Opinion
No. CV 05-4009738-S
May 9, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#101)
Introduction
On March 17, 2005 the Plaintiff, Katherine M. Wayland, filed a six-count complaint against the Defendant, Suffield Village, L.L.C. ("Suffield Village"), among others. By motion dated May 31, 2005 the Defendant Suffield Village filed a motion to dismiss claiming that the Plaintiff had failed to properly serve it with the complaint. The Defendant argues that the complaint should be dismissed due to lack of jurisdiction, insufficiency of process, and insufficiency of service of process. On April 16, 2007 the court heard argument on the motion at which time the court indicated that it appeared that factual issues were in dispute and inquired whether the parties desired to present evidence at a hearing. But neither party requested a hearing and the Defendant specifically indicated that it was relying on the papers in the court file, only, in support of its motion.
The return of service states that service of the writ, summons and complaint on Suffield Village was made on March 11, 2005 by "leaving a true and attested copy at the usual place of abode of the within named defendant: Jonathan C. Stearns as agent for Suffield Village, L.L.C. at 2 S. Grand St. West Suffield." An affidavit of service by the Marshal submitted in opposition to the motion to dismiss further states: "That on Friday March 11, 2005, The Writ, Summons and Complaint in the above entitled action was served upon Jonathan C. Stearns as agent of service for Suffield Village, L.L.C. by leaving a true and attested copy at 2 S. Grand St., West Suffield, CT. This location was a commercial and residential property. At time of service another tenant at said location indicated to me that the defendant lives at this location and directed me to the doorway leading to defendant's home wear (sic) a copy was left." The Marshal's affidavit of service does not indicate the location or number or letter, if any, of the doorway at which he left the Writ, Summons and Complaint. In an affidavit submitted with the motion to dismiss, Stearns claims that he does not reside at, and has never resided at, 2 South Grand Street, West Suffield, CT. According to Stearns' affidavit, Suffield Village L.L.C. did not have an office at 2 South Grand Street on March 11, 2005. He also states that 2 South Grand Street is a building commonly known as "the Terrett House" which contains both an office and four apartments. Stearns states that he was never served with the papers in this matter either in hand or at his place of abode.
Discussion
The Defendant's motion to dismiss claims that the court lacks jurisdiction over Suffield Village because the Plaintiff has failed to properly serve it with the complaint. "The motion to dismiss shall be used to assert . . . (2) lack of jurisdiction over the person . . . (4) insufficiency of process and (5) insufficiency of service of process." Practice Book § 10-31(a). When "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." (Citations and internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552 (1997). "The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Citation and internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, 59 Conn.App. 224, 234-5, cert. denied 254 Conn. 939 (2000). "Service of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of in personam jurisdiction over that party . . . In the absence of a voluntary appearance, the issuance and service of process or notice is indispensable to the jurisdiction of a court to determine the adverse claims of parties to the litigation." (Internal citation and quotation marks omitted.) General Motors Acceptance Corporation v. Pumphrey, 13 Conn.App. 223, 227 (1988).
Generally, "[i]f a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction . . . This general rule is different, however, with respect to determining whether the court has jurisdiction over a defendant who is served personally or through abode service. In those circumstances, as opposed to situations wherein service is constructive, e.g., service on a foreign corporation or nonresident individual by mail, the defendant bears the burden of disproving personal jurisdiction. 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." (Internal quotation marks and citations omitted.) Golodner v. Women's Center of Southeastern Connecticut, 281 Conn. 819, 825-6 (2007).
General Statutes § 34-105 provides for a mode of service on a limited liability company like the Defendant. It states: "(a) Any process, notice or demand in connection with any action or proceeding required or permitted by law to be served upon a limited liability company which is subject to the provisions of section 34-104, may be served upon the limited liability company's statutory agent for service by any proper officer or other person lawfully empowered to make service by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state." The statute also provides that: "(d) Nothing contained in this section shall limit or affect the right to serve any process, notice or demand required or permitted by law to be served upon a limited liability company in any other manner permitted by law." The Plaintiff argues that General Statutes § 52-57(c) provides for such an alternative manner of service. That statute provides: "In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located . . ."
Pursuant to General Statutes § 34-105 service on the Defendant could have been made by service on the Defendant's agent for service at his usual place of abode, which was what was apparently attempted here. "The chief purpose of the statutory requirement that service of civil process be made at the defendants' usual place of abode is to ensure actual notice to the defendant that the action is pending . . . In order to accomplish that purpose, where the party to be served lives in a multi-family building, service must be made at the apartment actually occupied by the defendant . . . Where an officer attests that the place where the summons was served was the defendants' usual place of abode, he is attesting to a fact which, unlike the fact of personal or in-hand service, is ordinarily not within his own personal knowledge . . . Accordingly, the rule that an officer's return is only prima facie evidence of the facts stated therein and may be contradicted by showing the facts to be otherwise is particularly applicable where the validity of abode service is challenged . . . Where there is undisputed evidence that the officer mistakenly left the process at a place other than the defendants' place of abode, the court must find that there was no service of process and that it acquired no jurisdiction over the person of the defendant . . . which would authorize it to render a valid judgment against him . . . Where the jurisdictional facts are disputed, the issue of whether service was made at the defendants' usual place of abode is a factual one and the burden of proving the allegations of a defendants' motion to vacate the judgment based on the claimed invalidity of such service rests upon the moving party . . ." (Internal quotation marks and citations omitted.) Phan v. Delgado, 41 Conn.Supp. 367, 369-70 (1990) [ 1 Conn. L. Rptr. 139].
Although both parties had a right to an evidentiary hearing on the Defendant's motion to dismiss, no evidentiary hearing was requested. Therefore the court will consider the undisputed factual allegations in the various affidavits when determining whether the Defendant has sustained its burden of disproving personal jurisdiction. Knipple v. Viking Communications, 236 Conn. 602, 608-9 (1996).
"It is clear that one's `usual place of abode' is in the place where he would most likely have knowledge of service of process . . . Its chief purpose is to ensure actual notice to the defendant that the action is pending . . . The usual place of abode is generally considered to be the place where the person is living at the time of service . . . It is not necessarily his domicil; . . . and a person may have more than one usual place of abode . . . In the final analysis, the determination of one's usual place of abode is a question of fact and the court may consider various circumstances . . ." (Internal citations omitted.) Plonski v. Halloran, 36 Conn.Sup. 335, 336 (1980). Here the undisputed factual allegations do not support the claim that service was made at Stearns' usual place of abode. Although the Marshal's return is prima facie evidence of the facts stated therein, those facts may be contradicted and other facts introduced to show otherwise. Genung's Inc. v. Rice, 33 Conn.Sup. 554, 558 (1976). Here the Marshal's return is contradicted by Stearns' affidavit. The Marshal's supplemental affidavit of service also provides little additional support for the conclusion that the place of service was Stearns' usual place of abode. The Marshal's affidavit states that the location where service was made is a commercial and residential property. Stearns' affidavit does not contradict this fact and states that the property contains an office and four apartments. But neither the Marshal's return nor his supplemental affidavit of service indicates which of the four apartments in the building was allegedly Stearns' abode. When a person resides in an apartment building, abode service is accomplished only when made at the apartment occupied by the Defendant. Clover v. Urban, 108 Conn. 13, 17 (1928). The only corroborating evidence cited by the Marshal as to the location of Stearns' abode is a hearsay statement of an unidentified tenant of the same building. The court accords such evidence little weight. Lastly, the documentation submitted by the Plaintiff from the Secretary of State's website lists the South Grand Street address as Stearns' business address and not his residence address, which is listed as 1089 Rately Rd., West Suffield. Thus the court concludes that service was not made at Suffield Village's agent's usual place of abode and therefore was not made in accordance with the provisions of General Statutes § 34-105.
The Plaintiff argues that service was proper pursuant to General Statutes § 52-57(c) in that the complaint was served on the Defendant's agent's at its office listed with the Secretary of State. But the South Grand Street address is not the business address of Suffield Village listed with the Secretary of State but that of its agent. Although General Statutes § 52-57(c) allows for service on a corporation though a number of its officers and upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located, it does not provide for service upon an agent for service at simply the agent's business address. Therefore even assuming the South Grand Street address was Stearns' business address, service there was not sufficient service on the Defendant Suffield Village since it was not made at Suffield Village's offices.
Conclusion
Based upon the undisputed evidence before the court, the Defendant Suffield Village, L.L.C. has established that the place at which its agent was served with process in this matter was not his abode at the time of service nor was it the place of business of the Defendant. Therefore the court lacks jurisdiction over the Defendant Suffield Village, L.L.C. The Motion to Dismiss is granted.