El Bouamri v. City of New Haven

• Decision Date: 10 August 2018
• Docket Number: CV176069792S
• Court: Connecticut Superior Court
• Parties: Mohamed Reda EL BOUAMRI v. CITY OF NEW HAVEN

Mohamed Reda EL BOUAMRI v. CITY OF NEW HAVEN

No. CV176069792S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

August 10, 2018

UNPUBLISHED OPINION

Wilson J.

I STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, Mohammed Reda El Boumari, ppa Afifa Medlouane (plaintiff) commenced this action on April 4, 2017, by service of writ, summons and complaint on the defendants city of New Haven, city of New Haven Board of Education Garth Harries, Michael Giorini and Porter Athletic Company (Old Porter).^{[1] The complaint dated March 30, 2017, was returned to court on April 9, 2017, and alleges the following facts. On March 22, 2016, the plaintiff sustained personal injuries when the support arm of the portable basketball backstop on which he was playing broke, causing the backboard and goal to fall on his head. At the time of the incident the plaintiff was a student at the Hill Career Regional High School in New Haven, Connecticut. The incident occurred during gym class. The backstop was manufactured by Old Porter. Count five of the complaint dated March 30, 2017, is against Old Porter and claims that Old Porter is liable and legally responsible pursuant to the Connecticut Product Liability Act (CPLA), as set forth in General Statutes § 52-572m et seq.}

^{On July 5, 2017, Old Porter filed a motion to dismiss count five of the plaintiff’s complaint on grounds that the court lacked subject matter jurisdiction over Old Porter because the ten-year statute of repose governing products liability actions had run. Specifically, Old Porter claimed that its operational assets, including products and manufacturing were sold to Porter Athletic, Inc. (New Porter) on June 12, 2006, and that Old Porter is a dissolved company, and New Porter is a separate company, which, as of the date of Old Porter’s motion to dismiss, was not named in the present action. In addition, Old Porter claimed that no models of the alleged basketball hoop at issue were sold from December 2006, to the present date. The motion to dismiss filed by Old Porter appeared on the court’s short calendar on October 2, 2017, to which the plaintiff and counsel for Old Porter appeared. Counsel for the plaintiff agreed that the motion to dismiss as to Old Porter could be granted since New Porter purchased both the assets and liabilities of Old Porter, and because counsel had filed a motion to cite in New Porter. The court granted both the plaintiff’s motion to cite in New Porter and, without objection by the plaintiff, the court also granted Old Porter’s motion to dismiss.}

^{On October 24, 2017, pursuant to this court’s granting of the plaintiff’s motion to cite in New Porter, the plaintiff filed a substituted complaint, in which he alleges a product liability claim pursuant to the CPLA against New Porter. On March 20, 2018, the plaintiff filed a request to amend and a second amended complaint which contains three counts. (No. 128.) Count three alleges a products liability claim against New Porter. Also on March 20, 2018, in accordance with Practice Book § 10-60(a)(3)(A) the plaintiff filed the second amended complaint document "showing the portion or portions of the original pleading or other parts of the record or proceedings with the added language underlined and the deleted language stricken through or bracketed." (No. 132.) Count three in this document alleges a claim against New Porter pursuant to the CPLA.}

^{On March 27, 2018, New Porter filed a motion to dismiss count three of the plaintiff’s second amended complaint as well as the associated allegations incorporated therein, from count one against New Porter. The defendant New Porter filed the motion to dismiss on grounds that the ten-year statute of repose governing product liability actions has run, and therefore the court lacks subject matter jurisdiction over claims against New Porter. In support of its motion to dismiss, the defendant submitted the affidavit of Jason Norton, Chief Financial Officer of Litania Sports Group, Inc. as Exhibit A. Litania Sports Group is the sole shareholder of New Porter. The defendant also submitted photographs of the backstop at issue as Ex, B; Porter Athletic Sales advertisement as Ex. C; photographs of 205 model base of the hoop as Ex. D; a copy of the advertisement for the 208 model as Ex. E; and a photograph of the 208 model base as Ex. F.}

^{The plaintiff filed an objection to the defendant’s motion to dismiss on grounds that he should be allowed to rebut the defendant’s claim of lack of subject matter jurisdiction under General Statutes § 52-577a(c), the useful life exception to the ten-year statute of limitations. The plaintiff argues that he should be given the opportunity to conduct limited discovery on the factors set forth in § 52-577a(c). Oral argument on the motion was heard at short calendar on May 14, 2018.}

^{II DISCUSSION}

^{"Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 211 Conn 232, 245, 558 A.2d 986 (1989), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). The Supreme Court has termed this "fundamental principle" the " ‘jurisdiction first’ rule. 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 ... The court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) St. Paul Travelers Companies, Inc. v. Kuehl, 299 Conn. 800, 816, 12 A.3d 852 (2011). "[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time." (Emphasis omitted; internal quotation marks omitted.) Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn.App. 775, 779-80, 871 A.2d 1057, cert. granted on other grounds, 274 Conn. 909, 876 A.2d 1201 (2005) (appeal withdrawn February 3, 2006). "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it ... Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged ...}

^{" ‘Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute ... [W]e have maintained the distinction between these concepts. See, e.g., Artman v. Artman, 111 Conn. 124, 130, 149 A. 246 (1930) ([i]f it applied any wrong rule of law to the situation, it was not acting without jurisdiction but in the erroneous exercise of its jurisdiction) ...’ (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-29, 724 A.2d 1084 (1999)." Ed Lally and Associates, Inc. v. DSBNC, LLC, 145 Conn.App. 718, 728, 78 A.3d 148 (2013).}

^{" ‘[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.’ (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn 338, 350, 63 A.3d 940 (2013). ‘The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process.’ Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10-31. ‘[I]n ruling on a motion to dismiss, the trial 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.’ (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). ‘Pursuant to Practice Book § 10-31(a), a motion to dismiss ..."shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." ’ Conboy v. State, 292 Conn. 642, 647 n.7, 974 A.2d 669 (2009). ‘If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counter affidavits ... or other evidence, the trial court may dismiss the action without further proceedings.’ (Citations omitted.) Id., at 652, 974 A.2d 669." Pina v. Metalcraft of Mayville, Inc., Superior Court, judicial district of New Haven, Docket No. CV116024842S. (February 3, 2014, Wilson, J.) . "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Village Pond, Inc. v. Darien, 54 Conn.App. 178, 182 (1999); Bradley’s Appeal from Probate, 19 Conn.App. 456, 461-62 (1989). "It}...