court to “overlook” these defects, id. at 240, but the Court refused to do so, Even though the absence of a return date in Raynor appeared to be the fault of the trial court clerk, the Appellate Court ruled that this did not matter; it ruled that a civil action has not been “commenced” within the meaning of Connecticut law unless it has a retum date, which is essential because both the time within which process must be served after its issuance and the time within which the writ must be filed with the court after service are determined by reference to the ‘return day.’ Id. at 241-42, Moreover, the Appellate Court emphasized that a trial court “cannot ignore an omission” of such a nature, Id. at 240; see also Hillman, 217 Conn, at §26 (proper writ of summons “is an essential element to the validity of the jurisdiction of the court”); Carlson v. Fisher, 18 Conn. App. 488, 496-96 (1989) ("defect of an improper return day is not a minor defect”); Endyke v. Haverly, 1997 WL 630022 at **2-3 (Oct. 1, 1997) (Exhibit 2) (granting motion to dismiss complaint and application for temporary injunction where no pleadings contained elements required by section 52-45a and Practice Book, including return date; “failure to initiate a civil lawsuit through the use of mesne process deprives the court of jurisdiction,” and statutory mesne process means process that “clearly apprises all concemed that a lawsuit is being