Opinion
HHDCV176082965S
06-12-2018
Eric STEVENS v. Edward KHALILY et al.
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE
This matter is before the court concerning the defendants Tiffany Khalily and Edward Khalily’s motion to dismiss, based on lack of personal jurisdiction. The court heard oral argument on April 23, 2018.
After considering the parties’ written submissions and oral arguments, the court issues this memorandum of decision.
I
Background
The court briefly summarizes the plaintiff Eric Stevens’ allegations in his twelve-count complaint. On May 21, 2009, the plaintiff filed for divorce from defendant Tiffany Khalily. As a result, Tiffany Khalily and the other three defendants, Edward Khalily, Diana Rabbani, and Shahram Rabbani, conspired to ensure that the divorce ended on terms favorable to Tiffany Khalily and to cut off all contact between the plaintiff and his daughter. In furtherance of this conspiracy, the defendants defamed and slandered the plaintiff, and engaged in a systematic and concerted effort to destroy the plaintiff and deprive him of a relationship with his daughter.
For ease of reference, the court refers to Edward Khalily and Tiffany Khalily as the defendants. Additional references to the factual background are set forth below.
II
Standard Of Review
"The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ..." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200, 994 A.2d 106 (2010).
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, 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 ... In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ...; other types of undisputed evidence; ... and/or public records of which judicial notice may be taken; ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ...; the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein ... Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts ..." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
"[A] challenge to the jurisdiction of the court presents a question of law ..." Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).
Here, an evidentiary hearing was neither requested nor required.
III
Discussion
In support of their motion, the defendants argue that the court should dismiss the plaintiff’s claims against them on the ground that the court lacks personal jurisdiction over them due to insufficient service of process. The plaintiff attempted service on Tiffany Khalily at 4 Portico Court, Great Neck, New York and on Edward Khalily at 845 United Nations Plaza, Apartment 77C, New York, New York. The defendants claim that they do not currently reside at these addresses, and that the plaintiff has therefore failed to serve them at their "last known addresses" pursuant to General Statutes § 52-59b.
In response, the plaintiff primarily argues that the court is not required to accept the statements made in the defendants’ affidavits, that the addresses they were served at are not current, absent proof that either actually has a new address; and that the defendants have made attempts to prevent the plaintiff from finding their current addresses, in particular noting that Tiffany Khalily is a convicted felon. The plaintiff also asserts that the proper time to determine whether personal jurisdiction is lacking is at summary judgment. Other arguments are also discussed below.
"[A]n action commenced by ... improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). General Statutes § 52-59b(c) provides, in relevant part, that "[a]ny nonresident individual ... over whom a court may exercise personal jurisdiction ... shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual ... may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual ... personally. The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant’s last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State."
"By its plain language, § 52-59b(c) has two requirements: (1) the plaintiff must serve process on the Secretary of State at least twelve days before the return day and (2) the plaintiff then must mail a copy of the process to the defendant’s last known address by registered or certified mail." Banning v. Re/Max at the Lake kka, Superior Court, judicial district of New Haven, Docket No. CV-13-6036005-S (December 30, 2013, Fischer, J.).
Generally, "the burden is placed on the defendant to disprove personal jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). However, "[i]f the defendant challenging the court’s personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff’s burden to prove the court’s jurisdiction." Id. Thus, once the defendant contests personal jurisdiction, "it [is] the plaintiff’s burden to produce evidence adequate to establish such jurisdiction." Id., 515-16.
"[W]hen a particular method of serving process is set forth by statute, that method must be followed ... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ... The jurisdiction that is found lacking ... is jurisdiction over the person ..." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). "Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ... 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." (Internal quotation marks omitted.) Id., 401.
"[S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court’s exercise of [personal] jurisdiction over that party ... Therefore, [p]roper service of process is not some mere technicality." (Citation omitted; internal quotation marks omitted.) Matthews v. SBA, Inc., supra, 149 Conn.App. 530. A defendant’s mere receipt of actual notice or knowledge of the proceedings is insufficient to confer personal jurisdiction over a party who has not been properly served. See Matthews v. SBA, Inc., supra, 149 Conn.App. 539; Alldred v. Alldred, 132 Conn.App. 430, 437, 31 A.3d 1185 (2011), appeal dismissed, 303 Conn. 926, 35 A.3d 1075 (2012).
"Our Supreme Court has stated with respect to the last known address requirement of § 52-59b(c): [t]he requirement that [process] be mailed to the defendant at his last-known address does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it. Unless the defendant has departed for parts unknown, it means his actual address; if he has disappeared it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute ... Interpreted in the sense which the legislature intended, our statute, if complied with, will certainly bring about a reasonable probability of actual notice of the pendency of the action to the defendant." (Internal quotation marks omitted.) Matthews v. SBA, Inc., supra, 149 Conn.App. 532.
"A plaintiff must use diligent and persistent efforts ... to determine the actual address of the defendant and unless a defendant has departed for parts unknown, the plaintiff must learn the defendant’s actual address at his peril." (Citation omitted; internal quotation marks omitted.) Matthews v. SBA, Inc., supra, 149 Conn.App. 533. "If the defendant has not departed for parts unknown, the plaintiff is required to mail the defendant process at the defendant’s actual address. If the defendant has disappeared, the plaintiff may satisfy the statute- even if process is in fact not sent to the defendant’s actual address- as long as he has used reasonable efforts to determine the last address of the defendant as known by those who would usually be expected to know it." (Emphasis in original; internal quotation marks omitted.) Elbardissy v. Beta Theta Pi, Superior Court, judicial district of Middlesex, Docket No. CV-15-6013197-S (January 12, 2016, Vitale, J.) (61 Conn.L.Rptr. 667).
"What constitutes diligent and persistent efforts to locate the defendant’s address thus appears to depend greatly on the particular circumstances of each case, with the touchstone of the inquiry being reasonableness." (Internal quotation marks omitted.) Elbardissy v. Beta Theta Pi, supra, Superior Court, Docket No. CV-15-6013197-S.
"In determining whether a defendant made a reasonably diligent search before serving a party’s last known address, factors such as the use of public information and utilization of other resources can be considered." Canale v. KBE Building Corp., Superior Court, judicial district of Waterbury, Docket No. CV-15-6026262-S (September 7, 2017, Shah, J.) (65 Conn.L.Rptr. 224). Courts can also consider whether a plaintiff attempted to verify a defendant’s actual address through postal or motor vehicle records or evidence that these tools were unavailable to them when determining if a plaintiff conducted a diligent search. See Velazquez v. Eldredge, Superior Court, judicial district of Hartford, Docket No. CV- 08-5024354-S (June 25, 2012, Woods, J.) (54 Conn.L.Rptr. 310).
Here, as discussed above, the nonresident defendants are challenging the court’s personal jurisdiction. The plaintiff, therefore, has the burden of proving that the court has jurisdiction and must produce adequate evidence to establish such jurisdiction. See Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515. To do so, the plaintiff must prove that he served the defendants with process at their "last known address" pursuant to § 52-59b.
Based on the evidence presented, the court concludes that the plaintiff has failed to comply with § 52-59b’s requirements. Specifically, he has failed to meet his burden of proving that he used "diligent and persistent efforts" to determine their last known addresses. See Matthews v. SBA, Inc., supra, 149 Conn.App. 533.
The defendants attest that neither of them live at the address where the plaintiff attempted service. Ms. Khalily attests that she moved from the 4 Portico Court address where the plaintiff attempted service in November 2016. Mr. Khalily states that he has not lived at the 845 United Nations Plaza address since 2014.
In response, the plaintiff attests that he has had to rely on others for information about the defendants’ whereabouts because the defendants have cut off all contact with him. He states that he learned about Ms. Khalily’s 4 Portico Court address in October 2016 and confirmed this address using an online search engine and by calling the phone number for this address at a time he knew that Ms. Khalily would not be home. The plaintiff’s sister informed him of Mr. Khalily’s 845 United Nations Plaza address in the fall of 2012.
While the plaintiff made some efforts to determine the defendants’ last known addresses and the plaintiff’s use of information from others is relevant to determining whether the plaintiff made a reasonably diligent search; see Canale v. KBE Building Corp., supra, Superior Court, Docket No. CV-15-6026262-S; whether the plaintiff attempted to verify the defendants’ actual addresses through postal or motor vehicle records is also relevant to this inquiry. See Velazquez v. Eldredge, supra, Superior Court, Docket No. CV-08-5024354-S. Here, the plaintiff’s affidavit does not indicate that he attempted to use these public resources to verify the defendants’ actual addresses, nor does he provide any evidence that these tools were unavailable to him. See id. This is a factor weighing against a finding that the plaintiff used reasonably diligent efforts to determine the last known addresses of the defendants.
Regardless of these steps that the plaintiff took to find the defendants’ addresses, even if the court were to find that the plaintiff’s efforts in 2012 and 2016 were reasonably diligent, the plaintiff has failed to account for his efforts to remain current on their whereabouts before attempting service of process in October 2017 to commence this present action. Here, the plaintiff relied on information that was approximately a year old for Ms. Khalily and five years old for Mr. Khalily. Thus, it appears that the plaintiff relied on old information without attempting to verify that the addresses he had were still current. Such reliance indicates that the plaintiff was not reasonably diligent in attempting to determine the last known addresses of the defendants. See Megos v. Ranta, Superior Court, judicial district of New Britain, Docket No. CV-14-6027362 (June 23, 2015, Swienton, J.) (granting motion to dismiss when marshal relied on address from previous service of process from a year ago and no indication that marshal or plaintiff had taken reasonable steps to verify address was still current); Barker v. Rosati, Superior Court, judicial district of New London, Docket No. CV-08-5008708 (February 20, 2009, Peck, J.) (47 Conn.L.Rptr. 285) (granting motion to dismiss when plaintiff relied on old address where defendant had not lived for almost two years). The plaintiff, therefore, has failed to meet his burden of proving that he used reasonably diligent efforts to find the defendants’ last known address and that the court can exercise personal jurisdiction over them.
The plaintiff appears to argue that service was proper and that the court has jurisdiction because the defendants had actual notice of the present action. This argument is, however, unavailing. A defendant’s mere receipt of actual notice is insufficient to confer personal jurisdiction over a party who has not been properly served. See Matthews v. SBA, Inc., supra, 149 Conn.App. 539. Here, it is undisputed that the plaintiff was required to follow the method of service set forth by § 52-59b, and the court is unable to acquire jurisdiction absent compliance. See Morgan v. Hartford Hospital, supra, 301 Conn. 400. As discussed above, the plaintiff failed to meet his burden of proving that he complied with the method of service provision of § 52-59b. The defendants’ mere actual notice of the action, therefore, is not sufficient to confer jurisdiction over them.
As for the plaintiff’s argument that the defendants have not proven that they have an actual address elsewhere, no authority is cited which suggests that the defendants were required to provide the court or the plaintiff with their current addresses. See Varrone v. Outman, Superior Court, judicial district of Waterbury, Docket No. CV-09-6001755-S (March 12, 2010, Gallagher, J.) (noting that locating the defendant is the plaintiff’s responsibility).
Finally, the plaintiff argues that the proper time to determine whether personal jurisdiction is lacking is at summary judgment, and that he will demonstrate his efforts to keep current on the defendants’ whereabouts at discovery. Both of these contentions lack merit. Practice Book § 10-30(b) provides, in relevant part, that "[a]ny defendant, wishing to contest the court’s jurisdiction, shall do so by filing a motion to dismiss within thirty days of filing an appearance." A defendant waives the right to claim a lack of personal jurisdiction for insufficiency of service of process if he or she does not file a motion to dismiss asserting such claim within this delineated time period. See Practice Book § 10-32. The proper time to determine whether personal jurisdiction is lacking is thus at the motion to dismiss stage rather than at summary judgment. Moreover, the plaintiff was required to use reasonably diligent efforts to determine the defendants’ last known addresses before service was made. See Matthews v. SBA, Inc., supra, 149 Conn.App. 532-33. The plaintiff’s arguments as to why the court has personal jurisdiction over the defendants are therefore unpersuasive.
The plaintiff has failed to sustain his burden of proving that he properly served the defendants with process at their last known address pursuant to § 52-59b and that the court can properly exercise jurisdiction over them.
CONCLUSION
For the reasons stated above, defendants Edward Khalily and Tiffany Khalily’s motion to dismiss is granted. It is so ordered.