Summary
noting that Connecticut courts are "reluctant to recognize abode service where process is not left for the defendant at the place he is living at the time service is made, even in cases where the defendant receives actual notice of the action."
Summary of this case from Sentementes v. Gen. Elec. Co.Opinion
No. CV07-4027643S
March 26, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#109)
This case addresses the issue of service of process pursuant to General Statutes 52-57(a) as raised in a motion to dismiss filed by defendant, Liam Reilly.
The relevant facts gleaned from review of the pleadings are as follows:
The plaintiff alleges that during her employment with the East Haven Board of Education, she was sexually harassed and assaulted by the defendant, Fred Balsamo. In addition to Balsamo, the plaintiff has sued the Town of East Haven, East Haven Board of Education, John Finkle, John Smith, Elizabeth Mazzu and Liam Reilly. Service by the marshal was attempted on Mr. Reilly on August 29, 2007. The claim is that the marshal left a copy of the writ, summons and complaint in this matter at "the usual place of abode" for defendant Reilly in August. The place of abode pursuant to the return of the marshal is 35 Chestnut Avenue, Torrington, CT 06790 (defendant's exhibit A.) The defendant Reilly avers by way of affidavit that he resides and has resided at 26 Volpe Court, New Britain, CT, at least three years prior to the service of process on August 29, 2007.
The defendant moves to dismiss the action against him on the ground of insufficiency of service of process. He maintains that the abode service was improper because copies of the process had been left for the defendant at a place not his abode. The plaintiff has filed nothing in response to the defendant's claim.
DISCUSSION
Determination of whether a complaint survives a motion to dismiss is premised upon a review of the facts alleged in the complaint, including those facts necessarily implied from the allegations, with consideration of those facts favoring the pleader. Weithing v. Dodsworth, CT Page 4981 100 Conn.App. 29, 32 (2007). A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. South Sea Co. v. Global Turbine Component Technologies, LLC, 95 Conn.App. 742, 744, 899 A.2d 642 (2006).
"Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction b a motion to dismiss. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983). If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction. Id. 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 non resident 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. [1 E. Stephenson, Connecticut Civil Procedure (2d.Ed. 1970)] § 96, p. 390." (Internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26, 917 A.2d 959 (2007). "Finally, a motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." Id., 826.
"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.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
General Statutes § 52-57(a) 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."
"`Abode' for purposes of General Statutes § 52-57(a) is the place where the defendant would most likely have knowledge of service of process and is generally recognized as the place where he is living at the time of service." Grayson v. Wofsey, Rosen, Kweskin Kuriansky, 40 Conn.Sup. 1, 3, 478 A.2d 629 (1984). Accordingly, our courts are reluctant to recognize abode service where process is not left for the defendant at the place he is living at the time service is made, even in cases where the defendant receives actual notice of the action. See East Lyme v. Huntington, 22 Conn.Sup. 288, 169 A.2d 752 (1961) (determining dwelling where defendant maintained an office is not equivalent of defendant's usual place of abode); see also Grayson v. Wofsey, Rosen, Kweskin Kuriansky, supra; Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35 cert. denied, 254 Conn. 939 (2000).
The manner in which service may be effected is determined by statute and by appellate decisional law.
Some guidance is provided by a review of the appellate decisonal law regarding the purpose of § 52-57(a). [Our 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." (Citation omitted.) Smith v. Smith, 150 Conn. 15, 20, 183 A.2d 848 (1962). Accordingly, in order to effectuate abode service, "[t]he process must be left at the usual place of abode of the defendant in such a place and in such a manner that is reasonably probable the defendant will receive the notice of the action against him." Pozzi v. Harney, 24 Conn.Sup. 488, 491, 194 A.2d 714 (1963). Fine Home Builders v. Deane Perrone, 98 Conn.App. 852, 856, (2006).
Abode service is not effective if it is left an address that is not the usual address of the party served, and an action commenced by such improper service must be dismissed. Hibner v. Bruening, 78 Conn.App. 456, 463 (2003).
CONCLUSION
The plaintiff's failure to leave copies of the process at the abode of the defendant Reilly, renders ineffective and insufficient any attempted abode service on the defendant and accordingly, the defendant's motion to dismiss is granted.