Opinion
KNLCV155014893S
11-19-2015
Kenneth Parks v. Scott Buchanan et ux
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION (#107) TO DISMISS
Terence A. Zemetis, J.
The defendants move to dismiss because of insufficient service of process. The motion is denied, without prejudice to reconsider as described within, except the motion is granted on the claims of defamation, libel, and libel per se.
FACTS
This action arises out of the defendants, ' Scott and Paulette Buchanan's, alleged internet publication of material about the plaintiff and his business(es), ministrywarning.com, and acts defaming and harassing the plaintiff. On April 30, 2015, the plaintiff filed a complaint against the defendants alleging defamation, libel, libel per se, cyber-stalking, negligent infliction of emotional distress, and interference with business or employment. The plaintiff alleges tortious actions by the defendants occurred in Connecticut on or about December 7, 2012. The plaintiff, a resident of Georgia, initially brought his case in Georgia state court. The Georgia state court dismissed the case because that state's longarm statute did not extend to the defendants. The plaintiff then brought the present case in Connecticut, upon the information that the defendants lived in Colchester and/or rented a post office box in Colchester.
The return date on the plaintiff's summons is April 21, 2015. Although the writ of summons, complaint, and service of process must be returned at least six days before the return date; General Statutes § 52-46a; the plaintiff's return was not received until nine days after the return date. The plaintiff filed a " Motion for Process Defect: Preserve Return Date" on May 11, 2015, which has not been addressed by the clerk or the court. In the aforesaid motion, the plaintiff does not request a specific amended return date, but for the return of process to fall within the six-day limit on a Tuesday; see § 52-46a; the return date would need to be May 12, 2015. That date, however, falls outside the two-month limit for return dates; see § 52-48(b); as the writ of summons was dated February 25, 2015 and two months from that date was before May 12, 2015. Nevertheless, a late return renders the proceeding voidable not void. Merrill v. NRT New England, Inc., 126 Conn.App. 314, 320, 12 A.3d 575 (2011), appeal dismissed, 307 Conn. 638, 59 A.3d 171 (2013). As defective service of process implicates personal jurisdiction, the defendants have waived any possible challenge to this defect by failing to raise the issue within thirty days. Id., 319-22.
On June 16, 2015, the plaintiff filed a request to amend, including an amended complaint. The defendants filed a motion to dismiss the original complaint on June 4, 2015 and objected to the request to amend on June 22, 2015. While the court has not ruled on the defendants' objection, the original complaint and amended complaint filed on June 16 do not differ in regards to this motion to dismiss. Nonetheless, the court will refer to the original complaint for all allegations.
On February 26, 2015, the plaintiff obtained an order of notice from the court to publish notice of the pending action. The marshal's return includes a publisher's certificate indicating that the notice was published on March 21, 2015 and March 28, 2015. In his application for order of notice, the plaintiff claims that the defendants' whereabouts are unknown and due diligence and reasonable efforts failed to obtain their current address. These diligent efforts included: that he attempted service through a state marshal at 278 Prospect Hill Road, Colchester, CT 06145, only to be advised that the defendants no longer resided there; that he contacted the United States Postal Service, the Colchester Police Department, and several people who know or knew the defendants' residential address to no avail; that all letters sent to the Prospect Hill address were returned; that from October 15 to October 20 (year unstated but possibly 2014) the plaintiff traveled to Colchester to interview the current owners of the Prospect Hill residence and surrounding neighbors to no avail; and that he paid for " Internet PeopleSearch" services and searched on Google and Bing for the defendants' address, without success, but that he acquired a " current address" of P.O. Box 592, Colchester, CT 06415. With this post office box address and the defendants' prior known address in Colchester, the plaintiff asserted that the defendants were most likely to receive notice through publication in The Day . The defendants provide affidavits attesting that (i) they moved out of the state on September 20, 2013; (ii) they have not resided in the state since that time; (iii) they have a permanent address outside of the state undisclosed for fear that the plaintiff will stalk or harass them in that location; and (iv) they have no contacts with the state by owning property, conducting business, or any other contact since leaving in 2013.
Questions were raised by the defendants in a letter sent to the administrative judge and at short calendar as to the authenticity of the order of notice, specifically that the judge's signature may be forged. The defendants have not raised the issue in their motion to dismiss, therefore, the court need not address it in this motion to dismiss.
The order of notice is the self-drafted " First Order of Notice: Defamation" signed by the judge, instead of a court form, included with the complaint.
On June 4, 2015, the defendants moved to dismiss because the court lacks personal jurisdiction over the defendants and for insufficient service of process. The defendants filed a memorandum of law to support their motion to dismiss and submitted the affidavits described previously on the same day. On June 30, 2015, the plaintiff filed an objection and memorandum of law in opposition to the defendants' motion to dismiss, and a personal affidavit. The motion was heard at short calendar on August 17, 2015.
DISCUSSION
" A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). " The grounds which may be asserted in this motion are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person . . . (4) insufficiency of process; and (5) insufficiency of service of process." Id. " [J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . 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 ." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
" In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, 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; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52.
A. Personal Jurisdiction
The defendants argue in their memorandum of law to support their motion to dismiss that the court lacks personal jurisdiction over them because (i) the longarm statute, General Statutes § 52-59b, is not applicable; and (ii) even if the longarm statute were applicable, it violates due process to assert jurisdiction over them when they have no contacts with the state. The plaintiff counters that personal jurisdiction exists under the longarm statute because, as alleged, the defendants maintain a business relationship with the state by renting a post office box in the state and their tortious acts occurred in the state. He argues the defendants have sufficient minimum contacts with the state as lifelong residents before September 2013, i.e., during the time of the alleged tortious conduct.
The defendants' motion to dismiss repeatedly refers to General Statutes § 52-59a, rather than § 52-59b, as the longarm statute. Section 52-59b contains the state's longarm statute for individuals and § 52-59a was repealed decades ago. As the language quoted by the defendants contains language from the proper section and that section applies here, it is presumed that the defendants are referring to § 52-59b.
" In analyzing personal jurisdiction, [courts] are mindful of certain well settled principles. When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 514, 923 A.2d 638 (2007). " The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996).
" As a general matter, the burden is placed on the defendant to disprove personal jurisdiction." Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515. " 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." (Internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983). " 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 foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 515.
1. The Longarm Statute
General Statutes § 52-59b(a) provides, in relevant part, " [a]s to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act . . . or (5) uses a computer, as defined in subdivision (1) of subsection (a) of section 53-451 . . . located within the state. See also Matthews v. SBA, Inc., 149 Conn.App. 513, 549, 89 A.3d 938, 962, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
In cases in which " the jurisdictional facts are intertwined with the merits of the case, the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred." (Internal quotation marks omitted.) Cuozzo v. Orange, 315 Conn. 606, 616, 109 A.3d 903 (2015) (holding that resolution of whether the location of the accident was a public highway or private thoroughfare necessitated an evidentiary hearing or postponement of the jurisdictional issue until a full trial on the merits). " This principle assumes, however, that the party claiming jurisdiction has met his or her initial burden of alleging facts that, if true, would establish the court's jurisdiction." Lawrence v. Weiner, 154 Conn.App. 592, 605, 106 A.3d 963, cert. denied, 315 Conn. 925, 109 A.3d 921 (2015).
The defendants argue that the longarm statute does not apply because the complaint does not allege that they transact business in the state and they attach an affidavit averring that they do not conduct business in the state. The defendants also argue that the complaint does not allege that they committed any tortious acts in the state and defamatory acts are exempted by the statute. The plaintiff counters that the complaint alleges that the defendants transacted business in the state by renting a post office box and that the tortious acts alleged were committed in the state.
In paragraph two of the complaint, the plaintiff alleges that the tortious acts occurred in New London county where the defendants resided. Every count of the plaintiff's complaint incorporates all paragraphs which precede it. Therefore, reading it in the light most favorable to the pro se plaintiff, the complaint alleges that the defendants committed tortious acts to satisfy the longarm statute for claims of cyber-stalking, negligent infliction of emotional distress, and interference with business or employment. See General Statutes § 52-59b(a)(2). The defendants' affidavits attest that they moved out of Connecticut on September 20, 2013, but the plaintiff alleges that the tortious acts occurred in late 2012. The plaintiff avers in his affidavit that the defendants " had lived in Connecticut all their lives and they have never lived in any other state outside of Connecticut." The allegation that the defendants lived in Connecticut prior to September 20, 2013 is uncontested. The defendants provide no evidence that the alleged tortious acts, whether the conduct occurred or was tortious, could not have been committed in Connecticut. Therefore, jurisdiction is proper under the longarm statute if the defendants committed such alleged tortious acts while the defendants were state residents. See § 52-59b(a)(2); Cuozzo v. Orange, supra, 315 Conn. 616.
Although personal jurisdiction is proper under the longarm statute, it does not appear service of process was attempted under the longarm statute; General Statutes § 52-59b(c) (service made on the Secretary of the State and by registered mail).
Because the court finds that the plaintiff alleges that the defendants committed tortious acts in the state, it need not address the argument that personal jurisdiction exists over the defendants because they transact business in the state by renting a post office box. Personal jurisdiction is intertwined with proof of the plaintiff's causes of action, judgment of personal jurisdiction is reserved until the plaintiff proves that the defendants committed tortious acts in the state. Jurisdiction over the plaintiff's claims for defamation, libel, and libel per se are barred by the longarm statute. § 52-59b(a)(2).
" While § 52-59b(a)(2) specifically bars a cause of action for defamation, its language does not bar causes of action for intentional and/or negligent infliction of emotional distress, tortious interference with the plaintiff's business operation and conspiracy. Had the legislature intended to do so, they would have incorporated language within § 52-59b(a)(2) to bar other causes of action in addition to a defamation cause of action." Arnold v. Mason, Superior Court, judicial district of Fairfield, Docket No. CV-07-5007053-S (September 4, 2007, Arnold, J.) .
2. Due Process
" As articulated in the seminal case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the constitutional due process standard requires that, in order to subject a defendant to [personal jurisdiction], if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . In other words, [t]he [d]ue [p]rocess [c]lause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations . . . By requiring that individuals have fair waming that a particular activity may subject [them] to the jurisdiction of a foreign sovereign . . . the [d]ue [p]rocess [c]lause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit . . . The due process test for personal jurisdiction has two related components: the 'minimum contacts' inquiry and the 'reasonableness' inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction." (Citations omitted; internal quotation marks omitted.) Id., 523-24.
For the purposes of this initial inquiry, the Supreme Court of the United States has articulated, and [our Supreme Court] has recognized, two types of personal jurisdiction. Either specific jurisdiction or general jurisdiction can satisfy the constitutional requirement of sufficient minimum contacts between the defendant and the forum. A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed [its] activities at residents of the forum . . . and the litigation [has] result[ed] from alleged injuries that arise out of or relate to those activities . . . Whether a given defendant has contacts with the forum state sufficient to satisfy due process is dependent upon the facts of the particular case. Like any standard that requires a determination of reasonableness, the minimum contacts test of International Shoe Co . is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present.(Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 524-25.
" Due process demands more, however, than the existence of minimum contacts between the defendant and the forum state. Once minimum contacts have been established, [t]he second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with 'traditional notions of fair play and substantial justice--that is, whether it is reasonable under the circumstances of the particular case . . . [Therefore] [w]hile the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (Citation omitted; internal quotation marks omitted.) Id., 525.
The defendants argue that the court is without sufficient minimum contacts because they have no contact with the state, citing their affidavits. In their affidavits, the defendants attest that (i) they have no contact with the state; (ii) do not own real estate in the state; and (iii) do not conduct business or have business contacts in the state. The plaintiff counters that, prior to September 20, 2013, the defendants were lifelong residents of the state and committed the alleged tortious acts in the state. He provides a supporting affidavit attesting that the defendants were lifelong residents.
The exercise of jurisdiction over these defendants, who were residents of the state when they allegedly harmed the plaintiff, in this case, does not violate the defendants' due process rights. The defendants' affidavits do not counter the plaintiff's allegation that the acts, if true, were committed in the state. The plaintiff has made a threshold showing of minimum contacts and the defendants have presented insufficient evidence that render the exercise of jurisdiction unreasonable. The defendants are alleged to have committed tortious acts in the state while residents. " (T)raditional notions of fair play and substantial justice" require that they answer for those acts in Connecticut courts.
As the factual predicate to Connecticut's jurisdiction, whether the defendants committed tortious acts while in Connecticut proximately harming plaintiff, is alleged, but remains to be proved. Judgment on the question of personal jurisdiction is reserved pending proof of those allegations.
B. Sufficiency of Service of Process
The defendants argue in their memorandum of law that service of process was insufficient (i) because the plaintiff made fraudulent statements to the court in his motion for order of notice that the defendants reside in the state and would likely see the order of notice published in The Day ; and (ii) because the defendants no longer resided in the state and the plaintiff knew this, while being unaware of the defendants' true whereabouts, service of process in the newspaper was insufficient. The plaintiff counters in his memorandum of law in opposition that, to the best of his knowledge based on thorough inquiry, the defendants maintained contact with New London county and had the best chance of receiving notice through publication in The Day . The plaintiff agrees that he lacks knowledge of the defendants' whereabouts positing that they were still in the state--but does not accept that notice would not be received through the newspaper.
1. Fraud upon the Court
The defendants allege the plaintiff committed a fraud upon the court in his request for an order of notice by claiming the defendants would receive notice by publication in The Day . The plaintiff responds that his claims to the court were made to the best of his knowledge and that the fraud accusation attempts to distract the court.
" Fraud is defined as [d]eceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right . . . Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty." (Internal quotation marks omitted.) Nelson v. Charlesworth, 82 Conn.App. 710, 714, 846 A.2d 923 (2004). " The four essential elements of fraud are (1) that a false representation of fact was made; (2) that the party making the representation knew it to be false; (3) that the representation was made to induce action by the other party; and (4) that the other party did so act to her detriment." (Internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). " All of these ingredients must be found to exist . . . Additionally, [t]he party asserting [fraud] must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence . . ." (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn.App. 673, 681, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).
" [T]he elements of fraud must be proved by clear and convincing evidence . . ." Dockter v. Slowik, 91 Conn.App. 448, 453-54, 881 A.2d 479, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005). " The party claiming fraud . . . has the burden of proof . . . Whether that burden has been met is a question of fact . . ." (Internal quotation marks omitted.) Duplissie v. Devino, supra, 96 Conn.App. 680. " Furthermore, in order to prove that the misrepresentation was fraudulent as opposed to merely negligent . . . the party asserting fraud must prove the element of intent, i.e., that the misrepresentation was made to induce the action by the other party." (Footnote omitted; internal quotation marks omitted.) Cadle Co. v. Errato, Superior Court, judicial district of New Haven, Docket No. CV-98-0411764-S (June 20, 2007, Lopez, J.).
" Allegations such as misrepresentation and fraud present issues of fact . . . Moreover, [w]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact . . . When a court's exercise of discretion depends on disputed factual issues, such as the existence of fraud, due process requires an evidentiary hearing." (Citation omitted; internal quotation marks omitted.) Tyler E. Lyman, Inc. v. Lodrini, 78 Conn.App. 684, 687, 828 A.2d 681, cert. denied, 266 Conn. 917, 833 A.2d 468 (2003); see also Cromwell Commons Associates v. Koziura, 17 Conn.App. 13, 17, 549 A.2d 677 (1988) (" due process requires a hearing to provide the parties with an opportunity to present evidence and to cross examine adverse witnesses").
" [T]he due process requirement of a hearing is required only when issues of facts are disputed ." (Emphasis in original.) Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007). " [I]n the absence of any disputed issues of fact pertaining to jurisdiction, there [is] no need to hold an evidentiary hearing before deciding the motion to dismiss." Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994).
The defendants argue that the evidence submitted by the plaintiff to support his motion for an order of notice evinces a fraud upon the court. First, the defendants argue the alleged fraud arises from the fact that two returned envelopes sent to the defendants' former residence in Colchester would have been forwarded to the post office box in Colchester that the plaintiff attests is their current address if they rented it. Because the letters were not forwarded to the post office box, the defendants allege the plaintiff knew that they did not own the post office box. Second, the defendants allege that the change of address form submitted by the marshal to the court was left blank by the post office in Colchester and that the post office would have indicated that the defendants rented the post office box if they did rent it. They claim that the plaintiff knew that they did not rent the post office box and his statements to the court to this effect were fraudulent. Third, the defendants allege that the internet printout stating that Scott L. Buchanan's current address is the Colchester post office box is unreliable and meant to trick the court into granting the order of notice.
The plaintiff responds that the evidence he submitted supported the order and was made to the best of his knowledge. He counters that the form, left blank by the post office and submitted by the marshal, is not indicative of whether the post office box was or was not a forwarding address of the defendants: it was simply blank. The plaintiff attests that the letters were returned July 19, 2013, but the defendants contend to have moved on September 20, 2013.
The evidence cited by the defendants as evidence of fraud is not sufficient. There is insufficient evidence for the court to conclude how post office regulations, rules, policies, or personnel practices dictate handling of the letters sent by the plaintiff, which were returned to plaintiff, regarding the post office box allegedly rented to the defendants. The plaintiff attests the letters were returned before the defendants claim they moved. A blank postal form with unchecked boxes for " no change of address order on file, " " moved, left no forwarding address, " and " no such address" is not evidence that the defendants had no post office box in Colchester, but is evidence of a form with no boxes checked. Finally, while the internet printout was not be the best evidence of defendants' then current address, it is not evidence that the plaintiff misrepresented to the court he believed, based on that internet printout, the defendants resided in the area, rented the post office box, and would most likely receive notice by publication in the local paper with the largest circulation. None of the evidence cited by the defendants is evidence of the plaintiff's knowledge, actual or otherwise, that the defendants did not rent the post office box or reside in New London county to give rise to a claim of fraud upon the court. Notably, the defendants make no attestations regarding their rental of the post office box, only that they have no contacts with the state.
The affidavit and order of notice attached to the plaintiff's complaint do not assert that the defendants' current address is the post office box in Colchester. The second paragraph of the order of notice states he could not ascertain the defendants' current residential address. The plaintiff attests in his affidavit he " made a thorough search for the [d]efendants' residential address on the Internet to no avail with the exception of a P.O. Box 592, Colchester, CT, New London county." He avers that " [a] recent report from PeopleSmart shows that the [d]efendants can be contacted at a " Current Address:" of P.O. Box 592, Colchester, CT 06415." Neither of these statements is an assertion that the defendants' current address was the post office box. The first statement indicates he found an address of some sort in the form of the post office box. The structure of the sentence is irregular and, at most, the sentence indicates that he found an address with no claim of its validity or type of address (i.e., residential, business, or current). The second sentence cannot be a personal assertion that the current address was the post office box. The plaintiff places current address in quotations: any assertion it is such is that of PeopleSearch and not the plaintiff. Finally, the plaintiff's conclusion based on this information and the defendants' last known address that the defendants would mostly likely receive notice by publication in The Day, cannot be deemed a fraud but supported by the evidence available to him. The defendants' allegations of fraud are insufficiently supported by the record.
2. Insufficient Service of Process
The defendants argue in their memorandum to support their motion to dismiss that service was insufficient by publication. The plaintiff responds that service by publication was sufficient under the Practice Book and the defendants received actual notice through the publication.
" Pursuant to General Statutes § 52-68(a) . . . an order of notice may be utilized as an alternative means of service only 'when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or residences of any such persons in interest are unknown to the party instituting the proceeding.'" (Footnote omitted.) Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 164, 561 A.2d 931 (1989), superseded by statute on other grounds, Public Acts 1988, No. 88-317, § 23(c), as recognized in LeConche v. Elligers, 215 Conn. 701, 713, 579 A.2d 1 (1990). Setting forth the procedural requirements to obtain an order of notice, Practice Book § 11-4 provides in relevant part: " [a]pplications for orders of notice . . . shall be made in writing, shall state . . . that all reasonable efforts have been made to ascertain the residence and have failed, and shall further state what notice is considered most likely to come to the attention of such person, with the reasons therefor, unless they are evident . . ." Specifically regarding notice by publication, Practice Book § 11-6 provides: " (a) If an order of notice is by publication and it states the nature of the action and the relief sought sufficiently to inform the party to whom the notice is addressed of the way in which the interests of the party may be affected, the authority issuing the order may direct that only the order be published. (b) Every notice by publication shall have the words 'State of Connecticut' in the caption of the case, and following it, in bold type, the words 'Notice to (the person to whom it is addressed).'"
General Statutes § 52-68 provides: " (a) The Superior Court, and the judges, clerks and assistant clerks thereof, may, except where it is otherwise specially provided by law, make such order as is deemed reasonable, in regard to the notice which shall be given of the institution or pendency of all complaints, writs of error and appeals from probate, which may be brought to or pending in the Superior Court, when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or residences of any such persons in interest are unknown to the party instituting the proceeding. (b) Such notice, having been given and proved by the affidavit of the officer who served the notice or by other competent evidence, shall be deemed sufficient service and notice, and the court may proceed to a hearing, unless otherwise provided by law, or may order further notice as it deems reasonable."
General Statutes § 52-52 and Practice Book § 11-7 provide additional procedural requirements, including the return procedures, proof of publication, and proof of compliance, none of which are contested here.
In Bank Mart v. Langley, 39 Conn.Supp. 198, 201, 474 A.2d 491 (1984), the court found that notice by newspaper publication should be used only as a last resort. The court in Bank Mart determined that " if notice by publication is to be utilized, the plaintiff must clearly and in detail set forth in affidavit form all the steps taken to determine whether notice by some other form could be given so that the court may make an independent determination of the adequacy of notice." (Emphasis omitted; internal quotation marks omitted.) Cato v. Cato, 226 Conn. 1, 9 n.9, 626 A.2d 734 (1993).
The defendants argue that the plaintiff was well aware the defendants no longer resided in the state. They argue that the plaintiff admits in his motion for order of notice he did not know their whereabouts. Citing Dunleavy v. Dunleavy, 14 Conn.Supp. 321 (1946), the defendants argue that notice by publication is improper. The Superior Court in Dunleavy found that notice by publication was insufficient to put the non-appearing defendant on notice. See id., 322 (a conclusion which can only be reached by reading Cikora v. Cikora, 14 Conn.Supp. 204 (1946), rev'd, 133 Conn. 456, 52 A.2d 310 (1947), cited by the court as the reason for its determination that service had not been made under the divorce statute).
Dunleavy differs. By reference to the reasoning in a prior case; Cikora v. Cikora, supra, 14 Conn.Supp. 207-08; the trial court in Dunleavy, found that notice by publication was insufficient to put a nonresident on notice. Dunleavy v. Dunleavy, supra, 14 Conn.Supp. 322. Interpreting a divorce notice statute, the Cikora court determined that a recitation in the order of notice that the defendant had left the state and " gone to parts unknown" was insufficient to allow the clerk issuing the order to approve publication without distinguishing whether the defendant was an absent resident or a nonresident and crafting notice for each circumstance. Cikora v. Cikora, supra, 207-08. The Supreme Court, however, reversed the trial court decision holding that the trial court should have ordered further notice it deemed reasonable to put the defendant on notice. Cikora v. Cikora, 133 Conn. 456, 462, 52 A.2d 310 (1947). The Supreme Court disagreed with the trial court's reasoning, concluding that " [e]ven where a defendant has gone to parts unknown, very likely outside the State, it may well be that publication in the place of the former marital residence is the form of notice most apt to bring the pendency of the action to his attention, because of the likelihood that there will be relatives or friends there who have means of communicating information to him directly or indirectly." Id. Because the court in Dunleavy involved nearly identical facts as Cikora and the Supreme Court reversed Cikora, reliance on Dunleavy 's holding as a basis to dismiss this case is inappropriate. If there is a " rule of Dunleavy " that remains, it is that when the whereabouts of a defendant are unknown, a clerk or the court may issue an order of notice for publication if it is deemed to likely put the defendant on notice of the pendency of the action.
The plaintiff asserts the following in his motion for an order of notice: (i) that the defendants' last known address was 278 Prospect Hill Road, Colchester but that upon attempting service there the marshal was advised that they no longer resided there; (ii) that the plaintiff contacted the United States Postal Service, the Colchester Police Department, and several individuals who have known the defendants to obtain their current address to no avail; (iii) that all mail sent to the defendants' last known address was returned " Not Deliverable. No Forwarding Address."; (iv) that the plaintiff traveled to the state and conducted a personal search by interviewing the current owners of the defendants' last known address and surrounding neighbors to no avail; (v) various internet searches, including Google and Bing searches, as well as paying PeopleSearch for a search of addresses, were made in an attempt to locate the defendants' address to no avail except that a current address was found for the aforementioned post office box in Colchester; and (vi) that the defendants have a direct association with New London county and the published notice in The Day is most likely to come to the attention of the defendants. The plaintiff also asserted that a copy of the notice had been sent to the post office box.
Further efforts to locate the defendants are attested to in the plaintiff's affidavit accompanying his objection to this motion.
The efforts described comport with the requirements of General Statutes § 52-68 and Practice Book § 11-4. The administrative judge approved the order of notice and the marshal's return includes a publisher's certificate attesting that the notice was published in two consecutive weeks in The Day in March 2015. In the application for order of notice, the plaintiff made no claim that the defendants resided in the state at that time. Instead, he claimed that publication was most likely to come to the attention of the defendants as they were understood to have contacts in the area and their last known address was in the newspaper's subscription area. The defendants attest that they are no longer residents of the state but their whereabouts are unknown to the plaintiff. It is evident that publication was a last resort and that the efforts taken prior to seeking the order of notice were set forth to the court. Notice by publication was sufficient and put the defendants on actual notice of the action.
CONCLUSION
The defendants' motion to dismiss is granted as it applies to the plaintiff's claims for libel, libel per se, and defamation, which are barred by the longarm statute. On all other grounds, the motion is denied with judgment reserved on the question of personal jurisdiction until the factual predicate, upon which jurisdiction depends, is proven.