Opinion
MMXCV156013197S
01-12-2016
Summer Elbardissy v. Beta Theta Pi aka Beta Theta Pi Fraternity et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANT'S MOTION TO DISMISS (#126)
Elpedio N. Vitale, J.
Pursuant to Practice Book § 10-30, et seq., the Apportionment Defendant, Blair Corbin (" Corbin") moves to dismiss the Apportionment Plaintiffs', Beta Theta Pi a/k/a/ Beta Theta Pi Fraternity, Inc., Mu Epsilon Chapter of Beta Theta Pi Fraternity, and Raymond Duy Baird Memorial Association, Inc. (collectively the " Apportionment Plaintiffs"), complaint dated July 1, 2015 for insufficiency of service of process. Corbin contends that he was not properly served in accordance with Connecticut General Statutes § 52-59b(c) and, therefore, the Court lacks personal jurisdiction.
The Apportionment Plaintiffs (" plaintiffs") object and argue that reasonable efforts were undertaken to ascertain the last known address of the Apportionment Defendant Blair Corbin, and alternatively, that the motion to dismiss should be denied because the record demonstrates that Corbin had actual notice of a pending action against him.
The parties submitted briefs, including a reply brief submitted by Corbin.
The court heard oral argument on October 13, 2015.
In summary, the issues presented by the Motion for the court's determination are as follows:
(1) To satisfy the requirement of mailing notice to nonresident individuals pursuant to General Statutes § 52-59b(c), how diligent must the plaintiff be in determining the defendant's " last-known address" ? (2) In what circumstances, if any, will the defendant's actual notice of the plaintiff's action excuse the plaintiff's noncompliance with § 52-59b(c).
Nature of the Proceedings
The plaintiff in the underlying matter, Summer Elbardissy (" Elbardissy"), commenced an action against the Apportionment Plaintiffs and Wesleyan University. Elbardissy's complaint alleges that, on or about September 7, 2014, she attended a party, as a social invitee, organized and sponsored by the Fraternity and held at the Beta House. The Beta House was allegedly donated to the Beta Theta Pi Fraternity by Baird and is located adjacent to the Wesleyan University campus. Fraternity members allegedly used the roof over the front entrance of the Beta House as a second story deck by placing unsecured plywood across the tresses and placing lawn and other furniture onto the plywood surface. In order to gain access to the roof deck, residents and invitees allegedly had to climb through any number of unmarked windows of the Beta House.
After consuming alcohol allegedly provided by Fraternity members, Elbardissy allegedly attempted to gain access to a makeshift second story deck located over the front entrance of the Beta House by climbing through an unmarked window. During said attempt, Elbardissy allegedly fell and sustained injuries and damages.
Elbardissy's complaint sounds in eight counts of negligence, premises liability, public nuisance, aiding a tort and negligent service of alcohol to a minor against the Apportionment Plaintiffs and Wesleyan University. On or about July 1, 2015, the Apportionment Plaintiffs initiated the instant action, pursuant to Connecticut General Statutes § 52-572h, seeking an apportionment of liability as to Corbin for the percentage of his negligence attributed to allegedly hosting or assisting in hosting the subject party and procuring, supplying or distributing MDMA (" Molly") to Elbardissy during said party.
It is undisputed that the Apportionment plaintiffs hired a Connecticut State Marshal, Edward W. Jurgelas, to serve Corbin. The Marshal's return of service indicates that Jurgelas, after a diligent search, could not locate Corbin at Wesleyan University. On or about July 6, 2015, a true and attested copy of the original Writ, Summons, Apportionment Complaint and Exhibits was left with the Secretary of the State pursuant to Connecticut General Statutes § § 52-57 and 52-59b(c). In addition, two true and attested copies of the same were mailed to Wesleyan University, 45 Wyllys Avenue, Middletown, Connecticut 06459--one copy via first class mail and the other sent certified, return receipt requested. 45 Wyllys Avenue is, inter alia, the location of the Wesleyan University student mailroom. Students currently enrolled at the University are assigned a mailbox number at said address. The process sent by Marshal Jurgelas was neither addressed to a specific mailbox nor dormitory. Wesleyan University refused to accept service on Corbin's behalf and on or about July 25, 2015, the certified copy of the Writ, Summons, Apportionment Complaint and Exhibits was returned to Marshal Jurgelas.
Wesleyan University forwarded the additional copy of the notice, sent via first class mail, to a P.O. Box located at 977 Seminole Trail, Charlottesville, Virginia 22901. The P.O. Box was registered to J. Rowlands Ltd. LLC, a Virginia limited liability company. It is also undisputed that Corbin was not at any time a member of J. Rowlands Ltd. LLC and has never resided at 977 Seminole Trail, Charlottesville, Virginia.
DISCUSSION
I
General Standards
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " 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 motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a).
" [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 . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction . . . 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.) Id., 401.
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52. " [A]ffidavits are insufficient to determine the facts unless . . . they disclose that no genuine issue as to a material fact exists." (Internal quotation marks omitted.) Id., 651 n.14. " Finally, where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts . . . Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits . . . An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., 652-54.
" If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). As to the procedural requirements for obtaining personal jurisdiction over nonresidents, " [i]n many cases jurisdiction is manifest, as where the sheriff's return shows in-hand service in Connecticut." Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008). On the other hand, " [w]hen jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [sheriff's] 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 contest[s] 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., supra, 515-16.
General Statutes § 52-59b confers long arm jurisdiction on the courts over nonresident individuals, foreign partnerships, and foreign voluntary associations. The required procedure for serving process on such individuals and entities is laid out in subsection (c) of § 52-59b, which provides in relevant part: " Any nonresident individual . . . over whom a court may exercise personal jurisdiction, as provided in subsection (a) of [§ 52-59b], shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual . . . The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State."
II
Sending Notice to Defendant's " Last-Known Address"
The " last-known address" requirement contained in § 52-59b(c) was first discussed in the context of General Statutes (1930 Rev.) § 5473, the precursor to General Statutes § 52-62, which provides long arm jurisdiction over nonresident individuals alleged to have negligently operated their motor vehicles within the state. The issue before the court in Hartley v. Vitiello, 113 Conn. 74, 75, 154 A. 255 (1931), was whether service of process under § 5473 satisfied the requirements of due process. In the course of sustaining the statute's constitutionality, the court elucidated the statute's " last-known address" language: " The requirement that the copy be mailed to the defendant at his 'last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it. Unless the defendant has departed for parts unknown, it means his actual address; if he has disappeared, it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute . . . State ex rel, Cronkhite v. Belden, [193 Wis. 145, 158, 211 N.W. 916 (1927), overruled by Sorenson v. Stowers, 251 Wis. 398, 29 N.W.2d 512 (1947)] . . ." Hartley v. Vitiello, supra, 80-81.
General Statutes (1930 Rev.) § 5473 provides in pertinent part: " Any nonresident of this state who shall cause a motor vehicle to be operated upon any public highway of 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 such person on account of any claim for damages resulting from the alleged negligence of such nonresident . . . in the operation of any motor vehicle upon any public highway in this state may be served upon said commissioner and shall have the same validity as if served upon such nonresident personally. Such process shall be served by the officer to whom the same shall be directed upon the commissioner of motor vehicles by leaving with or at the office of said commissioner, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy with an indorsement thereon of the service upon said commissioner, addressed to such defendant at his last-known address."
Although the court in Hartley did not have occasion to apply this standard to the facts of that case, its explication of the " last-known address" requirement is seemingly clear: what constitutes a defendant's last-known address for purposes of receiving process depends on whether the defendant has " disappeared." If the defendant has not " departed for parts unknown, " the plaintiff is required to mail the defendant process at the defendant's actual address. If the defendant has disappeared, the plaintiff may satisfy the statute--even if process is in fact not sent to the defendant's actual address--as long as he has used reasonable efforts to determine the last address of the defendant as known by those who would usually be expected to know it. The apparent implication of these alternate definitions is that, if the plaintiff has not proven that the defendant has disappeared, and the parties do not dispute that process was not mailed to the defendant's actual address, then service is ineffective--regardless of the plaintiff's diligence in seeking out the defendant. Although our trial and appellate courts have not explicitly interpreted Hartley in this manner, the Wisconsin case relied upon in Hartley confirms that the Supreme Court intended to establish such a strict rule.
In State ex rel. Cronkhite, the Supreme Court of Wisconsin considered the constitutionality of Wis.Stat. § 85.15(3) (1925) --a long arm statute similar to General Statutes (1930 Rev.) § 5473. In considering whether the statute was likely to apprise a defendant of the pendency of an action so as to pass constitutional muster, the court stated:
Wis. Stat. § 85.15(3) (1925) provides in relevant part: " The use and operation by a nonresident of a motor vehicle over the highways of Wisconsin shall be deemed an appointment by such nonresident of the secretary of state to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him, growing out of such use or operation resulting in damage or loss to person or property . . . Service of such process shall be made by serving a copy upon the secretary of state or by filing such copy in his office . . . and such service shall be sufficient service upon the said nonresident; provided, that notice of such service and a copy of the process are within ten days thereafter sent by mail by the plaintiff to the defendant, at his last known address, and that the plaintiff's affidavit of compliance herewith is appended to the summons."
" We know of nothing more likely to apprise the defendant of the pendency of the action than the mailing of a copy of the summons and complaint to his last known address. This must mean not his last address known to the plaintiff, but plaintiff is required to ascertain at his peril the last known address of the defendant as a matter of fact, and his failure to do so will amount to a failure to comply with the statute and render the service invalid." (Emphasis added.) State ex rel Cronkhite v. Belden, supra, 193 Wis. 157-58. Stated differently, a plaintiff is " obliged at his peril to ascertain the absolute last or true address of the defendant." Skinner v. Mueller, 1 Wis.2d 328, 334-35, 84 N.W.2d 71(1957) (noting that this is no longer good law in Wisconsin because State ex rel. Cronkhite was overruled in Sorenson v. Stowers, supra, 251 Wis. 398).
In light of the Connecticut Supreme Court's adoption of this interpretation, it is apparent that Hartley is best read as requiring a plaintiff to mail notice to the defendant's actual address absent evidence that the defendant has disappeared. See also G. Gibbons, " A Survey of the Modern Nonresident Motorist Statutes, " 13 U. Fla. L. Rev. 257, 266-67 (1960) (citing cases, including Hartley and State ex rel. Cronkhite, and observing that " in the early cases decided under the [nonresident motorist] statutes containing the 'last known address' phraseology . . . some courts interpreted the term to mean virtually the defendant's actual address"). Although the modern trend may be moving away from such an extreme interpretation; see G. Gibbons, supra, 13 U. Fla. L. Rev. 267 (citing cases and noting that " [m]ore recent decisions . . . take a more moderate position and tend to uphold the sufficiency of the service"); our Supreme Court has neither expressly nor impliedly overruled Hartley, and the Appellate Court, in its only decision on the subject, appears to acknowledge the continued vitality of Hartley's strict stance. See Matthews v. SBA, Inc., 149 Conn.App. 513, 533, 89 A.3d 938 (" [a] plaintiff must use diligent and persistent efforts . . . to determine the actual address of the defendant and unless a defendant has departed for parts unknown, the plaintiff must learn the defendant's actual address at his peril" [citation omitted; internal quotation marks omitted]), cert. denied, 312 Conn. 917, 94 A.3d 642 (2014); id. (constructive service of process on defendant under § 52-59b[c] not effective where plaintiffs did not submit any evidence to indicate nature and extent of their efforts to locate defendant's actual address and there was no indication defendant had departed for parts unknown; " [i]t was at [their] peril . . . to determine [the defendant's] actual address, and they failed to do so" [citation omitted; internal quotation marks omitted]).
See, e.g., Carlson v. Bos, 740 P.2d 1269, 1277 (Utah 1987) (To satisfy the constructive service of process requirements of Utah's nonresident motorist statute, " plaintiff must establish that a diligent attempt has been made to obtain defendant's current address. If a current address is discovered, that address is the one to which the mailed notice should be sent . . . If, despite diligent effort, plaintiff is unable to determine defendant's current address, then due process will be satisfied if notice is mailed to an address that has been determined, after diligent efforts, to be defendant's last known address, even though it is clear that defendant does not presently reside at that address"); Diamond v. Richmond, 179 Wash.App. 1050 (2014) (" Due diligence is required prior to service under the nonresident motorist statute . . . We focus on what reasonable steps the plaintiff took in light of what he or she knew, not on what other steps were possible . . . Due diligence requires that the plaintiff make honest and reasonable efforts to locate the defendant, but it does not require the plaintiff to use all conceivable means to find him or her." [Citations omitted; internal quotation marks omitted.]); Dirks v. Jimenez, 2015 WY 36, 344 P.3d 262, 265 (Wyo. 2015) (" [W]e have required that a diligent effort be made to locate an absent defendant before means of substitute service become available . . . We described that due diligence standard as that which is reasonable under the circumstances and not all possible diligence which may be conceived . . . Due diligence must be tailored to fit the circumstances of each case. It is that diligence which is appropriate to accomplish the end sought and which is reasonably calculated to do so." [Citation omitted; internal quotation marks omitted.]).
The Supreme Court has mentioned the " last-known address" requirement only twice since deciding Hartley, and in both instances the court favorably quoted Hartley without any indication that it was altering its earlier conception of the phrase. See D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 171, 455 A.2d 833 (1983) (where defendant had disappeared as fugitive from justice, " [s]ending a copy by registered mail to [the defendant's] wife, under the circumstances of the case, would satisfy the 'last-known address' requirement [of § 52-59b(c)]"); Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 394, 949 A.2d 450 (2008) (defendant was amenable to service of process abroad under § 52-59b[c] where defendant's wife remained at former residence in Connecticut for some time before joining defendant and thereafter arranged to have defendant's mail forwarded to home of wife's uncle in Texas; " [b]ecause it would be reasonable to conclude that the defendant's wife and her uncle were persons who, under ordinary circumstances, would have been aware of the defendant's last known address, there was a reasonable probability that, if the plaintiff had sent notice to the [defendant's Connecticut] address, the defendant's wife or her uncle would have communicated the defendant's [foreign] address . . . to the plaintiff or informed the defendant that notice had been sent").
Whereas the appellate courts seem not to have deviated from the original meaning of Hartley, our trial courts usually construed the " last-known address" language in § § 52-59b(c) and 52-62 as merely requiring a plaintiff to prove that she made a reasonably diligent search for the defendant's address. Indeed, a few courts have stated so explicitly. See e.g., Ortega v. Sutch, Superior Court, judicial district of Middlesex, Docket No. CV-11-6004497-S, (October 12, 2011, Wiese, J.) (" the Superior Court has held that plaintiffs who do not send process to the defendant's actual address can satisfy the last known address requirement by providing evidence of their effort to locate the defendant"); Varrone v. Outman, Superior Court, judicial district of Waterbury, Docket No. CV-09-6001755-S, (March 12, 2010, Gallagher, J.) (" [e]vidence that the plaintiff conducted a formal search before sending service to the defendant's address is sufficient to show the plaintiff used a proper 'last-known address, ' as required by Hartley "). Most courts, however, simply apply such a rule without explicitly stating it.
For example, many courts have implicitly endorsed this interpretation by denying a motion to dismiss after concluding that the plaintiff undertook a diligent search for the defendant's address. See, e.g., Pender v. Rowe, Superior Court, judicial district of New Haven, Docket No. CV-12-6031679-S, (July 17, 2013, Nazzaro, J.) (service of process under § 52-59b[c] was effective where plaintiff sufficiently inquired as to defendant's last-known address by hiring a private investigator); Harris v. Wood, Superior Court, judicial district of Litchfield, Docket No. CV-10-6002010-S, (December 9, 2010, Danaher, J.) (plaintiff satisfied requirements of § 52-59b[c] by using reasonable efforts to obtain defendant's last-known address from defendant's most recent employer; " General Statutes § 52-59b[c] does not require a marshal to make extraordinary efforts, such as engaging in out-of-state travel, carrying out surveillance, or undertaking other, similar methods in order to locate an out of state individual who is to be served"); Updike, Kelly & Spellacy, P.C. v. Beckett, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-04-97890-S (March 6, 2002, Aurigemma, J.) (31 Conn.L.Rptr. 500, 504) (address provided by defendant-client on plaintiff-law firm's client questionnaire constituted defendant's last-known address for purposes of § 52-59b[c] where plaintiff had no reason to search elsewhere for defendant); Prudential Home Mortgage Co. v. Gajnos, Superior Court, judicial district of Litchfield, Docket No. CV-95-0060886-S, (November 17, 1995, Pickett, J.) (service of process effective under § 52-59b[c] where plaintiff sent notice to address determined by search firm to be defendant's last-known address).
Other courts have similarly implied the existence of such a rule by granting a motion to dismiss on the ground that the plaintiff was not sufficiently diligent, even though there was no evidence that the defendant had " departed for parts unknown." See, e.g., Iglesias v. Dolan, Superior Court, judicial district of Middlesex, Docket No. CV-12-6007796-S, (April 19, 2013, Morgan, J.) (plaintiff did not serve defendant at her last-known address for purposes of § 52-62 where plaintiff relied only on initial results of internet search report; reliance was unreasonable in light of alternate contact information contained in report, and plaintiff thus did not make reasonable efforts to obtain last-known address); Velazquez v. Eldredge, Superior Court, judicial district of Hartford, Docket No. CV-08-5024354-S (June 25, 2012, Woods, J.) (54 Conn.L.Rptr. 310, 314) (service of process not effective under § 52-62 where plaintiffs did not submit any evidence showing either that they conducted diligent search to verify defendants' actual address or that address used was only one publicly available to them); Ortega v. Sutch, supra, Superior Court, Docket No. CV-11-6004497-S (plaintiff failed to effect service of process in accordance with § 52-62 where plaintiff submitted no evidence that she made reasonable efforts to find defendants' last-known address beyond consulting police report that listed a Connecticut address but also indicated that defendants would soon be moving to Florida); Dime Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Complex Litigation Docket, Docket No. X05-CV09-4017091-S, (January 15, 2010, Blawie, J.) (service of process under § 52-59b[c] was ineffective where plaintiffs sent notice to defendants' employer after internet search disclosed this as defendants' last-known business address; because plaintiffs did not have ongoing relationship with defendants and were not aware that any mail sent to business address would be forwarded to defendants, more detailed search for defendants' home addresses was warranted); Glatzel v. Brittle, Superior Court, judicial district of Danbury, Docket No. CV-08-4008461-S, (July 1, 2008, Sheedy, J.) (plaintiffs failed to prove compliance with § 52-59b[c] where plaintiffs did not use reasonable efforts to learn defendants' last-known addresses; plaintiffs submitted no evidence of efforts made to discover defendants' addresses, such as examining postal or motor vehicle department records).
In contrast, only a few courts have suggested that a diligent search may not always be sufficient to satisfy the " last-known address" requirement. See, e.g., Andros v. Czerwinski, Superior Court, judicial district of New Britain, Docket No. CV-15-6028691-S, (August 10, 2015, Swienton, J.) (fact that service of process was returned to plaintiff marked " unable to forward" established that process was not sent to defendant's " last-known address" for purposes of § 52-62); Barker v. Rosati, Superior Court, judicial district of New London, Docket No. CV-08-5008708-S (February 20, 2009, Peck, J.) (47 Conn.L.Rptr. 285, 286) (" Because the defendant's current address at the time of service was readily ascertainable, the plaintiff, by mailing process to a long invalid address, put herself 'in peril' of failing to meet the notice requirements of § 52-62 and thereby depriving the court of jurisdiction over the defendant"); Coleman v. McCarthy, Superior Court, judicial district of New London, Docket No. CV-11-6007711-S, (July 13, 2011, Cosgrove, J.) (plaintiff failed to serve process in accordance with § 52-62 where there was conflicting information concerning defendant's last-known address and plaintiff had notice of this inconsistency but was not careful enough to serve defendant at his correct address); Murphy v. Safelite Fulfillment, Inc., Superior Court, judicial district of Hartford, Docket No. CV-09-5026299 (January 27, 2010, Peck, J.) (49 Conn.L.Rptr. 276, 278) (noting in dicta that service of process under § 52-59b[c] is ineffective where defendant is " not served at his last known address as a matter of fact " [emphasis added]).
What constitutes " diligent and persistent" efforts to locate the defendant's address thus appears to depend greatly on the particular circumstances of each case, with the touchstone of the inquiry being reasonableness. Hartley clearly requires a plaintiff to send notice to the defendant's actual address where the defendant has not " departed for parts unknown."
After a careful review of the record, and consideration of the foregoing case law, the court is not persuaded that the plaintiffs have sustained their burden of proving that they engaged in sufficiently " diligent and persistent" efforts to determine the actual address of Corbin. The Marshal's Return and Supplemental Return of Service reflects the plaintiffs' mailing of service of process to the student mailroom at Wesleyan University. It further appears undisputed, however, that plaintiffs were aware that Corbin graduated from Wesleyan University, and as a matriculating student, maintained a permanent address in Charlottesville, Virginia. Indeed, the affidavit of Kevin Coles, submitted by the defendants, indicates in Paragraph 7c that, with regard to Corbin, " a search of Wesleyan.edu indicated he was a squash player and his hometown was Charlotesville, Virginia and that he attended St. Anne's Belfield High School." The affidavit does not reflect what, if any efforts, were made to locate or serve Corbin at any address in Virginia, other than the use of " a search engine in advance.lexis.com entitled Comprehensive Person Report." The court views reliance on initial results of an internet search report to be unreasonable, in light of plaintiffs' knowledge of Corbin's graduation and hometown. There is nothing to suggest that plaintiffs were aware that Wesleyan would forward mail to Corbin. There is nothing to suggest postal or motor vehicle records were examined. A private investigator was not utilized. Interestingly, the affidavit does not, in Paragraph 9, reveal how the affiant " learned for the first time that Mr. Corbin moved to New York in June 2015" following the plaintiffs' receipt of the instant motion. A " Linkedin" profile attached to the defendant Corbin's Reply Brief reveals that on or about July 1, 2015, Corbin updated his profile with current employment information and revealed that he resided in the " Greater New York City" area.
Although the affidavit describes certain initial internet searches, other than indicating that " in late June of 2015, " no other specificity as to a date or dates of said searches is provided. The internet " inquiries" attached to the affidavit do not describe the dates of the searches, or for that matter, whether any follow-up of the initial internet searches was made. The affidavit itself also does not appear to describe any follow-up to the initial internet searches.
III
Actual Notice
As a general matter, a defendant's mere receipt of actual notice of an action is not sufficient to confer personal jurisdiction on the court. " [W]hen a particular method of serving process is set forth by statute, that method must be followed"; Matthews v. SBA, Inc., supra, 149 Conn.App. 530 (internal quotation marks omitted); because " [s]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court's exercise of [personal] jurisdiction over that party." (Internal quotation marks omitted.) Id. " Therefore, [p]roper service of process is not some mere technicality." (Internal quotation marks omitted.) Id. " 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 . . ." (Internal quotation marks omitted.) Trichilo v. Trichilo, 190 Conn. 774, 778, 462 A.2d 1048 (1983); see Tyler v. Barry, 18 Conn.Supp. 290, 292 (1953) (" A statute [authorizing constructive service of process] . . . being in derogation of common law, is to be strictly construed and must be strictly followed in order to secure the intended benefits"). Actual notice is thus no substitute for properly effected service of process: " [M]ere notice of an action is not sufficient to confer personal jurisdiction over a nonresident defendant . . . Such jurisdiction over a nonresident requires statutory authorization." (Citation omitted.) Goldstein v. Fischer, 200 Conn. 197, 201, 510 A.2d 184 (1986); see Alldred v. Alldred, 132 Conn.App. 430, 437, 31 A.3d 1185 (2011) (" mere knowledge of the proceedings is insufficient to confer personal jurisdiction over a party who has not been properly served"), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012). Nevertheless, a defendant's receipt of actual notice may, in certain circumstances, be considered by a court in construing the meaning of the relevant service of process statute.
In Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 855-56, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007), appeal withdrawn, the Appellate Court was tasked with construing the term " abode" as used in General Statutes § 52-57(a), which 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." In that case, the marshal was unable to serve the process at the defendant's house because it was contained within a gated property. Fine Homebuilders, Inc. v. Perrone, supra, 854. Instead, the marshal affixed the process to the front gate blocking the property's driveway, and the defendants received actual notice of the process two days later. Id. Nevertheless, the defendants moved to dismiss the action, and the trial court granted the motion. Id., 855. On appeal, the court framed the issue as one of statutory construction, namely, whether an " abode" should be narrowly defined as one's dwelling house or more broadly to include the entire associated property. Id., 856. Finding that the legislative history failed to shed any light on the meaning of the term " abode, " the court took note of the purpose of abode service, which, it determined, " is to afford a defendant actual notice of a pending action." Id., 857. Bearing in mind that " service must be effectuated in a way reasonably calculated to provide actual notice"; id.; the court then discussed how the term is used in two unrelated statutes. See id., 857-60. After reviewing these statutes and acknowledging that " Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court"; id., 860 (internal quotation marks omitted); the court decided that it " should . . . read a statute regarding jurisdiction broadly, consistent with [the court's] policy to assert jurisdiction when it is reasonable to do so." Id. The court also recognized that it would be " absurd" to construe the statute to require a marshal " to scale fences, traverse brush or otherwise potentially trespass on a defendant's property . . . to obtain access to a home in order to effectuate abode service." Id., 861. Finally, the court noted that " it is significant, though not conclusive, that the defendants actually did receive the process, thereby accomplishing the purpose of abode service. General Statutes § 52-57(a), authorizing abode service, should be construed liberally in cases in which the defendant received actual notice." Id., 861-62. In light of these several considerations, the court concluded " that the service of process effected by the marshal was reasonably likely to achieve personal service, " and, therefore, the trial court erred in dismissing the action for lack of personal jurisdiction. Id., 862.
For purposes of the present case, the court views Fine Homebuilders, Inc . as establishing an exception to a rule of statutory construction, not an exception to the statute itself. In Plonski v. Halloran, 36 Conn.Supp. 335, 337, 420 A.2d 117 (1980), the Superior Court observed that, " [a]s an exception to the general rule requiring strict construction of statutes in derogation of the common law, it has been held that provisions for substituted service should be liberally construed in those cases in which the defendant received actual notice." Accord Gondek v. Haugwitz-Reventlow, Superior Court, judicial district of Hartford, Docket Nos. 38 78 70 and 38 78 52 (June 18, 1991, Wagner, J.) (4 Conn.L.Rptr. 193). The corollary of this proposition, however, is that, where a statute governing service of process is unambiguous or an appellate court has already construed the meaning of that statute, a trial court is not at liberty to consider the defendant's receipt of actual notice in deciding whether the service complied with statutory requirements. Nevertheless, the apportionment plaintiffs in the present case appear to argue that the court should construe § 52-59b(c) liberally in view of Corbin's receipt of actual notice. Alternatively, the apportionment plaintiffs assert that, even if they did not effect service of process in strict compliance with § 52-59b(c), the court may exercise jurisdiction over the apportionment defendant Corbin because the chief purpose of the statute was satisfied by his receipt of actual notice of the pendency of the action.
In support of this proposition, the apportionment plaintiffs cite Oaks Condominium v. Smalls, Superior Court, judicial district of New Haven, Docket No. CV-06-5001377-S, (March 19, 2008, Holden, J.), for the proposition that " [c]ircumstantial defects and errors in service are not fatal when the defendant receives actual notice." Other trial courts decisions have similarly suggested that a defendant's receipt of actual notice may cure circumstantial defects in the service of process. See e.g., Andrews v. Leddy, Superior Court, judicial district of New Britain, Docket No. CV-08-6001440-S (March 3, 2010, Swienton, J.) (49 Conn.L.Rptr. 427, 429) (service of process under § 52-62 effective even though notice mailed to wrong unit of apartment building; such circumstantial defect negated by fact that defendant actually received this notice, and, therefore, plaintiff substantially complied with statute); Medeiros v. Kaye, 31 Conn.Supp. 370, 372, 331 A.2d 351 (1974) (service of process effective under § 52-62 where notice sent to defendant's former address, but defendant's father received and signed for process and forwarded it to defendant's insurer, court held that " the purpose of the statute was fulfilled" because defendant received actual notice through his father and there was no prejudice to defendant or his insurance carrier). For this proposition, these courts appear to implicitly rely on General Statutes § 52-123, which provides that no proceeding " shall be abated . . . for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court." See Oaks Condominium v. Smalls, supra, , citing Bonito v. Bernardo, Superior Court, judicial district of New Haven, Housing Session, Docket No. NH-8810-20076, (December 1, 1988, DeMayo, J.) (citing § 52-123 and denying motion to dismiss for insufficiency of process where defendant received actual notice).
It is certainly true that, " [i]n determining whether a defect is merely circumstantial and not substantive [for purposes of § 52-123], courts have considered, inter alia, whether the defendant had actual notice of the institution of an action and whether the defendant was in any way misled to its prejudice." Bayer v. Showmotion, Inc., 292 Conn. 381, 391, 973 A.2d 1229 (2009). Nevertheless, it is also well established that " [§ 52-123] is used to provide relief from defects in the text of the writ itself but is not available to cure irregularities in the service or return of process." Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434, 559 A.2d 1110 (1989). " [D]efects in the process are voidable and therefore subject to abatement." Id., 435. As a result, this court does not view § 52-123 necessarily as a mechanism to excuse defects in the service of process.
Finally, because the apportionment plaintiffs offer the apportionment defendant's appearance as evidence of his actual knowledge of the action, the court observes that other trial courts have routinely rejected the argument that a defendant's appearance cures any defects in the service of process or constitutes a waiver of the defendant's right to contest the court's exercise of jurisdiction over him. In Barker v. Rosati, supra, 47 Conn.L.Rptr. 286, the court rejected the plaintiff's assertion that the defendant's appearance in the case demonstrated that the defendant had actual notice of the action and therefore cured any defects in the service of process: " As the Appellate Court has noted, 'prior to 1978, a defendant wishing to contest the presence of personal jurisdiction was required to file a " limited" or " special" appearance, as filing a general appearance was a submission to the general jurisdiction of the court . . . This type of appearance is no longer recognized or required . . . Practice Book § 10-30 currently provides that any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, so long as the defendant files a motion to dismiss within thirty days of the filing of an appearance.' (Citation[s] omitted). Green v. Simmons, 100 Conn.App. 600, 603 n.6, 919 A.2d 482 (2007)." " Thus, the fact that an appearance of counsel for the [defendant] and a motion to dismiss were timely filed [does] not cure [defects in the service of process] as the Practice Book contemplates the validity of such motions under these circumstances." (Internal quotation marks omitted.) Barker v. Rosati, supra, 286; accord Andros v. Czerwinski, supra, Superior Court, Docket No. CV-15-6028691-S; Megos v. Ranta, Superior Court, judicial district of New Britain, Docket No. CV-14-6027362-S, (June 23, 2015, Swienton, J.); Singuren v. Walgreens, Superior Court, judicial district of New Haven, Docket No. CV-14-6046460-S, (June 16, 2015, Wilson, J.); Finucane v. Cruz, Superior Court, judicial district of New Haven, Docket No. CV-13-6038063-S, (September 5, 2013, Wilson, J.); Minkowski v. Mirsky, Superior Court, judicial district of Fairfield, Docket No. CV-01-0381557-S, (November 19, 2001, Skolnick, J.). But see Trinidad v. Munez, Superior Court, judicial district of New Haven, Docket No. CV-06-5001231-S (March 13, 2007, Rubinow, J.) (43 Conn.L.Rptr. 54, ) (denying motion to dismiss for insufficiency of process under § 52-62 even though plaintiff had not served Commissioner of Motor Vehicles; defendant had actual notice of pending action, as indicated through his appearance, and therefore purpose of statute was fulfilled).
The result in Trinidad v. Munez, supra, 43 Conn.L.Rptr. 54,, has been rejected in subsequent trial court decisions. For example, in Barker v. Rosati, supra, 47 Conn.L.Rptr. 286 n.2, the court stated: " This court respectfully declines to follow the reasoning used in [Trinidad] because that holding, if extended, would render nearly all objections to jurisdiction based on insufficient service of process moot as the only way to contest jurisdiction is to file an appearance followed by a timely motion to dismiss as prescribed in Practice Book § 10-30. Further, that decision's interpretation of Fine Homebuilders, Inc. v. Perrone, [ supra, 98 Conn.App. 852], is over broad. The decision in Fine Homebuilders related to a very narrow factual circumstance that does not apply in the present case. In that case, the Appellate Court held that where a security gate prevented abode service, by sliding process under the front door of the defendant's dwelling, the purpose of abode service, the reasonable likelihood that the defendant would receive actual notice, could be met by leaving process in the bars of the main gate. Id., 861-62. This narrow situation is a far cry from the plaintiff in a nonresident motorist case mailing process to an address that had been invalid for almost two years. Mailing process to an invalid address does nothing to ensure that the defendant receives actual notice of the pending litigation and does not further the purpose of § 52-62." Accord Andros v. Czerwinski, supra, Superior Court, Docket No. CV-15-6028691-S; Megos v. Ranta, supra, Superior Court, Docket No. CV-14-6027362-S; Finucane v. Cruz, supra, Superior Court, Docket No. CV-13-6038063-S.
Therefore, the court concludes that the weight of authority compels the rejection of an argument that actual notice can cure " circumstantial defects" in the service of process, or that a defendant's filing of an appearance can function to waive such defects.
For the forgoing reasons, the court concludes that service of process was not effected in compliance with § 52-59b(c) on apportionment defendant Corbin, and consequently, this court lacks jurisdiction over him. Therefore, the Motion to Dismiss is granted.