Cathleen Murphy v. Anjali Kumar (2012)

Caption Date:

MEMORANDUM OF DECISION RE MOTION TO DISMISS

Preliminary Statement

This action arises out of a motor vehicle accident in which the plaintiff claims injury as a result of the defendant's reckless operation of her motor vehicle.   The defendant filed a motion to dismiss the complaint for lack of personal jurisdiction based upon insufficient service of process.   The plaintiff filed an objection thereto.   For the reasons set forth below, the motion to dismiss is GRANTED.

Relevant Facts 1

This action was commenced by purported “abode service” of the writ summons and complaint upon the defendant pursuant to Conn. Gen.Stat. § 52–57(a), or in the alternative, service upon the Commissioner of the Department of Motor Vehicles pursuant to Conn. Gen.Stat. § 52–63.   Specifically, the Marshal's return indicates that on September 13, 2011 he left a true and attested copy of the writ summons and complaint at “the usual place of abode” of the defendant at 2 Jefferson Lane, Southbury, Connecticut.   Thereafter, according to the Marshal's return, on September 15, 2011 he served the defendant through the Commissioner of the Department of Motor Vehicles.

According to the Affidavit of the defendant, she resided with her family at 2 Jefferson Lane, Southbury, Connecticut on the date of the accident, September 22, 2009.   Her child, who was seriously injured in the accident was hospitalized at Connecticut Children's Hospital from that date until January 22, 2010, at which point his care was transferred to the Kennedy Krieger Institute in Maryland.   Therefore, on January 26, 2010, the defendant and her family moved to Maryland and have had several addresses in Maryland since then.   While she is still an owner of the property located at 2 Jefferson Lane, Southbury, Connecticut, the home is leased to and occupied by others.

Since moving to Maryland, the defendant has obtained a Maryland driver's license and surrendered her Connecticut license.   She files income tax returns with the State of Maryland as well as the State of Connecticut.   However, the income reported to the State of Connecticut derives solely from the rental of the property in Southbury.   Her son is enrolled in elementary school in Ellicott, Maryland.

Discussion

Standard of Review

A Motion to Dismiss is the appropriate vehicle by which to assert that the court lacks jurisdiction, to include personal jurisdiction.  P.B. § 10–30, 31;  Upson v. State, 190 Conn. 622, 624 (1983);  Sadloski v. Manchester, 235 Conn. 637, 645–46 n.13 (1995).   The motion to dismiss may attack venue, sufficiency of process or sufficiency of service of process.   P.B. § 10–31.  “The Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction ․ Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss.”  (Citations omitted;  internal quotation marks omitted.)  Kim v. Magnotta, 249 Conn. 94, 101–1–2 (1999).

Abode Service (Conn.Gen.Stat. § 52–57(a))

The defendant first argues that the Southbury address was not her usual place of abode on September 13, 2011 and that therefore service was insufficient.²

Section 52–57(a) allows for abode service as a means of conferring personal jurisdiction over a defendant.   See, Smith v. Smith, 150 Conn. 15, 20 (1962).   When a Marshal indicates in his return that the summons was served at the defendant's usual place of abode, he is attesting to a fact which, unlike the fact of personal or in-hand service, is ordinarily not within his own personal knowledge.   Uyen Phan v. Delgado, 41 Conn.Sup. 367, 370 (1990), citing Four Lakes Management & Development Co. v. Brown, 129 Ill.App.3d 680, 684, 472 N.E.2d 1199 (1984).   Thus, the Marshal's return is only prima facie evidence of the facts stated and may be challenged by evidence to the contrary.  Id. See also, Cugno v. Kaelin, 138 Conn. 341, 343 (1951).   When a defendant demonstrates that process was left at a place other than his usual place of abode, “the court must find that there was no service of process and that it acquired no jurisdiction over the person of the defendant which would authorize it to render a valid judgment against him.”  Id.

The phrase “usual place of abode” has been defined as “the place where [the defendant] is living at the time of service” or alternatively, “the place where the defendant would most likely have knowledge of service of process.   Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 40 Conn.Sup. 1, 3 (1984).   The length of time that a person has occupied or may occupy in the future the location at issue is a factor to be considered.  Union Trust Co. v. Brodeur, 4 Conn. L. Rptr. 61 (May 14, 1991, Gray, J);  1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 24, p. 78.

A person may have more than one “usual place of abode” and service of process at any of them will be valid service.  “In the final analysis [however], the determination of one's usual place of abode is a question of fact and the court may consider various circumstances.”  Union Trust v. Brodeur, supra., citing, Plonski v. Halloran, 36 Conn.Sup. 335, 336 (1980);  Cugno v. Kaelin, 138 Conn. 341, 343 (1951).

Here, the evidence is overwhelming that since early in 2010, the defendant has not resided at 2 Jefferson Lane, Southbury, Connecticut but has been a resident of the State of Maryland.³  The Southbury property was not her “usual place of abode” on September 13, 2011 or for many months prior thereto.   Abode service at that address is therefore insufficient.   See, East Lyme v. Huntington, 22 Conn.Sup. 288 (1961) (service was insufficient when made on the defendant by leaving a copy of process under the door of a residence owned by the defendant but occupied by his tenant, even though the defendant maintained an office at the residence.);  Bell & Stanton, Inc. v. Laughlin, 28 Conn.Sup. 359 (1967).   The motion to dismiss is granted.

K. DOOLEY, J.

FOOTNOTES

FN1. When a motion to dismiss raises questions of fact which must be resolved in order to determine the merits of the motion, the court is required to hold an evidentiary hearing.   Reliance upon materials submitted by the parties is not adequate.  Coughlin v. City of Waterbury, 61 Conn.App. 310, 315 (2001).   However, at oral argument, counsel for both parties agreed that the court could and should decide the issues based upon the materials submitted and that no hearing was necessary..  FN1. When a motion to dismiss raises questions of fact which must be resolved in order to determine the merits of the motion, the court is required to hold an evidentiary hearing.   Reliance upon materials submitted by the parties is not adequate.  Coughlin v. City of Waterbury, 61 Conn.App. 310, 315 (2001).   However, at oral argument, counsel for both parties agreed that the court could and should decide the issues based upon the materials submitted and that no hearing was necessary.

FN2. At oral argument and in her memorandum in opposition to the motion to dismiss, the plaintiff did not dispute the facts set forth by the defendant and conceded that 2 Jefferson Lane, Southbury Connecticut did not appear to be the defendant's usual place of abode on September 13, 2011.   Further, the plaintiff did not pursue any claim that the service upon the Commissioner of the Department of Motor Vehicles was valid.   Therefore, the service upon the DMV is not discussed herein..  FN2. At oral argument and in her memorandum in opposition to the motion to dismiss, the plaintiff did not dispute the facts set forth by the defendant and conceded that 2 Jefferson Lane, Southbury Connecticut did not appear to be the defendant's usual place of abode on September 13, 2011.   Further, the plaintiff did not pursue any claim that the service upon the Commissioner of the Department of Motor Vehicles was valid.   Therefore, the service upon the DMV is not discussed herein.

FN3. As required, the defendant's affidavit is corroborated by the submission of tax returns, employment records, her Maryland driver's license, and the lease for the Southbury property.   See Uyen Phan v. Delgado, 41 Conn.Sup., supra., 372–73..  FN3. As required, the defendant's affidavit is corroborated by the submission of tax returns, employment records, her Maryland driver's license, and the lease for the Southbury property.   See Uyen Phan v. Delgado, 41 Conn.Sup., supra., 372–73.

Dooley, Kari A., J.