Opinion
No. HHD CV 10-6010824-S
June 23, 2011
MEMORANDUM OF DECISION
In a one-count complaint, the plaintiff, Robin Koutsopolos, alleges that she suffered injuries in a motor vehicle collision on April 4, 2008, due to the negligence of the defendant, Peter J. Schrader. Before the court is a motion to dismiss claiming defective service of process.
The record reflects that on May 12, 2010, the plaintiff filed with the court the summons, complaint and return of service. The return of service is accompanied by an attestation of State Marshal Jerome L. Martin stating that, on March 31, 2010, he made diligent search to locate the defendant whose last known residence was 60 Bay Avenue, New Britain but was unsuccessful in do so. In addition, at a hearing held on February 28, 2011, Martin testified that despite his efforts he was unable to confirm that the foregoing residence was that of the defendant, and thus did not effectuate in hand or abode service. Thereafter, on April 1, 2010, Martin left a verified true and attested copy of the summons and complaint at the office of the commissioner of motor vehicles in Wethersfield and sent a copy of the same by certified mail, return receipt requested, addressed to the defendant at 60 Bay Avenue, New Britain. On December 10, 2010, Martin filed a supplemental return of service stating that, on June 4, 2010, he received the certified letter marked unclaimed.
On October 19, 2010, the defendant's counsel filed an appearance with this court accompanied by a motion to dismiss the complaint on the ground that the court does not have jurisdiction over the defendant because he was not properly served with process. The motion was accompanied by a memorandum of law, attached to which, as exhibits, are a copy of the return of service and the affidavit of the defendant.
At the hearing, in addition to the testimony of Martin, the following items were entered as exhibits: the affidavit of Jerome L. Martin, four photographs of the defendant's home and the defendant's reply to the opposition to the motion to dismiss along with the accompanying photographs previously attached to that submission. After hearing testimony and argument, this court afforded the parties an opportunity to filing supplemental memoranda no later than March 28, 2011, but neither party opted to do so.
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). "Practice Book § 10-30 provides in relevant part that `[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.' Practice Book § 10-31(a) provides further that `[t]he motion to dismiss shall be used to assert . . . (2) lack of jurisdiction over the person . . .'" Maltas v. Maltas, 298 Conn. 354, 360, 2 A.3d 902 (2010).
"[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction . . . [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 . . . A proper officer serving process must comply with the provisions of [General Statutes] § 52-57(a), which require that process be served by leaving it with the defendant, or at his usual place of abode . . ." (Citation omitted; internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). Alternatively, General Statutes § 52-63(b), provides that, "[s]ervice 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." "All process must be served at least twelve days before the return date, including the day of service and excluding the return day. General Statutes § 52-46. Marshals and constables are directed to make a return in writing on the process they serve. The return includes a short account in writing, of the manner in which [the marshal] executed it." (Citation omitted, internal quotation marks omitted.) Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003). Service via the commissioner of motor vehicles is a form of constructive service and, "[w]hile the general rule is that the defendant has the burden of proving lack of personal jurisdiction in cases involving personal or abode service, when jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer's] return. Consequently, the burden is on the plaintiff to show constructive service." (Citations omitted; internal quotation marks omitted). Mansolf v. Louriero Engineering Association, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 08 5003572 (October 23, 2008, Fischer, J.), citing, Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n. 9, 674 A.2d 426 (1996).
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . When . . . a motion to dismiss is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Wilcox v. Webster Insurance, Inc., 294 Conn. 206, 209, 982 A.2d 1053 (2009). "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." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
In the present case, the plaintiff concedes that she did not effectuate in hand or abode service, pursuant General Statutes § 52-57(a). Rather, she attempted substituted service via the commissioner of motor vehicles, pursuant to § 52-63(b), by leaving a verified true and attested copy of the diligent search affidavit, Connecticut Uniform Police Accident Report, writ of summons, complaint, claim for relief and statement of amount for demand at the office of the commissioner of motor vehicles and sent the same to the defendant by certified mail, return receipt requested pursuant to General Statutes § 52-63(b).
In support of his motion to dismiss, the defendant argues that the plaintiff was not permitted to employ constructive service pursuant to § 52-63(b) because she cannot demonstrate that actual service was impossible. The defendant contends that the marshal did not make a diligent effort to effectuate in hand or abode service and thus the option to leave a copy of the documents with the commissioner of motor vehicles and mail a copy by certified mail was not available to the plaintiff. In an affidavit, the defendant states that he has lived at 60 Bay Avenue, New Britain, for over fifteen years and has a good relationship with his neighbors who could have confirmed his residence. The plaintiff did not contest the facts underlying the defendant's affidavit. The defendant relies on this evidence to demonstrate that it was not impossible for the marshal to confirm his residence. For this reason, the defendant asserts that service via the commissioner of motor vehicle was impermissible and thus this court does not have jurisdiction over him.
In the officer's return to the court, Martin stated that he "made diligent search throughout my precincts to locate the within named defendant, PETER J. SCHRADER, but was unable to locate the defendant at the address listed on the C.U.P.A.R, of 60 BAY AVENUE, NEW BRITAIN, CT, which is the last known address on file at the office of the Commission of Motor Vehicles of the State of Connecticut." In addition to his original return of service filed with the court, the plaintiff submitted the affidavit of Martin. In that affidavit, Martin states that he knocked on the front door of the home at 60 Bay Avenue, New Britain, but received no response, nor did he see any indication in the form of a sign or name on the mailbox that would indicate that the defendant resided in the home. The marshal then knocked on the door of a neighbor and received no response. Unable to confirm that the defendant lived at that address, he made service on the commissioner of motor vehicles.
In a reply memorandum, the defendant refutes Martin's statement that there was no sign or other indication that the defendant lived at the address. The defendant attached photographs that depict a plaque that contains his name and the names of his family members. In an affidavit, the defendant states that the plaque has hung over his front door for many years.
In his testimony before the court, Martin stated that he attempted to confirm the defendant's address via the internet, but could not do so. He stated that he made one attempt to serve the defendant at 60 Bay Avenue, New Britain at approximately 11:00 a.m. on March 31, 2010. At that time he knocked on the door at the side of the driveway, which he considered the main door of the house, and received no response. Martin reiterated his statement m his affidavit that he did not see any sign or other indication that the defendant resided at that address. He also testified that he received no answer when attempting to contact a neighbor. Martin further stated that he did not return to the address because his schedule would not permit it. He also testified that, thereafter, he confirmed that 60 Bay Avenue, New Britain was the defendant's last address on file with the department of motor vehicles and served process via the commissioner of motor vehicles.
In determining whether service via the commissioner of motor vehicles was appropriate in this case, the court must assess whether it was impossible, for the purposes of § 52-63(b), for the plaintiff to make either in hand or abode service upon the defendant pursuant to § 52-57(a). "[Section] 52-63(b) does not require that absolute physical impossibility exists but includes factual situations akin to the one presented by the present case where several unsuccessful attempts to serve or to verify the defendants' usual abode revealed that there was little likelihood of successful in hand or abode service." Hibner v. Bruening, supra, 78 Conn.App. 465. In Hibner v. Bruening, the court found that abode or in hand service upon the defendant was impossible, thus allowing the defendant to be served via the commissioner of motor vehicles. Hibner v. Bruening, supra, 78 Conn.App. 465. In that case, the marshal stated in his affidavit that "he attempted on several occasions to serve the defendants personally at the . . . address, but no one answered the door or was present to accept service. [The marshal] also averred that he unsuccessfully attempted to learn through the United States Post Office whether the defendants still lived at the . . . address. Finally . . . two days before the statute of limitations would have expired, [the marshal] served the papers on the commissioner of motor vehicles and mailed a certified copy of the writ, summons and complaint to the defendants' last known address as provided in § 52-63(b)." Id., 462.
The present case is not analogous. Here, Martin made one attempt to verify the address, during business hours. At that time, he knocked on only one door and attempted to speak with only one neighbor. He made no subsequent attempt to verify the residence. It is true that "[w]hen effecting abode service, a marshal or constable cannot guess that a particular dwelling is a defendant's usual place of abode because there must be an attestation of that fact in his return"; Hibner v. Bruening, supra, 78 Conn.App. 465; and, as the plaintiff argues, the process server need not make repeated attempts to serve. Id. However, 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. As previously noted, the defendant has stated in an affidavit that he has lived at 60 Bay Avenue, New Britain, for over fifteen years. Any reasonably diligent effort would have confirmed this fact. It is likely that a more thorough attempt or even a single attempt after business hours to locate the defendant or speak with a neighbor would have revealed that the defendant resided at that address. For this reason, the court concludes that the marshal did not make a sufficiently diligent effort to serve the defendant, such as to find that "there was little likelihood of successful in hand or abode service" and service upon the commissioner of motor vehicles pursuant to General Statutes § 52-63 was impermissible.
CONCLUSION
Accordingly, for all the foregoing reasons, the motion to dismiss is hereby granted.