Opinion
FBTCV166055687S
04-07-2017
The Lawyers Group Advertising, Inc. v. Law Offices of Craig A. Altman, P.C. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
The corporate defendant, Law Offices of Craig A. Altman, P.C., has moved to dismiss this case for failure to serve process in accordance with C.G.S. § 52-57(c). After hearing, defendant's motion to dismiss is granted.
The Court previously denied the motion to dismiss the cases against the individual defendants as untimely pursuant to Practice Book § 10-30. The Lawyers Group Advertising, Inc. v. Law Offices of Craig A. Altman, P.C. et al., FBT CV 16-6055687 S, (Conn.Super. 10/26/16).
The writ, summons and complaint in this action were served on defendant at the corporation's principal place of business in Philadelphia, Pennsylvania. The process server's return states he left an attested copy of the process with a person named Loretta, who refused to provide her last name, and who he described as authorized to accept service on behalf of defendants. The process server did not testify at the hearing. Craig Altman, the sole owner of the law firm who did testify at the hearing, admitted that he received the papers from Loretta at or about the date they were served, and thus had actual notice of the lawsuit, but testified Loretta was not authorized to accept service for the firm, was not in charge of the business, or the office in which its principal place of business was located. The Court finds that the process was not served upon a person upon whom process may be served under C.G.S. § 52-57(c).
C.G.S. § 52-57 provides: " (c) In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located." C.G.S. § 52-557a provides:" A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction."
The Court does not agree with defendant that clerical personnel may not fall within the definition of C.G.S. § 52-57(c) of " any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located." There may be situations where a clerk or paralegal might qualify as such a person. The store manager in Nelson v. Stop & Shop Companies, Inc., 25 Conn.App. 637, 642, 596 A.2d 4 (1991), who was not proven to be a " manager" within the meaning of C.G.S. § 52-57(c), which depends on information relating to his position, could have been proven under the right circumstances to be qualified under the statute as " any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located, " which is defined by the circumstances at the designated office when service is made. However, it is not sufficient merely to establish the person served is an employee of the corporate defendant. See New Haven Board of Education v. Giordano Construction Co. 2014 WL 4494577 *4 (Conn.Super. 2014) (Nazarro, J.).
'A determination of the position, rank, duty and responsibilities of the person served is a question of fact. Our Supreme Court has held that in cases where constructive service of process is employed and, " [w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.' Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983). Thus, the burden of proving whether the operation store manager met the criteria required by the statute was on the plaintiff." Nelson, 25 Conn.App. at 641-42. " As the trial court stated in its articulation, our appellate courts have not defined " manager" under § 52-57(a). In Reed v. Ibsen Bros., Inc., 31 Conn.Supp. 160, 161, 325 A.2d 811 (1974), however, the Superior Court has identified relevant factors to be considered when a court undertakes a determination of who is a managing agent authorized to accept service of process on behalf of a private corporation. Such a determination requires that the factfinder establish whether the duties of that person are such that the corporation would, in the normal course, be informed that the service has been made. We adopt this standard and hold that under § 52-57(c) the terms 'or its general or managing agent or manager' are concommitant terms meaning a person whose position, rank, duties and responsibilities make it reasonably certain that the corporation will be apprised of service made upon that person. 17 A.L.R.3d 625, 630.
There were facts in the marshal's affidavit in the New Haven Board of Education case that might have established the person who received service was the person in charge of the office at the time of service; according to the marshal the person served said she was " office manager" and she was the only one in the office at the time of service, but the court dismissed this as hearsay and found it contradicted by the affidavit of the employee served that she was a receptionist, not authorized to accept service; the court did not hold a hearing but found that because of the conflicting affidavits plaintiff had not met its burden of proving the process was served on the correct person. 2014 WL 4494577 *4. Here, the only proof plaintiff submitted was the return of the process server that was ambiguous and refuted by Mr. Altman's testimony, which did not satisfy plaintiff's burden of proof as to service of process in compliance with C.G.S. § 52-57(c).
Defendant argues that the Court has discretion to deny a motion to dismiss in a case like this where service was technically deficient but defendant received actual notice of the lawsuit.
In the memorandum of decision denying the motion to dismiss this case against the individual defendants I ruled that " actual notice of the lawsuit is not sufficient if statutory process was not followed, " citing Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938 (2014). The Lawyers Group Advertising, Inc. v. Law Offices of Craig A. Altman, P.C. et al., FBT CV 16-6055687 S, (Conn.Super. 10/26/16). The Appellate Court in Matthews has clearly instructed on the importance of following statutory service requirements to acquire personal jurisdiction:
[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 . . . " [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 . . ."). Therefore, " [p]roper service of process is not some mere technicality." . . .
" [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]n action commenced by such improper service must be dismissed." . . . " Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes . . . are essential to jurisdiction over the person." 149 Conn.App. at 530 (citations omitted).
The District Court in Rzayeva v. United States, 492 F.Supp.2d 60, 75 (D.Conn. 2007), held that service on a corporation must be made on the person designated to accept service of process by rule, Fed.R.Civ.P. 4, or statute, C.G.S. § 52-57. " A plaintiff bears the burden of establishing a basis of an inference that Defendant authorized a particular person to accept service of process on its behalf." Id.
There is no evidence that defendant was actively attempting to evade service so this case is unlike Bove v. Bove, 93 Conn.App. 76, 82, 888 A.2d 123 (2006), in which the Appellate Court concluded that good faith attempted compliance and actual notice upheld jurisdiction over the evading defendant. Nor is this a case where the process server substantially complied with an order of notice. See Pelletier v. Goodnoff, 45 Conn.Supp. 563, 565-66, 727 A.2d 277 (1998).
Mr. Altman has set up his law practice so that no one is authorized to accept service except him and his office set up did not allow the process server to enter his actual office to observe whether there was any one else there at the time of service. If there was evidence that the person served actually was in charge of the office at the time and place of service within the meaning of C.G.S. § 52-57(c) then service would have been proper no matter who defendant authorized to accept service. Plaintiff did not present any evidence to contradict Mr. Altman's testimony that the employee served was not in charge of the office at the time of service.
The cases cited by plaintiff involve abode service in which plaintiff made good faith efforts to ascertain a defendant's regular place of abode but served process at the wrong address, defendant received actual notice of the action and the court decided to construe abode service liberally noting latitude among precedent as to what constitutes abode service. See e.g., Angelicola v. Rrecl, 2006 WL 337262 *3 (Conn.Super. 2006) .
This is not a case where service was made on a person who arguably could be considered to be in charge of the office at the time or place of service. In Washington v. Hartford Hospital, CV 03-0824647 S (Conn.Super. 2003) [35 Conn.L.Rptr. 442, ], the Court upheld service on a medical practice administrator who represented she was authorized to accept service for a physician, noting that no one contradicted her statement of authorization, and concluding it would have been impracticable for the marshal to wait until the physician was available for in-hand service. Judge Booth relied on the Appellate Court's decision in Hibner v. Bruening, 78 Conn.App. 456, 828 A.2d 150, (2003), which construed a provision in C.G.S. § 52-63(c)(1) that allowed substitute service on the Commissioner of Motor Vehicles where it is " impossible" to make service at the last address on file. This exception is inapplicable to service under C.G.S. § 52-57. Moreover, proper service was neither impracticable nor impossible; plaintiff here could have served Mr. Altman in hand or as agent for service under C.G.S. § 52-57(c) or proceeded by substitute service on the Secretary of the State under the longarm statute, C.G.S. § 52-59b(c), but chose not to do so. Alternatively, the process server could have determined who was actually in charge of the office at the time and place of service and effectuated service on the corporation in that manner.
At oral argument plaintiff's counsel conceded she had not attempted to re-serve the corporate defendant. To avoid unnecessary delay the wiser course would have been to serve the corporate defendant under the longarm statute, C.G.S. § 52-59b(c), or on the agent for service once it became apparent the wrong person had been served.
The motion to dismiss the corporate defendant is granted.