Opinion
No. CV 02 0079771
March 31, 2003
MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (106 107)
Motion to Dismiss (106)
The Defendant, Sid Wainer Son Specialty, moves to dismiss this action against it because it claims that the complaint was never served on it and therefore the court lacks personal jurisdiction over it.
The Marshal's return indicates that on October 3, 2002 he served the Defendant "by leaving a verified true and attested copy of the original writ, summons and complaint at the office of Jose Salinas, Commissioner of Motor Vehicles for the State of Connecticut" and that also, on that same day, he "deposited in the Post Office in Hartford, postage prepaid and certified, return receipt requested, a verified true and attested copy of the original writ, summons and complaint addressed to: Sid Wainer Son Specialty, 2301 Purchase Street, New Bedford, MA 02746." A supplemental return by the Marshal states that the certified letter was sent to the same address except the zip code is listed as "02246" and the Marshal states that the letter was returned unclaimed.
In support of the Motion to Dismiss, the Defendant submitted the affidavit of Christopher Hawes in which he states that he is distribution manager for Sid Wainer Son Specialty and they maintain an office at 2301 Purchase Street, New Bedford, MA 02745. Hawes states that he is responsible for receiving all incoming lawsuits. He further states that neither he nor Sid Wainer Son Specialty has received a copy of the complaint in this action. The Plaintiff did not submit any evidence in opposition to the Defendant's motion.
The Defendant agrees that service was attempted pursuant to General Statutes § 52-62. That statute provides for service on a nonresident who causes a motor vehicle to be operated in this State. That statute provides: "(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. The officer serving the process upon the Commissioner of Motor Vehicles shall leave with the commissioner, at the time of service, a fee of five dollars, which fee shall be taxed in favor of the plaintiff in his costs if he prevails in the action. The Commissioner of Motor Vehicles shall keep a record of each such process and the day and hour of service."
The Defendant claims that the statute must be strictly construed and that it is clear from the affidavit of the Defendant's representative that the Plaintiff failed to successfully mail a certified copy of the complaint to the Defendant. The Defendant argues this was due to an incorrect address in that the address listed in the Marshal's return has an incorrect zip code.
"[A]n officer's return is only prima facie evidence of the facts stated therein. It may be contradicted and the facts shown to be otherwise. Palmer v. Thayer, 28 Conn. 237, 242; Buckingham v. Osborne, 44 Conn. 133, 141; Coast Lakes Contracting Corporation v. Martin, 92 Conn. 11, 16, 101 A. 502." Cugno v. Kaelin, 138 Conn. 341, 343 (1951). In Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 53-54 (1983), the Court stated: "`The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return. There should be no presumption of the truth of the plaintiff's allegation of the additional facts necessary to confer jurisdiction.' 1 Stephenson, Conn.Civ.Proc. (2d Ed.) 96, p. 390." The Court went on to state that "When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." Thus "[i]f a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction. Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 54." Knipple v. Viking Communications, 236 Conn. 602, 607-08 (1996) (footnote omitted).
Here the Marshal's return states that he mailed a verified true and attested copy of the original writ, summons and complaint addressed to: Sid Wainer Son Specialty, 2301 Purchase Street, New Bedford, MA 02746. The supplemental return states that it was mailed to the same address but with a zip code of 02246. The Defendant claims it never received it. The Marshal's supplemental return indicates that the mail was returned as "unclaimed." The returned letter is not attached to the supplemental return nor did the Plaintiff present it to the court. The court does not know if the papers were delivered to the correct post office or if notice of the availability of the papers for pick-up was properly given to the Defendant.
The Plaintiff cites the decision in Stratton v. Abington Mutual Fire Ins. Co., 9 Conn. App. 557, cert. denied, 203 Coon. 807 (1987), in support of his position that as long as the papers were mailed, the fact that they were not picked up does not mean service was ineffectual. Stratton however is distinguishable from this case. First, Stratton involved service of cancellation pursuant to the provisions of a contract of insurance, not constructive service by statute necessary to acquire jurisdiction over a nonresident defendant. Second, in Stratton the court had before it evidence that the postman had made two unsuccessful attempts to deliver the notice of cancellation and then a "pick-up claim slip" was left notifying the addressee that the letter could be called for at the post office. Here the court has no information as to what actions the post office took to deliver the Marshal's certified mail to the Defendant or whether in fact it was received by the post office which services the Defendant's mail. The provisions of General Statutes § 52-62 must be strictly construed and followed. Tyler v. Barry, 18 Conn. Sup. 290, 292 (1953). The Plaintiff has not met his burden to prove that he has complied with the provisions of the statute regarding service on the Defendant Sid Wainer Son Specialty at its "last known address."
The Motion to Dismiss is granted.
Motion to Dismiss (107)
The Defendant, Lashon Heard, also moves to dismiss this action against him because he claims that the suit was served at a place that was not his usual place of abode and therefore the court lacks personal jurisdiction over him. The Marshal's return indicates that on September 30, 2002 he served the Defendant, Lashon Heard, "by leaving at the usual place of abode of said defendant, 135 Greenwood Street, 2nd Floor, New Haven, CT., as I verified the correct address with SNET, DMV and Postmaster, a true and attested copy of the original Writ, Summons and Complaint with my endorsement thereon." The Marshal also submitted an affidavit in which he states that he contacted the Connecticut Department of Motor Vehicles who advised him that Heard had both a driver's license and vehicle registered in his name at 135 Greenwood Street, New Haven, Connecticut. The Marshal also states that he went to that address on September 30, 2002 and the car registered to Heard was parked in the driveway. A tenant told him Heard lived on the second floor and a woman there advised him Heard was at work and he left the writ, summons and complaint at that address.
In support of his motion, Heard's counsel submitted an affidavit in which he states that he conducted an internet search which indicates that Heard is not listed as having a New Haven address and that he sent letters to Heard directed to him at the address in the Marshal's return as well as the address listed in the summons and he has received no response. The court finds that this information is insufficient to contradict the Marshal's return. The Marshal's affidavit indicates that he verified that Heard resided at 135 Greenwood Street, New Haven, Connecticut. The fact that a search of the "AOL White Pages" finds no match for Heard in New Haven is of no probative value in the absence of any information as to the reliability of such a search. Neither does the fact that Heard has not responded to his attorney's letters serve to defeat the validity of the service in this action. The defendant has therefore failed to submit sufficient evidence to contradict the facts stated in the Marshal's return.
The Motion to Dismiss is denied.
Jane S. Scholl, J.