John Harris v. Gordon Wood et al. (2010)

RULING ON THE DEFENDANT'S MOTION TO DISMISS (# 106)

The defendant, Gordon Wood, moves to dismiss the counts against him in a complaint brought by the plaintiff, John Harris.   The defendant claims that this court has no jurisdiction over him because the plaintiff failed to comply with the service of process requirements of General Statutes §§ 52-57(a) and 52-59b.   The plaintiff objects to the motion asserting that he complied with the requirements of General Statutes § 52-59b.   The motion to dismiss is denied.

FACTS

On March 29, 2010, the plaintiff filed a ten-count complaint alleging that the defendant was employed as a counselor at an inpatient rehabilitation facility known variously as Mountainside Foundation, Mountainside Lodge, MCl Healthcare, or Mountainside Treatment Center (“Mountainside Lodge”), located in North Canaan, Connecticut.   The plaintiff was an inpatient at Mountainside Lodge on March 7, 2008, when an incident occurred that gave rise to the complaint.   The plaintiff describes the incident as “a verbal dispute ․ between the Defendant Wood and a resident of the facility ․ Defendant Wood confronted the subject resident in an effort to discipline him, and in the course of such confrontation, punched and kicked the resident of the facility, who was being restrained by the plaintiff, causing the plaintiff to violently fall to the ground and sustain serious personal injuries and losses.”

Counts one and two of the complaint charge the defendant with assault and battery, and negligent battery, respectively.   The defendant filed the present motion to dismiss (# 106) on May 13, 2010, and the plaintiff filed his objection (# 111) ¹ on July 29, 2010.   On September 10, 2010, the plaintiff filed an “Amended Supplemental Return” of service.   The defendant replied to the plaintiffs' objection as well as to a September 1, 2010, supplemental affidavit of the marshal.   This matter was heard at the August 30, 2010, short calendar.

The marshal's return of service indicates that she received the writ, summons and complaint on March 5, 2010.   The marshal asserts in the return that she “made service” on the defendant by leaving copies of the writ, summons, and complaint with an employee of Mountainside Lodge on 187 South Canaan Road, North Canaan, Connecticut where the defendant had allegedly worked at the time of the incident, described in the complaint.   The return further claims that “after diligent search throughout my precinct, I could not find a person, agent or attorney on whom to make service for Gordon Wood, formerly of 187 South Canaan Road, North Canaan, CT, PRESENTLY OF 723 Beekman Road, Lot # 9, Hope Well Junction, N.Y. 12533.”   The marshal states that on March 18, 2010, she made service on the Secretary of State for the defendant and that she also mailed the writ, summons and complaint to the defendant in a postage paid letter, return receipt requested, at the Hope Well Junction address.

The marshal filed a supplemental return, dated May 4, 2010, in which she claimed that she attempted to mail the writ, summons and complaint to the defendant on March 9, 2010, at “723 Beekman Road, Lot # 9, Hopewell Junction, N.Y. 12533,” and that the letter was returned, marked “Return to Sender, Unclaimed.”   A copy of the envelope was attached to her return.

At oral argument, the court inquired as to why the marshal claimed that she had mailed the letter on March 9, 2010, but the postage stamp on the returned letter is dated “March 22, 2010.”   Counsel for the plaintiff responded to the court's question by making inquiry of the marshal who, in turn, submitted a “supplemental affidavit.”   In that affidavit, the marshal claimed that her original return of service omitted the date that she mailed the writ, summons and complaint to the defendant, and that she mailed those documents on March 22, 2010.   She also corrected the “March 9, 2010” date on the supplemental return, claiming that it was a scrivener's error.   The record now reflects her claim that the documents were mailed to the defendant on March 22, 2010.

The letter that was returned to the marshal carries handwritten notes on the front of the envelope, indicating that it was “noticed” on “3/24,” “4/8,” and “4/14.”   The defendant submitted a May 12, 2010, affidavit attesting, in relevant part, that “[he] was employed ․ at Mountainside Lodge in Canaan, CT from December 2007 to April 2009.”   The defendant further attests that, as of the date of the affidavit, “I reside at the LaGrange Motel, located at 192 McDonnell Road in Pleasant Valley, New York, having moved there on March 1, 2010.   Prior to March 1, 2010, I resided at a mobile home permanently located at 723 Beekman Road, Lot # 9, in Hopewell Junction, New York.” The affidavit also indicates that the defendant moved from that location on March 1, 2010, that he has not seen the complaint, and that he learned of the case when he received a phone call from his former employer.   Notably, the affidavit makes no reference to any effort made by the defendant, on March 1, 2010, to apprise his former employer, or anyone else, of his move from the mobile home to the motel.

The marshal submitted a July 29, 2010, affidavit, attached as Exhibit B to the plaintiff's objection to the motion to dismiss, ‘attesting that she made a diligent search for the defendant after she received the writ, summons and complaint on March 5, 2010, that on March 9, 2010, she obtained information regarding the defendant's whereabouts, and that, thereafter, she concluded that the defendant resided at “723 Beekman Road, Lot # 9, Hope Well Junction, New York.” The marshal claims to have mailed the writ, summons and complaint to the defendant at the Hopewell Junction address on March 18, 2010.²

According to the defendant's affidavit, he had, indeed, resided at the Hopewell Junction address until March 1, 2010.³  The defendant, however, makes no suggestion in his affidavit that he provided a forwarding address, to anyone, when he moved from the Hopewell Junction mobile home to the motel in Pleasant Valley, New York.

DISCUSSION

A motion to dismiss “attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).   When a motion to dismiss raises a jurisdictional question, and “the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

When the motion to dismiss asserts that the court does not have personal jurisdiction over a non-resident defendant, and the plaintiff claims that jurisdiction is proper pursuant to the applicable long-arm statute, “a two part inquiry is required.   The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant].   If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.”  (Internal quotation marks omitted.)  Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996).   When such a challenge is raised, “the plaintiff must bear the burden of proving the court's jurisdiction.”  Id., 607.

The defendant claims, first, that the plaintiff did not comply with the requirements of General Statutes § 52-57(a), which requires service of process with the defendant or “at his usual place of abode, in this state.”   The plaintiff replies, correctly, that General Statutes § 52-57(a) has no application in this case, since that section applies to service of process upon Connecticut residents.   The defendant's affidavit claims that he was a resident of New York prior to the institution of this action and at all times that the marshal was attempting to make service upon him.

Next, the defendant claims that the plaintiff failed to comply with General Statutes § 52-59b, a statute that provides for jurisdiction of courts over nonresident individuals.  General Statutes § 52-59b(c) provides in relevant part:  “Any nonresident individual ․ over whom a court may exercise personal jurisdiction ․ 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 ․ may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual ․ 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 Secretary of the State, at least twelve days before the return 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.”

The defendant relies, principally, upon Hartley v. Vitiello, 113 Conn. 74, 80, 154 A.2d 255 (1931), for the proposition that mailing process to a defendant's “ ‘last known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it.   Unless the defendant has departed for parts unknown, it means his actual address;  if he has disappeared it means his last address so far as it is reasonably possible to ascertain it.   This address the plaintiff must learn at his peril, and only if the copy is mailed to it is there compliance with the statute.”   In support of his claim that the plaintiff's efforts fell short of the standard required by Hartley, the defendant cites Barker v. Rosati, Superior Court, judicial district of New London, Docket No. CV 08 5008708 (February 20, 2009, Peck, J.) (47 Conn. L. Rptr. 285) and Ross v. Castelano, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0190247 (May 6, 2003, Lewis, J.T.R.).

In response, the plaintiff rejects the defendant's suggestion that this court lacks jurisdiction because the defendant never received the writ, summons and complaint.   According to the plaintiff, it is sufficient that service was properly made on the Secretary of State and was also sent to the defendant's last known address in the manner prescribed by General Statutes § 52-59b(c), even if the defendant never actually receives the notice.   See D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 171-72, 455 A.2d 833 (1983).   The plaintiff is correct that it is not necessary for him to establish that the defendant received actual notice.   The plaintiff claims, and the defendant does not dispute, that service was properly made upon the Secretary of State.

Thus, since the process was not sent to the defendant's actual address, the essential question before the court is whether it was sent to “the last address of the defendant so far as it is known ․ by those who under the ordinary circumstances of life would know it.”  Hartley v. Vitiello, supra, 113 Conn. 74, 80.   The plaintiff argues that he exercised due diligence because the marshal obtained the defendant's last known address from his most recent employer, Mountainside Lodge.   The plaintiff points out that the defendant, himself, admits that the marshal sent the notice to an address where he had been living as recently as March 1, 2010.   Based upon the most recent affidavit submitted by the marshal, the court concludes that the marshal missed making actual service of process on the defendant by approximately three weeks.   As such, the plaintiff contends that it was reasonable for the marshal to have relied on the defendant's most recent employer to have the defendant's most recent address.

The defendant objects to the court reliance on the marshal's affidavit to the extent that the marshal relates information provided by the defendant's employer.   Such information, he argues, is inadmissible hearsay.   The defendant does not, however, object to the entire affidavit as hearsay.   Thus, the court can rely on the affidavit to the extent that the marshal attests that, in the course of her efforts to locate the defendant, she contacted individuals at Mountainside Lodge and that, thereafter, she mailed the writ, summons and complaint to the Hopewell Junction address where the defendant admittedly was living until March 1, 2010.   See Cogswell v. American Transit Ins. Co., supra, 282 Conn. 505, 516.   In view of the foregoing, the court need not, and does not, base its decision upon any statements that Mountainside Lodge employees reportedly made to the marshal.

The superior court opinions upon which the defendant relies are readily distinguishable.   In Barker v. Rosati, supra, 47 Conn. L. Rptr. 285, the notice was mailed to an address where the defendant had not lived for almost two years.   Further, the defendant in that case stated, in an affidavit, that she had notified the department of motor vehicles of her new address at the time of her move and was in no way trying to conceal her whereabouts.  Id. In Ross v. Castelano, supra, Superior Court, Docket No. CV 02 0190247, “[t]he plaintiffs did not file any affidavits or any document demonstrating why they reached the conclusion that” the process had been sent to the defendant's last known address.   Nor did the plaintiffs in Ross even claim that they reached out to “someone who would be apt to know” where the defendant resided.  Id.

The present case, in contrast to Barker and Ross, reveals an effort by the marshal to identify the defendant's whereabouts by reaching out to his last-known Connecticut employer.   The record establishes that the marshal mailed the writ, summons and complaint to an address from which the defendant admittedly departed only three weeks prior.   The defendant submitted a detailed memorandum and a supporting affidavit of the defendant regarding his whereabouts.   In neither document, however, does the defendant claim that anyone had any reason to know that the defendant had left the mobile home in Hopewell Junction, New York on March 1, 2010, or that he thereafter relocated to a motel in Pleasant Valley, New York.

As such, the court can find no fault with the marshal's effort to locate the defendant's last known address.   Indeed, the marshal's efforts were very nearly successful and there are no claims before the court that identify any additional steps she should have taken to learn that the defendant had moved from a mobile home to a motel just weeks before the notice was mailed to him.   General Statutes § 52-59b(c) does not require a marshal to make extraordinary efforts, such as engaging in out-of-state travel, carrying out surveillance, or undertaking other, similar methods in order to locate an out of state individual who is to be served.   Instead, the statute simply calls for an officer to mail the notice to the last-known address of the defendant, and our Supreme Court requires no more than learning that address “so far as it is reasonably possible to ascertain it.”  Hartley v. Vitiello, supra, 113 Conn. 74, 80.   Accordingly, the court finds that the plaintiff made reasonable efforts to obtain the last-known address of the defendant and that he has met the requirements of General Statutes § 52-59b(c).  Since process was properly served in accordance with the applicable Connecticut long-arm statute, this court has personal jurisdiction over the defendant.

A state court may exercise specific personal jurisdiction over a defendant, pursuant to federal constitutional law, if there is “some sort of causal connection between the defendant's forum contacts and the plaintiff's injuries.”  Thomason v. Chemical Bank, 234 Conn. 281, 287, 661 A.2d 595 (1995).   The plaintiff alleges that he was injured pursuant to actions taken by the defendant when the defendant was employed by a Connecticut entity and on an occasion when the defendant was in Connecticut.   In the course of deciding a motion to dismiss that alleges a lack of personal jurisdiction, the court “must consider the allegations of the complaint in their most favorable light.”   (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., supra, 282 Conn. 505, 516.   In the present case, the plaintiff is in compliance with federal due process standards because service of process was properly effected pursuant to General Statutes § 52-59b(c) and the plaintiff has alleged a causal connection between his injuries and the defendant's presence in this state.

CONCLUSION

The plaintiff made service upon the defendant pursuant to General Statutes § 52-59b.   Therefore, this court has personal jurisdiction over the defendant and the defendant's motion to dismiss is denied.

BY THE COURT

John A. Danaher III, J.

FOOTNOTES

FN1. The plaintiff included, as exhibits attached to his objection, the marshal's return of service, a supplemental return of service, and an affidavit of Marshal Suzann Corbett..  FN1. The plaintiff included, as exhibits attached to his objection, the marshal's return of service, a supplemental return of service, and an affidavit of Marshal Suzann Corbett.

FN2. As was discussed, supra, the marshal has corrected the reference to March 18, 2010, and now believes she mailed the documents to the defendant on March 22, 2010..  FN2. As was discussed, supra, the marshal has corrected the reference to March 18, 2010, and now believes she mailed the documents to the defendant on March 22, 2010.

FN3. The plaintiff does not dispute any of the facts set forth in the affidavit..  FN3. The plaintiff does not dispute any of the facts set forth in the affidavit.

Danaher, John A., J.