Abdel Maklad v. Tamer Osman (2011)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO DISMISS

The defendant moves to dismiss this action for lack of personal jurisdiction on the grounds that (1) service of process upon him was insufficient due to its noncompliance with General Statutes § 52–59b(c);  and (2) he is not subject to Connecticut's long-arm jurisdiction.   For the reasons set forth below, the defendant's motion is hereby denied.

I. Procedural History

On July 7, 2011, the plaintiff, Abdel Maklad, filed a complaint against the defendant, Tamer Osman, alleging breach of contract.   The plaintiff alleges that he loaned the defendant $51,580 over a period of time prior to January 3, 2009, and, on that date, the defendant executed a so-called “written contract,” memorializing his agreement to repay the plaintiff the amount of the loan.   The plaintiff further alleges that, despite demand, the defendant failed to pay the sum due, and that “at all times relevant to the events described” the defendant was a Connecticut resident, although currently he resides in New York.

On September 13, 2011, the defendant filed the present motion to dismiss, attaching to it a supporting memorandum of law and an affidavit.   On October 6, 2011, the plaintiff filed an objection to the motion to dismiss, along with a memorandum of law and an affidavit.   Thereafter, on October 11, 2011, the defendant filed a reply, and on October 27, 2011, the plaintiff filed a brief in response to the defendant's reply.   The matter was heard by the court on October 31, 2011.

II. Discussion

Practice Book § 10–31(a) provides in relevant part that “[t]he motion to dismiss shall be used to assert ․ lack of jurisdiction over the person ․” “When a ․ court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader ․ 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 ․” (Citation omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

“[Where] affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusive with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.”  (Citations omitted.)   Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).

“When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction ․ In order to sustain the plaintiff's burden, due process requires that a trial-like hearing be held, in which she has an opportunity to present evidence and to cross-examine adverse witnesses, unless, as with summary judgment, no genuine issue as to a material fact exists.”  (Citation omitted;  internal quotation marks omitted.)  Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).   Such “[a]n evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.”  (Internal quotation marks omitted.)  Conboy v. State, supra, 292 Conn. 653–54.

A. Insufficiency of Service of Process— § 52–59b(c)

Preliminarily, the defendant contends that the court lacks personal jurisdiction over him because he is a nonresident defendant ¹ and was not served in accordance with General Statutes § 52–59b(c).  This statute, which sets forth the manner in which service of process shall be made upon a nonresident defendant, provides in pertinent part as follows:  “The process shall be served by the officer to whom the same is directed upon the Secretary of State by leaving with or at the office of the Secretary of 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 ․” General Statutes § 52–59b(c).  Noting that the complaint here was returnable on July 19, 2011, the defendant states in his affidavit that he “received [the complaint] and signed the certified mail card on July 12, 2011.”   Defendant's Motion to Dismiss, Affidavit ¶ 11.   The defendant therefore argues that service was defective because he did not receive the complaint at least twelve days before its return date, as he asserts is required by the statute.   Because the court disagrees with the defendant's reading of the statute, the court also disagrees with the defendant's conclusion that the statute was not complied with in this case.

The above-excerpted portion of § 52–59b(c), including the twelve-day limitation within it, specifies the actions that “the officer”—that is, the process server—must take in order to effectuate valid service upon a nonresident defendant.   Pursuant to the statute, the officer must leave a copy of the process at the office of the Secretary of the State,² and must do so at least twelve days before the return date of the process.   The officer is also required to send a copy of the process by certified mail to the defendant's last-known address.

Contrary to the defendant's claim, there is nothing is the statute that provides, or even suggests, that the nonresident defendant must actually receive the process at least twelve days before the return date.³  Rather, valid service is effectuated by the officer “by leaving” a copy of the process with the Secretary of the State at least twelve days before the return date, and “by sending” by certified mail a copy to the defendant's last-known address.   In fact, given the placement of the twelve-day requirement within the language of the statute, a strict analysis of the statute leaves some question as to whether that rule even applies to the mailing of the process to the defendant.   Even assuming that it does, however, the statute still requires only that the process be mailed twelve days before the return date, not that the defendant receive it by that time.⁴

Here, there is no dispute that the present action was returnable on July 19, 2011, was delivered by a state marshal to the Secretary of the State on June 28, 2011 and, on that same day, was mailed in proper form to the defendant.   See Marshal's Return of Service.   Moreover, the defendant admits that he received the mailing on July 12, 2011.   Defendant's Motion to Dismiss, Affidavit, ¶ 11.   Because the process was delivered to the Secretary of the State more than twelve days before the return date, and was properly mailed to and later received by the defendant, service of such process was in full compliance with § 52–59b(c).  Accordingly, the defendant's claim that the court lacks personal jurisdiction due to the insufficiency of the service of process is without merit.

B. Long–Arm Jurisdiction

The defendant further contends that the court lacks personal jurisdiction over him because the state's long-arm statute, § 52–59b(a), fails to authorize such jurisdiction, and, in any event, because the exercise of such jurisdiction would offend due process.   In response, the plaintiff argues that the defendant, by entering into the loan agreement which is at issue in the present action, transacted business in Connecticut and thereby subjected himself to Connecticut's long-arm jurisdiction under the express terms of § 52–59b(a).   The plaintiff further asserts that the exercise of jurisdiction over the defendant would not violate the defendant's constitutional due process protections.

Before considering the precise issue presented, it is useful to set forth the principles that apply to and must guide the court's analysis.  “[T]he court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant.   The trial court must first decide whether the applicable long-arm statute authorizes the assertion of the 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.)  Kenny v. Banks, supra, 289 Conn. 533.   Subsection (a) of § 52–59b, Connecticut's long-arm jurisdiction statute, provides in relevant part that “a court may exercise personal jurisdiction over any nonresident individual ․ who ․ transacts any business within the state ․” Where it is alleged that the basis of long-arm jurisdiction is the defendant's “transaction of business within this state [the court should] not resort to a rigid formula[but should] balance considerations of public policy, common sense, and the chronology and geography of the relevant factors.”   Zartolas v. Nisenfeld, 184 Conn. 471, 477, 440 A.2d 179 (1981).   Moreover, although “[t]he General Statutes do not define what the phrase ‘transacts any business' means in the context of § 52–59b ․ [our Supreme Court] construe [s] the term ․ to embrace a single purposeful business transaction” and to “[extend] beyond the typical commercial enterprise to include” a financial transaction or the execution of a deed or contract.  Id., 474–75.

Supporting the plaintiff's claim of jurisdiction in this case is his contention that, over a period of time between July 1998, and June 2006, he loaned the defendant $51,580;  Complaint ¶ 3;  Plaintiff's Motion in Opposition to Defendant's Motion to Dismiss, Affidavit ¶ 5,6;  and during that period the plaintiff was a Connecticut resident and the defendant was “domiciled” in Connecticut for part of that time.   Complaint ¶¶ 1, 2;  Plaintiff's Motion in Opposition to Defendant's Motion to Dismiss, Affidavit ¶¶ 4, 8. The plaintiff alleges further that the loan was subject to repayment after July 2006.   Plaintiff's Motion in Opposition to Defendant's Motion to Dismiss, Affidavit ¶ 6.   The plaintiff also attaches to the complaint a so-called “written contract,” allegedly signed by the defendant on January 3, 2009 in Hamden;  Complaint ¶ 3;  which states:  “I agree to pay the money I owe to [the plaintiff.]”   Complaint, Exhibit A.

Although the foregoing evidence, if viewed in isolation, would likely confer the court with jurisdiction over the defendant based on the loan transaction and the defendant's relevant Connecticut ties, the defendant, by way of a counteraffidavit, disputes the very existence of the loan itself.   Specifically, the defendant avers that “[he] did not promise any monies to the plaintiff nor do[es][he] owe the monies alleged in the plaintiff's Complaint.”   Defendant's Motion to Dismiss, Affidavit ¶ 15.   Additionally, the defendant contends that the language of the alleged written contract attached to the complaint has been altered from its original form and that it previously “had no mention of monies owed” to the plaintiff.   Defendant's Motion to Dismiss, Affidavit ¶ 13.

Given the existence of these unresolved issues of material fact, the court concludes that the necessary jurisdictional finding required by § 52–59b(a) cannot be made at this point in the proceedings.⁵  In the court's view, the court's jurisdiction over the defendant ultimately hinges on the existence (or non-existence) of the alleged loan—an issue which, as noted, is very much in dispute.   As our Supreme Court has long held, “[w]hen 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, 57, 459 A.2d 503 (1983).   Indeed, our Supreme Court has recognized that in certain cases “the jurisdictional facts are [so] intertwined with the merits of the case [that] the court may in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.”  Conboy v. State, supra, 292 Conn. 642, 653 n.16.

Simply put, because there exists a genuine issue as to whether a loan was ever transacted between the parties, this is a case where “[a]n evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.”  (Internal quotation marks omitted.)  Conboy v. State, supra, 292 Conn. 653–54;  see also Kenny v. Banks, supra, 289 Conn. 533 (“due process requires that a trial-like hearing be held, in which [the parties have] an opportunity to present evidence and to cross-examine adverse witnesses, unless, as with summary judgment, no genuine issue as to a material fact exists” [internal quotation marks omitted] ).   By deferring ruling on this jurisdictional question at this time, the court recognizes that, in a sense, it imposes “jurisdiction over the defendant prior to having even made the determination as to whether the court in fact had jurisdiction over [the] defendant.”   Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 57 n.7. But our Supreme Court in Standard Tallow not only rejected the claim that such a result is impermissible, it went on to conclude that the defendant, by raising the jurisdictional question, is thereby obligated to participate in subsequent proceedings, including but not limited to the discovery process, in order “to establish or to refute jurisdiction.”  Id. Accordingly, the defendant's motion to dismiss on the basis of improper long-arm jurisdiction must be denied at this time.

III. Conclusion

For the reasons set forth above, the defendant's motion to dismiss based upon defective service of process is hereby denied on the merits.   Because the defendant's motion to dismiss based upon insufficient long-arm jurisdiction cannot be adjudicated at this stage of the proceedings, it is hereby denied without prejudice, subject to being reclaimed at a later time.

By the Court

Gold, J.

FOOTNOTES

FN1. The parties agree that the defendant was a New York resident at the time the present action was commenced.   Complaint, ¶ 2;  Defendant's Motion to Dismiss, Affidavit, ¶ 2..  FN1. The parties agree that the defendant was a New York resident at the time the present action was commenced.   Complaint, ¶ 2;  Defendant's Motion to Dismiss, Affidavit, ¶ 2.

FN2. The Secretary of the State is served because nonresident individuals and entities “over whom a court may exercise personal jurisdiction ․ shall be deemed to have ․ agreed that any process in any civil action against the nonresident ․ may be served upon the Secretary of the State ․” General Statutes § 52–59b(c)..  FN2. The Secretary of the State is served because nonresident individuals and entities “over whom a court may exercise personal jurisdiction ․ shall be deemed to have ․ agreed that any process in any civil action against the nonresident ․ may be served upon the Secretary of the State ․” General Statutes § 52–59b(c).

FN3. The defendant also cites General Statutes § 52–46 in support of this claim.   To the extent that § 52–46 has any application to the service of process upon a nonresident defendant—an issue which the court need not decide—there is nothing in the language of that statute that lends support to the defendant's assertion..  FN3. The defendant also cites General Statutes § 52–46 in support of this claim.   To the extent that § 52–46 has any application to the service of process upon a nonresident defendant—an issue which the court need not decide—there is nothing in the language of that statute that lends support to the defendant's assertion.

FN4. In fact, if process is timely delivered to the Secretary of the State and then mailed to the nonresident defendant's last-known address, then valid service is effectuated even if the defendant never actually receives the process at all.   See, e.g., Teele v. Barbieri, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000478 (April 20, 2006, Matasavage, J.).  FN4. In fact, if process is timely delivered to the Secretary of the State and then mailed to the nonresident defendant's last-known address, then valid service is effectuated even if the defendant never actually receives the process at all.   See, e.g., Teele v. Barbieri, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000478 (April 20, 2006, Matasavage, J.)

FN5. The court does not consider the statement contained in the defendant's affidavit that “I do not regularly transact business in the State of Connecticut since moving to New York in 2006”;  Defendant's Motion to Dismiss, Affidavit ¶ 7;  to be a binding admission that the defendant, before 2006, regularly transacted business in Connecticut, and did so in a manner sufficient to authorize long-arm jurisdiction over the defendant in this case.  “[A] statement relied on as a binding admission ․ must be clear, deliberate and unequivocal.”  National Amusements, Inc. v. East Windsor, 84 Conn.App. 473, 482, 854 A.2d 58 (2004).   While this statement could be fairly construed to mean that the defendant does not regularly transact business in Connecticut since becoming a New York resident, it cannot, without more detail, also affirmatively and unequivocally convey that the defendant did regularly transacted business in Connecticut prior to moving to New York. Even if the court were to regard this statement as such an admission, the court could not, without more facts as to the nature of the defendant's Connecticut-based business activities, engage in the fact-specific inquiry involving “considerations of public policy, common sense, and the chronology and geography of the relevant factors”;  Zartolas v. Nisenfeld, supra, 184 Conn. 477;  that our Supreme Court has deemed necessary for the purpose of determining whether the long-arm statute is appropriately applied in a given case.   See Solano v. Calegari, 108 Conn.App. 731, 738–40, 949 A.2d 1257 (2008)..  FN5. The court does not consider the statement contained in the defendant's affidavit that “I do not regularly transact business in the State of Connecticut since moving to New York in 2006”;  Defendant's Motion to Dismiss, Affidavit ¶ 7;  to be a binding admission that the defendant, before 2006, regularly transacted business in Connecticut, and did so in a manner sufficient to authorize long-arm jurisdiction over the defendant in this case.  “[A] statement relied on as a binding admission ․ must be clear, deliberate and unequivocal.”  National Amusements, Inc. v. East Windsor, 84 Conn.App. 473, 482, 854 A.2d 58 (2004).   While this statement could be fairly construed to mean that the defendant does not regularly transact business in Connecticut since becoming a New York resident, it cannot, without more detail, also affirmatively and unequivocally convey that the defendant did regularly transacted business in Connecticut prior to moving to New York. Even if the court were to regard this statement as such an admission, the court could not, without more facts as to the nature of the defendant's Connecticut-based business activities, engage in the fact-specific inquiry involving “considerations of public policy, common sense, and the chronology and geography of the relevant factors”;  Zartolas v. Nisenfeld, supra, 184 Conn. 477;  that our Supreme Court has deemed necessary for the purpose of determining whether the long-arm statute is appropriately applied in a given case.   See Solano v. Calegari, 108 Conn.App. 731, 738–40, 949 A.2d 1257 (2008).

Gold, David P., J.