Opinion
CV186078354S
02-05-2019
Ebenezer T. CAINES et al. v. Reginald D. BETTS
UNPUBLISHED OPINION
OPINION
Wilson, J.
The plaintiffs, Ebenezer T. Caines, Cynthia Reed, and Ebenezer Caines, commenced this negligence action against the defendant, Reginald D. Betts. The complaint, dated January 22, 2018, was returned to court on February 28, 2018, and alleges the following facts.
On January 25, 2016, at approximately 4:07 p.m., the plaintiff Ebenezer T. Caines was operating a motor vehicle on Dixwell Avenue in New Haven. The plaintiffs Cynthia Reed and Ebenezer Caines were passengers in the motor vehicle. While at a lawful stop, the defendant struck the plaintiffs’ vehicle from behind, causing injuries.
The marshal’s return states that, on January 25, 2018, he left process at the defendants’ usual place of abode of "1050 State Street, # 237, New Haven, CT 06511," as verified by the electronic database Accurint Program for Law Enforcement (Accurint). Accurint is used by law enforcement and civil officers to obtain current addresses and phone numbers of defendants. It is updated at the beginning of every month with information from the Connecticut Department of Motor Vehicles (DMV). Afterwards, he made a diligent search throughout his precincts to locate the defendant but could not find him at the address maintained at the Office of the Commissioner of Motor Vehicles. He then served the defendant by leaving process at the Office of the Commissioner of Motor Vehicles (Commissioner) at least twelve days before session of the court and mailed a copy of process to the address of 1050 State Street, # 237, New Haven, Connecticut, 06511 by certified mail, postage prepaid, return receipt requested. That address was the address on file at the Office of the Commissioner of Motor Vehicles.
On June 4, 2018, the plaintiff filed a supplemental marshal’s return, dated February 5, 2018, that stated he received the letters addressed to the defendant marked "Notify Sender of New Address Return Receipt Requested."
The defendant filed his appearance on April 25, 2018. He subsequently timely filed a motion to dismiss, accompanied by a memorandum of law and his affidavit, for lack of personal jurisdiction on May 22, 2018, arguing the plaintiff did not properly serve him. The plaintiff filed an objection, accompanied by a memorandum of law, on June 6, 2018. The court heard oral argument on the motion at short calendar on August 20, 2018. At oral argument, the court determined that a Standard Tallow evidentiary hearing was necessary to determine if the marshal properly served the defendant and scheduled one for September 17, 2018.
The defendant’s motion to dismiss was filed within thirty days of the filing of his appearance as required under Practice Book § 10-30(b).
The defendant filed a supplemental affidavit on September 17, 2018.
Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983). "When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross examine adverse witnesses." Id., 56.
At the evidentiary hearing, the marshal testified to the following facts. On January 24, 2018, he attempted service at 229 Wooster Street, 2L, New Haven, Connecticut, 06511, but could not enter the building and did not see the defendant’s name on any of the mailboxes outside of the building. The motor vehicle accident report listed defendant’s address at the Wooster Street address. The marshal then referred to Accurint, which listed the defendant’s address as 1050 State Street, # 237, New Haven, Connecticut, 06511. The marshal called the DMV, which confirmed that 1050 State Street was the address it had on file for the defendant. The marshal attempted to serve the defendant at that address on January 25, 2018. No one answered the door at the apartment, the defendant’s name was not listed on the directory, and a leasing agent in the rental office in the building neither confirmed nor denied that the defendant resided there. Consequently, the marshal doubted whether he made proper service at the address, but made no further attempts to locate the defendant’s address. The marshal then personally served the Commissioner in Wethersfield and mailed process to the State Street address.
At the conclusion of the hearing, the court gave the parties until October 17, 2018, to file simultaneous posthearing briefs. The defendant filed his brief on that date. The plaintiff did not, instead filing a surreply to the defendants brief on November 26, 2018. The court gave the defendant an opportunity to an additional reply until December 30, 2018, however the defendant declined to file such reply.
DISCUSSION
A motion to dismiss shall be used to assert lack of personal jurisdiction. Practice Book § 10-30(a)(2). A motion to dismiss for lack of personal jurisdiction must be raised within thirty days of the filing of the defendants’ appearance. Practice Book § 10-30(b). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). "[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). "[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." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011).
"When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return ... 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, once the defendant [contests] personal jurisdiction ... it [is] the plaintiff’s burden to produce evidence adequate to establish such jurisdiction." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515-16, 923 A.2d 638 (2007). "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.) Morgan v. Hartford Hospital, supra, 301 Conn. 401.
The defendant argues that the court lacks personal jurisdiction because the plaintiff did not properly serve him. Specifically, he argues service was improper pursuant to General Statutes § 52-57(a) because the marshal did not serve him at his usual place of abode. In addition, he argues alternative service pursuant to General Statutes § 52-63(b) was improper because the plaintiffs cannot establish that personal or abode service was impossible, which is necessary to trigger service pursuant to § 52-63(b). The plaintiffs object, arguing it was impossible to serve the defendant at his abode and that service pursuant to § 52-63(b) was proper.
Section 52-57(a) is the traditional normal service of process statute, and provides: "Except 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." "For service pursuant to § 52-57(a), the ‘usual place of abode’ presumptively is the defendant’s home at the time when service is made." Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). "When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made ... that would give the court jurisdiction over [the defendant’s] person, the defendant bears the burden of disproving personal jurisdiction ... When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Id., 339.
In the present case, the defendant met his burden of disproving personal jurisdiction under § 52-57(a). In his affidavit, dated May 17, 2018, the defendant avers that he is a resident of Connecticut and, prior to August 1, 2017, resided at 1050 State Street, # 237, New Haven, Connecticut, 06511. After August 1, 2017, he resided at 386 Prospect Street, Apt. E1, New Haven, CT 06511. In his supplemental affidavit, dated September 16, 2018, the defendant avers that on or before October 1, 2017, he updated his address with the United States Postal Service, the Connecticut Department of Voter Registration, and Yale Law School. Moreover, the marshal testified at the hearing that he did not think the defendant resided at 1050 State Street because his name was not in the directory and no one in the building could confirm or deny whether the defendant resided there. Thus, the defendant provided evidence to rebut the presumptive truth of the marshal’s return, in which the marshal asserted that service had been made at the defendant’s usual place of abode. See Greene v. Shakes, Superior Court, judicial district of Waterbury, Docket No. CV-12-6014302-S (September 11, 2012, Shapiro, J.) (54 Conn.L.Rptr. 673, 676). The defendant met his "initial burden of disproving personal jurisdiction." (Emphasis in original.) Jiminez v. DeRosa, supra, 109 Conn.App. 341.
The plaintiffs do not seriously dispute the defendant on this point. Much of their memorandum does not focus on abode service pursuant to § 52-57. Rather, they allege the marshal properly served the defendant pursuant to § 52-63(b).
Section 52-63 is an alternative method of serving a defendant. Subsection (b) provides: "Service of civil process may be made on a motor vehicle operator licensed under the provisions of chapter 246 by leaving a true and attested copy of the writ, summons and complaint at the office of the Commissioner of Motor Vehicles at least twelve days before the return day and by sending such a true and attested copy at least twelve days before the return day, by registered or certified mail, postage prepaid and return receipt requested, to the defendant at his last address on file in the Department of Motor Vehicles if (1) it is impossible to make service of process at the operator’s last address on file in the Department of Motor Vehicles, and (2) the operator has caused injury to the person or property of another." The statute "is designed to protect plaintiffs from defendants who move without reporting their new addresses to the Department of Motor Vehicles. By providing for an alternative method of service of process, the legislature made an adequate provision to protect plaintiffs from such noncomplying motor vehicle operators ..." (Internal quotation marks omitted.) Mead v. Dichele, Superior Court, judicial district of Danbury, Docket No. CV-07-5002666-S (January 11, 2008, Shaban, J.) . For the purposes of this motion, the parties do not dispute that the defendant was the operator of a motor vehicle licensed under chapter 246, that the marshal served the commissioner with the correct papers, and that the operator caused injury to the person or property of another. Instead, they quarrel over whether it was "impossible" to make service at the operator defendant’s last address on file at the DMV.
The defendant contends that he has not lived at 1050 State Street since August 2017, and that the marshal could have found his updated address by checking with Yale Law School, the postal service or the Department of Voter Registration. Moreover, a simple Google search would have revealed the defendant’s contact information where the defendant could have provided his address to be served. The plaintiffs respond, arguing that the marshal made multiple attempts to locate the defendant and failed, making it impossible to serve him. They also point to the language of § 52-63(b), which requires the marshal use the address maintained by the DMV, not the postal service or other government agency.
" ‘[I]mpossibility, ’ as used in § 52-63(b), does not require that absolute physical impossibility exists but includes factual situations ... where several unsuccessful attempts to serve or to verify the defendant’s usual abode revealed that there was little likelihood of successful in hand or abode service." Hibner v. Bruening, 78 Conn.App. 456, 465, 828 A.2d 150 (2003). In other words, impossibility "also encompasses an impractical situation ..." Id., 462. In Hibner, the court held that the marshal’s multiple attempts to serve the defendants at their usual place of abode, and attempt to learn, through the postal service, whether the defendants still lived at their listed address, made service impossible. Id. Thus, service pursuant to § 52-63(b) was proper. Id., 465. In contrast, one Superior Court held that the marshal’s one attempt to serve the defendant at his abode, without additional attempts to verify his residence, was insufficient to demonstrate it was impossible to serve the defendant, thus, preventing service under § 52-63(b). Koutsopolos v. Schrader, Superior Court, judicial district of Hartford, Docket No. CV-10-6010824-S (June 23, 2011, Peck, J.) (52 Conn.L.Rptr. 144, 146); see also Mansolf v. Louriero Engineering Associates, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV-08-5003572-S (October 23, 2008, Fischer, J.).
"[W]hen determining the sufficiency of constructive service, the court must look at the last address on file with the commissioner of motor vehicles at the time the marshal attempted to make service." Berryman v. Bianca, Superior Court, judicial district of New Haven, Docket No. CV-13-6041294-S (July 9, 2014, Nazzaro, J.) (58 Conn.L.Rptr. 481, 484). Nevertheless, "[t]he fact that the [defendant’s] address was the last address on file with the commissioner, in and of itself, [does] not establish that it was the [defendant’s] usual place of abode." Hibner v. Bruening, supra, 78 Conn.App. 465. There must be more than one attempt to confirm the address as the defendant’s usual place of abode. Id. The burden is on the plaintiff to show jurisdiction. See Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515-16.
In the present case, the court concludes that it lacks personal jurisdiction over the defendant. The plaintiffs failed to demonstrate that it was impossible to serve the defendant at his usual place of abode. The marshal testified that he attempted to serve the defendant at 1050 State Street, but was unable to do so. He checked his precincts and the DMV records, but could not locate the defendant or any other address for him. He then served the Commissioner and mailed process to the defendant’s last known address on file with the DMV at 1050 State Street.
Although the marshal complied with all of the formal requirements of § 52-63(b), there is no evidence that the marshal made further attempts to locate the defendant’s abode. He did not visit the defendant’s reported address multiple times or check with another government agency, such as the postal service, to verify the defendant’s address. Cf. Hibner v. Bruening, supra, 78 Conn.App. 462. Instead, he only visited 1050 State Street once and could not verify whether the defendant resided there. Making another visit at a different time or day or checking other sources would have likely revealed to the marshal that the defendant no longer resided at 1050 State Street. This is especially true when he testified that he was not sure if he made proper service at that address and doubted that the defendant resided there. Thus, he had all the more reason to check with another government agency to verify the defendant’s address. In short, "some greater effort than was put forth in this case must be attempted by the marshal before in hand or abode service can be deemed ‘impossible’ and service upon the commissioner of motor vehicles allowed." Koutsopolos v. Schrader, supra, 52 Conn.L.Rptr. 146.
It is true that the defendant did not update his address pursuant to General Statutes § 14-45, but "an address on file with a government agency, in and of itself, [can] not establish a party’s usual place of abode" for purposes of effective abode service. Jiminez v. DeRosa, supra, 109 Conn.App. 339; Cabral v. Tremaine, Superior Court, judicial district of Hartford, Docket No. CV-17-6074850-S (November 14, 2017, Noble, J.) (65 Conn.L.Rptr. 491, 492), aff’d, 186 Conn.App. 904 (2018). Moreover, "the purpose of [§ 14-45] is not to provide an alternative method for service of process." (Internal quotation marks omitted.) Baxter v. Bernier, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-03-0286030-S (January 13, 2005, Tanzer, J.) (38 Conn.L.Rptr. 555, 556). The burden is on the plaintiff to show jurisdiction; see Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515-16; and the plaintiff failed to show that it was impossible for the marshal to make effective service on the defendant. Thus, the court lacks personal jurisdiction over the defendant.
General Statutes § 14-45(a) provides: "A person holding (1) a license for the operation of a motor vehicle, issued by the Commissioner of Motor Vehicles in accordance with section 14-36, or (2) an identity card, issued by said commissioner in accordance with section 1-1h, shall notify the commissioner within forty-eight hours of any change of such person’s address. The notification shall include such person’s old address and new address."
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is granted.