Opinion
No. CV 10-5033292 S
February 3, 2011
MEMORANDUM OF DECISION
PROCEDURAL HISTORY
This case arises out of an accident which occurred on April 11, 2008, at 43 Whalley Avenue in New Haven, Connecticut. The plaintiff, Avis Williams, filed a three-count complaint against the defendants, Yale University and Muoi Nguyen, on May 14, 2010. Count One alleges negligence against Yale University. Counts two and three allege negligence against Nguyen.
The plaintiff's cause of action against Yale University is not subject to the motion currently pending before this court. Consequently, references to "the defendant" hereafter will relate to Nguyen alone.
In the return of service attached to the complaint, state marshal Mark J. White states that on April 12, 2010, he left a true and attested copy of the writ, summons and complaint at 304 Pine Rock Avenue, apartment C-9, in the town of Hamden, Connecticut. The return further indicates that this address is the defendant's usual place of abode.
On September 29, 2010, the defendant filed a motion to dismiss on the ground that the court lacks personal jurisdiction over him due to insufficient service of process. The motion was accompanied by a memorandum of law in support of and a sworn affidavit from the defendant. On October 18, 2010, the plaintiff filed an objection to the motion. The objection was accompanied by a memorandum of law in support and a sworn affidavit from the state marshal. Oral argument on the motion was heard on November 8, 2010.
DISCUSSION
"A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court . . . The grounds which may be asserted in this motion are: . . . lack of jurisdiction over the person . . . and . . . insufficiency of service of process." (Citations omitted.) Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). "[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . 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." Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where . . . as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
The defendant argues that the Pine Rock Avenue address was not her principal place of abode on April 12, 2010 and therefore service of process at that location was improper. The plaintiff responds by arguing that: (1) the defendant has waived any defects in the service of process by filing a general appearance with the court and (2) that certain facts contained within the return and the marshal's affidavit indicate that abode service at that location was proper.
I
General Appearance
Before proceeding to the merits of the motion it is necessary to determine, as a threshold matter, if the defendant has waived her right to contest the personal jurisdiction of this court. The plaintiff claims that such a waiver was effectuated by the defendant's filing of a general appearance on July 14, 2010. This argument is unavailing.
"Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of filing an appearance." Practice Book § 10-30. "[A] limited or special appearance is no longer recognized or required in this state . . . [B]efore 1978, a defendant wishing to contest the presence of personal jurisdiction had to file a special or limited appearance to do so because the filing of a general appearance was a submission to the general jurisdiction of the court . . . The predecessor to [Practice Book] § 10-30, former [Practice Book] § 142, modified that rule by permitting such a motion to dismiss after a general appearance, as long as that motion was filed within thirty days of the filing of the appearance." (Citations omitted; internal quotation marks omitted.) Bove v. Bove, 93 Conn.App. 76, 79 n. 3, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).
The defendant, through counsel, filed an appearance with this court on July 14, 2010. Subsequent to that appearance, the defendant's counsel filed two motions seeking an extension of time. These motions were granted by Judge Blue on August 16, 2010, and by Judge Frechette on September 27, 2010, respectively. As a result of these orders, the defendant's deadline for filing a motion to dismiss was extended from August 14, 2010 to October 5, 2010. The motion to dismiss currently pending before the court was filed on September 29, 2010 and is therefore timely. Consequently, it is submitted that the defendant has not waived her right to contest the personal jurisdiction of this court.
II
Abode Service
Service of process may be completed by "leaving a true and attested copy of [process], including the declaration or complaint, with the defendant, or at his usual place of abode, in this state." General Statutes § 52-57(a). "Whether a particular locale is the usual place of abode is a question of fact . . . When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made . . . the defendant bears the burden of disproving personal jurisdiction . . . 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." (Citations omitted; internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 339, 951 A.2d 632 (2008).
"When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). On the other hand, "the due process requirement of a hearing is required only when issues of facts are disputed." (Emphasis in original.) Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007). When determining whether a location is an individual's usual place of abode, it is clear that "[a]ffidavits are insufficient to determine the facts unless, like summary judgment, they disclose that no genuine issue as to a material fact exists." (Internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 56.
The plaintiff argues that service of process at the Pine Rock Avenue comports with the requirements of § 52-57(a). The affidavit submitted by the marshal indicates that the Pine Rock Avenue address was listed as the defendant's mailing address in an electronic database and that he observed the defendant's name on the mailbox when attempting to serve process there. The defendant responds by arguing that the Pine Rock Avenue address was not her usual place of abode at the time service was attempted. The defendant's affidavit indicates that her abode at that time was 665 Middletown Avenue, New Haven, Connecticut.
Courts presented with similar, and in some cases even greater, evidence regarding a defendant's usual place of abode have consistently required that an evidentiary hearing be held. Wood v. Great Atlantic Pacific Tea Co., Superior Court, judicial district of Middlesex, Docket No. CV 02 009950 (March 17, 2004, Silbert, J.) (declining to decide whether location of service was defendant's usual place of abode without evidentiary hearing when evidence on record did not extend beyond conflicting marshal's return and defendant's affidavit); Goldenberry Ltd. v. Thorton, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 10 184707 (March 15, 2002, D'Andrea, J.T.R.) (declining to decide whether location of service was defendant's usual place of abode without evidentiary hearing when defendant submitted her own affidavit, copy of lease, deed showing the purchase of property elsewhere and bill from moving company).
The question of whether the Pine Rock Avenue address was the defendant's usual place of abode is one of fact. The only evidence presently before the court relating to that issue is in the form of the marshal's return and affidavits. Due process therefore requires that the defendant be afforded an evidentiary hearing in which an opportunity to present evidence and to cross-examine adverse witnesses is provided. The court will reserve its ruling on the motion to dismiss until after such a hearing has been held.