Opinion
No. CV-10-6002676-S
January 19, 2011
RULING ON THE DEFENDANT'S MOTION TO DISMISS (#101)
The defendant, Vladimir Benisovich, moves to dismiss the complaint brought against him by the plaintiff, Stewart Day. The defendant's motion is based, first, on the "prior pending action doctrine." The defendant claims, alternatively, that this court has no jurisdiction over him because the plaintiff failed to comply with the service of process requirements set forth in General Statutes § 52-62.
The plaintiff objects to the motion, asserting that the prior pending action doctrine does not apply in this case. The plaintiff argues that this case should not be dismissed on jurisdictional grounds for three reasons: the defendant has actual notice of the case, the plaintiff complied with the requirements of General Statutes § 52-62, and the defendant waived any claim of defective service of process.
This matter came before the court and was heard on November 1, 2010. The motion to dismiss is denied.
FACTS
On June 28, 2010, the plaintiff, Stewart Day, filed a two-count complaint against the defendant, Vladimir Benisovich. Count one of the complaint alleges that on June 21, 2008, the plaintiff was operating a motorcycle and was traveling east on a highway in Washington, Connecticut. He alleges that the defendant was traveling in a motor vehicle headed west on the same road, and that the defendant turned into the path of the plaintiff, causing a collision that resulted in serious injuries to the plaintiff. The plaintiff claims that the defendant operated his motor vehicle in a negligent manner and is responsible for the collision and the plaintiff's injuries. Count two is based upon the same event described in count one and alleges that the defendant's conduct was reckless.
On July 8, 2009, the plaintiff brought suit against the defendant, making the same claims that are before this court, in the United States District Court for the District of Connecticut. Day v. Benisovich, Docket No. 3:09-CV-1079 (RNC). Although the federal case was still pending in June 2010, this case was initiated on June 8, 2010, when a marshal served the Commissioner of Motor Vehicles with the writ, summons and complaint. On June 9, 2010, the marshal deposited the writ, summons and complaint in the mail, postage paid and certified, addressed to "Vladimir Benisovich, 09 Grosvenor Lane, Richmond Hill, New York, 11418." The complaint was filed in the Superior Court for the Judicial District of Litchfield on June 28, 2010.
1. The Defendant's Position
The defendant moves to dismiss the plaintiff's complaint, invoking the "prior pending action" doctrine. The defendant claims that there is pending against him a federal court suit that was brought by the same plaintiff and that makes the same allegations that appear in this case. The defendant also claims, alternatively, that this matter should be dismissed because he has not received a copy of the complaint. He states that he does not reside at the address to which the marshal mailed the writ, summons and complaint.
2. The Plaintiff's Position
The plaintiff objects to the motion to dismiss. He argued, initially, that the "prior pending action" doctrine does not apply because he is not actively prosecuting his claim in federal court and had previously moved to dismiss the federal action. According to the plaintiff, his motion to dismiss was not granted because the defendant opposed the motion and would not withdraw that opposition unless the court would agree to dismiss the case with prejudice. Subsequent to the November 1, 2010, hearing on the defendant's motion to dismiss, the plaintiff filed a supplemental objection to the motion to dismiss, alerting this court to the fact that, on November 10, 2010, the United States District Court granted the plaintiff's motion to dismiss and did so without prejudice.
The plaintiff attached a copy of the federal court ruling to his supplemental objection. The district court opinion appears to be dated "November 8, 2010," but the plaintiff's representations regarding the ruling are otherwise accurate.
The plaintiff opposes the defendant's jurisdictional argument on three bases. First, he argues that the defendant had actual notice of the plaintiff's intent to file a state court action, a fact that is apparent upon review of the pleadings filed in federal court. Second, he claims to have met the requirements of General Statutes § 52-62 and states that a marshal mailed copies of the writ, summons and complaint to the defendant's address as it appeared in the accident report. Third, he claims that the defendant waived any claim of defect by filing an appearance and moving to dismiss in this court.
DISCUSSION
A motion to dismiss "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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). When a motion to dismiss raises a jurisdictional question, and "the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
When the motion to dismiss asserts that the court does not have personal jurisdiction over a non-resident defendant, and the plaintiff claims that jurisdiction is proper pursuant to the applicable longarm statute, "a two part inquiry is required. The trial court must first decide whether the applicable state longarm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). When such a challenge is raised, "the plaintiff must bear the burden of proving the court's jurisdiction." Id., 607.
The court turns, first, to the "prior pending action" argument. The November 8, 2010, ruling by the United States District Court, dismissing the federal action without prejudice, conclusively resolves this issue. "[A] voluntary dismissal under Fed.R.Civ.P. 41(a) wipes the slate clean, making any future lawsuit based on the same claim an entirely new lawsuit unrelated to the earlier (dismissed) action." Sandstrom v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir. 1990). The policy supporting the prior pending action doctrine is to "prevent unnecessary litigation that places a burden on our state's already crowded court dockets." (Internal quotation marks omitted.) Beaudoin v. Town Oil Co., 207 Conn. 575, 588, 542 A.2d 1124 (1988). Since there is no longer any case pending in any other court, the "prior pending action" doctrine is inapplicable in this case and will not support the defendant's motion to dismiss. Stephenson v. Shelton, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV095009876 (August 7, 2009, Pavia, J.); Tuccio Custom Homes, LLC v. Lamonica, Superior Court, judicial district of Danbury, Docket No. CV075001958 (March 31, 2008, Shaban, J.); Knudsen v. Buettner, Superior Court, judicial district of Danbury, Docket No. 320708 (November 2, 1995, Stodolink, J.).
The plaintiff relies principally upon General Statutes § 52-62 to support his claim of personal jurisdiction over the defendant. That section provides, in pertinent part, as follows: "(a) Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally . . . (c) Process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or other legal representative, by registered or certified mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant or representative at his last-known address."
It is undisputed that the plaintiff made service of process upon the Commissioner of Motor Vehicles in accordance with the requirements of General Statutes § 52-62. A copy of the same process was provided to counsel for the defendant. Further, the complaint in the federal case carried essentially the same allegations that appear in the complaint filed in this case. Counsel who appeared for the defendant in the federal action is the same counsel who has appeared for the defendant in this case.
A copy of that process was mailed to the defendant at the address listed on the Connecticut Uniform Accident Report. It is acknowledged, however, that the officer entered an inaccurate address on that report. At the time of the accident, there was a passenger in the defendant's vehicle, Tatyana Benisovich, who listed her address as: "11609 Grosvenor Lane." The defendant now claims that his address is "116-09 Grosvenor Lane," and that the marshal mailed the process to the defendant at "09 Grosvenor Lane," the address listed in the Connecticut Uniform Accident Report.
The plaintiff relies on Trinidad v. Munoz, Superior Court, judicial district of New Haven, Docket No. CV065001231 (March 13, 2007, Rubinow, J.) ( 43 Conn. L. Rptr. 54), for the proposition that the underlying purpose of General Statutes § 52-62 is to ensure that the defendant has actual notice of the suit brought against him. If that purpose is accomplished, then a motion to dismiss based on lack of personal jurisdiction will be denied, even if the process that was mailed to the defendant was returned as "attempted, not known." In Trinidad, the court found that the defendant had actual notice of the case because counsel had appeared on his behalf and had made representations, in pleadings, that made it clear that counsel was fully aware of the claims against his client. In Varrone v. Outman, Superior Court, judicial district of Waterbury, Docket No. CV096001755 (March 12, 2010, Gallagher, J.), the court followed the reasoning in Trinidad and denied a motion to dismiss, similar to the one filed in this case, when the plaintiff relied on an address contained in an accident report.
Here, the defendant admits, in his memorandum in support of his motion to dismiss, that the plaintiff used the defendant's correct address of 116-09 Grosvenor Lane, Richmond Hill, New York, in the federal court action and upon which the plaintiff sought a prejudgment remedy attachment. The plaintiff attached to his memorandum in opposition to the motion to dismiss a number of documents relevant to the question now before the court. Those documents include a summons directing a state marshal to serve, inter alia, the writ, summons and complaint "upon the defendant, Vladimir Benisovich, 11609 Grosvenor Lane, Jamaica, New York," by leaving a copy of those documents with the Commissioner of Motor Vehicles. The complaint that was attached essentially mirrors the complaint filed in this case. It unquestionably describes the same motor vehicle accident that is the subject of the complaint in this case, it alleges essentially the same violations of motor vehicle laws, and it alleges virtually identical injuries to the plaintiff as a result of the accident.
There are minor differences in the two complaints, such as the description of the compass direction in which each driver was traveling, but there are no differences of any consequence to the issue before the court.
The defendant's affidavit filed in support of the motion to dismiss acknowledges that he was involved in a motor vehicle accident on June 21, 2008 on Route 202 in Washington, Connecticut. He acknowledges his full awareness of the federal court action arising out of the same motor vehicle accident, and although he claims that he "did not learn that the above action had been filed," he acknowledges that his counsel received a courtesy copy of the complaint. The federal court pleadings, and the file in this court, make clear that the defendant was represented by the same counsel in federal court who is representing him in this action. The plaintiff has produced copies of the green card and the certified mail receipt used to mail the federal process, addressed to "Vladimir Benisovich, 11609 Grosvenor Lane, Jamaica, New York 11418." The receipt appears to carry the defendant's signature.
The court notes that the defendant's memorandum, at page 7, states that the defendant resides in Richmond Hill, New York, yet the affidavit submitted by the defendant, and attached to that memorandum, states that he lives in Jamaica, New York.
In summary, there is no dispute about the fact that constructive service was properly made upon the Commissioner of Motor Vehicles. It is clear that the complaint filed in the federal action appears to have been mailed to the defendant, and that complaint is essentially the same complaint that was filed in this case. Counsel for the defendant who appeared in the federal case, and who litigated that case vigorously, is the same counsel who is appearing in this case. The defendant acknowledges that his counsel received a courtesy copy of the complaint filed in this case. For all of the foregoing reasons, the court finds that the defendant has actual notice of the complaint against him, and that the plaintiff, through the marshal, made a good-faith effort to mail a copy of the complaint to the defendant.
Indeed, in his objection to plaintiff's motion to dismiss, filed in the federal case on June 30, 2010, the defendant claimed that the plaintiff should have relied "upon the police report from the accident" to ascertain the location where the defendant "actually resides."
Our Supreme Court requires no more than learning the defendant's address "so far as it is reasonably possible to ascertain it." Hartley v. Vitiello, 113 Conn. 74, 80, 154 A. 255 (1931). Here, the marshal relied on the Uniform Police Accident Report, and the court finds that it was reasonable for him to do so. See Mullinax v. Grava, Superior Court, docket number CV085004381, Judicial District of New Haven (June 25, 2009, Fischer, J.) ( 48 Conn. L. Rptr. 77). The court finds that the plaintiff made reasonable efforts to obtain the last-known address of the defendant, that there is compelling evidence that the defendant has actual notice of the complaint, that the defendant's counsel received a copy of the complaint, and that for all of the foregoing reasons, the clear purpose of General Statutes § 52-62 has been fully achieved. Therefore, this court has personal jurisdiction over the defendant.
The final question before the court is whether, based on the foregoing findings, this court can exercise personal jurisdiction over the defendant consistent with the requirements of federal constitutional law. A state court may exercise specific personal jurisdiction over a defendant, pursuant to federal constitutional law, if there is "some sort of causal connection between the defendant's forum contacts and the plaintiff's injuries." Thomason v. Chemical Bank, 234 Conn. 281, 287, 661 A.2d 595 (1995). The plaintiff alleges that he was injured by the defendant when the defendant was in the state of Connecticut and using its highways. In the course of deciding a motion to dismiss that alleges a lack of personal jurisdiction, the court "must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516. In the present case, the plaintiff is in compliance with federal due process standards because service of process was properly effected pursuant to General Statutes § 52-62, the defendant has actual notice of the complaint against him, and the plaintiff has alleged a causal connection between his injuries and the defendant's presence in this state.
CONCLUSION
The plaintiff made service upon the defendant pursuant to General Statutes § 52-62 and the defendant has actual notice of the complaint. Therefore, this court has personal jurisdiction over the defendant and the defendant's motion to dismiss is denied.