"John & Jane Doe" Immune From Connecticut Civil Lawsuits?

It is not uncommon when a party bringing a lawsuit is ignorant of the name of a defendant, he must state that fact in the complaint and simply designate such a party as a John or Jane Doe defendant.

However, according to a recent decision by a Connecticut trial court, designating such unknown defendants in this manner is not allowed in lawsuits brought in the state courts of Connecticut. In Younger v. City of E. Haven,(1) (Superior Court, judicial district of New Haven, Docket No. CV 085020500S, 2008 Conn. Super. LEXIS 1965 (August 4, 2008, Bellis, J.)), the court ruled that Connecticut practice does not permit actions to be initiated against fictitious defendants, and accordingly, dismissed an action against a defendant designated as John Doe.

The approach of designating defendants in this manner is quite common in mortgage foreclosure actions, where an encumbered property is often in the occupancy and possession of unknown tenants. It seems that, to the extent the foreclosing lender's attorney fails to ascertain the true names of all the occupants in possession of the foreclosed home and simply designates them with a fictitious name, a good argument could be made (based on Younger v. City of E. Haven, and the cases cited therein.) that a Connecticut foreclosure action and/or subsequent eviction proceedings should be dismissed, and any judgment arising therefrom should be declared void for lack of personal jurisdiction as to those unnamed occupants.

In reaching her decision, Judge Bellis stated (footnotes omitted):

• "General Statutes §52-45a provides that [c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties . . . Unlike some jurisdictions, Connecticut has no statutory provision for suing an unidentified John Doe defendant. [fn. 7]." Tarnowsky v. Socci, 271 Conn. 284, 292, 856 A.2d 408 (2004) (Citations omitted; internal quotations omitted).

• "The Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008) (citation omitted).

• "The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it . . . [S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of in personam jurisdiction over that party . . . [N]o principle is more universal than that the judgment of a court without jurisdiction is a nullity . . . Such a judgment, whenever and wherever declared upon as a source of right, may always be challenged . . . If a court has never acquired jurisdiction over a defendant or the subject matter . . . any judgment ultimately entered is void and subject to vacation or collateral attack. A challenge to the jurisdiction of the court presents a question of law . . . [T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Citations omitted; internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 712-14, 927 A.2d 312 (2007).

• In Angiolillo v. Buckmiller, supra, the Appellate Court held that the trial court properly dismissed, sua sponte, the plaintiff's claims against a defendant who had been identified as "John Doe One" in the original complaint. The original complaint contained one hundred twenty-six counts, nine of which were directed against the defendant "John Doe One"; the marshal's return of service indicated that service of process was made on one David Buckmiller who accepted service for John Doe One. Subsequently, an amended complaint was filed, directed counts one through nine as to one Joseph A. Corona. A certificate of service on Corona was not filed, no appearance was filed for either John Doe One or Corona, nor was a default ever filed against Corona for failure to appear. The trial court, sua sponte, ruled that Corona was not a party to the action because he was never served and never filed an appearance, and dismissed the claims against him. The trial court noted, inter alia, that there was no indication as to who John Doe One was at the time of the original complaint or that Buckmiller had authority to accept service for anyone known as John Doe One.

• The majority of superior courts faced with issues relating to "John Doe" defendants have generally disallowed the actions, whether on a motion to dismiss based on lack of jurisdiction for improper service, see Crooker v. Allen, Superior Court, judicial district of Hartford, Docket No. 07 5011602, 2008 Conn. Super. LEXIS 691 (March 27, 2008, Dubay, J.); Brock v. A1 Auto Service, Inc., Superior Court, judicial district of New Haven, Docket No. 414991, 1998 Conn. Super. LEXIS 3521 (December 11, 1998, Blue, J.); Marinelli v. Newtown Park and Recreation, Superior Court, judicial district of Danbury, Docket No. 324703 (March 18, 1997, Moraghan, J.) [19 Conn. L. Rptr. 300, 1997 Conn. Super. LEXIS 740] (granting motion to dismiss, where action was brought against two counselors, "Michelle Moe" and "Richard Doe" employed by the town, service was made on the town clerk, and the plaintiff subsequently amended his complaint as of right to include the correct names of the two individuals); Bellino v. DOC, Superior Court, judicial district of New Haven, Docket No. 379427, 1996 Conn. Super. LEXIS 2048 (August 7, 1996, Zoarski, J.); Hackett v. State of Connecticut, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 352161, 1990 Conn. Super. LEXIS 1759 (November 28, 1990, Stengel, J.);

• or on a motion for summary judgment on the basis of the statute of limitations, see Chaouki v. City of New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. 97 0407166, 2001 Conn. Super. LEXIS 3241 (November 16, 2001, DeMayo, J.) (where defendants included the City of New Haven and its police officer "John Doe # 1", denying the plaintiff's motion to substitute the correct name for "John Doe # 1" and granting the City's motion for summary judgment on the basis of the statute of limitations); Sandig v. Dubrevil & Sons, Inc., Superior Court, judicial district of New London at Norwich, Docket No. 93 0104218 (May 7, 1999, Parker, J.) (granting motion to dismiss on basis of statute of limitations by defendant which had originally been identified as "John Doe," and where the plaintiff's subsequently filed and served an amended complaint upon the proper defendant after the statute of limitations had expired). See also Allen v. Transportation General, Superior Court, judicial district of New Haven, Docket No. 99 0423757, 1999 Conn. Super. LEXIS 2385 (August 13, 1999, Zoarski, J.) (denying motion to dismiss claim against John Doe because the attorney who had filed the motion, had not appeared on John Doe's behalf, noting that ordinarily the motion would have been granted, and finding that identifying a defendant as "John Doe" is not in accordance with Connecticut law).

• For other decisions disallowing actions against unknown defendants, see Himmelstein v. Town of Windsor, Superior Court, judicial district of Hartford; Docket No. 05 4013928, 2006 Conn. Super. LEXIS 1457 (May 16, 2006, Keller, J.); O'Donnell v. State of Connecticut, Superior Court, judicial district of New Haven, Docket No. 03 0482928 (September 14, 2004, Corradino, J.) [37 Conn. L. Rptr. 884, 2004 Conn. Super. LEXIS 2596], (granting motion to dismiss as to unknown "Jane and John Doe" State of Connecticut collections officers); Gregory v. City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 97 0341425 (May 5, 1999, Skolnick, J.) [24 Conn. L. Rptr. 454, 1999 Conn. Super. LEXIS 1199], (granting motion for summary judgment filed by defendants as to "John Doe" defendant); Kerr v. Doe, Superior Court, judicial district of Waterbury, Docket No. 0117897 (April 15, 1994, Sullivan, J.) [11 Conn. L. Rptr. 375, 1994 Conn. Super. LEXIS 957], (granting motion to dismiss filed by John Doe); and Douglas v. Town of Hartford, 542 F.Sup. 1267, 1270 (1982) (dismissing claims against "John Doe" and "Richard Roe" police officers unless the plaintiff's identify and properly serve the actual police officers by a date definite, stating that "[t]his court has consistently taken the position that the use of fictitious names in a pending litigation causes uncertainty and possible prejudice to the unnamed defendants"); Farmers & Mechanics Bank v. Nellis, Superior Court, judicial district of Middlesex, Docket No. 63451 (December 21, 1992, Higgins, J.) [8 Conn. L. Rptr. 105, 1992 Conn. Super. LEXIS 3525], (vacating ruling of first judge granting motion to cite in "John Doe" and "Jane Doe" defendants, and denying second motion to cite in which referred to the defendants as "John Doe aka Melvin Jenkins" and "Jane Doe aka Joyce Spiry," citing a prohibition against "John and Jan (sic) Doe" pleadings in Connecticut); CRRA v. Refuse Gardens, Superior Court, judicial district of Hartford-New Britain, Docket No. 364240, 1992 Conn. Super. LEXIS 889 (March 25, 1992, Schaller, J.), (denying plaintiff's motion to substitute true names in lieu of the defendants "John Doe I" and "John Doe II" named in the original complaint; "[t]here is no authority to proceed against unknown persons in actions in Connecticut courts"). But see [Barber v. City of Hartford], Superior Court, judicial district of Hartford-New Britain, Docket No. 93 529115 (December 21, 1993, Freed, J.) [10 Conn. L. Rptr. 523, 1993 Conn. Super. LEXIS 3339], (denying motion to dismiss filed by defendants City of Hartford and five police officers, where three of the police officers were unknown and identified in the complaint as "John, Sam and Henry Doe," holding that "the court is authorized to allow a plaintiff to bring a lawsuit naming defendants as fictitious persons when such names are unknown to the plaintiff, and when it is necessary to further the litigation . . . the defendants must have actual notice of the institution of the action, know further that they are proper defendants and are not misled to their prejudice by the use of such fictitious names").

• Simply put, the jurisdiction of this court, like all trial courts, extends only to those parties who have been specifically named in the action and properly served with process. An individual or entity who is not served with process is not accorded the status of a party to the proceeding; one is entitled to notice of the actions or proceedings and an opportunity to appear and be heard. There is no statute or rule in Connecticut which specifically authorizes the use of the fictitious name procedure employed here, which is totally lacking in fundamental fairness to the real defendant, whoever he may be. John Doe, whoever he is, has the right to be identified by correct name, served in accordance with Connecticut law, and properly made a party. As the unidentified "John Doe" was improperly included in this action, any purported service upon him was insufficient. The New Haven defendants' motion to dismiss count five is therefore granted.

(1) Link may require free registration at LexisOne Free Case Law.