Opinion
No. CV 00 092410
March 8, 2001
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#104)
Presently before the court is a motion to dismiss contesting the sufficiency of the service of process purportedly effectuated on a nonresident defendant. The plaintiff, Jacqueline Stover, executrix of the estate of Anna Lacava, filed her complaint on January 9, 2000, alleging that the defendant, Marianne Fightlin, her sister, converted certain funds from a savings passbook account by means of an improper power of attorney.
The return indicates that the sheriff sent by certified mail a true and attested copy of the original writ, summons and complaint to the defendant's address in Minnesota on June 2, 2000 pursuant to the First Order of Notice. The defendant argues that the motion to dismiss should be granted because the return does not indicate that return receipt was requested and that the sheriff did not file a supplemental return indicating whether or not the defendant personally received the writ, summons and complaint. Attached to the motion to dismiss is the defendant's affidavit, which indicates that she is a fifteen year resident of Minnesota; that she never received a copy of the writ, summons and complaint; and that she first became aware of the action when she received a motion for default for failure to appear. The plaintiff has not filed any opposition to the motion to dismiss.
"The grounds which may be asserted in a motion to dismiss are: "(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process." (Internal quotation marks omitted.) Malasky v. Metal Products Corp., 44 Conn. App. 446, 451-52 n. 8, 689 A.2d 1145, cert. denied, 241 Conn. 906. 695 A.2d 539 (1997); see also Practice Book § 10-31. "In ruling on whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). "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. . . ." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59. 62, 539 A.2d 1000 (1988).
The nonresident defendant in the present conversion action would be subject to the court's jurisdiction pursuant to Connecticut's long arm statute, General Statutes § 52-59b, based on the commission of a tortious act within the state. The First Order of Notice, dated May 25, 2000, required the plaintiff to serve the defendant by "depositing a true and attested copy of the writ, summons, complaint and this order of notice in a post office, postage paid, letter certified, personal return receipt requested, directed to the defendant. . . ." The sheriff's return does not indicate whether a return receipt was requested and, therefore, the court finds that the plaintiff did not comply with the requirements of the notice.
General Statutes § 52-59b (a) provides in relevant part that: "As 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 . . . or over the executor or administrator of such nonresident individual . . . who in person or through an agent . . . (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act. . . ."
General Statutes § 52-68 authorizes the issuance of the First Order of Notice. Section 52-68 (a) provides: "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." Section 52-68 (b) provides: "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."
Furthermore, the type of service attempted by the plaintiff does not comport with any other applicable service of process procedure. InAnderson v. Schibi, 33 Conn. Sup. 562, 566, 364 A.2d 853 (1976), the court held that General Statutes § 52-59b (c) is not the exclusive method for service of process on an out-of-state defendant and that "[i]f process is correctly served in a manner prescribed by § 52-57a, the Connecticut court has personal jurisdiction over a nonresident defendant in an action brought under the long-arm statute." See Pelletier v. Goodnoff, 45 Conn. Sup. 563, 727 A.2d 277 (1998), aff'd, 52 Conn. App. 360, 727 A.2d 229 (1999). There is no indication from the record provided that the Secretary of State was served pursuant to General Statutes § 52-59b, therefore, the court must analyze whether attempted service of process complied with General Statutes §§ 52-57a and 52-57. Section 52-57 requires that, 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." The certified letter does not conform to the requirements of the either § 52-57 or § 52-59b.MGA, Inc. v. Goellner, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 154820 (May 28, 1997, Ryan, J.). Accordingly, the motion to dismiss is granted.
At the time service was effectuated General Statutes § 52-59b (c) provided in relevant part that: "Any nonresident individual . . . or the executor or administrator of such nonresident individual . . . over whom a court may exercise personal jurisdiction, as provided in subsection (a), shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . or the executor or administrator of such nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual or foreign partnership personally. The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State . . . a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State." Public Acts 2000, No. 00-191, § 5 subsequently amended General Statutes § 52-59b (c).
It is so ordered.
By the court,
Gilardi, J.