Opinion
No. CV07-5002666 S
January 11, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #101
I PROCEDURAL BACKGROUND
On June 11, 2007, the plaintiff, Donald Mead, filed a complaint alleging negligence on behalf of the defendants, Jude Dichele and Anne Dichele, for injuries and losses sustained as a result of an automobile accident in Orange, Connecticut on June 9, 2005. The plaintiff's complaint alleges that the family vehicle owned by Anne Dichele and driven by her son, Jude Dichele, suddenly and erratically entered the left lane of Route 34 which was occupied by the plaintiff, who was operating a motorcycle. The two vehicles violently collided and the plaintiff sustained injuries, some or all of which may be permanent.
As a result of the accident, the plaintiff issued a summons and complaint listing the defendants' address as 161 Oliver Street, New Haven, Connecticut, which was the address shown for the defendants on the police report. On June 5, 2007, state marshal Lonnie W. Barnes, Jr. was employed by the plaintiff to serve the defendants with process. He made two attempts to serve the summons and complaint but was unable to verify 161 Oliver Street, New Haven, Connecticut as the defendants' address. However, through the records of the Connecticut Department of Motor Vehicles he was able to obtain an address of 315 Meeting House Lane, Orange, Connecticut for both defendants. The marshal made abode service on the defendants at that address on June 5, 2007. He did not serve the Commissioner of Motor Vehicles.
On September 11, 2007, the defendants' attorney filed an appearance. On that same date the defendants served requests for answers to interrogatories and production on the plaintiff. On September 20, 2007, the defendants filed a motion to dismiss on the ground that the court lacked personal jurisdiction over them because service of process was not proper. More specifically, the defendants allege that they have not been served because the marshal left the summons and complaint at an address which was not their place of abode at the time of service. On October 11, 2007, the plaintiff filed a memorandum in opposition to the defendants' motion to dismiss arguing that: (1) abode service at 315 Meeting House Lane, Orange, Connecticut was proper because there is no evidence indicating when the defendants ceased to reside at that address and because that was the address on file with the Department of Motor Vehicles; (2) the defendants are estopped from asserting lack of personal jurisdiction because the defendants failed to notify the Department of Motor Vehicles of any change of address pursuant to their statutory obligation pursuant to General Statutes § 14-45; and (3) the defendants waived their right to assert lack of personal jurisdiction by filing a general appearance, participating in discovery and entering into a scheduling order agreement. This matter was heard on the short calendar on December 17, 2007 at which time the parties appeared and presented evidence relative to the issues before the court.
The issues before the court are as follows: (1) whether abode service based on the address contained in the records of the Department of Motor Vehicles was sufficient or whether the plaintiff had to serve the commissioner of the Department of Motor Vehicles pursuant to General Statutes § 52-63; and (2) whether the filing of a general appearance, participation in discovery or entering into a scheduling order agreement waives the defendants' right to challenge the court's personal jurisdiction.
II FACTS
To address the motion, the court was presented with evidence from both the plaintiff and the defendants as to the attempts of the marshal to effectuate service and the status of the defendants' abode at the time those attempts were made. The marshal testified, as noted above, that he made two attempts to serve the summons and complaint at 161 Oliver Street, New Haven, Connecticut. He described the property as being a two-family home in an area which included a bakery, law office and other commercial buildings nearby. The closest cross street was Lyons Ave. When he attempted to make service at that address, no one responded. He never did leave a copy of the process at that address. Upon hearing secondhand information that the defendants had moved to 315 Meeting House Lane, Orange, Connecticut, he checked with the Department of Motor Vehicles (DMV) and found that address to be listed on its records for both of the defendants. Thereafter, he made service of the summons and complaint at that address and made return of service to that effect. (Plaintiff's Exhibit 1.) The court notes that "an officer's return is only prima facie evidence of the facts stated therein. It may be contradicted and the facts shown to be otherwise." Cugna v. Kaelin, 138 Conn. 341, 343 (1951), 84 A.2d 576 overruled on other grounds by Lampson Lumber Co., Inc. v. Hoer, 139 Conn. 294, 93 A.2d 143 (1952). Thereafter, the defendant Anne Dichele testified that since February of 2005, she and her son Jude had lived at 161 Oliver Road, New Haven, Connecticut. She noted that the marshal had originally attempted to make service at 161 Oliver Street, New Haven. She further noted that her home was not a two-family structure nor was there a bakery, law office or other commercial structures nearby. Moreover, the closest cross streets were Central Avenue and Alden Avenue and not Lyons Avenue as testified to by the marshal. In effect, the defendant testified that the marshal's initial attempts to make service were made at a wrong address.
In support of the motion to dismiss, an affidavit had been filed by the defendant indicating that she had lived at 161 Oliver Road, New Haven since February of 2004. At the hearing, the defendant clarified that was a scrivener's error and that the actual reference should have been February 2005.
Also, she provided testimony that prior to residing at 161 Oliver Road, New Haven, she and her son had lived at 315 Meeting House Lane, Orange, Connecticut. At the time of their move to New Haven in February of 2005, she had informed the DMV of her move and had put a sticker on the back of her license evidencing the new New Haven address in accordance with her statutory obligation. Although the plaintiff provided evidence in the form of a certification from the DMV that Anne Dichele's address was listed upon its records as 315 Meeting House Lane, Orange, Connecticut, (Plaintiff's Exhibit 2) the court finds the defendant's testimony credible that she had effectively and timely informed DMV of her move.
As to Jude Dichele, he testified that he had lived with his mother previously at 315 Meeting House Lane, Orange, Connecticut and had moved to 161 Oliver Road, New Haven in February of 2005. At the time of the move he, too, had obtained a sticker for his license from DMV evidencing the change of address and that it was on his license at the time of the accident. He further noted that the sticker was not on the license at the time of his deposition or the hearing as it had come off when he had left his license in his clothing while washing his clothes. The court finds the defendant Jude Dichele's testimony credible and consistent with that of Anne Dichele.
Jude Dichele also submitted an affidavit that contained a scrivener's error. The correct date as testified to was February 2005. See footnote 1 above.
III DISCUSSION A. Service of Process
General Statutes § 52-57(a) states in pertinent part that "process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." "Abode service is only a step removed from manual service and serves the same dual function of conferring jurisdiction and giving notice . . . Its chief purpose is to ensure actual notice to the defendant that the action is pending. Accordingly, in order to effectuate abode service, the process must be left at the usual place of abode of the defendant in such a place and in such a manner that is reasonably probable the defendant will receive the notice of the action against him." (Citation omitted; internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007). "Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed." Hibner v. Bruening, 78 Conn.App. 456, 463, 828 A.2d 150 (2003). In this case, the court notes that at the time of the attempted service by the marshal, the defendants had not lived at the Meeting House Lane property in Orange for almost two and half years. Also, outside of the DMV reference, there was no evidence of any kind to indicate that the defendants had continued to use that property or had any active connection with it. "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), appeal dismissed 216 Conn. 824, 582 A.2d 203 (1990).
General Statutes § 14-45 requires that "[a] person holding a license for the operation of a motor vehicle issued by the commissioner shall notify the commissioner within forty-eight hours of any change of his address. The notification shall include his old address and his new address." "[T]he purpose of that statute is not to provide an alternative method for service of process." (Internal quotation marks omitted.) Baxter v. Bernier, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0286030 (January 13, 2005, Tanzer, J.) ( 38 Conn. L. Rptr. 556); Nevins v. Moretti, Superior Court, judicial district of New London at Norwich, Docket No. 094957 (July 2, 1991, Teller, J.) [ 4 Conn. L. Rptr. 244]. If it is impossible to serve the defendant at his usual place of abode then "[s]ervice of process may be made on a motor vehicle operator licensed in Connecticut in accordance with the statutory provisions of [General Statutes] § 52-63." Nevins v. Moretti, supra, Superior Court, Docket No. 094957. "This statute is designed to protect plaintiffs from defendants who move without reporting their new addresses to the Department of Motor Vehicles. By providing for an alternative method of service of process, the legislature made an adequate provision to protect plaintiffs from such noncomplying motor vehicle operators . . ." Id. The Appellate Court has concluded that "impossibility, as used in § 52-63(b), does not require that absolute physical impossibility exists but includes factual situations akin to the one presented by the present case where several unsuccessful attempts to serve or to verify the defendants' usual abode revealed that there was little likelihood of successful in hand or abode service." (Internal quotation marks omitted.) Hibner v. Bruening, supra, 78 Conn.App. 465.
General Statutes § 52-63 states in pertinent part as follows:
(a) Any operator or owner of a motor vehicle at the time of issuance of his license or registration shall he deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action against him on account of any claim for damages resulting from his alleged negligence or the alleged negligence of his servant or agent in the operation of any motor vehicle in this state may be served upon the commissioner as provided in this section and shall have the same validity as if served upon the owner or operator personally, even though the person sought to be served has left the state prior to commencement of this action or his present whereabouts is unknown.
(b) Service of civil process may be made on a motor vehicle operator . . . by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator's last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another . . . [or] (1) it is impossible to make service of process at the owner's last address on file in the Department of Motor Vehicles, 2) the owner has loaned or permitted his motor vehicle to be driven by another, and (3) the motor vehicle has caused injury to the person or property of another . . . [T]he officer making such service shall certify on the process that he has made a diligent effort to obtain service at the address of the owner or operator on file in the Department of Motor Vehicles and has been unable to make such service."
In the present case, when the marshal was unable to verify the defendants' residence as that supplied by the plaintiff, the service should have been effectuated pursuant to General Statutes § 52-63, by serving a copy of the writ and summons to the office of the commissioner of Motor Vehicles and sending a copy by registered or certified mail, postage prepaid and return receipt requested, to the defendants at their last address on file with the Department of Motor Vehicles. As General Statutes § 14-45 does not allow the plaintiff to serve the defendants by abode service at the last address on file with the DMV, service was improper and the court lacks personal jurisdiction over the action.
B. Waiver
"The use of the motion to dismiss is ordinarily limited by Practice Book §§ 10-6, 10-7, 10-30 and 10-32, which together require that a motion to dismiss be the first pleading filed in response to the complaint and that it be filed within thirty days of the filing of an appearance." Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006), aff'd, 102 Conn.App. 315, 926 A.2d 38 (2007). "If the motion to dismiss is not filed according to those requirements, then any challenges on the grounds of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process are deemed waived." Id.
Practice Book § 10-6 provides: "The order of pleading shall be as follows:
(1) The plaintiff's complaint.
(2) The defendant's motion to dismiss the complaint.
(3) The defendant's request to revise the complaint.
(4) The defendant's motion to strike the complaint.
(5) The defendant's answer (including any special defenses) to the complaint.
(6) The plaintiff's request to revise the defendant's answer.
(7) The plaintiff's motion to strike the defendant's answer.
(8) The plaintiff's reply to any special defenses.
The plaintiff argues that the defendants have waived their right to contest the court's personal jurisdiction because a general appearance was filed on their behalf. "A defendant may contest the personal jurisdiction of the court even after having entered a general appearance . . . but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." (Internal quotation marks omitted.) Fedus v. Planning Zoning Commission, 278 Conn. 751, 778, 900 A.2d 1 (2006); see also Practice Book § 10-30. In this instance, the filing of an appearance on the defendants' behalf did not waive their right to argue lack of the court's personal jurisdiction as the motion to dismiss was filed within thirty days of the filing of the appearance.
The plaintiff also contends that the defendants waived their right to contest the court's personal jurisdiction by participating in discovery and entering into a scheduling order. Practice Book § 10-7 provides: "In all cases, when the judicial authority does not otherwise order, the filing of any pleading provided for by the preceding section will waive the right to file any pleading which might have been filed in due order and which precedes it in the order of pleading provided in that section." Under Iffland Lumber Co. v. Tucker, 33 Conn.Sup. 692, 695, 368 A.2d 606 (1976), the plaintiff argues that a general appearance may be implied when the defendant takes a procedural step that would beneficial to the defendant or detrimental to the plaintiff. Specifically the plaintiff has argued that defendants have filed both a request for disclosure and production and a scheduling order in this matter. In this instance the court finds that neither participation in discovery nor entering into a scheduling order should be considered a procedural step within the realm of Practice Book §§ 10-6 and 10-7. Bartron v. Ferry, Superior Court, judicial district of Tolland, Docket No. CV 02 0078183 (Sept. 11, 2002, Scholl, J.) ( 33 Conn. L. Rptr. 87). "There is no provision in the Practice Book which provides that . . . claims [of lack of personal jurisdiction or insufficiency of service of process] are waived by filing discovery requests." Udolf v. Swerdloff, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 518160 (April 22, 1993, Hennessey, J.) ( 9 Conn. L. Rptr. 15); Ortiz v. Bridgeport Hospital, Superior Court, judicial district of New London, Docket No. 547104 (Aug. 11, 1999, Martin, J.) ( 25 Conn. L. Rptr. 254). Thus, the defendants did not waive their right to argue lack of the court's personal jurisdiction as they have not actively contested the case on the merits.
CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss is granted.