Opinion
HHDCV166072375
05-23-2017
Richard Jensen et al. v. David Stubbs
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion to dismiss filed by the defendant, David Stubbs, asserting that this court lacks subject matter jurisdiction and personal jurisdiction. Specifically, the defendant moves to dismiss the plaintiff's complaint on the grounds of insufficient process and insufficient service of process.
FACTS
The plaintiffs, Richard Jensen and Ann Marie Kimmett, filed a six-count complaint alleging negligence and recklessness in the operation of a motor vehicle, against the defendant, Stubbs, from a motor vehicle accident that occurred on August 3, 2014, on I-84 in Tolland, Connecticut. The plaintiffs signed the summons and complaint on July 14, 2016. The summons bears a return date of August 2, 2016. The summons and complaint were filed with the court on October 26, 2016. No marshal's return was ever filed.
Attached to his objection to the motion to dismiss, the plaintiff included an affidavit from Donna Butler, the plaintiffs' attorney, and a certified copy of the summons and complaint that was filed with the Department of Motor Vehicles. Both parties filed subsequent reply memoranda.
DISCUSSION
" [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). Specifically, pursuant to Practice Book § 10-30(a), " [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." (Internal quotation marks omitted.) " [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." May v. Coffey, 291 Conn. 106, 108, 967 A.2d 495 (2009). " [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).
The defendant argues that the action should be dismissed on several grounds. First, the defendant argues that, pursuant to General Statutes § 52-46, the plaintiffs failed to serve process on the defendant twelve days before the return date, and have failed to prove that process was otherwise properly served via General Statutes § 52-62, as a true and attested copy of the process was never sent to the defendant's last known address as required. Second, the defendant argues that, pursuant to General Statutes § 52-46a, the plaintiffs failed to return the process to court six days before the return date, and that, although amendment of the return date is possible, amended process must actually be served. In response, the plaintiffs argue that service was effectuated properly pursuant to § 52-62; after several failed attempts to find the defendant, the marshal left a copy of the process with the Commissioner of Motor Vehicles, and although a copy may never have been sent to the petitioner, a courtesy copy was sent to his insurance company, who thereafter gave him actual notice of the suit. The plaintiffs also claim that they complied with § 52-46a, as General Statutes § 52-72 allows amendment of defective process.
The defendant also claims that this action is time-barred because it was not commenced by August 3, 2016, pursuant to General Statutes § 52-584. A statute of limitations argument, however, is generally pleaded as a special defense, and usually cannot be raised by a motion to dismiss. Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. Moreover, this action does not fall under any of the generally recognized exceptions to this rule. See State v. Lombardo Bros. Mason Contractors, Inc., 307 Conn. 412, 444, 54 A.3d 1005 (2012). Therefore a motion to dismiss is an inappropriate vehicle to decide this issue, and the court denies the motion on that ground.
With respect to the defendant's claim that process was not properly served at least twelve days before the return date, the standard regarding the sufficiency of service of process is well established in Connecticut. " [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.
" [I]n many cases jurisdiction is manifest, as where the [marshal'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 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., 282 Conn. 505, 515-16, 923 A.2d 638 (2007).
If there is non-compliance with the terms of the statute enabling constructive service, service is improper. " 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 and the facts showing compliance with it must appear of record." (Internal quotation marks omitted.) Trichilo v. Trichilo, 190 Conn. 774, 778, 462 A.2d 1048 (1983). See also 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"); Seifert v. April, 2 Conn.Supp. 134, 137-38 (1935) (" If [the plaintiff] does not comply strictly with the requirements of the statutes the service is insufficient . . . The statute having prescribed what is necessary to constitute good substituted service, the court cannot dispense with any of its requirements and substitute something else in place of it" [internal quotation marks omitted]).
The plaintiffs rely upon one such constructive service statute, General Statutes § 52-62, which is entitled " Service upon nonresident in action for negligent operation of motor vehicle." It provides in relevant part: " (a) Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in 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 him on account of any claim for damages resulting from the alleged negligence of the nonresident . . . in the use or operation of a motor vehicle . . . may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally . . .
" (c) Process in such a civil action . . . shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant or his administrator, executor or legal representative, by registered or certified mail postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant . . . at his last known address . . .
" (d) For the purposes of this section, the term 'nonresident' includes a person who is a resident of this state at the time a cause of action arises and who subsequently moves to another jurisdiction." General Statutes § 52-62.
Section 52-62 requires both that a copy of the process be left with the Commissioner of Motor Vehicles and that a copy be sent to the defendant's last known address. The Supreme Court has noted that these requirements constitute a single act; Hartley v. Vitiello, 113 Conn. 74, 79, 154 A. 255 (1931); and elaborated as follows: " 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 . . . 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 ." (Emphasis added.) Id., 80. See Kim v. Wu, Superior Court, judicial district of New Haven, Docket No. CV-11-60119943-S (November 8, 2011, Silbert, J.) (52. Conn.L.Rptr. 788, ) (motion to dismiss granted where notice was not sent to last known address of defendant prior to leaving a copy of process with Department of Motor Vehicles). See also 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, ] (forwarding copy of process to insurer of defendant is not sufficient notice as insurer is not agent for service under § 52-62).
At oral argument, the plaintiffs argued alternatively that service was proper under General Statutes § 52-63, noting correctly that the statute is used to serve defendants who own or operate a motor vehicle in the state where service is otherwise impossible. By its own terms however, § 52-63 applies to those licensed in the state or who operate a motor vehicle registered in the state. See Lerch v. Belau, 29 Conn.Supp. 225, 280 A.2d 813 (1971). There is no evidence proffered showing the car at issue was registered in Connecticut. The defendant's uncontested affidavit states that he has a New York driver's license, although he lived on State Street in New Haven at the time of the accident. Furthermore, § 52-63 has a similar requirement to § 52-62, in that it requires a true and attested copy be sent to the defendant's last address on file with the Department of Motor Vehicles. As there is no evidence of such a copy being mailed, the same issue of whether service was complied with arises as under § 52-62.
The Appellate Court has addressed the importance of following the method of service set out by statute, as well as the effect of actual notice on statutory compliance as follows: " [P]roper service of process is not some mere technicality . . . Although the defendants received notice of the suit against them, [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." (Citations omitted; emphasis added; internal quotation marks omitted.) Matthews v. SBA, Inc., supra, 149 Conn.App. 539. See Elbardissy v. Beta Theta Pi, Superior Court, judicial district of Middlesex, CV-15-6013197-S (January 12, 2016, Vitale, J.) (61 Conn.L.Rptr. 667, ) (rejecting argument that actual notice can cure circumstantial defects in constructive service of process).
As there was no marshal's return filed in this matter, the documents and affidavits submitted by both parties reveal some of what transpired in the attempt to effect service of process. The uncontested affidavit of the plaintiffs' attorney attests to conversations she had with the marshal as to the service of process. Process was delivered to the marshal on July 15, 2016. By July 20, 2016, the marshal had attempted service several times at the defendant's office, but was unsuccessful in doing so. Due to the delay, the marshal changed the return date, but did not tell counsel the new date. On August 4, 2016, the marshal indicated that the defendant's office was now vacant, the address of the defendant in the police report was found to be vacant, and a residence the marshal found through an internet search was also found to be vacant. Thereafter, the plaintiffs' attorney lost contact with the marshal. The plaintiffs have also submitted a certified copy of a summons and complaint that was left with the Commissioner of Motor Vehicles by the marshal on August 8, 2016, which bears an amended return date of August 23, 2016. The plaintiffs' objection to the motion to dismiss states that notice of the suit was sent to the defendant's insurer on July 13, 2016, and thereafter a courtesy copy of the original process bearing a return date of August 2, 2016, was sent to the insurer on July 21, 2016. This statement was uncontested and was undisputed by both parties at short calendar. The defendant's uncontested affidavit attests that he had moved to California in April of 2015, and only received notice of the lawsuit through his insurer sometime in August of 2016. The defendant further avers in the affidavit that he lived in New Haven at the time of the accident, but had a New York driver's license.
Representations of counsel in their memoranda of law and at oral argument suggest that the marshal became gravely ill and died shortly thereafter.
In the present case, although the marshal left a copy of the process with the Commissioner of Motor Vehicles, there has been no evidence produced that a true and attested copy was ever sent to the defendant's last known address. Although a copy was sent to the defendant's insurance company, which later sent it to the defendant, this is hardly the " true and attested copy" required by § 52-62(c). Indeed, the copy sent by the insurer bears a different return date than the one on file with the Department of Motor Vehicles. The plaintiffs nevertheless argue, citing Hibner v. Bruening, 78 Conn.App. 456, 828 A.2d 150 (2003), that substantial compliance with the service statutes has been achieved here, as notice of the suit was given through the defendant's insurance company, and therefore, service was proper.
The plaintiff's reliance on Hibner is misplaced. The Appellate Court in Hibner held that substantial compliance with the constructive service statute at issue occurred. However, in that case, the plaintiff had sent a true and attested copy of the process to the defendant's last known address as required by the statute, in addition to filing it with the Commissioner of Motor Vehicles. This is not the case here as plaintiffs have not sent such a true and attested copy to the defendant's last known address. The sending of a true and attested copy of the process to the defendant's last known address is a clear and distinct step necessary for service under § 52-62. The plaintiffs' claim that service to the last known address of the defendant would have been ineffective, but the plaintiffs have not made clear what efforts they made to determine the defendant's last known address. See Hartley v. Vitiello, supra, 113 Conn. 81. Consequently, this court cannot find compliance with § 52-62.
The plaintiffs argue that actual notice should ameliorate these procedural deficiencies. The plaintiffs cite Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 953 A.2d 868 (2008), arguing that actual notice should function to furnish jurisdiction, as that ultimately is the purpose of the service statutes. The defendant in reply has argued that no actual notice was given, as the action was not pending; if the case was searched on the judicial website, nothing would be shown. Here, however, both arguments are irrelevant. Argent deals with abode service under General Statutes § 52-57(a). The Appellate Court in Argent held that § 52-57(a) was complied with, as service was made at the defendant's abode. Because Argent deals with abode service, it has no direct bearing on the present matter, which is a constructive service case.
Constructive service statutes must be strictly observed. Trichilo v. Trichilo, supra, 190 Conn. 778. Mere notice of a suit to a nonresident defendant is not sufficient to confer personal jurisdiction. Matthews v. SBA, supra, 149 Conn.App. 539. Although actual notice may be used to help remedy errors in the process itself or to provide jurisdiction if the service statute itself was substantially complied with, neither is the case here. See Elbardissy v. Betha Theta Pi, supra, Docket No. CV-15-6013197-S, . Therefore, as the plaintiffs have failed to sufficiently serve process on the defendant, the court grants the motion to dismiss on this basis.
The defendant also moves to dismiss the plaintiffs' complaint on the ground that even if service was proper, this action was returned to court in violation of General Statutes 52-46a. Section § 52-46a requires that process be returned to court at least six days before the return date. Nonetheless, General Statutes § 52-72 allows amendment of civil process which is for any reason defective, provided such process is served in the same manner as other civil process. This right however, is limited by General Statutes § 52-48(b) which requires that process shall be made returnable no later than two months after the date of the process. See Coppola v. Coppola, 243 Conn. 657, 666-67, 707 A.2d 281 (1998). See also Ribeiro v. Fasano, Ippolito & Lee, P.C., 157 Conn.App. 617, 117 A.3d 965 (2015) (more than two months had elapsed since writ was signed, thus, compliance with § 52-48 was impossible); Connelly v. Wendover Financial Services Corp., Superior Court, judicial district of Waterbury, CV-02-168999-S (March 13, 2002, West, J.) (31 Conn.L.Rptr. 523) (plaintiff could not amend return date more than three months after date of process). Process was returned to court in this matter on October 26, 2016, 102 days after being signed on July 14, 2016. If amendment were allowed in this instance, it would be in clear violation of § 52-48(b), and beyond the two-month period in which § 52-72 allows amendment. See Coppola v. Coppola, supra, 243 Conn. 666-67. As such, the court finds that it has no jurisdiction based on this ground as well. The motion to dismiss is granted.