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`ASB-FBT-CV-17-6061594S
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`NANCY HUBER, EXECUTRIX OF THE ESTATE OF
`JACK A. HUBER & NANCY HUBER, SURVIVING
`SPOUSE
`
`VS.
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`AMERICAN CYANAMID N/K/A WYETH HOLDINGS
`CORP., ET AL
`
`: SUPERIOR COURT
`:
`: J.D. OF FAIRFIELD
`:
`:
`:
`:AT BRIDGEPORT
` :
`: September 14, 2017
`
`PLAINTIFFS’ OBJECTION TO DEFENDANTS WYETH HOLDNGS LLC AND CYTEC
`INDUSTRIES, INC.’S MOTION TO RECONSIDER AND MOTION TO DISMISS
`
`FACTS
`
`
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`Jack Huber was diagnosed with mesothelioma in July 2016. Huber Dep., pg. 111
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`(excerpt Exhibit 1). Mr. Huber lived near the American Cyanamid plant, and he was exposed to
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`asbestos which was released from the plant. Second Am. Compl.,¶ 4-7.
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`Only a few months after Mr. Huber’s diagnosis, Plaintiffs attempted to commence suit
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`against the entity liable for American Cyanamid. On September 16, 2016, Plaintiffs filed an
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`action against Wyeth Holdings Corporation, among other defendants (FBT-CV16-6059381).1
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`Plaintiffs’ counsel believed Wyeth Holdings Corporation was the entity responsible for
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`American Cyanamid, as Plaintiff’s counsel had previously and successfully sued Wyeth
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`Holdings Corporation for American Cyanamid on behalf of a prior client. Unfortunately, there
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`was a miscommunication with the marshal, and Plaintiffs learned the marshal did not complete
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`1 Wyeth Holdings Corporation is a different corporate entity from movants Wyeth Holdings LLC and Cytec
`Industries, Inc. However, Defendants refer to all three companies collectively as “American” in their motion,
`because Plaintiffs alleged each entity is liable for American Cyanamid.
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`
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`1
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`

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`service on any of the named defendants within the requisite period. Accordingly, Plaintiffs were
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`forced to withdraw that initial action and start over.
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`Plaintiffs filed the above-captioned action on January 5, 2017. Wyeth Holdings
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`Corporation, represented by Attorney Leedberg, appeared and filed a motion to dismiss for lack
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`of personal jurisdiction due to Plaintiffs’ “failure to name and serve the proper successor in
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`interest to American Cyanamid.” Def. Mot. to Dismiss, pg. 1 (entry #106) (attached as Exhibit
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`2). Upon further investigation, Plaintiffs’ counsel determined that Wyeth Holdings Corporation
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`had been withdrawn from the State of Connecticut business registration, See Connecticut
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`Secretary of State Record for Wyeth Holdings Corp. (Exhibit 3), and had merged with and/or
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`been purchased by Wyeth Holdings LLC. See Maine Secretary of State Records for Wyeth
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`Holdings Corp. (Exhibit 4). Plaintiffs’ counsel further believed that Cytec Industries, Inc, may
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`hold the liabilities for American Cyanamid.
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`Accordingly, Plaintiffs filed a withdrawal of Wyeth Holdings Corporation on May 25,
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`2017 (entry # 108) and filed a motion to cite in Wyeth Holdings LLC and Cytec Industries, Inc.
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`on June 22, 2017 (Entry # 112). The Court granted the unopposed motion to cite with the
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`consent of the parties.2 The Motion to Cite, Order, Writ, Summons, and Second Amended
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`Complaint was timely served on Wyeth Holdings LLC and Cytec Industries, who subsequently
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`filed an appearance on August 18, 2017.3 Order 8/4/2017 (Exhibit 5); Return of Service
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`(Exhibit 6). Defendants Wyeth Holdings LLC and Cytec Industries have both retained Attorney
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`Leedberg, the attorney who previously represented the withdrawn Wyeth Holdings Corporation.
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`2 The Court initially granted the motion to cite on July 11, 2017 (Entry #112.10), and Plaintiffs requested a
`clarification of the Order, as it did not provide a return date (Entry # 115). On August 4, 2017, the Court filed a new
`Order which provided a return date of September 12, 2017 (Entry #112.15).
`3 In the Second Amended Complaint, the defendants are named, “American Cyanamid n/k/a Wyeth Holdings LLC”
`and “Cytec Industries, Inc., successor to American Cyanamid.”
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`2
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`

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`Defendants Wyeth Holdings LLC and Cytec Industries have now filed a motion asking
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`the Court to reconsider Plaintiffs’ motion to cite and to dismiss the case against them for
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`improper service. The basis of the motion appears to be that Plaintiffs did not serve Defendants
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`with the motion to cite before it was granted. Defendants do not assert that service of process
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`was otherwise improper. This case was recently assigned a May 7, 2019 trial date.
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`LEGAL STANDARD
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`
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`Pursuant to Practice Book § 10-30, a motion to dismiss may be used to assert insufficient
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`process and insufficient service of process. P.B. § 10-30. “A motion to dismiss does not test the
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`sufficiency of a cause of action and should not be granted on other than jurisdictional
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`grounds." Egri v. Foisie, 83 Conn. App. 243, 248 (2004).
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`Pursuant to Connecticut’s joinder statute, Section 52-102,
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`Upon motion made by any party or nonparty to a civil action, the
`person named in the party’s motion or the nonparty so moving, as
`the case may be, (1) may be made a party by the court if that
`person has or claims an interest in the controversy, or any part
`thereof, adverse to the plaintiff, or (2) shall be made a party by the
`court if that person is necessary for a complete determination or
`settlement of any question involved therein; provided no person
`who is immune from liability shall be made a defendant in the
`controversy.
`
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`Conn. Gen. Stat. § 52-102. Section 52-102 allows permissive joinder of parties, and also
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`provides for the joinder of necessary parties. Darien Asphalt Paving v. Town of Newtown, 1999
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`Conn. Super. LEXIS 1576 (Conn. Super. Ct. June 14, 1999) (Robinson, J.).
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`A motion to cite in an additional party is within the sound discretion of the Court. Wash.
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`Tr. Co. v. Smith, 241 Conn. 734, 747 (1997) (overruled on other grounds). In ruling upon a
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`motion to cite, the Court may consider “the timeliness of the application, the possibility of
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`prejudice to the other party and whether the applicant's presence will enable the court to make a
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`3
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`

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`complete determination of the issues.” A. Secondino & Son, Inc. v. Lo Ricco, 19 Conn. App. 8,
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`14 (1989). The Court must keep in mind that “the rules of intervention should be liberally
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`construed, in order to avoid multiplicity of suits and settle all related controversies in one
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`action." Wash. Tr. Co. v. Smith, 241 Conn. 734, 747 (1997) (overruled on other grounds).
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`A motion for reargument/reconsideration pursuant to Practice Book § 11-12 is for
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`circumstances where law has been overlooked or misapplied, or where there are factual mistakes
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`or inconsistencies within the Court’s decision. Horton & Knox, Conn. Super. Ct. Civil Rules
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`(2016-2017 ed.) § 11-12, Authors’ Comments (citing cases).
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`ARGUMENT
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`
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`The Court must deny Defendants’ motion to dismiss, because service was proper. A
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`motion to cite is addressed to the Court’s discretion, and Plaintiffs were not required to serve
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`non-party tortfeasors with the motion to cite before it was granted. Plaintiffs properly served
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`Defendants’ agents for service within the time established by the Court’s order. Return of
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`Service (Exhibit 6); Wyeth Holdings LLC Sec. of State Record (Exhibit 7); Cytec Indus. Sec. of
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`State Rec. (Exhibit 8).
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`The Court must deny Defendants’ motion for reconsideration. The Court properly
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`granted Plaintiffs’ unopposed motion to cite with the consent of the parties. Plaintiffs are
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`seeking compensation for injuries and death resulting from mesothelioma, which is a single,
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`indivisible injury. Allowing Plaintiffs to cite Wyeth Holdings LLC and Cytec Industries into the
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`case is in the interests of justice, and the defendants are not unduly prejudiced. The motion to
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`cite did not unreasonably delay trial, as the trial date was recently assigned. Conversely,
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`Plaintiffs would be prejudiced if they were forced to incur the additional expense of commencing
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`a separate action against Defendants.
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`4
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`I.
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`Plaintiffs are Not Required to Serve Non-Parties With A Motion to Cite.
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`Defendants’ sole argument regarding service is that Plaintiffs did not serve Defendants
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`with the motion to cite before it was granted. However, the Practice Book does not require
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`Plaintiffs to serve non-party tortfeasors with a motion to cite before it is granted, and Plaintiffs
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`were required to wait until the Court granted their motion to cite before they could effectuate
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`service of process. Perrone v. Buttonwood Farm Ice Cream, Inc., 158 Conn. App. 550, 553-56
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`(2015) (service of process before motion to cite was granted was improper because plaintiff did
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`not have prior judicial authorization); Longhenry v. City of Groton, 1998 Conn. Super. LEXIS
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`3589, at *9 (Conn. Super. Ct. Dec. 15, 1998) (service was in violation of Practice Book
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`requirement that plaintiff obtain authority of the court, where plaintiffs served police officers
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`before receiving court’s permission to cite in new defendants). Indeed, § 52-102 allows
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`Plaintiffs’ to add new parties to an action only if they first file a motion and obtain the court’s
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`permission, because “[t]he court is vested with authority to control the process by which new
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`parties are added to pending actions to protect the interests of all other parties, and of the court
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`itself, in the fair and efficient adjudication of all proper claims and defenses.” Perrone, 158
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`Conn. App. at 553-56.
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`Defendant does not cite any case law in support of its position, and the undersigned was
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`unable to locate case law which requires Plaintiffs to serve non-party tortfeasors with a motion to
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`cite before it is granted. Defendants acknowledge that “Courts throughout Connecticut have
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`long required that terms in a statute or rule not be interpreted in a manner that renders them,
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`‘superfluous, void, or insignificant,’” and that “[t]he terms must be read consistently with the
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`5
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`statutory scheme.” Def. Motion to Dismiss, pg. 4 (quoting In re Natalie S., 325 Conn. 833, 843
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`(2017)).
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`A motion to cite is used where there is ongoing litigation among parties. The Practice
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`Book section regarding motions to cite, § 9-22, refers to the standard rules of service of motions
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`upon parties. P.B. § 9-22 (stating in part that the motion “must comply with Section 11-1”); P.B.
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`§ 11-1 (motions “shall be served on all parties as provided in Sections 10-12 through 10-17”);
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`P.B. § 10-12 (all motions must be served upon parties who have appeared, and “any pleading
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`asserting new or additional claims for relief against parties who have not appeared or who have
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`been defaulted shall be served on such parties.”).4 At the time the motion to cite was filed,
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`Defendants were not yet “parties” within the meaning of § 11-1 and §§ 10-12 through 10-17,
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`because no action had been commenced against them. See Rocco v. Garrison, 268 Conn. 541,
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`553 (2004) (“In Connecticut, an action is commenced when the writ, summons and complaint
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`have been served upon the defendant.”). Indeed, as noted above, service of process without prior
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`judicial authorization would have been improper. Perrone, 158 Conn. App. at 555-56. The
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`Court’s Order granting the motion to cite set forth the procedure for making Wyeth Holdings
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`LLC and Cytec Industries, Inc. parties to the action. Order, 8/4/2017 (entry #112.15).5
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`Because a motion to cite is used in multi-defendant or multi-plaintiff litigation, Practice
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`Book § 11-1 requires service on the existing parties because they may have grounds to object.
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`4 Section 10-13 governs method of service; Section 10-14 governs proof of service; Section 10-15 applies to service
`in actions with numerous defendants; Section 10-16 governs service when several parties are represented by one
`attorney; and Section 10-17 sets forth when service may be made by an indifferent person.
`5 The Order states: “It is ordered that on or before 8/31/2017 the complaint be amended to state facts showing the
`interest of AMERICAN CYANAMID N/K/A WYETH HOLDINGS LLC; CYTEC INDUSTRIES INC.,
`SUCCESSOR TO AMERICAN CYANAMID in this action and summon AMERICAN CYANAMID N/K/A
`WYETH HOLDINGS LLC; CYTEC INDUSTRIES INC., SUCCESSOR TO AMERICAN CYANAMID to appear
`as a defendant in this action on or before the second day following 9/12/2017, by causing some proper officer to
`serve on the defendant in the manner prescribed by law a true and attested copy of this order, a true and attested or
`certified copy of the complaint in this action as amended, and a Summons Civil Form JD-CV-1 and due return
`make.”
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`6
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`For example, the existing parties may object based upon the likelihood that the addition of a new
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`party would delay trial, or would cause confusion due to differences in law and fact. However, a
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`non-party tortfeasor does not normally have an opportunity to oppose a lawsuit before it is
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`commenced against them.
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`Indeed, the Practice Book does not set forth the parameters for serving a non-party
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`tortfeasor with a motion to cite before it is granted. If our rules of practice required that a non-
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`party subject of a motion to cite must receive and evaluate the motion, cases would inevitably be
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`delayed while the non-party is (1) served with the motion to cite in some unspecified manner, (2)
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`allowed an unspecified amount of time to locate an attorney and file an appearance, and (3)
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`allowed an unspecified amount of time to investigate the case and prepare an objection, which
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`would likely require obtaining a copy of the court file so it may be capable of addressing the
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`limited considerations in a motion to cite. After the motion to cite is granted, Plaintiffs would be
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`required to formally serve the non-party again, this time to officially commence an action against
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`them. The Practice Book simply does not contemplate such a procedure.
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`Although Plaintiffs were not required to serve Defendants with the motion to cite before
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`it was granted, the undersigned will briefly address Defendants’ claim that Plaintiffs’ counsel
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`acted in bad faith when they removed Attorney Leedberg from their service list. Plaintiffs’
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`counsel’s normal practice is to remove defense counsel from the service list once the claims
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`against their client have been dismissed, withdrawn, or otherwise fully resolved. Therefore,
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`after Wyeth Holding Corporation was withdrawn, Plaintiffs’ counsel should have removed
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`Attorney Leedberg from the service list. However, Plaintiffs’ counsel did serve Attorney
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`Leedberg, as counsel for Wyeth Holding Corporation, with the motion to substitute after his
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`client was withdrawn. Attorney Leedberg responded to that service email reminding Plaintiffs’
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`7
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`counsel that the claims against his client had been withdrawn, Email From Attorney Leedberg
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`(Exhibit 9), which reminded Plaintiffs’ counsel that he should be removed from the service list.
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`Finally, although Plaintiffs were not required to serve non-party tortfeasors Wyeth
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`Holdings LLC and Cytec Industries with the motion to cite, Plaintiffs’ counsel could not be
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`expected to specifically e-mail Attorney Leedberg a copy of the motion to cite on their behalf,
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`where Attorney Leedberg did not have an appearance for those entities, Plaintiffs did not know if
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`those entities would retain Attorney Leedberg as their counsel, and Plaintiffs did not know
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`whether Attorney Leedberg was authorized to receive service for them. See also Longhenry v.
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`City of Groton, 1998 Conn. Super. LEXIS 3589, at *5-6 (Conn. Super. Ct. Dec. 15, 1998)
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`(“service may in some cases be made on an attorney who has appeared on behalf of a client. In
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`general, however, an attorney, is not authorized by general principles of agency to accept service
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`of original process on behalf of a client.”); P.B. § 10-13 (permissible method of service includes
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`e-mail to attorney where electronic delivery was consented to in writing by the person served).
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`II.
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`Defendants are Not Unduly Prejudiced.
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`Defendants are not unduly prejudiced by Plaintiffs’ motion to cite. A May 7, 2019 trial
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`date was only recently assigned. Defendants refer in passing to the statute of limitations;
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`however, Defendants’ statements are unclear and unsupported, as Plaintiffs commenced suit
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`against Defendants well-within the two-year statute of limitations of Conn. Gen. Stat. § 52-
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`577c.6 A motion to cite is not the appropriate procedural vehicle for addressing the statute of
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`limitations. Price v. Castro, 1997 Conn. Super. LEXIS 2527, at *3 (Conn. Super. Ct. Apr. 3,
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`6 “Notwithstanding the provisions of sections 52-555, 52-577 and 52-577a, no action to recover damages for
`personal injury, death or property damage caused by exposure to a hazardous chemical substance or mixture or
`hazardous pollutant released into the environment shall be brought but within two years from the date when the
`injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered.”
`Conn. Gen. Stat. § 52-577c(b).
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`
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`8
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`

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`1997) (“It is improper to determine whether the statute of limitations has run on a claim against a
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`nondefendant tortfeasor on a motion to cite in that person.”). A motion to cite is also not the
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`appropriate procedural vehicle for addressing the merits of the case. Martin v. O’Meara, 1998
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`WL 144570, at *1 (Conn. Super. Ct. Mar. 18, 1998) (“it is inappropriate, on a motion to cite in
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`an additional defendant, to address the merits of the underlying action that is the subject of the
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`motion.”). Thus, Defendants have not been deprived of “the right to defend” themselves—now
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`that Defendants are officially in the case, they may avail themselves of all available procedural
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`vehicles for attacking Plaintiff’s claims against them.
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`Plaintiffs would be severely prejudiced if they were denied the opportunity to pursue
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`compensation from Wyeth Holdings LLC and Cytec Industries in this case. Plaintiffs would be
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`forced to file a separate lawsuit against them, which would lead to additional expense and an
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`inefficient use of judicial resources. In the event Plaintiffs were forced to commence a separate
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`action against Defendants, the two cases would pertain to a single, indivisible injury and would
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`likely be consolidated for trial. The interests of justice and judicial efficiency are served by
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`denying Defendants’ motion, and allowing the case to proceed with all alleged joint tortfeasors
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`in one action.
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`CONCLUSION
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`Plaintiffs have followed the rules which govern motions to cite and service, and
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`Plaintiffs’ counsel has filed motions to cite on behalf of clients in numerous prior cases using the
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`same procedure. It is unfortunate that Defendants felt it necessary to accuse Plaintiffs’ counsel
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`of acting in bad faith. Plaintiffs’ counsel’s only motive is to litigate Plaintiffs’ claims arising out
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`of Mr. Huber’s exposures to asbestos from the American Cyanamid plant; to do so, Plaintiffs
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`9
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`must commence suit against the proper legal entity. Plaintiffs have diligently attempted to
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`commence suit against the proper entity.
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`Plaintiffs respectfully request that the Court deny Defendants’ motion for reconsideration
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`and motion to dismiss.
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`Respectfully Submitted,
`THE PLAINTIFFS
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`By_____/s 434229____________________
`Laura E. Vitale
`Early, Lucarelli, Sweeney & Meisenkothen LLC
`One Century Tower, 11th Floor
`265 Church St., PO Box 1866
`New Haven, CT 06508-1866
`203-777-7799 p
`203-785-1671 f
`Juris No. 409080
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`10
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`
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`CERTIFICATION
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`I certify that a copy of the above was or will immediately be delivered electronically on
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`September 14, 2017 to all counsel of record, and that written consent for electronic delivery was
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`received from all counsel of record who were or will immediately be electronically served.
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`_______
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`_/s 434229__________________
`Laura E. Vitale
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`11
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`Exhibit List
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`Exhibit 1: Huber Dep., pg. 111
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`Exhibit 2: Def. Mot. To Dismiss
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`Exhibit 3: Connecticut Secretary of State Record for Wyeth Holdings Corp.
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`Exhibit 4: Maine Secretary of State Records for Wyeth Holdings Corp.
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`Exhibit 5: Order
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`Exhibit 6: Return of Service
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`Exhibit 7: Wyeth Holdings LLC Sec. of State Record
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`Exhibit 8: Cytec Indus. Sec. of State Rec.
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`Exhibit 9: Email from Attorney Leedberg
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`

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`EXHIBIT 1
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`EXHIBIT 1
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`

`

`VOLUME I
`PAGES: 1 - 239
`EXHIBITS: 1 - 5
`C O N N E C T I C U T
`O F
`S T A T E
`IN RE:
`BRIDGEPORT ASBESTOS LITIGATION
`NO:
`ASB-FBT-CV16-6059381-S
`***************************
`JACK HUBER AND NANCY
`*
`HUBER,
`*
`Plaintiffs,
`*
`*
`*
`vs.
`*
`*
`AMERICAN CYANAMID n/k/a
`*
`Wyeth Holdings Corp., et
`*
`al.,
`*
`Defendants.
`***************************
`
`SUPERIOR COURT
`J.D. FAIRFIELD
`AT BRIDGEPORT
`
`DEPOSITION OF JACK HUBER
`Friday, October 14, 2016
`Early, Lucarelli, Sweeney & Meisenkothen
`One Century Tower, 11th Floor
`265 Church Street
`New Haven, Connecticut
`
`---- Deanna Veinotte, RPR, CRR, CCP, CRC ----
`LSR #428
`EPPLEY COURT REPORTING, LLC
`Post Office Box 382
`Hopedale, Massachusetts
`01747
`(508) 478-9795
`(508) 478-0595 (Fax)
`www.eppleycourtreporting.com
`
`

`

`Jack Huber
`
`Volume I
`
`October 14, 2016
`111
`
`1
`2
`3
`4
`5
`6
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`8
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`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
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`21
`22
`23
`24
`
`I do want to talk about your
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`pension and Social Security?
`A.
`No.
`Q.
`Okay.
`current illness.
`A.
`Uh-huh.
`Q.
`What is your current illness, sir?
`A.
`Stage IV mesothelioma.
`Q.
`Is it pleural mesothelioma?
`A.
`Meaning both sides?
`Q.
`If you know.
`Around your lungs
`MR. MEISENKOTHEN:
`as opposed to in your abdomen.
`A.
`It's in the abdomen as well as one of
`my lungs.
`So if I'm hearing you
`Okay.
`Q.
`correctly, they found it both in your lungs and
`in your abdomen; is that correct?
`A.
`Correct, yes.
`Q.
`Okay.
`And when were you diagnosed?
`A.
`July this year.
`Q.
`July 2016?
`A.
`Correct.
`Q.
`When did you first start experiencing
`symptoms that led to this diagnosis?
`
`EPPLEY COURT REPORTING, LLC
`www.eppleycourtreporting.com
`
`

`

`Jack Huber
`
`Volume I
`
`October 14, 2016
`237
`
`STATE OF CONNECTICUT
`
`WATERBURY, ss.
`I, DEANNA L. VEINOTTE, a Registered
`Professional Reporter and Notary Public in and
`for the State of Connecticut, do hereby certify
`that the foregoing deposition was taken before
`me on October 14, 2016;
`That the witness named in the deposition,
`prior to being examined, was by me first duly
`sworn;
`That said deposition was taken before me at
`the time and place therein set forth, and was
`taken down by me in shorthand and thereafter
`transcribed into typewriting under my direction
`and supervision;
`That said deposition is a true record of
`the testimony given by the witness and of all
`objections made at the time of the examination.
`I further certify that I am neither counsel
`for nor related to any party to said action,
`nor in any way interested in the outcome
`thereof.
`IN WITNESS WHEREOF, I have subscribed my
`name and affixed my seal this 7th day of
`November, 2016.
`
`___________________________________________
`DEANNA L. VEINOTTE, RPR, CRR, CCP, CRC
`Notary Public
`My Commission expires:
`July 31, 2018
`PLEASE NOTE:
`THE FOREGOING CERTIFICATION OF THIS
`TRANSCRIPT DOES NOT APPLY TO ANY REPRODUCTION
`OF THE SAME BY ANY MEANS UNLESS UNDER THE
`DIRECT CONTROL AND/OR DIRECTION OF THE
`CERTIFYING REPORTER.
`
`EPPLEY COURT REPORTING, LLC
`www.eppleycourtreporting.com
`
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`EXHIBIT 2
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`EXHIBIT 2
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`

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`STATE OF CONNECTICUT
`
`
`SUPERIOR COURT JUDICIAL
`DISTRICT OF FAIRFIELD AT
`BRIDGEPORT
`
`IN RE: BRIDGEPORT ASBESTOS
`LITIGATION
`
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`DOCKET NO.: FBT-CV-17-6061594-S
`_______________________________________________
`JACK A. HUBER & NANCY HUBER,
`
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`Plaintiffs,
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`February 10, 2017
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`AMERICAN CYANAMID n/k/a Wyeth Holdings Corp.
`GEORGIA PACIFIC, LLC,
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`METROPOLITAN LIFE INSURANCE COMPANY,
`UNION CARBIDE CORPORATION, individually and
`as successor to Amchem And Benjamin Foster,
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`Defendants.
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`DEFENDANT, AMERICAN CYANAMID’S
`MOTION TO DISMISS THE PLAINTIFFS’ COMPLAINT
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`Now comes the defendant, American Cyanamid, n/k/a Wyeth Holdings Corp., pursuant
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`to Connecticut Practice Book section 10-30, to move that this Honorable Court dismiss the
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`plaintiffs’ Complaint for lack of personal jurisdiction due to the plaintiffs’ failure to name and
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`serve the proper successor in interest to American Cyanamid. The defendant attaches the
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`requisite memorandum of law in further support of this Motion and the following exhibits:
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`A. Plaintiffs’ Summons & Complaint;
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`B. Plaintiffs’ Return of Service; and
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`C. Wyeth Holdings Corp.’s Commercial Recording Division Summary.
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`WHEREFORE, the defendant, American Cyanamid, a/k/a Wyeth Holdings Corp., for the
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`foregoing reasons, hereby moves that the Court dismiss the plaintiffs’ Complaint.
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`Oral Argument Requested
`Testimony Not Required
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`The Defendant,
`AMERICAN CYANAMID, n/k/a WYETH
`HOLDINGS CORP.,
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`By its attorneys,
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`PIERCE, DAVIS & PERRITANO, LLP
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`/s/ Michael D. Leedberg
`_________________________
`Michael D. Leedberg, Esq.
`10 Post Office Square, Suite 1100N
`Boston, MA 02109
`(617) 350-0950
`Juris No.: 422878
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`CERTIFICATION
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`I, Michael D. Leedberg, hereby certify that a true copy of the above document filed
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`electronically and separately sent via electronic mail to the plaintiffs’ counsel on February 10,
`2017:
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`Christopher Meisenkothen, Esquire
`Early, Lucarelli, Sweeney & Meisenkothen, LLC
`265 Church Street
`P. O. Box 1866
`New Haven, CT 06508-1866
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`Melicent Brenner Thompson, Esquire
`Litchfield Cavo
`82 Hopmeadow St., suite 210
`Simsbury, CT 06089
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`Christy E. Centeno, Esquire.
`Lewis Brispois Bisgaard & Smith, LLP
`100 Pearl St., suite 1441
`Hartford, CT 06104
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`/s/ Michael D. Leedberg
`____________________________________
`Michael D. Leedberg
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`Oral Argument Requested
`Testimony Not Required
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`2
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`STATE OF CONNECTICUT
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`SUPERIOR COURT JUDICIAL
`DISTRICT OF FAIRFIELD AT
`BRIDGEPORT
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`IN RE: BRIDGEPORT ASBESTOS
`LITIGATION
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`DOCKET NO.: FBT-CV-17-6061594-S
`_______________________________________________
`JACK A. HUBER & NANCY HUBER,
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`Plaintiffs,
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`February 10, 2017
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`AMERICAN CYANAMID n/k/a Wyeth Holdings Corp.
`GEORGIA PACIFIC, LLC,
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`METROPOLITAN LIFE INSURANCE COMPANY,
`UNION CARBIDE CORPORATION, individually and
`as successor to Amchem And Benjamin Foster,
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`Defendants.
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`I.
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`INTRODUCTION
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`DEFENDANT, AMERICAN CYANAMID’S MEMORANDUM OF LAW
`IN SUPPORT OF ITS MOTION TO DISMISS THE PLAINTIFFS’ COMPLAINT
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`The plaintiffs filed their Complaint in this matter on January 5, 2017. Pls.’ Summons &
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`Compl. (Ex. A). On January 17, 2017, the plaintiffs filed a Return of Service, showing that
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`American Cyanamid, n/k/a Wyeth Holdings Corp., was served through the Secretary of State,
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`“pursuant to Section 33-929 of the C.G.S.” Pls.’ Return of Serv. (Ex. B). This is not sufficient
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`under Section 33-929, because Wyeth Holdings Corporation withdrew from active status with
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`the Commercial Recording Division (CRD) of the Secretary of State’s office effective December
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`5, 2013. Wyeth CRD Summary (Ex. C). As such, the plaintiffs sued the wrong entity and
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`served the wrong agent. Consequently, this Honorable Court lacks personal jurisdiction over
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`American Cyanamid and the Complaint must be dismissed.
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`Oral Argument Requested
`Testimony Not Required
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`II.
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`STANDARD OF REVIEW
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`“The standard of review for a court’s decision on a motion to dismiss is well settled. A
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`motion to dismiss tests, inter alia, whether, on the face of the record, the court is without
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`jurisdiction. When a ... court decides a jurisdictional question raised by a pretrial motion to
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`dismiss, it must consider the allegations of the complaint in their most favorable light.... In this
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`regard, a court must take the facts to be those alleged in the complaint, including those facts
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`necessarily implied from the allegations, construing them in a manner most favorable to the
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`pleader.... The motion to dismiss ... admits all facts which are well pleaded, invokes the existing
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`record and must be decided upon that alone.” (Citations and internal quotation marks omitted.)
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`Gold v. Rowland, 296 Conn. 186, 200–01 (2010). A motion to dismiss is the proper vehicle with
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`which to challenge personal jurisdiction for failure of service. Bell v. Hosp. of St. Raphael, 133
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`Conn. App. 548, 559 (2012).
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`III. ARGUMENT
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`Although the predecessor statute to Section 33-929 permitted service upon a foreign
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`corporation through the Secretary of State’s office, the present version requires service to be
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`upon the registered agent for service. CONN. GEN. STAT. § 33-929(a). Process may also be
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`lawfully served upon the Secretary of the corporation. CONN. GEN. STAT. § 33-929(b). Service
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`upon the Secretary of State is only sufficient where the Secretary of State’s office has been
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`designated the corporation’s agent for service. CONN. GEN. STAT. § 33-929(c). More
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`importantly, Wyeth Holdings Corp. withdrew its active status as American Cyanamid’s
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`successor in interest, along with its concomitant designation of the Secretary of State as its
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`registered agent, effective December 5, 2013. As such, the plaintiffs have sued the wrong entity
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`and have served the wrong agent for service and their Complaint must be dismissed.
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`Oral Argument Requested
`Testimony Not Required
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`IV. CONCLUSION
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`The CRD’s official records establish that the plaintiffs have sued the wrong entity and
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`have served the wrong agent for service for American Cyanamid’s successor in interest.
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`Consequently, this Honorable Court lacks jurisdiction over American Cyanamid and the
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`Complaint must be dismissed.
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`Oral Argument Requested
`Testimony Not Required
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`The Defendant,
`AMERICAN CYANAMID, n/k/a WYETH
`HOLDINGS CORP.,
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`By its attorneys,
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`PIERCE, DAVIS & PERRITANO, LLP
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`/s/ Michael D. Leedberg
`_________________________
`Michael D. Leedberg, Esq.
`10 Post Office Square, Suite 1100N
`Boston, MA 02109
`(617) 350-0950
`Juris No.: 422878
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`3
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`

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`CERTIFICATION
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`I, Michael D. Leedberg, hereby certify that a true copy of the above document filed
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`electronically and separately sent via electronic mail to the plaintiffs’ counsel on February 10,
`2017:
`
`
`Christopher Meisenkothen, Esquire
`Early, Lucarelli, Sweeney & Meisenkothen, LLC
`265 Church Street
`P. O. Box 1866
`New Haven, CT 06508-1866
`
`Melicent Brenner Thompson, Esquire
`Litchfield Cavo
`82 Hopmeadow St., suite 210
`Simsbury, CT 06089
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`Christy E. Centeno, Esquire.
`Lewis Brispois Bisgaard & Smith, LLP
`100 Pearl St., suite 1441
`Hartford, CT 06104
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`/s/ Michael D. Leedberg
`____________________________________
`Michael D. Leedberg
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`Oral Argument Requested
`Testimony Not Required
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`4
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`

`

`EXHIBIT A
`EXHIBIT A
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`

`

`SUMMONS
`CIVIL (except family actions)
`JD.CV.I
`GEN. STAT. 51.346, 51-347, 5l-349, 51-350, 52,454
`5248,62-259
`PR. BK. 49,63, 66
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`SUPERIOR COURT
`
`INSTRUCTIONS
`
`JUDIC¡AL DISTRICT
`EHousrNG sEssroN n G.A.
`
`OF COURT WHERE WRIT AND OTHER
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`Bridgeport
`sHALL BE FTLED (GEN, STAÍ,51-347,
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`AT (Town ln whlch wr¡l ¡s têtumable)(Gon' Stat, 51'349)
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`s/-, lown & z¡p code)
`
`CASE TYPE(From Judlc. Dept. caso type lltt-8oe
`back)
`
`tn
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`,s
`and
`less than $2,500
`through $14,999.99
`$15,000 or more
`if applicable)
`Claimina other relief in addi-
`tion toór in lieu of moneY
`damages.
`
`to make due and legal seruice
`
`RETURN DATÊ luo, day, yr)
`0,1131120'17
`
`1061 Main Street, Bridgeport, CT' 06604 (203) 579-6527
`-ñ-ote:tn¿¡v¡aual'slvames.'
`NAME AND ADDRESS OF EACI-I PARTY
`(No,, street, town & ziP code)
`Lasl First, Mtddle Inìtial
`
`Major T
`
`X for^ JD-CV-T attached
`
`Minor 20
`PTY
`NO
`
`H
`
`Jack
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`24 Curtis