Opinion
No. CV05-04005217-S
January 12, 2006
MEMORANDUM OF DECISION RE #104
The defendant, Danny M. Smolnik has moved to dismiss this action because of insufficient service of process. The marshal's return indicates that service was made by leaving the civil process at the usual place of abode of the defendant, at 30 Rocklyn Drive, Simsbury, Connecticut, on April 21, 2005. The defendant claims that address was not his usual place of abode at the time of service since he had moved out of those premises on April 12, 2005 and relocated to Massachusetts. An evidentiary hearing was held on December 19, 2005, at which time counsel for both parties asked the court to decide the issue on the affidavits submitted.
DISCUSSION
"When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Tax Collector of New Haven v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). "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." (Internal quotation marks omitted.) Id., 825.
The issue of what constitutes "usual place of abode" was a concern in the case of Miller v. Field, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0532257 (April 12, 1994, Sheldon, J.) ( 9 C.S.C.R. 494). That court noted:
Whether or not a particular place is a defendant's `usual place of abode' is a question of fact which the Court must answer in light of the dual purposes served by the abode-service requirement for the service of process: to give the defendant timely, sufficient notice of the pendency of the plaintiff's lawsuit and to confer jurisdiction upon the court. Smith v. Smith, 150 Conn. 15, 20 (1962); Cohen v. Bayne, 29 Conn.Sup. 233, 238 (1969). The notice-giving purpose of abode service is clearly served whenever the defendant's ties with the place of service are such that he can reliably be expected to receive prompt notice of the plaintiff's lawsuit once the process is saved. Service of process in such a place plainly gives the defendant a reasonable opportunity to defend himself against the lawsuit.
Even so, the second purpose of abode service is to confer jurisdiction upon the Court, and it is well established that statutes confirming or establishing requirements for the exercise of jurisdiction must be strictly construed. State v. Audet, 170 Conn. 337, 340 (1976). Thus, though a court may be tempted to exercise its jurisdiction over any person who has received actual notice of a pending lawsuit, to do so would plainly violate the lawful restrictions the legislature has placed on its jurisdiction.
In this case, the court can determine from an appearance filed by his attorney, that the defendant had received notice of the action as of May 25, 2005. From the affidavit of Maura Donohue, submitted by the plaintiff, the court finds that the defendant was the owner of 30 Rocklyn Drive, Simsbury, Connecticut, as of the date of service. However, the statements in the defendant's affidavit persuade the court that he moved his belongings from the premises located at 30 Rocklyn Drive, Simsbury, Connecticut on April 12, 2005. The defendant has submitted an affidavit from Jeffrey Valetta, the lessor of his Massachusetts residence. From that affidavit, the court finds that the defendant moved his belongings into, and began living at, a residential property located in Somerville, Massachusetts on April 12, 2005.
The only affidavit submitted by the plaintiff is by the aforementioned Maura Donohue. In that affidavit Donohue relates that as of April 21, 2005 the defendant was having the Hartford Courant delivered to 30 Rocklyn Drive, and, as of May 1, 2005, the Wall Street Journal was also being delivered. She does not state that she observed the papers being picked up by any occupants of 30 Rocklyn Drive. The court also notes that no where in her affidavit does Maura Donohue state that she observed the defendant in or around his home at or around the time of service.
The court concludes that 30 Rocklyn Drive, Simsbury, Connecticut was not the defendant's usual place of abode at the time service was made. The court acknowledges that the defendant owned the premises on the date of service and that the ownership of the property may give rise to jurisdiction under the state long-arm statute, General Statute § 52-59b, however the procedure of service under that statute was not followed in this case.
Since the defendant was not served at his usual place of abode, the court lacks jurisdiction over the defendant in this action. Accordingly, the Motion to Dismiss is granted.