Opinion
No. MMX CV 11-6004497-S
October 12, 2011
I. PROCEDURAL HISTORY
This case arises out of an automobile accident that allegedly occurred on February 21, 2009 in Middletown, Connecticut. On February 16, 2011, the plaintiff, Norma J. Ortega, filed a summons and five-count complaint against the defendants, Catherine Sutch and Phillip Sutch (the Sutchs), and John DiStasio. The plaintiff alleges negligence and recklessness against Catherine Sutch and Distasio, and liability under the family car doctrine against Phillip Sutch.
On February 22, 2011, DiStasio entered an appearance, and on April 8, 2011, he filed a motion to dismiss for lack of personal jurisdiction. DiStasio argues in his motion to dismiss and accompanying memorandum that this court lacks personal jurisdiction over him because the plaintiff failed to comply with the service of process requirements of General Statutes § 52-57(a), which requires personal service or service at the defendant's usual place of abode. The plaintiff responds that the court should deny DiStasio's motion to dismiss because DiStasio offered no evidence to show that the address where the plaintiff served him was not his usual place of abode. At the short calendar hearing on July 18, 2011, the plaintiff also argued that DiStasio's motion to dismiss was untimely under Practice Book § 10-30.
A return of service and the marshal's sworn affidavit establish that the marshal traveled to 40 Jobs Road in Wallingford, Connecticut on February 7, 2011. While there, the marshal "read the . . . Summons in the presence and hearing of" Lenny Vescovl, who identified himself as DiStasio's stepfather. In his sworn affidavit, DiStasio states he had not lived at 40 Jobs Road for two months before February 7, 2011, and that he moved to his new address in October 2008.
DiStasio filed an affidavit with his motion to dismiss on April 8, 2011 and filed a revised affidavit on May 16, 2011.
On March 30, 2011, the Sutchs entered their appearance and on April 11, 2011, they filed a motion to dismiss for lack of personal jurisdiction. Returns of service reveal the following undisputed facts. On February 7, 2011, a marshal visited 5-4 Forest Glen Circle, Middletown, Connecticut to serve the Sutchs, and the leasing office there confirmed that the Sutchs no longer resided at that address. On February 9, 2011, a marshal served the Sutchs through the commissioner of motor vehicles and "[a] copy of the Summons was also mailed to the defendant's last known address (5-4 Forest Glen Circle, Middletown, CT) via First-Class mail."
The plaintiff filed returns of service to the Sutchs on February 16, 2011, and amended returns of service to them defendants on April 20, 2011.
Sworn affidavits from Catherine and Phillip Sutch reveal the following undisputed facts. The two have not lived at their Middletown address since the end of February 2009, when they moved to Beverly Hills, Florida. They replaced their Connecticut driver's licenses with Florida driver's licenses in March 2009, and their Florida address has been on record with the Florida department of motor vehicles since that time. The Sutchs deny receiving the writ, summons and complaint in this case.
The plaintiff and the Sutchs submitted signed, certified copies of the Middletown police department incident report describing the accident. The incident report indicates that on the date of the accident, February 21, 2009, both Catherine Sutch and Phillip Sutch lived at 5-4 Forest Glen Circle, Middletown, Connecticut. The report indicates that Catherine Sutch told the officer that she would be moving to Florida in a week.
II. DISCUSSION
Practice Book § 10-30 provides in relevant part: "Any 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 provides that a motion to dismiss may assert lack of personal jurisdiction and insufficiency of service of process.
"A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002). "Where . . . the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, CT Page 21442 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "[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.) Weihing v. Dodsworth, 100 Conn.App. 29, 39, 917 A.2d 53 (2007).
"When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer'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 . . . If the defendant challenging the court's personal jurisdiction is . . . a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction . . . Thus, once the defendant [contests] 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).
The court first addresses DiStasio's motion to dismiss counts three and four of the plaintiff's complaint. The plaintiff argues that DiStasio's motion to dismiss was untimely under Practice Book § 10-30 and should therefore be denied. Practice Book § 10-32 provides in relevant part: "Any claim of lack of jurisdiction over the person . . . or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30." Our Supreme Court has held that Practice Book § 10-30 "specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [after filing an appearance] . . . Any claim of insufficiency of process is waived if not sooner raised." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999); see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 32, 848 A.2d 418 (2004).
In the present case, DiStasio filed an appearance on February 22, 2011 and filed a motion to dismiss on April 8, 2011. Because DiStasio did not file a motion to dismiss on the basis of this court's lack of personal jurisdiction within thirty days after he filed an appearance, he waived his claim of lack of personal jurisdiction. Therefore, this court has personal jurisdiction over DiStasio and DiStasio's motion to dismiss counts three and four is denied.
The court next considers the Sutchs' timely motion to dismiss counts one, two and five of the plaintiff's complaint. The Sutchs argue that the plaintiff failed to serve them at their "last known address" for the purpose of service under General Statutes § 52-62. Specifically, they argue that the incident report indicates that they were moving to Florida shortly after the accident, that they moved almost two years before the plaintiff attempted to serve them, and that their address was listed with the Florida department of motor vehicles. The plaintiff responds that service was sufficient under § 52-62 because the Middletown address was listed on the police report and it was the Sutchs' last known address.
General Statutes § 52-62 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 or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state 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 against a nonresident 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 other 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 or representative 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." (Emphasis added.)
Although the Sutchs were Connecticut residents at the time of the accident, they are nonresidents under § 52-62(d) because they subsequently moved out of Connecticut.
The plaintiff bears the burden of proof to prove jurisdiction because she used constructive service described in § 52-62 in her attempt to serve the Sutchs. See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983) ("the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used").
"[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." (Internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008). The Supreme Court described the "last known address" requirement in the predecessor to § 52-62: "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 . . . Interpreted in the sense which the legislature intended, our statute, if complied with, will certainly bring about a reasonable probability of actual notice of the pendency of the action to the defendant." (Citations omitted.) Hartley v. Vitiello, 113 Conn. 74, 80-81, 154 A. 255 (1931); see also Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 393, 949 A.2d 450 (2008).
In other words, "before concluding that the defendant cannot be located, a plaintiff must take reasonable steps to identify the defendant's whereabouts . . . If a defendant's address is unknown, a plaintiff may serve process in a manner that makes it reasonably certain to reach the addressee." (Internal quotation marks omitted.) Dime Bank v. Merrill Lynch, Pierce, Fenner Smith, Inc., Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 08 4017091 (January 15, 2010, Blawie, J.).
Regarding a similarly construed statute, 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. For example, in Harris v. Wood, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002010 (December 9, 2010, Danaher, J.), the court denied a motion to dismiss because the plaintiff attempted to locate the defendant at the defendant's most recent employer. On the other hand, in Ross v. Castelano, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 02 0190247 (May 6, 2003, Lewis, J.), the court granted a motion to dismiss when the plaintiffs served the defendant by mail at his former wife's address but failed to file any document demonstrating why they believed that it was his last known address "so far as it is known . . . by those who under the ordinary circumstances of life would know it." (Internal quotation marks omitted.)
General Statutes § 52-59b, which governs constructive service of process on nonresident individuals, foreign partnerships and foreign voluntary associations, also has a "last known address" requirement. In Cadlerock Joint Venture II, L.P. v. Milazzo, supra, 287 Conn. 379, the Supreme Court applied the same principles to § 52-59b as it applied to § 52-62 in Hartley v. Vitiello, supra, 113 Conn. 74.
The facts of this case are similar to those considered by the court in 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). In Barker, the Superior Court wrote: "In the present case, it is uncontested that the plaintiff mailed notice to an address where the defendant had not lived for almost two years. Further, the defendant's affidavit indicates that she had notified the Rhode Island department of motor vehicles of her new address at the time of her move, and was in no way trying to conceal her whereabouts. 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."
In the present case, the plaintiff relied on the certified incident report to obtain the Sutchs' Middletown address. The incident report also indicates that Catherine Sutch "stated that she is moving to Florida in a week . . ." Further, the marshal's returns of service, filed by the plaintiff, confirm that the Sutchs no longer lived at the Middletown address. The plaintiff therefore had notice that the Sutchs no longer lived in Connecticut and had moved to Florida. The Sutchs submitted undisputed evidence that they were never served with the summons and complaint, and that they had moved from the Middletown address almost two years before service was attempted.
In her objection to the Sutchs' motion to dismiss, the plaintiff maintains that the Middletown address was the Sutchs' last known address because it was listed on the police report. The plaintiff has not submitted any evidence that she attempted to locate the Sutchs after the failed abode service at the Middletown address. Other than the incident report, which indicates that the Sutchs would be moving, the plaintiff did not file any affidavits or any document demonstrating why, in February 2011, she reached the conclusion that the Middletown address was the Sutchs' "last address so far as it is reasonably possible to ascertain it." Hartley v. Vitiello, supra, 113 Conn. 80. Consequently, there is no evidence before this court that the plaintiff made reasonable efforts as required.
The court is unpersuaded by the plaintiff's argument at short calendar that the Connecticut department of motor vehicles would have forwarded the process to the Sutchs' Florida address. First, there is no evidence before this court that the department would take such an action, or that it did in this case. Second, the court is unaware of any authority for the proposition that service on the department of motor vehicles excuses the last known address requirement. To the contrary, the Supreme Court made it clear in Hartley that § 52-62 requires the plaintiff to serve the defendants both through the commissioner and by mail: "The leaving of a copy with or at the office of the commissioner [of the department of motor vehicles] and the sending of a copy to the defendant are by the statute both made a part of the service of the process and are linked up in such a way that the Legislature obviously regarded them as parts of one act." Id., 79; see also Varrone v. Outman, Superior Court, judicial district of Waterbury, Docket No. CV 09 6001755 (March 12, 2010, Gallagher, J.).
Finally, the plaintiff argued at short calendar that this court has personal jurisdiction over the Sutchs because the plaintiff sent a courtesy copy of the process to the Sutchs' insurer and the Sutchs therefore had actual notice of the lawsuit. This argument is unpersuasive because the defendants' insurer is not their agent for service under § 52-62. Flynn v. Citarella, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 97 0258179 (September 10, 1997, DiPentima, J.) (granting motion to dismiss when plaintiff attempted late service on defendant's insurer). Further, actual notice is insufficient to establish compliance with § 52-62. Barker v. Rosati, supra, 47 Conn. L. Rptr. 285 (granting motion to dismiss when defendant received notice of suit through insurance company).
The court notes that the returns of service to the Sutchs indicate that the mailed a copy of the summons to the Middletown address "via First-Class mail," but does not indicate whether it was sent "by registered or certified mail" as required by § 52-62(c). Because service to the Sutchs was insufficient for other reasons, the court need not address this issue at this time.
Based on the undisputed evidence before the court, there is no genuine issue of material fact in dispute that the plaintiff failed to meet the last known address requirement of § 52-62. Therefore, the court grants the Sutchs' motion to dismiss counts one, two and five.
III CONCLUSION
For the reasons stated the court denies DiStasio's motion to dismiss counts three and four of the plaintiff's complaint and grants the Sutchs' motion to dismiss counts one, two and five.
So ordered.