Opinion
No. CV 09-5010079S
December 24, 2009
Memorandum of Decision on Motion to Dismiss (No. 101.00)
Background
By this action the plaintiff, Southern Air, Inc., a Connecticut corporation headquartered in Norwalk, seeks damages from its former independent contractor defendant Todd Clements upon claims of unjust enrichment, breach of duty of loyalty, and fraud allegedly arising out of defendant's conduct while engaged by the plaintiff in a supervisory role related to plaintiff's aircraft operations in Jakarta, Indonesia. The complaint seeks legal and equitable relief, as well as exemplary damages, costs and attorneys fees. The primary factual allegation is that Clements, while acting as an independent aircraft maintenance supervisor for Southern Air in Indonesia, engaged in an allegedly fraudulent scheme in which he accepted improper kickbacks from Garuda Maintenance, a Jakarta-based maintenance facility to which Southern Air sent a number of its aircraft for maintenance and repair. Southern Air claims that Clements accepted kickbacks from Garuda in exchange for his approval as Southern Air's supervisor of fraudulently inflated levels of man-hours reported by Garuda employees for working on Southern Air aircraft which hours were reflected in invoices submitted to and paid by Southern Air.
The defendant through counsel has filed a timely motion to dismiss under Practice Book §§ 10-30 and 10-31 based on 1) lack of personal jurisdiction under Conn. Gen. Stat. § 52-59b(a) (the "long-arm statute"); 2) insufficient service of process; and 3) forum non conveniens. Because the court agrees that service of process on Mr. Clements was insufficient, it will not be necessary to discuss the other grounds of the motion.
Discussion and Ruling
Service of process upon Mr. Clements was made by Edward H. McPheeters a Certified Process Server of the State of Kansas, who swore to the following facts in his "Affidavit of Service" dated January 7, 2009 as on file.
. . . on the 26th day of December 2008 at 1:30 pm I:
SUBSTITUTE served by delivering a true copy of the summons and complaint with the date and hour of service endorsed thereon by me, to: Glodine Clements as Mother at the address of: 24695 Chase Road, Chanute, KS 66720, the within-named person's usual place of Abode, who resides therein, who is fifteen (15) years of age or older and informed said person of the contents therein, in compliance with state statutes Additional Information pertaining to this Service:
12/28/2008 10:44 a.m. On approximately 12/15/2008 a phone call was made to the address at 24695 Chase Road in Chanute KS. Glodine Clements, Todd Clements' mother, answered the phone. She was asked if Todd was there and she said he would not be there until later that night. I asked if he did live there and she said "yes." Upon arrival at the address on 12/26/2008, I spoke to Glodine Clements and asked for Todd. She said he lived in the Phillipines and has never lived there. She denied talking to me on the phone and did not want to accept the service of process upon Todd. She was served based upon the her initial confirmation that Todd did live there. (Bolding in original.)
There is no claim that defendant Todd Clements resides or has a place of abode in Connecticut. He is therefore a nonresident individual. The court will assume without deciding that the complaint against him alleges one or more causes of action based on one or more of the acts enumerated in the long-arm statute as conferring personal jurisdiction of a Connecticut court over nonresident individuals, and will also assume that the exercise of such jurisdiction over the defendant would not offend constitutional principles of due process of law as articulated in the seminal case of International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed 2d 95 (1945), and its progeny, requiring certain minimum contacts between the defendant and the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. The focus then narrows down to whether or not process was properly served upon Todd Clements under the Connecticut statutes authorizing service of process on nonresident individuals over whom a Connecticut court may validly exercise personal jurisdiction. The defendant claims that service was improper. The plaintiff's position is that service was proper.
There are two statutory procedures for service on a nonresident individual defendant. One procedure would be to serve a true and attested copy of the process upon the Secretary of State as constructive agent of the defendant pursuant to Conn. Gen Stat. § 52-59b(c) followed ". . . 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 contested copy with an endorsement thereon of the service upon the Secretary of State." ( Id.) This procedure was admittedly not followed or attempted by the plaintiff herein. No service was made on the Secretary of State. Nothing was mailed to the defendant at any address. Instead, plaintiff attempted service pursuant to the other statutory procedure which is set forth in Conn. Gen. Stat. § 52-57a:
A person domiciled in or subject to the jurisdiction of the courts of this state . . . may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory or possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.
The "same manner as service is made within the state" refers to (1) personal service, by actual manual service to the defendant himself (not attempted or claimed here) or (2) "by leaving a true and attested copy of [the process] at [the defendant's] usual place of abode . . ." Conn Gen. Stat. § 52-57(a). (claimed by plaintiff to have been accomplished here).
"Where service [is] not made in hand, our law then requires abode service to be made at the usual place of abode to vest personal jurisdiction unless an order of notice had been ordered, permitting publication or mail service." (Citations omitted; internal quotation marks omitted.) Reeves v. Battle, Superior Court, Judicial District of New London at Norwich, Docket No. 117847 (August 19, 1999, Mihalakos, J.). "`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 . . ." (Citation omitted.) Grayson v. Wofsey, Rosen, Kweskin Kuriansky, 40 Conn.Sup. 1, 3 (1984). Accordingly, our courts are reluctant to recognize abode service where process is not left for the defendant at the place he is living at the time service is made, even in cases where the defendant receives actual notice of the action. See Hibner v. Breuning, 78 Conn.App. 456, 463, 828 A.2d 150 (2003) (abode service is not effective if it is left at an address that is not the usual address of the party to be served); East Lyme v. Huntington, 22 Conn.Sup. 288, 169 A.2d 752 (1961) (determining dwelling where defendant maintained an office is not equivalent of defendant's usual place of abode).
The dispositive issue, then, is whether or not 24695 Chase Road, Chanute, Kansas was the usual place of abode of Todd Clements, or the place where he usually lived, on December 26, 2008 when process was left at that address. The fact that it may have been his "last known address" as plaintiff claims is irrelevant. Service by registered or certified mail after serving the Secretary of State can be made under § 52-59b(c) to "the defendant's last-known address," but the service attempted in this case — abode service — must be made to the usual place of abode at the time of service. Whether or not Mr. Clements was actually living at the address in Kansas at the time of service is an issue of fact as to which the defendant has the burden of proof.
In cases where abode service is attempted and the process server files a return with the court, there is a presumption that the matters stated in the officer's return are true, and the defendant bears the burden of disproving personal jurisdiction. Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825-26 (2007).
A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. Barde v. Board of Trustees, 207 Conn. 59, 62 (1988). If a resolution of a disputed fact is necessary to determine the existence of standing when raised by a motion to dismiss, a hearing may be held in which evidence is taken. Weidenbacher v. Duclos, 234 Conn. 51, 54 n. 5 (1995). In this case, the facts alleged in the complaint, taken as true, coupled with the undisputed record submitted by the defendant (Copy of his 2008 Form 1099 mailed to him by the plaintiff) show that the defendant was not residing at his mother's address in Chanute, Kansas at the time of the purported abode service. The allegations of the complaint clearly indicate that Mr. Clements was a resident contract maintenance supervisor for Southern Air, living in Jakarta, Indonesia until he was terminated by Southern Air on or about August 6, 2008. (Complaint, ¶¶ 1-13.) Following his termination he would be expected to provide a forwarding address to Southern Air so that an IRS Form 1099 could be mailed to him as required by law, giving him the amount of 2008 income and other data reported to the IRS. Mr. Clements would need this information for inclusion in his 2008 income tax return. A copy of that 2008 Form 1099 is attached as Exhibit A to Defendant's Memorandum of Law in support of this motion, and is uncontested by the plaintiff. The form, which had to be generated and mailed by the plaintiff, shows defendant's address as "Block 8, Lot 15, Saint Kolbe Corner P., San Fernando 2000, Pampanga, Phillipines." This is consistent with Officer McPheeters' Affidavit of Service in which he attests that he was told by Mrs. Glodine Clements on December 26, 2008 that her son, the defendant Todd Clements, ". . . lived in the Phillipines and has never lived here [at the mother's Kansas address]." The court puts very little weight on the telephone conversation the officer claims he had with the mother on approximately December 15, 2008 wherein she supposedly said the defendant lived at her home and would be home later that evening. There is no indication that the officer identified himself on the telephone as a Certified Process Server or other public official. So far as the record shows, then, he was an anonymous caller with no apparent legitimate need for the personal information he sought. So far as the record shows, no written memorandum of that call was made until December 28, 2008 almost two weeks after the call was supposedly made. And if the officer was informed on December 15 that Todd Clements would be physically present at the Kansas address "later that night" why did he not attempt service that night, or early the following morning? The fact that he waited some eleven days — until December 26 — to attempt service further weakens the claimed evidentiary value of the reference to a phone call on December 15.
The plaintiff has submitted an affidavit of its Vice President of Heavy Maintenance and Engineering, Brian R. Dillon. Although the contents of the Dillon affidavit are uncontested, they are irrelevant to the issue of the defendant's place of abode on December 26, 2008 when service was purportedly made upon him. The fact that the defendant listed his mother's Chanute, Kansas address on "various invoices" submitted to Southern Air (Dillon affidavit, ¶ 8) is meaningless. Those invoices would have been submitted prior to August 6, 2008 when defendant was terminated by the plaintiff. But is clear from plaintiff's own allegations in the complaint and from other statements in the Dillon affidavit that the defendant was living in Indonesia during the period he was working for the plaintiff. And the fact that defendant may have contacted plaintiff's counsel by telephone on January 23, 2009 — the day this lawsuit became public record in the office of the clerk of this court — is also meaningless. All that shows is that the defendant was actually aware of this lawsuit about a month after the purported abode service. It adds nothing to the issue of defendant's abode at the time of service. As previously indicated, service at an address which is not at the time the usual place of defendant's abode is ineffective even if it results in actual notice to the defendant. See, East Lyme v. Huntington, supra. (Service by leaving process at defendant's office was a nullity even though the process was found at the office by defendant's husband and delivered to the defendant at their home shortly thereafter.)
The court finds that the defendant was not living at 24695 Chase Road, Chanute, Kansas, and did not have a place of abode at that address, when the purported abode service was made on December 26, 2008. Accordingly the defendant's motion to dismiss is granted.