Opinion
No. CV 03 0196992 S
July 20, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS
I. Defendant FGM Investment Company
The defendant, FGM Investment Company, moves to dismiss the plaintiff's action due to lack of personal jurisdiction and insufficiency of service of process because Farmington, Connecticut is an incomplete address for FGM Investment Company and the plaintiff failed to serve the general partner or any other partner of FGM a copy, writ, summons or complaint in accordance with General Statutes § 52-57(a) and General Statutes § 52-57(d).
General Statutes § 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, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state."
General Statutes § 52-57(d) provides: In actions against a partnership, service of process may be made by personally serving any process within the state upon any one of the partners or, if none of the partners are residents of the state, service may be made upon the Secretary of the State; provided, prior to the return date, the officer serving the writ shall mail a copy of the writ and the complaint by registered or certified mail, return receipt requested, to the last-known address of every partner named in the writ not personally served. A statement of such mailing and receipt therefor shall be included in the officer's return."
The plaintiffs counter that they had served an amended complaint on the defendant's attorney, curing any defect that may have existed in the original complaint. Furthermore, the plaintiffs contend that service on Robert F. Peters (Peters), counsel retained by FGM for general legal matters, is a proper person on whom to effect service on behalf of FGM because Practice Book § 10-12(a) allows for such service.
Practice Book § 10-12(a) states: "[I]t is the responsibility of counsel or pro se party filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint, every written motion other than one in which an order is sought ex parte and every paper relating to discovery, request, demand, claim, notice or similar paper. When a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority."
A. Insufficient Service of Process
"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." (Internal quotation marks omitted.) Borden v. Planning and Zoning Comm., 58 Conn.App. 399, 405 755 A.2d 224 (2000). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. 723, 736 (2004). "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action." Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
In ruling on a motion to dismiss, the "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.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion 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, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
"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.) Connecticut Light and Power Company v. St. John, 80 Conn.App. 767, 772, 837 A.2d 841 (2004). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over the persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).
Practice Book § 10-59 provides: "The plaintiff may amend any defect, mistake or informality in the writ, complaint or petition and insert new counts in the complaint, which might have been originally inserted therein, without costs, during the first thirty days after the return day. (See General Statutes § 52-128 and annotations.)" In this case, the plaintiffs had filed a motion to amend the civil summons and complaint within thirty days of the return date; however, on January 5, 2004, the court denied this motion. The amended pleadings are of no consequence in the present action because the additional and modified facts alleged by the plaintiffs in the amended complaint do not address the jurisdictional defect arising from improper service of process that the defendant asserts as the ground for its motion to dismiss.
General Statutes § 52-57(d) provides that service of process on a partnership may be accomplished within the state by personally serving any of the partners, or if none of the partners reside within the state, on the Secretary of the State. "[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 . . . The jurisdiction that is found lacking . . . is jurisdiction over the person, not the subject matter." (Internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 31 (2004).
In this case, the plaintiffs neither personally served any of the partners, nor did they make service of process on the Secretary of the State. The plaintiffs counter that the service on FGM, made through their attorney, Peters, was still proper because Practice Book § 10-12 allows for such service. The provision provides in relevant part that "[w]hen a party is represented by an attorney, the service shall be made upon the attorney unless service upon the party is ordered by the judicial authority." This provision relates, however, only to service of pleadings "subsequent to the original complaint." Service of process on FGM through their general legal counsel is insufficient because the Practice Book provision does not apply to service of the summons and complaint; therefore, the court does not have personal jurisdiction over FGM.
In their amended complaint dated October 6, 2003 and during oral arguments on March 22, 2004, the plaintiffs alluded that improper service of process on eight of the ten defendants, including FGM, was attributable to Constable Jon T. Gallup's failure to serve process on these defendants. They maintain that the constable did not inform them until months later, and only after numerous telephone calls and trips to his office, that he could not make service of process outside of his precinct in Stamford. This argument does not, however, address the reasons proffered by FGM for contesting service of process. FGM contests service on the grounds that the plaintiffs did not make service on it in accordance with the requirements of General Statutes § 52-57(d). Specifically, that the plaintiffs attempted to effect service on it through a person not authorized, expressly or by statute, to receive service of process on its behalf. Moreover, FGM maintains that the address of "Farmington, Connecticut," which is denoted in the summons and amended summons is an incomplete address for FGM. Thus, even had a constable attempted service of process on FGM, service would still have been insufficient.
B. Equitable Estoppel
"Strong public policies have long formed the basis of the doctrine of equitable estoppel. The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties . . . No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 236, 842 A.2d 1089 (2004). "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse." Bozzi v. Bozzi, 177 Conn. 232, 241, 239, 413 A.2d 834 (1979).
"There are two essential elements to estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. In the absence of prejudice, estoppel does not exist." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, supra, 268 Conn. 236. "The party claiming estoppel . . . has the burden of proof." (Internal quotation marks omitted.) Id., 235. "It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." (Internal quotation marks omitted.) Celetano v. Oaks Condominium Assoc., 265 Conn. 579, 615, 830 A.2d 164 (2003).
Our courts have applied the equitable doctrine of estoppel, when warranted, to preclude defendants from asserting improper service of process challenges to the court's jurisdiction. See Stevenson Lumber Co. Suffield, Inc. v. Salcedo, Superior Court, judicial district of Hartford, Docket No. CV 000595374 (July 18, 2000, Hennessey, J.) ( 27 Conn. L. Rptr. 568); Shawmut Bank Connecticut, J.A. v. Masterson, Superior Court, judicial district of New Haven at Meriden, Docket No. 242822 (July 14, 1993, Blue, J.) ( 9 Conn. L. Rptr. 401); but see Wylie v. Wachovia Bank N.A., Superior Court, judicial district of New Haven, Docket No. CV 03 0480076 (November 7, 2003, Devlin, J.) (finding defendant did not engage in misleading conduct to warrant application of estoppel); Nevins v. Moretti, Superior Court, judicial district of Norwich at New London, Docket No. 09 49 57 (July 2, 1991, Teller, J.) ( 4 Conn. L. Rptr. 244) (denying plaintiff's estoppel claim where plaintiff failed to use due diligence to determine whether defendant, motorist, resided at last recorded address). The courts have not, however, applied the doctrine where, despite the defendant's misrepresentation, a plaintiff had alternate means of making service of process. See Gallop v. Commercial Painting Co., 42 Conn.Sup. 187, 197, 612 A.2d 826, 6 Conn. L. Rptr. 9 (1992) (refusing to estop defendant from asserting that statute of limitations bars action because plaintiff had alternative means of serving process on evasive defendant).
The plaintiffs allege that FGM misled them by representing itself as a Connecticut business with an office in Farmington, Connecticut when, in fact there is no record of their existence with the Connecticut Secretary of the State. They argue that this misleading representation hindered the plaintiffs from locating FGM's partners or other proper persons on whom they could effect service of process. This alone, however, does not support a claim of equitable estoppel because the plaintiffs failed to pursue the alternative means of serving process on the Secretary of State. Where "none of the partners are residents of the state," which is likely since FGM is not a Connecticut partnership, "service may be made on the Connecticut Secretary of the State." General Statutes § 52-57(d). Furthermore, the pleadings do not indicate that the plaintiffs exercised due diligence in attempting to locate any of FGM's partners. For these reasons, the plaintiffs cannot claim the protections of equitable estoppel.
Accordingly, for the aforementioned reasons, the defendant FGM's motion to dismiss the plaintiffs' complaint for lack of personal jurisdiction due to insufficiency of service of process is hereby granted.
C. Savings Statute CT Page 11853
The plaintiffs, however, still have statutory recourse to institute a new action on these same claims. General Statutes § 52-592(a), also known as the "savings statute," provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service . . . the plaintiff . . . may commence a new action . . . For the same cause at any time within one year after the determination of the original action." Thus, since "[the statute] specifically authorizes the plaintiff[s] to commence a new action . . ." Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 17, 578 A.2d 646 (2004); see also Rocco v. Garrison, 268 Conn. 541 549 (2004), the plaintiffs can commence a new action within one year after the granting of FGM's motion to dismiss.
II. Defendants Robert F. Peters and Devlin, Peters Tarpey, LLC
The defendants, Robert F. Peters (Peters) and Devlin, Peters Tarpey, LLC (DPT), move to dismiss on the ground that the court lacks personal jurisdiction over them because service of process was not made in compliance with General Statutes § 52-57(a) and (c). They maintain that service of process was insufficient as to Peters and DPT because the plaintiffs did not make personal or abode service on Peters, individually or as DPT's agent for service of process.
General Statutes § 52-57(c) provides: "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. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922."
A. Insufficient Service of Process
General Statutes § 52-57(a) provides for only two methods of service of process on an individual within the state: personal service effected by directly delivering the process to the defendant, or abode service, accomplished by leaving a copy of the process at the defendant's place of abode. See Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962). For service on a corporation, General Statutes § 52-57(c) provides for a greater array of persons on whom service may be made on behalf of the corporation; however, it does not expand on the methods of service as specified in subsection (a). Thus, a plaintiff must effect either personal or abode service on at least one of the officers, employees or agents specified within the provision to serve process on a corporate defendant.
In the instant case, the plaintiffs did not attempt in-hand delivery of the summons and complaint to the defendants. Instead they left copies of the process for Peters and DPT, addressed to Peters, at the Connecticut office of DPT, Peters's place of work. The defendants assert that Peters's work place does not qualify as an "abode," within the meaning of General Statutes § 52-57, sufficient to constitute abode service.
"`Abode' for purposes of General Statutes § 52-57(a) is the place where the defendant would most likely have knowledge of service of process and is generally recognized as the place where he is living at the time of service." Grayson v. Wofssey, Rosen, Kweskin Kuriansky, 40 Conn.Sup. 1, 3, 478 A.2d 629 (1984). "As an exception to the general rule requiring strict construction of statutes in derogation of the common law, it has been held that provisions for [abode] service should be liberally construed in those cases in which the defendant received actual notice." Plonski v. Halloran, 36 Conn.Sup. 335, 337, 420 A.2d 117 (1980). This is because "[i]ts chief purpose is to ensure actual notice to the defendant that the action is pending." Id., 335-36; see also Paskieka v. Arktop, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285506 (November 18, 2003, Tanzer, J.).
Our courts have declined to allow such a liberal construction, however, when service is made at a person's place of employment in lieu of service at his usual place of abode. See Grayson v. Wofssey, Rosen, Kweskin Kuriansky, supra, 40 Conn.Sup. 3 (refusing to recognize abode service where copy of process is left at defendant, law partner's firm address because not his "usual place of abode"); see also Marion v. Marion, Superior Court, judicial district of Windham at Putnam, Docket No. CV 97 0057153 (June 18, 1998, Potter, J.) (finding service at offices of defendants violated requirements of General Statutes § 52-57); East Lyme v. Huntington, 22 Conn.Sup. 288, 289, 169 A.2d 752 (1961) (finding copy of process left at defendant's office did not constitute abode service even though defendant had actual knowledge of action). The courts have unequivocally held that "[a] person's place of employment is not sufficient for abode service absent any showing of residency. Grayson v. Wofsey, 40 Conn.Sup. 1, 3, 478 A.2d 629 (1984), citing East Lyme v. Huntington, [sic] Conn.Sup. 288, 289, 169 A.2d 752 (1961)." Myers v. City of Hartford, (D.Conn. 2003).
In the instant case, Robert F. Peters is a partner in the law firm of Devlin, Peters Tarpey, LLC and is also the statutory agent for service for Devlin, Peters Tarpey, LLC. Since the plaintiffs failed to serve the summons and complaint upon Peters in hand or at his place of abode, service of process was insufficient thereby depriving the court of jurisdiction.
B. Equitable Estoppel
The defendants cannot be estopped from contesting the jurisdiction of the court because the plaintiffs have not alleged facts to indicate that the defendants misled them into making service of process on Peters at his place of work instead of his home. See Wylie v. Wachovia Bank, N.A., Superior Court, judicial district of New Haven, Docket No. CV 03 0480076 (November 7, 2003; Devlin, J.) (finding nothing in record to suggest defendant misled marshal into making service of process on a person, not authorized as an agent for service of process by defendant, for estoppel to apply). Estoppel is a general equity principle that focuses on the defendant and its actions. See Gallop v. Commercial Painting Co., supra, 42 Conn.Sup. 193, 6 Conn. L. Rptr. 9. For estoppel to exist there must be some misleading conduct resulting in prejudice to the other party. See Lombardo's Ravioli Kitchen, Inc. v. Ryan, supra, 268 Conn. 236. Absent misleading statements or conduct attributable to the defendants that would cause the plaintiffs to serve Peters at his office, estoppel is inapplicable to defeat the defendants' motion to dismiss.
Accordingly, it is respectfully submitted that for the foregoing reasons, the defendants, Peters and DPT's motion to dismiss is likewise hereby granted.
C. Savings Statute
As in the case of FGM, the plaintiffs are not without recourse. They may initiate a new action against these two defendants on the same cause within one year after the action is dismissed. General Statutes § 52-592(a).
BY THE COURT
WILSON, J.