Opinion
No. HHD CV 09-5026299
January 27, 2010
MEMORANDUM OF DECISION DEFENDANT JASON DUKE'S MOTION TO DISMISS
This motion to dismiss is docket entry 106.00.
On January 13, 2009, the plaintiff, Joelyn Murphy, filed an eight-count complaint against various parties alleging sex discrimination, retaliation and other related claims arising out of her employment. Counts one and eight are directed towards the defendant, Jason Duke. Specifically, the plaintiff alleges that the defendant resides in Wisconsin and is employed by Safelite Fulfillment, Inc. (Safelite). She further alleges that the defendant illegally discriminated against her based on her sex and, subsequently, retaliated against her after she filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). Pending before the court is the defendant's motion to dismiss the counts against him on the ground that the court lacks personal jurisdiction over him due to insufficient service of process.
Hereinafter, the only defendant referred to in this memorandum will be Jason Duke.
In the return of service attached to the complaint (return), State Marshal Grant S. Carragher states that on December 11, 2008, he took the following steps to serve process on the defendant. First, he left a copy of the writ, summons and complaint with Garry Scappini, Safelite's agent for service of process in Connecticut. Next, he served a true and attested copy of the writ, summons and complaint upon the Connecticut Secretary of State, pursuant to General Statutes § 52-59b, and then mailed a copy, via "postage paid, certified return receipt requested" to the defendant at an address in Pewaukee, Wisconsin. He also mailed two copies of the writ, summons and complaint to the defendant at a Safelite location in Ohio. Finally, he made a diligent search throughout his precinct to locate the defendant, but could not find him at the last known address or at any other address.
"A motion to dismiss . . . properly attacks the jurisdiction of the court . . ." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346, 766 A.2d 400 (2001). "Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss . . . If a defendant challenges the court's personal jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction . . . Finally, a motion to dismiss admits all facts well pleaded and invokes supporting affidavits that contain undisputed facts." (Citations omitted; internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26, 917 A.2d 959 (2007). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).
The defendant sets forth three arguments in support of his motion to dismiss. First, he argues that he was not served in person or at his usual place of abode, as required by General Statutes § 52-57. Next, he argues that the plaintiff's attempts to serve him through his employer did not constitute valid service under Connecticut law. Finally, the defendant argues that the plaintiff did not adhere to the procedural requirements of § 52-59b, and consequently, the attempt to serve process through that statute was defective.
The plaintiff responds that the defendant is an out-of-state resident, and therefore, she was not required to serve him in person or at his usual place of abode. She argues that, pursuant to § 52-59b, out-of-state residents may be served through the secretary of state. She further claims that such service, along with mailing copies of the writ, summons and complaint to the defendant's employer, is sufficient under § 52-59b. The plaintiff also asserts that any procedural defects are circumstantial and do not affect the court's jurisdiction. In addition, the plaintiff argues that the defendant should be estopped from contesting personal jurisdiction because he attempted to evade service by not providing his address to the CHRO during the administrative process. Finally, the plaintiff argues that the defendant received actual notice of the action, and therefore, that fact should validate the service of process.
Prior to filing this suit, the plaintiff filed charges with the CHRO. The plaintiff alleges that, despite a request by the CHRO, the defendant never provided an address for service of process during the investigation.
Section 52-57(a) provides: "Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it . . . with the defendant, or at his usual place of abode, in this state." "The clear impact of § 52-57(a) is that one of its two alternatives, personal or abode service, must be followed ` [e]xcept as otherwise provided'in the General Statutes." (Emphasis added.) Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 150 (2003). Indeed, § 52-59b, the Connecticut long-arm statute, provides an alternate means of process on an out-of-state resident. That statute provides that "a court may exercise personal jurisdiction over any nonresident individual . . . who . . . commits a tortious act within the state" when service is made upon the secretary of state and by sending to the defendant, at his last known address, a copy of the process via registered or certified mail, postage prepaid, return receipt requested. See § 52-59b(a) and (c). It further provides that "[t]he officer serving such process . . . shall leave with the Secretary of the State, at the time of service, a fee of twenty-five dollars . . ." Section 52-59b(c). Therefore, as the plaintiff alleges that the defendant is an out-of-state resident who committed a tortious act within the state, she could forgo personal or abode service, as long as she effectuated proper service pursuant to § 52-59b.
The defendant is correct that § 52-57 does not authorize abode service upon a defendant's employer. See, e.g., Perez v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 07 75005465 (January 3, 2008, Upson, J.) (service upon director of risk management at defendant's place of employment was insufficient under § 52-57, where defendant was not served in hand or at his usual place of abode). However, as discussed below, in some instances, service upon a business may be sufficient to confer personal jurisdiction over a nonresident defendant.
With respect to the plaintiff's attempt to serve process pursuant to § 52-59b, the defendant makes three arguments. First, he claims that the plaintiff did not mail him a copy of the complaint by registered or certified mail, postage prepaid, return receipt requested, as specifically required by § 52-59b. In support of his argument, he offers his affidavit, which asserts that the writ, summons and complaint were not sent to him via registered or certified mail, postage prepaid, return receipt requested. Furthermore, he claims that the marshal's return fails to indicate that he paid the requisite $25 fee to the secretary of state, and that the return is silent with respect to the required endorsement. Finally, he argues that the marshal's return fails to specifically state that process was mailed to the defendant's last known address.
The plaintiff counters that the supplemental return shows that the marshal mailed a postage paid, certified, return receipt requested copy of the original writ, summons and complaint to the defendant. He also argues that, the fact that the marshal did not indicate that payment of the $25 fee was made is a technical flaw that does not invalidate service. Lastly, he asserts that, for purposes of § 52-59b, a plaintiff may choose to serve an out-of-state resident at his place of business, and consequently, service was proper.
This supplemental return is comprised of copies of certified mail receipts that indicate that mail was sent to the defendant at the Safelite location in Ohio.
Statutes authorizing constructive service such as § 52-59b are in derogation of the common law and must be strictly construed. Tyler v. Barry, 18 Conn.Sup. 290, 292 (1953). Therefore, the court does not have personal jurisdiction over the defendant if the plaintiff did not adhere to its statutory provisions.
The defendant's first argument that "nothing in the marshal's return indicates that the requisite twenty-five dollar fee was paid to the Secretary of State" is unfounded. The very last page of the marshal's return does state that $25 was paid to the secretary of state. Given that the return only recites one instance of service upon the secretary, the court concludes that such fee was for that particular service. Additionally, the failure to include the endorsement of the secretary of state does not deprive the court of personal jurisdiction, where, as in the present case, there is no dispute that the secretary was actually served. See Housatonic Lumber Co. v. Chase, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 041022 (February 1, 1993, Gormley, J.) ( 8 Conn. L. Rptr. 295) (failure to include endorsement of service on secretary of state not fatal under § 52-59b(c) where service was actually made on secretary of state). Compare Pasquariello Electric Corp. v. Nyberg, Superior Court, judicial district of New Haven, Docket No. CV 08 5024983, n. 14 (October 7, 2009, Zoarski, J.T.R.) (failure to contain an endorsement in the marshal's return that service was made upon the secretary of state deprived the court of jurisdiction because the secretary of state was not served at all).
Paragraph eleven of the return states that service was made upon the secretary of state for the defendant. Additionally, on the last page, the section entitled "FEES" states "SEC. STATE 25.00."
For a similar reason, the defendant's argument that service was not effective, pursuant to § 52-59b, because the return is silent with respect to whether process was mailed to the defendant's last known address must also fail. While the statute does require that the defendant be mailed a copy of process at his last known address, there is no requirement that the marshal specifically state this on the return; nor does the defendant cite any authority for this proposition. This portion of the defendant's argument does not claim that he was not served at his last known address as a matter of fact. Such an error would deprive this court of personal jurisdiction. See Barker v. Rosati, Superior Court, judicial district of New London, Docket No. CV 08 5008708 (February 20, 2009, Peck, J.) ( 47 Conn. L. Rptr. 285) (court did not have personal jurisdiction over defendant because plaintiff failed to send a copy of process to defendant's last known address). Rather, the defendant merely asserts that the marshal did not specifically mention this on the return. Therefore, the marshal's failure to specifically state in the return that process was mailed to the defendant's last known address does not deprive the court of personal jurisdiction.
The only substantive argument made by the defendant in support of the motion to dismiss is that the plaintiff failed to adhere to § 52-59b because she did not send process via registered or certified mail, postage prepaid, return receipt requested to the defendant's last known address, contrary to the assertions in the marshal's return. The defendant concedes that, as evidenced by the supplemental return, process was sent in accordance with the statute to him at the Safelite facility in Ohio. However, he asserts in his affidavit that he never received it via registered or certified mail, return receipt requested, at his residence in Wisconsin. He also points out that, while the supplemental return did provide proof that process was sent via certified mail, postage prepaid, return receipt requested, to the Safelite location in Ohio, the marshal did not provide any proof regarding the mailing to the defendant's Wisconsin residence. The defendant further argues that, because the plaintiff's attorney admitted during oral argument that the defendant's last known address was in Wisconsin, process should have been sent in the statutorily prescribed method to that address. The plaintiff counters that service upon a defendant's place of business is acceptable in the case of a nonresident defendant.
"[A]n officer's return is only prima facie evidence of the facts stated therein. It may be contradicted and the facts shown to be otherwise." Cugno v. Kaelin, 138 Conn. 341, 343 (1951). "The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return. There should be no presumption of the truth of the plaintiff's allegation of the additional facts necessary to confer jurisdiction This court has recognized that the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used . . . 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." (Citations omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983).
In this case, by way of the marshal's supplemental return, the plaintiff has demonstrated that service was sufficient, pursuant to § 52-59b. Although there is no appellate authority on point, some Superior Court judges have held that service sent to a nonresident's last known place of business is sufficient under the statute. See, e.g., Celik v. Dundar, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 95 0142921 (July 12, 1995, D'Andrea, J.) (plaintiff complied with § 52-59b(c) by mailing a copy of the writ, summons and complaint to the defendants' business addresses in New York, even though they resided in Turkey); Tek Motive, Inc. v. AFB, Inc., Superior Court, judicial district of New Haven, Docket No. CV 93 0349298 (November 12, 1993, Zoarski, J.) (service delivered to defendant's business address, rather than his residence, was adequate, even though plaintiff was aware that defendant's actual residence was in Peru); Horniatko v. Riverfront Association, LLC, Superior Court, judicial district of Hartford, Docket No. CV 04 4000332 (June 21, 2005, Shapiro, J.) [ 39 Conn. L. Rptr. 566] ("[t]his court agrees with the several courts which have considered this issue that mailing to a last known address which is a business address, in accordance with the statutory requirements, is sufficient"). See also Goktepe v. Lawrence, 220 F.R.D. 8, 12 (D.Conn. 2004) ("[t]he defendant has not cited any contrary authority or advanced any reason why this Court should decline to follow these well reasoned decisions by . . . Connecticut Superior Court judges," therefore, the court finds that service on the defendant at his business address complied with § 52-59b(c)).
"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008). Practice Book § 10-31, however, allows the filing of affidavits to establish facts not apparent on the record. In this case, the defendant has not produced any evidence that the Ohio location was not his place of business at the time that service was effectuated. His affidavit merely states that he did not authorize anyone at that location to accept service of process on his behalf. On the other hand, the plaintiff has alleged in the complaint that the defendant was employed by Safelite and provided proof of service at a Safelite location in Ohio. As a preliminary matter, this sufficiently establishes that process was mailed to the defendant at his business address in the manner set forth in § 52-59b(c). Although the burden of proof to prove jurisdiction is on the plaintiff, "[i]f . . . the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted.) Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).
Any assertions made in the defendant's memorandum of law are not sufficient evidence for purposes of his motion to dismiss. Mere assertions of fact by a party's counsel in a memorandum are insufficient to establish the existence of a material fact, and, therefore, cannot refute evidence properly presented to the court. See Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998).
Section 52-59b does not require that service be effectuated at the defendant's actual residence. "Where the legislature has intended that service be made to a defendant's residence, it has provided specifically for that procedure. See, for example, General Statutes § 52-57(a), which provides for service of a defendant `at his usual place of abode.'" Celik v. Dundar, supra, Superior Court, Docket No. CV95 0142921, n. 3. Therefore, because there is no dispute with respect to whether the marshal sent a copy of process via registered or certified mail, return receipt requested, to the Safelite location in Ohio, and the defendant did not submit any evidence to dispute that this was his business address, the court finds that the plaintiff properly effectuated service pursuant to § 52-59b(c).
Finally, the defendant cites Barker v. Rosati, supra, Superior Court, Docket No. CV 08 5008708, for the proposition that service upon a nonresident's place of business is only appropriate when the last known address is unknown. As discussed above, he argues that since the plaintiff admittedly knew that his last known address was in Wisconsin, service at the Ohio location was not in accordance with the statute. In Barker, however, the plaintiff, through her own lack of diligence, mailed process to the wrong residential address, when the defendant's current address was readily ascertainable. The plaintiff had not attempted to mail a copy of process to the defendant's business address. Thus, Barker did not address the current issue before this court, namely, whether mailing a copy of process to a nonresident defendant at his place of business is sufficient, pursuant to § 52-59b(c). Accordingly, Barker is not in conflict with the cases cited above that support the conclusion that the plaintiff complied with the statute.
Because the defendant's motion to dismiss is denied on the grounds that the marshal effectuated proper service pursuant to § 52-59b(c), it is not necessary to address the plaintiff's argument that the defendant should be estopped from contesting jurisdiction because he attempted to evade service of process. Nevertheless, it appears that this argument is without merit. The plaintiff has presented no evidence that the defendant was, in fact, attempting to evade service of process. The plaintiff has merely offered a document that was generated through the CHRO's administrative process, wherein Safelite identified its agent for service of process, and the defendant did not. Moreover, even if the defendant was not forthcoming about his address during the CHRO's administrative process, the plaintiff has offered no authority for the proposition that this is a basis for conferring personal jurisdiction in a civil hearing.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendant's motion to dismiss is hereby denied.