Opinion
No. CV06-5000775S
May 26, 2006
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS # 102.20 AND #108
Before the court are two motions to dismiss.
The defendant, U.S. Filter Operating Services, Inc. a/k/a U.S. Filter Operating Services, Inc. a/k/a Veolia Water North America Operating Services, Inc., now known as Veolia Water North America Operating Systems, LLC, moved to dismiss the plaintiff's complaint on the ground that it was not properly served with process. Thereafter, the plaintiff, Richard Lenhard, filed an amended complaint to which the defendant, by motion dated April 12, 2006, has also moved to dismiss. Both matters were heard on the short calendar on April 24, 2006.
Facts and Procedural History
This case arises out of a slip and fall accident that took place on or about January 7, 2004. The plaintiff initiated this action against the named defendant as well as the Borough of Naugatuck, which is not a party to the present motions. On January 6, 2006, the plaintiff served the Connecticut Secretary of State with process bearing a return date of February 14, 2006, purportedly as the duly authorized agent to accept service for the then-named defendant U.S. Filter Operating Services, Inc. a/k/a US Filter Operating Services, Inc. a/k/a Veolia Water North America Operating Services, Inc. The complaint was filed with the court on February 2, 2006.
On March 14, 2006, the defendant filed its first motion to dismiss on the ground that it was not properly served with process. In support, the defendant argues that on December 17, 2004, over six months after the date of the alleged accident, the defendant had converted to a limited liability company in the State of Delaware and registered to do business in Connecticut under the name of Veolia Water North America Operating Systems, LLC. As such, the defendant argues that the plaintiff was obligated to serve the defendant through CT Corporation System, which was the LLC's designated statutory agent in accordance with General Statutes § 34-225.
On March 16, 2006, the plaintiff filed an amended complaint with the court. The only change to the complaint is that the named defendant was changed from "U.S. Filter Operating Services, Inc. a/k/a US Filter Operating Services, Inc. a/k/a Veolia Water North America Operating Services, Inc." to "U.S. Filter Operating Services, Inc. a/k/a US Filter Operating Services, Inc. a/k/a Veolia Water North America Operating Services, Inc., n/k/a Veolia Water North America Operating Systems, Etc." (Emphasis added.) No additional service of process was filed with the court.
On April 11, 2006, the defendant filed its second motion to dismiss the amended complaint on the same grounds, and on the additional ground that the plaintiff's subsequent service was not compliant with the requirements of General Statutes § 52-46.
General Statutes § 52-46 provides; "Civil process, if returnable to the Supreme Court, shall be served at least thirty days, inclusive, before the day of the sitting of the court, and, if returnable to the Superior Court, at least twelve days, inclusive, before such day."
On April 12, 2006, the plaintiff filed a memorandum in opposition, arguing that, because the plaintiff is suing the withdrawn corporation in control of the premises at the time of the incident, service upon the Secretary of State is proper pursuant to General Statutes §§ 33-929(f), 22-929(a), and 33-932.
Discussion
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005); see also Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, 826 A.2d 138 (2003). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
"When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . [A] 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.) Filippi v. Sullivan, 273 Conn. 1, 8, 856 A.2d 599 (2005); see also Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003); Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001)
General Statutes § 33-392 provides in relevant part, "A foreign corporation authorized to transact business in this state may apply for a certificate of withdrawal by delivering an application to the Secretary of State for filing. The application shall set forth . . . (3) that it revokes the authority of its registered agent to accept service on its behalf and appoints the Secretary of the State and his successors in office as its agent for service of process in any proceeding based on a cause of action arising during the time it was authorized to transact business in this state." (Emphasis added.) Subsection (c) further provides that "[a]fter the withdrawal of the corporation is effective, service of process on the Secretary of the State as provided in section 33-929 is service on the foreign corporation."
General Statutes § 33-929 provides in relevant part that "[a] foreign corporation may be served by any proper officer or other person lawfully empowered to make service by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or its most recent annual report if the foreign corporation . . . has withdrawn from transacting business in this state under section 33-936." It is clear, then, that service may be effectuated against a withdrawn corporation either through the Secretary of State, or directly to the secretary of the foreign corporation.
In its motion to dismiss, the defendant notes that it registered its limited liability company in Connecticut, but has omitted any reference to the status of its prior foreign corporation certificate. By the defendant's own admission at oral argument, though, the defendant named in the plaintiff's original complaint was a foreign corporation registered to do business in Connecticut on the date of the accident, and that the company was withdrawn thereafter. The business inquiry submitted by the plaintiff and undisputed by the defendant further shows the status of Veolia Water North America Operating Services, Inc. as "withdrawn." It is clear, then, that because the corporation is being sued, not the LLC, service on the Secretary of State was entirely proper under § 33-392(c). The status of the defendant's company in Connecticut following its withdrawal is of no import for the purposes of service of process.
The defendant's second ground for dismissal is that the plaintiff's amended complaint was untimely served on the defendant LLC in violation of General Statutes § 52-46. Despite the defendant's submission to the court that the LLC was served through its statutory agent, the court has no return of the alleged process, and there is no indication that a new party has been added to the case. As noted above, the plaintiff's complaint makes it clear that he is suing the corporation that was registered to do business in Connecticut at the time of the accident. A close reading of the amended complaint reveals that the plaintiff was not adding a new party to the case that required separate service of process, but was merely correcting the name of the defendant. Such amendments are afforded the plaintiff as of right. See Practice Book § 10-59.
Practice Book § 10-59 provides that "[t]he plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day."
For the reasons stated above, the motions to dismiss are denied.