Opinion
TTDCV195011593S
03-15-2019
Michael RICHEY et al. v. Robert Wayne NEWSOME et al.
UNPUBLISHED OPINION
OPINION
Sicilian, J.
The plaintiffs, Michael Richey and Cynthia Richey, bring this action against twelve named defendants. The complaint lists twenty-seven counts, each consisting of a heading or label of a cause of action, followed by a list of the defendants, with each defendant’s name in the list followed by numbers of the counts asserted against that defendant. In addition to these lists, the complaint contains three narrative paragraphs which consist largely of assertions to the effect that the defendants lied and misrepresented with ill intent, causing the plaintiffs to suffer loss. The complaint is devoid of allegations of fact supporting the plaintiffs’ asserted legal conclusions and causes of action.
There are pending two motions to dismiss the complaint, one on behalf of the defendant Mark Dean and one on behalf of all other defendants. All of the defendants, except William O’Sullivan, argue that service of process was not properly effected and, as a result, the court lacks personal jurisdiction over them. All of the defendants argue that this action is virtually identical to a prior, pending action and should be dismissed under the prior pending action doctrine. All of the defendants, except Mark Dean, argue that service on them was also defective because the complaint which they argue was improperly served was missing pages and so differed from the complaint returned to the court.
For the reasons set forth below, the motions to dismiss are granted.
DISCUSSION
I. Plaintiffs Failed To Demonstrate Proper Service of Process
"Because service of process implicates a court’s personal jurisdiction, an action commenced by improper service must be dismissed." Alldred v. Alldred, 132 Conn.App. 430, 431, 31 A.3d 1185 (2011), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012) (internal quotation marks omitted). "[T]he Superior Court ... may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction." Id. at 434 (internal quotation marks omitted; emphasis in original).
Here, the defendants have not consented to the jurisdiction of the court nor have they waived their objections to the court’s exercise of jurisdiction over them. To the contrary, they have challenged the court’s jurisdiction by moving to dismiss the action. "If a defendant challenges the court’s personal jurisdiction, the plaintiff bears the burden of proving the court’s jurisdiction." Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
State Marshall Gregory Woodruff’s return of service reflects that the defendant William O’Sullivan, who is counsel to several of the defendants, was served in hand. O’Sullivan does not contest the validity of the service on him.
In his return, State Marshall Woodruff attested that he made service on the defendant Mark Dean by leaving a copy of the summons and complaint in the hands of Timothy Holzman, who is identified in the return as "Attorney of Record" for Dean. State Marshall Woodruff attested that he made service on all of the other defendants by leaving copies of the summons and complaint in the hands of William O’Sullivan, who is identified in the return as "Attorney of Record" for each of these defendants.
A. Service On Out-Of-State LLCs and Individuals
The summons lists the defendants Newburyport Investments, LLC, Newsome Investments, LLC, Duval Capital, LLC, Cardinal Holdings, LLC, and Envirotech Fuels, LLC, as out-of-state limited liability companies ("LLCs"). It identifies individual defendants Robert Wayne Newsome, Charles Lagasse, and Stanford Gann as out-of-state individuals. These defendants argue that Connecticut’s long-arm statute, General Statutes § 52-59b, provides the method for service of process on out-of-state LLCs and individuals and that service under that statute must be made "by leaving with or at the office of the Secretary of the State ... a true and attested copy [of the process], and by sending to the defendant at the defendant’s last known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State."
The individual, out-of-state defendants are correct that General Statutes § 52-59b prescribes the proper method of service on them.
While the out-of-state LLC defendants are correct that General Statutes § 52-59b provides one acceptable method of service on them, it does not provide the only method of proper service, at least if those LLCs are registered in Connecticut. General Statutes § 34-243r, a portion of the Uniform Limited Liability Company Act which became effective on July 1, 2017, permits other methods of service on foreign LLCs. Section 34-243r provides that service on a registered foreign LLC may be made:
1. by serving the LLC’s registered agent;
2. by registered or certified mail, return receipt requested, if the registered foreign LLC ceases to have a registered agent or the registered agent cannot with reasonable diligence be served;
3. if alternatives 1 and 2 are not available, "by handing a copy to the individual in charge of any regular place of business or activity of the company or foreign company ..."; or
4. "by other means under law."
General Statutes § 34-243r
Neither the plaintiffs nor the defendants have submitted evidence regarding the Connecticut registration status of the defendant LLCs that are listed in the summons as foreign entities. It is, therefore, not clear whether service can properly be made under General Statutes § 34-243r, which by its terms applies only to registered foreign LLCs. But resolution of that issue is unnecessary as the state marshal’s return of service establishes that the only service made here was the delivery of process to William O’Sullivan, which does not meet the requirements of either General Statutes § 52-59b or General Statutes § 34-243r.
The plaintiffs argue that service of process on the foreign LLCs and individuals named as defendants in this new action was made on an attorney who is counsel of record to those defendants in a prior, pending action and, therefore, that the defendants are adequately on notice of the claims against them. This argument reflects a misunderstanding of the settled requirements for valid service of process and the necessity of meeting those requirements to give the court personal jurisdiction over the defendants. "[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." Narayan v. Narayan, 305 Conn. 394, 402, 46 A.3d 90 (2012) (internal quotation marks omitted). "When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate." Nelson v. Stop & Shop Companies, Inc., 25 Conn.App. 637, 641, 596 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991); Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 561 A.2d 931 (1989). "[M]ere knowledge of the proceedings is insufficient to confer personal jurisdiction over a party who has not been properly served." Alldred, supra, 132 Conn.App. 437.
The marshal’s delivery of a summons and complaint to Attorney O’Sullivan does not meet the requirements of either General Statutes § 52-59b or General Statutes § 34-243r. Therefore, the court does not have personal jurisdiction over any of the defendants listed in the summons as foreign LLCs or foreign individuals.
B. Service on 9 Thompson Road, LLC
The plaintiffs’ summons identifies the defendant 9 Thompson Road, LLC as having a Connecticut address. 9 Thompson Road, LLC argues that it is a foreign LLC and, in support of that argument, cites to an allegation in a counterclaim filed by the plaintiffs in another action. It argues, therefore, that service on it suffers from the same defects as service on the foreign LLCs discussed above. The plaintiffs’ opposition papers do not address the defendants’ assertion that 9 Thompson Road, LLC is a foreign LLC.
To the extent that there is a factual dispute over whether 9 Thompson Road, LLC is a domestic or a foreign LLC, there is no need for the court to resolve it. The purported service on 9 Thompson Road, LLC is ineffective regardless.
If 9 Thompson Road, LLC is a foreign LLC, it was not properly served with process for all of the same reasons stated in section I.A., above. If 9 Thompson Road, LLC is a domestic LLC, General Statutes § 34-243r provides the acceptable methods of service, which are similar to those available for foreign LLCs. Process must be served on the LLC’s registered agent; or if the registered agent cannot with reasonable diligence be served, by registered or certified mail, return receipt requested, or similar commercial delivery service, to the LLC’s principal office; or by handing a copy of the process to the individual in charge of any regular place of business or activity of the LLC; or by any other means under law. General Statutes § 34-243r.
Service on an attorney of record does not satisfy any of these requirements. Narayan, supra, 305 Conn. 402; Nelson, supra, 25 Conn.App. 641; Tarnopol, supra, 212 Conn. 157; Alldred, supra, 132 Conn.App. 437. Therefore, the court does not have personal jurisdiction over 9 Thompson Road, LLC.
C. Service On RWN Trust
A trust is not a legal entity capable of suing or being sued. The trustee is the proper party to sue or to be sued on behalf of trust. Bobo v. Jack Family Trust, Superior Court, judicial district of Hartford, Docket No. CV-15-6058346-S (April 15, 2016) . Moreover, even if RWN Trust, listed in the summons as a foreign trust, were a proper party, the attempted service on Attorney O’Sullivan as its purported attorney of record would be ineffective for failure to meet the requirements of the long-arm statute, General Statutes § 52-59b. Narayan, supra, 305 Conn. 402; Nelson, supra, 25 Conn.App. 641; Tarnopol, supra, 212 Conn. 157; Alldred, supra, 132 Conn.App. 437.
The Court does not have personal jurisdiction over RWN Trust.
D. Service On Mark Dean
General Statutes § 52-57(a) provides the proper method of service on an individual who is a resident of Connecticut. Under that statute, "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." The plaintiffs’ attempt to confer jurisdiction over Dean by serving process on someone the plaintiffs assert is an attorney of record for Dean does not satisfy these statutory requirements.
In his opposition papers, Dean challenges the statement in the marshal’s return that process was served on Attorney Timothy Holzman. The plaintiffs do not address this issue in their objection to Dean’s motion to dismiss. However, it is unnecessary for the court to resolve that factual dispute, if in fact there is a dispute, because even if service was made on Attorney Holzman it would be ineffective.
The court lacks personal jurisdiction over the defendant Mark Dean. Narayan, supra, 305 Conn. 402; Nelson, supra, 25 Conn.App. 641; Tarnopol, supra, 212 Conn. 157; Alldred, supra, 132 Conn.App. 437.
II. Prior Pending Action Doctrine
The only defendant over whom the court has personal jurisdiction is William O’Sullivan. O’Sullivan moves to dismiss this action under the prior pending action doctrine, and is joined by all of the other defendants, who argue that the action should be dismissed for this reason in addition to the failure of the plaintiffs to make proper service of process.
Our courts have long applied the prior pending action doctrine, which provides that a second case that raises issues already pending in another action may be dismissed. "The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction." Bayer v. Showmotion, Inc., 292 Conn. 381, 395-96, 973 A.2d 1229 (2009) (internal quotation marks omitted).
Plaintiff Michael Richey’s prior action entitled Richey v. Newsome, Docket No. TTD-CV-18-5010875 (the "Prior Action") remains pending in this court. A comparison of the complaint in the Prior Action with the plaintiffs’ complaint in this action establishes that the two actions are nearly identical.
Virtually all of the same parties are present in both actions. Michael Richey is a plaintiff in both actions. Cynthia Richey has sought to be added as a plaintiff in the Prior Action but has not yet filed a proper request in accordance with Practice Book requirements. All of the defendants in the Prior Action are named as defendants in this case. The plaintiffs have added two, additional defendants here that are not named in the Prior Action: William O’Sullivan, who is counsel to the defendants other than Mark Dean in the Prior Action, and Newburyport Investments, LLC.
The complaint in the Prior Action asserts wide-ranging claims against the defendants that appear to be alleged to arise from business dealings between the plaintiffs and the defendants. The claims in the plaintiff’s Amended Complaint— Third Revision, in the Prior Action reference alleged conflicts of interest, breaches of duties of loyalty and of care, slander, misrepresentation, racketeering, identity theft, theft of patents, concealment of material facts, violation of the federal Racketeering and Corrupt Organization Act, fraud, corruption, extortion, forgery, theft, misappropriation of trade secrets, gross negligence, fraudulent non-disclosure, unjust enrichment, bank fraud, conversion, stock fraud, and product fraud. All of those claims appear also to be brought in the current action. Although the complaint in this action is almost entirely lacking in factual allegations and the third revision of the complaint in the Prior Action contains only slightly more by way of explanatory facts, it appears that the two actions are based on the same, alleged, underlying conduct, allege the same legal theories, and seek the same relief.
The plaintiffs’ objection and affidavits in opposition to the defendants’ motions to dismiss do not address the defendants’ arguments for dismissal based on the prior pending action doctrine. The plaintiffs’ opposition papers do not identify any, material differences between the two actions. The court’s review of the operative complaints in the two actions, summarized above, leaves no doubt that the overlap between the two actions is virtually complete.
The slight difference in the parties included in this action and those named in the Prior Action does not render the prior pending action doctrine inapplicable. "Superficial differences in the parties are not enough to overcome dismissal under the prior pending action doctrine." Gaudio v. Gaudio, 23 Conn.App. 287, 296, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). To the extent that any of the parties named in this suit and not in the Prior Action are proper parties to the plaintiffs’ claims, the plaintiffs could seek to add them to the Prior Action in accordance with Practice Book requirements.
There is no significant difference between this action and the Prior Action. "Connecticut has long recognized that two suits shall not be brought for the determination of matters in controversy between the same parties, whether relating to legal or equitable rights, or to both, when such determination can be had as effectually and properly in one suit." BCBS Goshen Realty, Inc. v. Planning & Zoning Commission, 22 Conn.App. 407, 408, 577 A.2d 1101 (1990) (internal quotation marks omitted.)
This action must be dismissed under the prior pending action doctrine.
III. Pages Missing From The Complaint As Served
The plaintiffs contest the defendants’ assertion that pages were missing from the copies of the complaint that the marshal delivered to Attorney O’Sullivan. There is no need to resolve that factual dispute because, as explained above, service was ineffective on all defendants other than Attorney O’Sullivan regardless of the content of the process sought to be served and, even if service were effective, this action should be dismissed under the prior pending action doctrine.
CONCLUSION
The purported service of process on the defendants other than William O’Sullivan was ineffective as a matter of law to confer personal jurisdiction over them. Moreover, the current action is virtually identical to the Prior Action and, therefore, should be dismissed under the prior pending action doctrine.
The defendants’ motions to dismiss are granted.