Frank Fiore v. Stamford Winair Company (2009)

MEMORANDUM OF DECISION

I

In the case presently before the court, the plaintiff, Frank Fiore, alleges wrongful termination against his former employer, the defendant Stamford Winair Company.

On February 20, 2009, the defendant filed a timely ¹ motion to dismiss the complaint, based on a lack of personal jurisdiction over the defendant due to insufficient service of process.

A memorandum of law and affidavit of the defendant's office manager, Michelle Jindra, were filed in support of the motion.   The plaintiff filed an objection and memorandum in opposition, and an affidavit from state marshal Albert Caliendo.   An evidentiary hearing was held on May 11, 2009.

II

“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 an appearance ․” Practice Book § 10-30.  “A motion to dismiss ․ properly 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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007);  Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007).  “[A]ny claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 ․” (Emphasis in original.)  Pitchell v. Hartford, 247 Conn. 422, 433, 711 A.2d 797 (1999).

“One who is not served with process does not have the status of a party to the proceeding ․ A court has no jurisdiction over persons who have not been made parties to the action before it.”  (Internal quotation marks omitted.)   Security Ins. Co. of Hartford v. Lumbermen's Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003);  Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000).

“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 ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “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);  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007);  Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004).

“If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction.”  Cogswell v. American Transit Ins. Co., supra at 515.  “This general rule is different with respect to determining whether the court has jurisdiction over a defendant that is served personally or through abode service.   In those situations, as opposed to situations where service is constructive, i.e., service on a foreign corporation or nonresident individual by mail, the defendant bears the burden of disproving personal jurisdiction.   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.   When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction.   When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer's] return.”   (Internal quotation marks omitted.)  Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n.9, 674 A.2d 426 (1996);  Cogswell v. American Transit Ins. Co., supra at 515.

The defendant takes the position that the action should be dismissed due to insufficiency of service of process.   Specifically, the defendant argues that the plaintiff has failed to satisfy the service requirements set forth in Connecticut General Statutes § 52-57(c).²  The plaintiff claims that proper service was effectuated pursuant to § 52-57(c).  The plaintiff alleges in his complaint, and the defendant agrees, that the defendant is a Delaware corporation;  additionally, both parties agree that C.G.S. § 52-57(c) is the controlling statute.

Here, the return of service indicates that the state marshal, Albert W. Caliendo, made service on the defendant by “leaving a true and attested copy of the original Writ, Summons, Complaint ․ with and in the hands of Jane Smith, authorized person in charge at time of service, who accepted service for and on behalf of Stamford Winair Company, at 43 Homestead Avenue, Unit 2, Stamford, Connecticut, the within named defendant,” on December 26, 2008.

The affidavit of Jindra, as well as her testimony which was entirely consistent with her affidavit, established that the office was “closed” on December 26, 2008,³ that she was the only female employee of Stamford Winair at the time, and that no “Jane Smith” was employed by Stamford Winair.   Jindra further testified that while she did not actually see it herself, she was told that the papers were discovered, wedged in the door handle, by Edward Hatton, the operations manager for Stamford Winair.⁴

The testimony of Marshal Caliendo established that while he could not recall the specifics of this particular service,⁵ he has never fabricated a name, made service (pursuant to 52-57(c)) to an individual who has not identified themselves as “in charge,” or made service pursuant to 52-57(c) by wedging the documents in the door.   Additionally, he testified, believably, that while people have refused to provide their names, once a name has been provided by a person in charge, he does not ask for further proof or identification.   Finally, Caliendo's testimony established that he did not recognize Jindra, who was present in the courtroom during his testimony, and did not know Jane Smith's relationship to the defendant other than her representation of being “in charge.”

The court finds that on December 26, 2008, Marshall Caliendo served an individual at the defendant's premises, that the individual identified herself as “Jane Smith,” and that the individual stated that she was “in charge” of the office at the time.   The court further finds that the individual served was not employed by Stamford Winair, and was not in charge of the office.

Here, the burden is on the plaintiff “to offer evidence or testimony relating to the position and responsibilities of the individual accepting service on behalf of the defendant ․” Nelson v. Stop & Shop Cos., 25 Conn.App. 637, 641 (1991).  “When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate.”  Id. See Pantein & Chanarie Development Co. v. Hartford Cement, 196 Conn. 233 (1985) (trial court properly determined that service upon the defendant's credit manager was proper service upon person “in charge of the office” pursuant to 52-57(c), where evidence established that defendant's office clerk referred him to the credit manager for service of papers, credit manager accepted the papers and gave sheriff his business card, identifying himself as the credit manager, the only two officers or directors of the corporation were not present at the time, and there was no evidence of any one else who was in charge of the office at the time of service);  Fischel v. Verkerke Reproductions U.S.A., Inc., 21 Conn.App. 339 (1990) (trial court properly dismissed the action for lack of jurisdiction resulting from improper service under 52-57(c), where the individual served was not employed by the defendant and was not, at the time of service, in charge of the office of the corporation);  Konover Construction Corp. v. Homesteads, Superior Court, judicial district of Danbury, Docket No. 020345986 (January 28, 2003, White, J.) (granting motion to dismiss, finding service insufficient under § 52-57(c), where evidence established that the marshal served a woman located behind a desk in defendant's lobby who identified herself as “Diane” and as the only one present in the building, and that no one named “Diane” worked for the defendant).   The plaintiff has the burden of establishing that the person served was actually “in charge of the office”;  proof that the person served appeared to be in control is insufficient.

In Brown v. Brookville Transport, Ltd., Superior Court, judicial district of New Haven, Docket No. 392820 (February 18, 1999, Blue, J.) [28 Conn. L. Rptr. 662], the court was confronted with a New Brunswick (Canada) service of process statute, which provided for service of process on corporations “by leaving a copy of the document with an officer, director, or agent, or with the manager or a person who appears to be in control or management of any office or other place where the corporation carries on business in New Brunswick.   (Emphasis added.)”   Judge Blue, in determining that the requirement of apparent control or management had been satisfied, provided the following cogent explanation:

New Brunswick's requirement of apparent control or management is broader than what might be called the actual control requirement of Conn. Gen.Stat. § 52-57(e).   Appearance of control is sufficient, even though it may turn out later that the appearance was deceptive.   In this respect, New Brunswick law is analogous not to Connecticut law but to Wisconsin law.  Wis. Stat. § 801.11(5)(a) provides that service on a corporation may be made upon “the person who is apparently in charge of the office.”   The Wisconsin Supreme Court has construed that provision as requiring that a process server's conclusion as to apparent authority be “reasonable under the circumstances.”   Under this standard, a process server has no duty “to inquire and determine the actual authority of the individual summoned to receive service.”   A process server specifically “has a right to expect that when he asks for a person to accept service, and, apparently in response to that request, a person comes out and accepts the papers, proper service has been obtained.”   As the Wisconsin Supreme Court observed in an earlier decision, to hold otherwise would produce a situation whereby a process server becomes a participant in a game of hide-n-seek at the mercy of secretaries or anyone else who chooses to prevent him from accomplishing his task.  (Citations and internal quotations omitted.)

Judge Blue further pointed out that there was no evidence that the person served was actually in charge of the office, and that under Connecticut law, had it applied, service would have been fatally deficient.   But see McEvoy v. Plancher, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 04199239 (March 14, 2005, Tyma, J.) [38 Conn. L. Rptr. 887] (where person served pursuant to 52-57(c) identified herself as defendant's office supervisor and accepted service on behalf of the defendant, held, “it was reasonable for the marshal to believe that the supervisor was ‘the person in charge of the office’ at the time of service,” denying defendant's motion to dismiss).   This court is persuaded, not for the first time, by the reasoning of Judge Blue, and therefore rejects the plaintiff's argument that apparent control is sufficient to meet the requirements of § 52-57(c).

It is incumbent upon the plaintiff to offer evidence to establish that the person served-here, Jane Smith-was actually in charge of the office.   The statute requires actual, not apparent, control.   Here, the court finds that the individual served, Jane Smith, was not actually in charge of the office at the time of service, and that she lacked authority to be an appropriate agent for service of process on the defendant.   As such, the service made is fatally deficient.   The defendant's motion to dismiss is therefore granted.

BELLIS, J.

FOOTNOTES

FN1. Counsel filed an appearance on behalf of the defendant on February 9, 2009..  FN1. Counsel filed an appearance on behalf of the defendant on February 9, 2009.

FN2. C.G.S. § 52-57(c) provides as follows:  “In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located.   In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922.”.  FN2. C.G.S. § 52-57(c) provides as follows:  “In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located.   In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922.”

FN3. The import of the testimony of Jindra was that the office was closed for business for the Christmas holiday.   No testimony or evidence was offered to specifically establish that the office was locked or otherwise secured such that none of the seven Winair employees, or anyone else, could enter the premises..  FN3. The import of the testimony of Jindra was that the office was closed for business for the Christmas holiday.   No testimony or evidence was offered to specifically establish that the office was locked or otherwise secured such that none of the seven Winair employees, or anyone else, could enter the premises.

FN4. There was no affidavit or direct testimony from Mr. Hatton to establish that he found the papers wedged in the door handle or door frame..  FN4. There was no affidavit or direct testimony from Mr. Hatton to establish that he found the papers wedged in the door handle or door frame.

FN5. Caliendo testified that he makes service approximately ten to twenty-five times per day, seven days per week..  FN5. Caliendo testified that he makes service approximately ten to twenty-five times per day, seven days per week.

Bellis, Barbara N., J.