Opinion
No. CV 09-5028278-S
June 25, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS (No. 104.00)
This is an action by plaintiffs Usha Venkatesan and George T. Haley against defendant Ravi C. Venkatesan, a resident of India. The plaintiffs' complaint dated January 8, 2009 states causes of action sounding in slander, libel, defamation, invasion of privacy, fraudulent misrepresentation and intentional infliction of emotional distress.
The plaintiffs commenced this action by causing a State Marshal to serve process upon the defendant by mail at 25 Goodwill Society, Baner Road, Pune, 411007, India. According to Marshal's Return dated January 9, 2009, such service was effected as follows: "[the] original Writ, Summons and Complaint . . . [were] mailed via certified RRR international to Ravi C. Venkatesan, 25 Goodwill Society, Baner Road, Pune, 411007, India[.]"
The defendant filed his appearance with this Court on April 21, 2009. Thereafter, on May 19, 2009, the defendant filed a motion to dismiss the complaint, claiming that this Court has no jurisdiction over his person in this case due to insufficiency of service of process. The Defendant alleges, more particularly, that service of process upon him by mail was in violation of Connecticut General Statutes § 52-59d because it violated Article 1 and Chapter 1 Articles 2-6 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters ("Hague Convention").
At all times relevant to this case, Section 52-29d has provided in pertinent part as follows:
(a) Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including, without limitation, the Hague Convention on Service of Process Abroad.
Although the defendant's motion to dismiss did not cite the Connecticut Practice Book, it was filed within thirty days of the defendant's appearance herein, as required by Practice Book § 10-30, it asserted a ground for dismissal set forth in Practice Book § 10-31, and it was accompanied by a supporting memorandum of law in compliance with the latter subsection.
Any defendant, wishing to contest the court's jurisdiction, may do so 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 . . .
(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
On June 9, 2009, the plaintiffs filed a memorandum in opposition to the defendant's motion to dismiss. Without purporting to justify the means by which they had chosen to serve the defendant, the plaintiffs argued in their memorandum that this action should not be dismissed because the defendant, who promptly appeared herein after being served by mail, had not been prejudiced by such service. In the alternative, they requested that, in lieu of dismissal, this Court grant them leave to re-serve the defendant in the manner required by Connecticut General Statutes § 52-59d.
Connecticut General Statutes § 52-59d provides in pertinent part as follows:
(a) Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including, without limitation, the Hague Convention on Service of Process Abroad.
Article 2 of the Hague Convention, in turn, instructs that legal process from one Contracting State under the Convention must be served on residents of the other Contracting State through the "Central Authority" designated by the State,
[w]hich will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6. Each State shall organize the Central Authority in conformity with its own law.
Article 5 of the Hague Convention further specifies how such service of process must be effected:
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either —
a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Article 10 of the Hague Convention sets forth an exception to Articles 2 and 5, which provides as follows:
Provided the State of destination does not object, the present Convention shall not interfere with —
a) the freedom to send judicial documents, by postal channels, directly to persons abroad.
* * * *
Courts in the United States have interpreted Article 10 to mean that whether or not a Contracting State chooses to permit service of process upon its residents by mail depends directly on whether that State has objected to such method of service. See, DeJames v. Magnificence Carriers, Inc., 654 F.2d 280 (3d Cir. 1981), [cert. den., 454 U.S. 1085]; Porsche v. Superior Court, 123 Cal.App.3d 755, 177 Cal. Rptr. 155 (1981).
The official website of the U.S. Department of State concerning international service-of-process requirements instructs readers that India has objected to the service of process by mail upon its residents without the involvement of its Central Authority. Although the Department of State does not guarantee the accuracy of the posted data, it refers readers to the official website for the Hague Conference of Private International Law for the most up-to-date information.
See, U.S. Department of State, http://travel.state.gov/law/info/judicial/judicial 2811.html (last visited June 23, 2008).
The official website for the Hague Conference on Private International Law confirms as follows the above-noted position of the Indian government concerning service of process upon its residents by mail:
All requests for service of documents should be in English language or accompanied by an English translation . . . India is opposed to the methods of service provided in Article 10.
See, Hague Conference on Private International Law, http://hcch.evision.nl/index_en.php?act=status. comment csid=984 disp=resdn (last visited June 23, 2009).
Therefore, because India has expressly objected to the service of process by mail pursuant to Article 10 of the Hague Convention, the service of process upon Indian resident must be made through the Central Authority designated by India. Napp Technologies, L.L.C. v. Kiel Laboratories, Inc., No. 04-3535, 2008 WL 5233708 (D.N.J., 2008).
This Court has no jurisdiction over the instant action, because service of process on the defendant by registered mail was in violation of the Hague Convention and, thus, in violation of Connecticut General Statutes § 52-59d. Accordingly, the defendant's motion to dismiss the complaint is hereby GRANTED.