Opinion
DBDCV185014425S
07-09-2019
Susan TAMSETT v. CERTIFIED VAN SERVICE OF CT, INC. et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., J.
Pursuant to Practice Book § 10-30, the defendants Certified Van Service of CT, Inc., ("CVS") and Atlas World Group ("AWG"), hereby move to dismiss the plaintiff Susan Tamsett’s ("Tamsett") complaint, on the grounds that the court lacks personal jurisdiction over both CVS and AWG, and the court lacks personal jurisdiction over AWG as the plaintiff failed to serve the AWG as required under Connecticut General Statutes. AWG is a foreign corporation, organized under the laws of the State of Delaware, and conducted no business with respect to the cause of action alleged in Tamsett’s complaint, and was not a party to any contract entered into by Tamsett. As such, there is no factual basis for any cause of action by Tamsett against AWG. Further, Tamsett served AWG, a foreign corporation, in the small claims matter by certified mail which constitutes insufficient service of process under Connecticut General Statutes.
CVS is the disclosed agent for Atlas Van Lines, Inc. ("AVL"), a foreign corporation organized under the laws of the State of Delaware, and located in the State of Indiana, was also not a party to any contract entered into by Tamsett and Atlas Van Lines, Inc. ("AVL") as alleged in the small claims matter. The court lacks personal jurisdiction over both AWG and CVS, and there was insufficient service of process with regard to AWG. AWG and CVS, foreign corporations, were serviced by certified mail, return receipt requested by Tamsett at the initiation of this action. However, as AWG and CVS are foreign corporations, proper service must comply with General Statute § 52-59b in order to establish personal jurisdiction. Further, AWG also alleges that it conducted no business in the State of Connecticut, and it was not a party to any contract entered into by Tamsett. CVS also alleges that it was not a party to any contract entered into by Tamsett. Therefore, AWG and CVS request that the court grant the motion to dismiss in full for lack of personal jurisdiction, and an insufficiency of service of process as to AWG.
LEGAL STANDARD RE SERVICE OF PROCESS
First the court will review the motion to dismiss for lack of personal jurisdiction as to AWG for improper service of process. "[A]n action commenced by ... improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). "[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 ..." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388 at 400 (2011). "Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ... 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." (Internal quotation marks omitted.) Id., 401.
ANALYSIS RE SERVICE OF PROCESS
As to foreign corporations, General Statute § 52-59b states in pertinent part: (a) As to a cause of action ... a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association ... who in person or through an agent: (1) Transacts any business within the state; ... if such ... regularly does or solicits business ... or engages in any other persistent course of conduct, or derives substantial revenue from ... services rendered, in the state ..." "(c) Any nonresident individual, foreign partnership or foreign voluntary association ... over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, 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 ... may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual, foreign partnership or foreign voluntary association personally. The process shall be served ... upon the Secretary of the State ... by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, 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, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State." (Emphasis added.)
A review of the facts demonstrates that both AWG was served by certified mail, return receipt requested by Tamsett at the initiation of this action, as shown by the return of service filed with the court on November 1, 2018. The service was not made pursuant to § 52-59b. This service of process section requires two services, first service on the Secretary of the State, and second by certified mail to corporate headquarters, as such, Tamsett’s service by only certified mail fails to comply with the service requirements of § 52-59b, and is, therefore, defective. Therefore, the motion to dismiss, as it relates to AWG for lack of personal jurisdiction, based on improper service is granted in part.
Next the court will consider the motion to dismiss filed by AWG and CVS based on their claim that they conducted no business with respect to the cause of action alleged in Tamsett’s complaint. Both allege that the contract for the transportation of items was done solely with AVL. AWG and CVS filed a motion to dismiss based on lack of personal jurisdiction. The motion to dismiss, however, is not the proper vehicle to challenge the matter, a motion to strike is the proper method, as this is an issue of misjoinder of parties.
LEGAL STANDARD RE MISJOINDER
"Naming an improper person as a party in a legal action constitutes misjoinder." (Internal quotation marks omitted.) Bloom v. Milkovich, 111 Conn.App. 323, 329, 958 A.2d 1283 (2008). "[T]he exclusive remedy for misjoinder of parties ... is by motion to strike." Bender v. Bender, 292 Conn. 696, 722 n.23, 975 A.2d 636 (2009); see also Practice Book § 11-3.
ANALYSIS
The claim by AWG and CVS is that Tamsett named the wrong party in the writ. "Connecticut Practice Section 10-39(a)(3) provides in relevant part: "Whenever any party wishes to contest ... the legal sufficiency of the allegations of any complaint ... because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person ... that party may do so by filing a motion to strike the contested pleading or part thereof." Thus, the appropriate procedural vehicle to contest the legal sufficiency of a complaint because the wrong party has been sued is by way of a motion to strike and not a motion to dismiss. It is well settled that "a motion to dismiss is not the proper method to raise the issue of the nonjoinder of a party. Instead the exclusive remedy for nonjoinder of indispensable parties is by way of motion to strike." Bernard v. Executive Auto Group 2014 WL 7671670 citing Levine v. Police Commission, 28 Conn.App. 344, 351, 612 A.2d 787, cert. denied, 223 Conn. 923, 614 A.2d 823 (1992).
ANALYSIS
Therefore, based on the foregoing, the motion to dismiss, as to AWG and CVS for lack of personal jurisdiction, due to lack of any contract with Tamsett or the lack of any involvement in the transit of Tamsett’s items, is not the proper motion. The motion is denied.