A state judge has denied the city’s motion to dismiss a class action child lead poisoning lawsuit for procedural reasons, arguing that the city can’t make the case disappear just because it doesn’t like how the case has gone so far.
State Superior Court Judge John Cordani handed down that order Wednesday morning in the class action child lead poisoning lawsuit Nyriel Smith v. City of New Haven.
The day after legal aid and city attorneys argued over the potential certification of a class of up to 300 local lead poisoned children allegedly ignored by the city’s Health Department, the judge issued a ruling on a secondary subject of debate: Whether or not the lawsuit should be thrown out of court entirely because the initial complaint filed by the New Haven Legal Assistance Association (NHLAA) lacked a return date.
The city has “fully participated in this litigation,” Cordani wrote in his denial of the city’s motion to dismiss, “including in the federal removal and the conduct of a temporary injunction hearing.” Based on all of the city’s appearances and engagements with the lawsuit to date, he wrote, city attorneys cannot credibly claim that the lack of a return date on the initial filing had any substantive bearing on how the legal dispute has played out.
“If the court were to allow the defendants to challenge personal jurisdiction at this point,” he continued, “it would be allowing the defendants to actively engage in litigation and then try to withdraw when they receive a result that they do not like.” Cordani has already issued a temporary injunction in this case that ordered the city to conduct full lead inspections and enforce lead hazard abatements for the residents of the two primary child plaintiffs.
He is one of four judges in six different cases in recent years to rule with legal aid and against the city in regards to the Health Department not enforcing the full letter of the local law, which the city has admitted in court that it has struggled to do because of limited lead inspector staffing and department resources.
See below, or click here, to read the judge’s full order.
The foregoing, having been considered by the Court, is hereby:
ORDER: DENIED
The defendants’ motion to dismiss is respectfully denied.
The defendants have moved to dismiss this action for lack of personal jurisdiction because the writ, summons and complaint failed to identify a return date. In fact, the writ, summons and complaint did not contain a return date. However, appearances by multiple attorneys have been timely filed for each defendant. The defendants initially removed this matter to federal court, but that court remanded this matter to this court. Further, the defendants have fully participated in this litigation, including in the federal removal and the conduct of a temporary injunction hearing. The court has issued a temporary injunction which remains in place. After all of the foregoing had taken place, and almost two months after the service and filing of the complaint, the defendants filed a motion to dismiss on July 16, 2019.
The plaintiffs have opposed the motion. The court denies the motion for the following reasons:
1. The defendants waived their right to contest personal jurisdiction by their active participation in this litigation including removing it to federal court, having it remanded, and litigating the temporary injunction hearing to a conclusion and issuance of an injunction. In this regard, the defendants have intentionally and purposefully invoked jurisdiction over themselves by the foregoing substantive participation in this litigation. No generic disclaimer asserted by the defendants can undo this waiver.
If the court were to allow the defendants to challenge personal jurisdiction at this point, it would be allowing the defendants to actively engage in litigation and then try to withdraw when they receive a result that they do not like. Unlike subject matter jurisdiction, personal jurisdiction can be consented to by conduct and any challenge thereto can be waived. In this regard, the court finds that the defendants have consented to jurisdiction by their conduct in participating in this litigation and have waived their ability to contest personal jurisdiction by their conduct and their untimely raising of the issue.
2. In the alternative, defects in the writ, summons and complaint are curable as provided for in Connecticut General Statute 52 – 72. In this regard, the court finds that the parties had proper and timely notice of the pendency of this action and that none of the parties’ rights have been prejudiced or affected by the lack of a return date. This matter was initiated with an order by the court to show cause which set the initial hearing date. The defendants were properly served the verified complaint and the order to show cause by a state marshal. The defendants each timely appeared through counsel and vigorously participated in the litigation. No rights of any party have been prejudiced or affected by the lack of a return date. Further, at this point a return date would serve no purpose since all parties have received notice, appeared and actively participated. Given all of the foregoing, the court determines that any defect has been cured by the actions of the parties and no amendment to the writ, summons and complaint is required.
For all of the foregoing reasons, the court respectfully denies the defendants’ motion to dismiss.
Previous lead coverage:
• City, Legal Aid Clash In Court On Lead
• New Lead Proposal “Eviscerates” Mandate
• Lead Cleanup Pricetag: $91M?
• Lead Panel’s Advice Rejected
• Lead Paint Chief Retires
• Lead Paint Fight Rejoined
• Harp Switches Gears On Lead
• Motion Accuses City Of Contempt
• City Loses Again On Lead
• Briefs Debate “Lead Poisoning”
• New Haven: Another Flint?
• Harp Administration Admits Relaxing Lead Standard To Save $$
• Class-Action Suit Slams City On Lead
• City, Legal Aid Clash On Lead Paint
• Legal Aid To City: Get Moving On Lead Paint Law
• 100+ Tenants Caught In Lead Limbo
• 2 Agencies, 2 Tacks On Lead Paint
• Chapel Apartments Get 3rd Lead Order
• Lead Sends Family Packing
• Health Officials Grilled On Lead Plans
• Judge Threatens To Find City In Contempt
• Same Mandy House Cited Twice For Lead Paint
• Lead $ Search Advances
• 3 Landlords Hit With New Lead Orders
• Another Judge Rips City On Lead
• Judge To City: Get Moving On Lead
• Health Department Seeks Another $4.1M For Lead Abatement
• City-OK’d Lead Fixes Fail Independent Inspection
• Judge: City Dragged Feet On Lead
• 2nd Kid Poisoned After City Ordered Repairs
• Judge: City Must Pay
• City Sued Over Handling Of Lead Poisonings
• City’s Lead Inspection Goes On Trial
• Eviction Withdrawn On Technicality
• 2nd Child Poisoned; Where’s The City?
• Carpenter With Poisoned Kid Tries A Fix
• High Lead Levels Stall Eviction
• 460 Kids Poisoned By Lead In 2 Years
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders Total Lead Paint Clean-Up
• Legal Aid Takes City To Task On Lead
Seems like a minor procedural loss. Happens in many lawsuits all day long. In any ordinary situation it would not have been a 3 sentence story in any publication. But course it is an election year and it seems that the NHI is hellbent on putting the city administration in a negative light.