Opinion
No. NNI CV06-5001231
March 13, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS #105
This memorandum of decision addresses the Motion to Dismiss filed by the defendant, Mario Munez on December 29, 2006 (#105) (motion to dismiss), as well as the Objection to Defendant Munez's Motion to Dismiss filed by the plaintiff, Iris Trinidad, on January 18, 2007 (#106) (objection). The defendant seeks to dismiss the personal injury lawsuit the plaintiff brought against him through her complaint filed September 26, 2006 (Complaint). For the reasons stated below, the court finds this matter in favor of the plaintiff. Accordingly, the motion to dismiss (#105) is hereby DENIED, and the objection thereto (#106) is hereby SUSTAINED,
I. HISTORY OF THE PROCEEDINGS
The plaintiff brought suit to recover damages for personal injuries allegedly caused to her as the result of the defendant's negligent operation of his motor vehicle in this state on or about October 17, 2004. The plaintiff alleges that the defendant then resided at 16 Havlock Street, Apt. 2, in Dorchester, MA, but that he was driving, on that date, in a northerly direction on Route 15 in New Haven in this state, in the proximity of the plaintiff's vehicle. The plaintiff alleges that as the result of the defendant's careless and negligent operation of his motor vehicle, he "slammed into the rear of the plaintiff's vehicle, causing a violent collision" and causing her to sustain "severe injuries and damages . . ." (Complaint.)
The court file reflects that on September 21, 2006, State Marshal Lonnie W. Barnes, Jr. submitted an Officer's Return indicating that he had served the defendant with a letter containing "a true and attested copy of the original, SUMMONS AND COMPLAINT-CIVIL" by certified mail at the New Haven Post Office. Marshal Barnes submitted another Officer's Return on October 25, 2006, indicating that on October 11, 2006, he received that letter back from the post office, with the notation that delivery was "Attempted, Not Known." (#101.)
Nonetheless, on November 6, 2006, the defendant, through his counsel, entered an appearance in the file. On November 13, 2006, the defendant filed a Request for Extension of Time "within which to answer the Request for Disclosure and Production filed upon him by the plaintiff Iris Trinidad on November 6, 2006." (#102.) In his request, the defendant expressly indicated his knowledge of not only the existence of the plaintiff's cause of action but also of the nature and extent of the pending claims; he expressly based his request for additional time upon the representation "that he is assembling the necessary information and documentation needed to respond in this complicated matter but cannot complete his response within the time required under the Rules of Practice." (Emphasis added.) (#102).
On December 5, 2006, the defendant filed his Motion to Dismiss and an accompanying Memorandum of Law. (#105.) Thereby raising two separate grounds for dismissal, the defendant claims "that the Court lacks personal jurisdiction over him due to improper venue and the plaintiff's failure to properly serve him with process as specified in General Statutes § 52-62." Id. As to the issue of venue, the defendant has graciously acknowledged the potential that his motion to dismiss may not be granted, in which case he "respectfully requests that this Court transfer this action to the Superior Court, Judicial District of Ansonia-Milford." Id.
The defendant's motion to dismiss #105 was submitted under date of December 1, 2006, bearing an incorrect docket number; that motion was file stamped by the clerk's office on December 5, 2006. Correcting the docket number, the clerk imposed a second file stamp bearing the date of December 29, 2006. In objecting to the motion to dismiss, the plaintiff does not raise the issue of the timeliness, as contemplated by Practice Book § 10-30 (motion to dismiss based on personal jurisdiction to be filed within thirty days of the filing of defendant's appearance). See also #103, appearing to represent a fax-filed version of the motion to dismiss at issue, bearing the incorrect docket number just as that borne by #105.
General Statutes § 52-62 establishes the method by which service of process may be effectuated upon a nonresident in action for negligent operation of motor vehicle: "(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."
In response, the plaintiff argues that the defendant received actual notice of the proceedings, and that he has not been deprived of the opportunity to defend himself in this matter. Moreover, the plaintiff contends that improper venue provides an inadequate basis for dismissing the action as both Practice Book § 12-1 and General Statutes § 51-347b contemplate administrative transfer of an action which would more properly be heard at a court location other than that where the complaint was brought. Tacitly, but consistent with the request of the defendant, the plaintiff has effectively presented the court with a motion for transfer of the pending action to a court location in another judicial district, the Judicial District of Ansonia-Milford. See Practice Book § 12-1; § 51-347b.
Practice Book § 12-1 provides that " [a]ny cause, or the trial of any issue therein, may be transferred from a judicial district court location to any other judicial district court location or to any geographical area court location, or from a geographical area court location to any other geographical area court location or to any judicial district court location, by order of a judicial authority (1) upon its own motion or upon the granting of a motion of any of the parties, or (2) upon written agreement of the parties filed with the court. (See General Statutes § 51-347b and annotations.)" (Emphasis added.) Similarly, General Statutes § 51-347b provides, in pertinent part that "(a) Any action or the trial of any issue or issues therein may be transferred, by order of the court on its own motion or on the granting of a motion of any of the parties, or by agreement of the parties, from the superior court for one judicial district to the superior court in another court location within the same district or to a superior court location for any other judicial district, upon notice by the clerk to the parties after the order of the court . . ."
II. PERSONAL JURISDICTION OVER THE DEFENDANT
"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). "[O]nce the question of lack of jurisdiction of a court is raised . . . [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) D'Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005). "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 . . . 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." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). If "`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.' [ Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983)]. [In Jowdy,] this court further quoted approvingly a declaration in Professor Edward L. Stephenson's treatise on Connecticut Civil Procedure that `[w]hen 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.' (Internal quotation marks omitted.) Id., 53, quoting 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970) § 96, p. 390." (Footnote omitted.) Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 109-10, 897 A.2d 58 (2006).
When considering issues related to jurisdiction over the person, the court should attend to the statutory framework that establishes the protocol for service of process upon a designated defendant. See, e.g., Fine Homebuilders v. Diane Perrone, 98 Conn.App. 852, 911 A.2d 1149 (2006). While giving such attention to that protocol, however, the court must also focus upon the purpose for which the particular framework has been implemented. Id. These principles were recently addressed in Fine Homebuilders v. Diane Perrone, supra, which allowed the plaintiff to successfully achieve restoration of his cause of action after the trial court had dismissed the complaint upon the defendant's claimed "lack of personal jurisdiction over the defendants due to insufficient service of process." Id., 854. Fine Homebuilders involved an action to foreclose a mechanic's lien and for breach of contract. The defendants moved in that matter to dismiss on the ground that the court lacked personal jurisdiction over them because service or process was unreliable, as of the writ of summons and complaint and notice of lis pendens had not been left at the doorway to their abode, but "in a gate more than 200 feet from the defendants' home . . ." Id., 855. Resolving the issue in favor of maintaining personal jurisdiction, the court attended to the specific niceties of General Statutes 52-57(a), which establishes procedures for serving process upon state resident, noting generally that "[t]he manner in which service of process may be effected is determined by statute and by our decisional law interpreting the relevant statute." Id., 855. Using that measure in finding that the defendants had actual notice of the proceedings, the Appellate Court reversed the trial court's dismissal of the pending lawsuit against the defendants. Id., 854.
Fine Homebuilders' discussion of the import of actual notice is instructive even though the underlying facts of that case did not involve the efficacy of service of process upon a nonresident motor vehicle operator. In construing § 52-57(a)'s application to service not upon the individual in person, but at his abode, Fine Homebuilders court cites the legislation that "`[e]xcept as otherwise provided, 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.' We note that the statute contains no definition of the term `abode.'" Id., 855-56. Fine Homebuilders then focuses upon the purpose of the legislation when ascertaining the appropriate protocol for abode service, rather than merely concentrating upon the degree to which the plaintiff had achieved technical compliance with the statute's strict, literal terms. The Appellate court reminded us that "[o]ur Supreme Court has determined that the purpose of abode service is to afford a defendant actual notice of a pending action. `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.'" (Emphasis added.) Id., 857, citing Smith v. Smith, 150 Conn. 15, 20, 183 A.2d 848 (1962). Utilizing that reasoning, the Appellate Court determined that service of process was adequate and sufficient under the facts in Fine Homebuilders.
Judge McLachlan's dissent would have had the court hold to the contrary. In his opinion, "[p]roper service of process is not some mere technicality." Fine Homebuilders v. Perrone, supra, 98 Conn.App. 862, citing Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003).
Using the foregoing principles, when viewed in the light most favorable to the plaintiff, the allegations of the complaint establish that the defendant falls in the category of those colloquially known as nonresident motor vehicle operators. See Cox v. Aiken, supra, 278 Conn. 211; see also § 52-62. Such operators are clearly entitled to effective notice of lawsuits brought against them based upon allegations of negligent driving in this state, even though they reside beyond Connecticut's borders. Notice would be effectuated by utilization of the two-step protocol for service of process presented through the enactment of § 52-62; the legislation contemplates a form of service upon the Commissioner of Motor Vehicles in this state, along with the 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." Section 52-62.
The present and operative version of § 52-62 is derived from the original version first enacted in 1925. 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997), § 21e. n. 249. Our courts have long-recognized that "[t]he obvious purpose of [§ 52-62 is] to afford a means by which the equivalent of personal service might be made upon a nonresident although he was not actually within the State. Coombs v. Darling, 116 Conn. 643, 646, 166 A. 70 (1933)." (Internal quotation marks omitted.) Piorkowski v. Federal Express Corp., Superior Court Judicial district of New Haven CV 405352 (February 6, 1998, Levin, J.). Thus, "[t]he true basis for jurisdiction underlying this statute is not `consent' [by the non-resident operator] to the appointment of an agent to receive process but the performance of certain acts within this state." 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997), supra. If an agent is required for perfection of service and provision of information concerning the prosecution of a civil action arising from a nonresident's negligent operation of a motor vehicle, then in addition to service to the commissioner, "[m]ailing a copy of the process to the defendant is an adequate means of notice." (Emphasis added.) Id.
A respected commentator has suggested that § 52-62's provision for "service on the Commissioner is preservation of an outmoded `consent' theory and could be eliminated without detriment to the procedure." (Footnotes omitted.) Id.
In considering the defendant's claim that the plaintiff has insufficiently complied with the provisions of the statutory protocol for service of process upon nonresident motor vehicle operators, the court has weighed and balanced the statutory assumption that an agent in Connecticut is required in order to provide a nonresident operator with due notice of litigation arising from his negligent driving in this state. To that end, the court notes the plaintiff's candid admission "that the Commissioner of Motor Vehicles was not served pursuant to CGS § 52-62(c)." (Objection.) The plaintiff further argues that from the Marshal's mere act of mailing the certified letter to the defendant, "and the fact that the defendant has responded to the plaintiff's Complaint . . ." the court should infer that there was some sort of "service upon the defendant." Neither of these events, either alone or taken, together satisfy the notice provisions of § 52-62, particularly in view of the fact that the marshal's October 25, 2006 return clearly establishes that the letter at issue was never delivered to the defendant, as discussed previously. (#101.) The court declines to rely upon the factors cited by the plaintiff, in and of themselves, however, in ascertaining whether the defendant timely received actual notice of the presentation of a lawsuit against him, arising from the events at issue. Id. Moreover, no issues of constructive notice need be addressed when considering the existence of personal jurisdiction, as the plaintiff need "not rely solely upon the marshals representations concerning service of process to establish actual notice." Reiner, Reiner Bendett, P.C. v. Cadle Co., supra, 278 Conn, 110.
In some cases, including the case at bar, a defendant may obtain actual notice of a pending action without the necessity for incorporation of service upon an agent such as the Commissioner for Motor Vehicles or service through the mail as anticipated by § 52-62. "When the defendant is not a resident of this state and is not present in this state for service, proof that exercise of jurisdiction over the defendant satisfies due process requires evidence beyond the marshal's assertion that process was mailed and received." Reiner, Reiner Bendett, P.C. v. Cadle Co., supra, 278 Conn, 110. "[T]he extent of the defendant's contacts with this state for purposes of due process, when challenged, must be proved with evidence extrinsic to the return. Proof that the defendant received actual notice of suit, however, does not require such extrinsic evidence. Whether the defendant received actual notice is a question more akin to the question whether service was made properly than the question whether a defendant's contacts with the state are sufficient to satisfy the long arm statute and due process." (Emphasis added.) Id., 110-11.
Here, viewed in the light most favorable to the plaintiff, the court is constrained to draw only one conclusion: that the defendant not only had notice that litigation was pending against him, as indicated through his appearance and his submission of the request for extension of time, but also that he had specific knowledge of the content and exact claims that had been presented through the complaint itself. The defendant himself has informed the court of his intimate access to the details set forth in the allegations of the plaintiff's lawsuit: rather than merely submitting a non-specific request for additional time within which to perform certain tasks in response to the pending action, the defendant has candidly represented that he needs additional time because "he is assembling the necessary information and documentation needed to respond in this complicated matter but cannot complete his response within the time required under the Rules of Practice." (Emphasis added.) (#102). As the defendant has thus clearly indicated his actual notice of the pending proceeding, the court is constrained to conclude that the purpose of § 52-62 has effectively been served, and that personal jurisdiction over the defendant has been established notwithstanding the plaintiff's lack of conformity with the technical expectations of the statute. See Fine Homebuilders v. Perrone, supra, 98 Conn.App. 861-62.
In reaching this determination, the court notes that the present defendant is not entitled to the same protection as would be proffered by § 52-62 to a non-resident operator who had never received any notice, by service or process or through actual notice, of the pending action. In such circumstances, where a putative defendant has been subjected to a default for failure to appear and/or where judgment has been entered thereon, the court would apply the principles of Trichilo v. Trichilo, 190 Conn. 774, 778, 462 A.2d 1048 (1983) (affirming judgment of default against a nonresident motor vehicle operator who had been duly served through the motor vehicle commissioner and through certified mail, but who nonetheless claimed lack of timely notice of his involvement in the underlying incident of negligence). "In order that a valid judgment may be rendered against a nonresident upon whom it is claimed that constructive service has been made, [the statute authorizing such service] must be strictly observed and the facts showing compliance with it must appear of record . . ." (Internal quotation marks and citation omitted; emphasis added.) Id.
Unlike the facts of Trichilo v. Tricholo, however, the facts of the present case do not require that the court engage in any process of determining "constructive service," as the defendant's actual notice of the lawsuit against him is manifest. An appearance by counsel was filed on behalf of the defendant, and he has not been deprived of an opportunity to defend himself in this state. As previously discussed, that appearance was followed by the submission of a request for extension of time that was not merely "boilerplate," but which clearly evinced the defendant's receipt of and careful consideration of the allegations brought against him by the plaintiff, this receipt and consideration formed the only reasonable basis for the defendant's representation that he required additional time because he is assembling the necessary information and documentation needed to respond . . ." to the allegations of the complaint. (#102.)
In other, but similar, factual contexts, some other trial courts have reached contrary conclusions. See, e.g., Friere v. Student, Superior Court, judicial district of New Haven, Docket No, CV05-4011637 (February 7, 2006, Devlin, J.); Espowood v. Bristol, Superior Court, judicial district of New Haven, Docket No. CV96-385989 (August 6, 1996; H. Zoarski, J.T.R). The court declines the opportunity to rely upon the inapposite principles promoted by the defendant as the basis for his motion to dismiss, in reliance upon Flynn v. Citarella, Superior Court, judicial district of New Haven, Docket No. CV97-0258179 (September 10, 1997, DiPentima, J.). (Motion.) In Flynn v. Citarella, personal jurisdiction was contested because the plaintiff not only failed to have the defendant served at his last known address; the plaintiff sought to establish jurisdiction after late service had been made "apparently on the defendant's insurer." (Emphasis added.) Id. The Citarella plaintiff apparently argued that the defendant's automobile liability insurance carrier, "Allstate Insurance should be considered the defendant's `legal representative' for purposes of § 52-62 . . ." Id. No such claim has been raised by the plaintiff in the present matter, however. The appearance by the defendant, and the request for additional time within which to respond, were filed on behalf of the defendant himself, not on behalf of any liability insurance carrier who may have an unknown contractual obligation to represent him in this action.
Here, however, this court finds that the principles of Fine Homebuilders, Inc. v. Perrone fully support the determination that under the circumstances of the present case, the clear purpose of § 52-62(c) was fully achieved; the defendant received actual notice of the lawsuit against him, the functional equivalent of the statute's methodology for service which is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.' See Stephenson's Connecticut Civil Procedure (3rd ed.) § 20(b). Where the form of service employed is improper but it is undisputed that the defendant received timely notice of the suit and did in fact respond, the appropriate remedy is to allow amended service of process, rather than dismissal for insufficient process. 62B Am. Jur. 2d, Process § 112 . . . The purpose of § 52-62(c), which is to provide reasonable notice, has been met. See Medeiros v. Kaye, 31 Conn. SUPERIOR COURT. 370[, 372-73] (1974)." (Internal quotation marks omitted.) Leask v. Jenkins, Superior Court, judicial district of Bridgeport, Docket No. CV 97 341565 (July 10, 1997, G. Thim, J.).
III. VENUE
The defendant has raised the issue of improper venue as the second ground for his motion to dismiss. In support of this claim, he correctly identifies the judicial district of Ansonia-Milford as the appropriate venue in which the plaintiff should prosecute the action. Nonetheless, this second ground for dismissal cannot provide the defendant with the succor he seeks.
General Statutes § 51-351 expressly provides that "[n]o cause shall fail on the ground that it has been made returnable to an improper location." As used in § 51-351, the term "cause" applies to all ordinary civil actions, including administrative and probate appeals as well as personal injury lawsuits. Given the import of this statute, it is plain error for a court to dismiss a cause of action that has been brought to the wrong court. See, e.g., Sprague v. Commission on Human Rights Opportunities, 3 Conn.App. 484, 486, 489 A.2d 1064, cert. 4enied, 196 Conn. 804, 492 A.2d 1240 (1985) (trial court erred in dismissing administrative appeal due to improper venue); Szabo v. Beregszazy, 9 Conn.App. 368, 369, 519 A.2d 81 (1986) (court erred in dismissing probate appeal due to improper venue).
Anticipating that, from time to time, a plaintiff will have a lawsuit returned to the wrong court location, our state has enacted legislation that provides a facile method for remediation of venue problems without requiring dismissal of the underlying action. As previously noted, § 51-347b provides that "by order of the court on its own motion or on the granting of a motion of any of the parties, or by agreement of the parties," a civil cause of action may be transferred "from the superior court for one judicial district . . . to a superior court location for any other judicial district, upon notice by the clerk to the parties after the order of the court . . ." Id. As discussed in Part I., the defendant himself has predicted the potential for transferral; the plaintiff has raised a tacit motion for transfer, as contemplated by § 51-347b.
While disagreeing as to the issue of personal jurisdiction, the parties have no contest as to the issue of venue. The issue of jurisdiction having been resolved in favor of the plaintiff, the plaintiff having tacitly moved for transfer of the cause of action to the judicial district of Ansonia-Milford; and the parties effectively having reached agreement concerning the matter of transfer, the court concurs, and will order transfer of the matter from the judicial district of New Haven at Meriden to the judicial district of Ansonia-Milford pursuant to § 51-374b.
IV. CONCLUSION
The court finds that it has actual jurisdiction over the person of the defendant. Accordingly, the defendant's Motion to Dismiss (#105) is hereby DENIED; and the plaintiff's Objection to Defendant Munez's Motion to Dismiss (#106) is hereby SUSTAINED.
By agreement of the parties, and upon GRANTING the plaintiff's tacit motion for transfer of venue, the matter is hereby TRANSFERRED from the judicial district of New Haven at Meriden to the judicial district of Ansonia-Milford. The clerk is hereby ordered to issue notice of the transfer to the parties as contemplated by § 51-374b.