Rachel Langara et al. v. Norwalk Radiology & Mammography Center et al. (2012)

MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO DISMISS

In this medical malpractice action, the five defendants, Norwalk Radiology & Mammography Center, Norwalk Radiology, P.C., James Bauman, M.D., David Gruen, M.D. and David Klein, M.D., have moved to dismiss the plaintiff's complaint on the .grounds that the court lacks personal jurisdiction because process was not served upon them in accordance with Gen.Stat. § 52–57(a) and (c).¹  For the reasons set forth below, the court agrees with the defendants and grants their motion to dismiss.

I. Adequacy of service upon Individual Defendants

Viewing the marshal's return of service dated November 4, 2011, the three individual defendants—Dr.   Bauman, Dr. Gruen and Dr. Klein—were served by leaving copies of the writ, summons and complaint with Patricia F. Toni, RN, Risk Manager and Linda K. Spano, Patient Financial Services, both of whom are apparently employed by the corporate defendant Norwalk Radiology & Mammography Center.²  In addition, a supplemental return dated November 14, 2011 reflects that service was also attempted on Dr. Gruen through Sylvia Hopkins, Danbury Radiology Center at Danbury Hospital.   These individual defendants contend that such service was improper because it was not made on their person or at their usual places of abode, as required by Gen.Stat. § 52–57(a).   The court agrees that service on these individual defendants was improper.

Section 52–57(a) provides in pertinent part that “process in any civil action shall be served by leaving a true and attested copy of it ․ with the defendant, or at his usual place of abode.”   In considering this statutory provision, our Supreme Court has stated that “when a particular method of serving process is set forth by statute, the method must be followed ․ Unless service of process is made as the statute describes, the court to which it is returnable does not acquire jurisdiction ․ over the person.”  Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576 (2008).

Here, the returns of service demonstrate that none of the three individual defendants was served either in hand or at his usual place of abode.   Indeed, each of these defendants has submitted an affidavit attesting to the fact that no such personal or abode service was made, and that no other person was authorized to accept service on his behalf.³  Therefore, the plaintiffs failed to comply with the necessary requirements set forth in § 52–57(a), and as a result have deprived this court of personal jurisdiction over Drs. Bauman, Gruen and Klein.   The defendants' motion as to these individual defendants must be granted.

II. Adequacy of service upon Corporate Defendants

As to the corporate defendants, the marshal's return appears to indicate that service of Norwalk Radiology & Mammography Center was similarly made by leaving an attested copy with Ms. Toni and Ms. Spano.   The same return appears to indicate that Ms. Spano also accepted process for Norwalk Radiology Consultants, P.C., in care of its agent for service, Alan H. Richman.   The corporate defendants argue jointly that their legal agent for service of process is Dr. Richman,⁴ and that, accordingly, he is “the only individual who is authorized to accept service on behalf of Norwalk Radiology and Mammography Center and Norwalk Radiology Consultants, P.C.” Defendant's Memorandum, at 8. Because Dr. Richman was not himself served, the corporate defendants claim that service upon them was invalid.   Although the court agrees that service of the corporate defendants was improper, the resolution of the claim, in the court's view, requires a somewhat different analysis than that which is set forth in the defendants' memorandum.

In advancing this claim that service could be made only on Dr. Richman, the statutory agent for process, the corporate defendants rely on Supreme Court precedent that provides “when the particular officers or employees of a corporation upon whom service may be made are designated, service upon any other person as a representative of the corporation is inadequate to confer jurisdiction upon the court to which the process is returnable.”  Hyde v. Richard, 145 Conn. 24, 25 (1958).   This language makes clear that where service is to made upon a corporation's designated agent, it is that designated agent—and no one else—that must be the party served.   Indeed, this rule is in full accord with state law that permits service of process to be made on a corporation's statutory agent either in hand or at that agent's usual place of abode.  Gen.Stat. § 33–663(a).

Here, the record is clear that Dr. Richman, the corporate defendants' designated agent, was not served in hand or at his abode, as required by this Supreme Court precedent and statute.   Instead, the marshal's return indicates that Ms. Spano accepted service for Norwalk Radiology Consultants, P.C. “in care of” the statutory agent for service, Dr. Richman.   Because § 33–663(a) does not provide for service on another “in care of” the statutory agent, the court agrees with the corporate defendants that proper service was not effectuated on Norwalk Radiology Consultants, P.C. through its designated agent.

Contrary to the corporate defendants' claims, however, this does not end the court's inquiry.   As Gen.Stat. § 33–663(c) makes clear, service on a statutory agent “does not prescribe the only means, or necessarily the required means, of serving a corporation.”   Rather, in actions against a private corporation, § 52–57(c) alternatively provides that “service of process shall be made upon the president, 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 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.”   Thus, the service made here upon Ms. Toni and/or Ms. Spano would be a valid means of commencing this action against the corporate defendants if these women are employed by the corporations in a capacity that falls within the purview of § 52–57(c).

At the outset, it is obvious that neither Ms. Toni nor Ms. Spano is a “traditional” officer (i.e. president, vice president, etc.) of either of the corporate defendants.   As noted earlier, Ms. Toni is identified in the marshal's return as “Risk Manager,” and Ms. Spano is referred to by the phrase “Patient Financial Services.”   Given these particular job titles, however, the question remains as to whether either of these women, pursuant to the language of § 52–57(c), can be deemed the “manager” of these corporations, or “the person in charge of the business of the corporation,” or a “person who is at the time of service in charge of the office of the corporation in the town in which its ․ place of business is located.”

Given the state of the record at this time, the court cannot find that Ms. Toni or Ms. Spano was employed in any of these capacities.   Connecticut law is clear that in cases where, as here, “constructive service of process is employed and, ‘when a motion to dismiss for lack of personal jurisdiction raises a factual question not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.’  “ Nelson v. Stop & Shop Companies, Inc., 25 Conn.App. 637, 642 (1991), quoting Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54 (1983).   Here, the plaintiffs have failed to present any evidence as to the duties and responsibilities of Ms. Toni and Ms. Spano that would permit this court to find that these duties “make it reasonably certain that the corporation will be apprised of service made upon [these individuals].”   Nelson v. Stop & Shop Companies, Inc., 25 Conn.App. 637, 642 (1991).   The plaintiffs have filed no written opposition to the defendants' motion to dismiss nor any affidavits establishing the “duty and responsibilities of the person[s] served ․” Nelson v. Stop & Shop Companies, Inc., supra, 25 Conn.App. 642.   Nor for that matter did the plaintiffs choose to appear in court to offer argument or testimony relevant to this issue (or seek a continuance for the purpose of obtaining such evidence) when the defendants' motion to dismiss appeared as an arguable short calendar matter.

In sum, therefore, this case mirrors the above-cited Nelson v. Stop & Shop Companies, Inc. in that “no evidence was offered by the plaintiff[s] from which the factfinder could determine the duties of the individual[s] who [were] served with process.”  Id. All that is before the court is the marshal's return and his representations as to Ms. Toni's and Ms. Spano's respective job titles.   In the court's opinion, these representations, unsworn and unsupported by affidavits or testimony specifically identifying the nature of the work these women did and the statements they may have made at relevant times, provide an insufficient basis upon which to conclude that service upon Ms. Toni and Ms. Spano satisfied the requirements of § 52–57(c).  Accordingly, because the plaintiffs have failed to meet their burden of proof in this regard, the defendants' motion to dismiss this action as to the named corporate defendants must also be granted.⁵

III. Conclusion

For the reasons set forth above, the defendants' motion to dismiss for improper service is hereby granted as to each of the named defendants, both individual and corporate.

THE COURT

Gold, J.

FOOTNOTES

FN1. This is not the first time that these defendants have challenged the plaintiffs' effort to commence this action against them.   This action was first filed by the plaintiffs, who appeared then as self-represented parties, under Docket No. CV11–5033752 pursuant to a complaint dated February 28, 2011.   The defendants moved to dismiss that action on the basis of improper service.   On June 2, 2011, the court, Burke, J., granted the motion to dismiss as to all defendants.   In the above-captioned action, the plaintiffs appear through counsel..  FN1. This is not the first time that these defendants have challenged the plaintiffs' effort to commence this action against them.   This action was first filed by the plaintiffs, who appeared then as self-represented parties, under Docket No. CV11–5033752 pursuant to a complaint dated February 28, 2011.   The defendants moved to dismiss that action on the basis of improper service.   On June 2, 2011, the court, Burke, J., granted the motion to dismiss as to all defendants.   In the above-captioned action, the plaintiffs appear through counsel.

FN2. The language of the return is somewhat less than a model of clarity..  FN2. The language of the return is somewhat less than a model of clarity.

FN3. Specifically, Dr. Bauman and Dr. Klein have sworn that they “never authorized Patricia Toni, Linda Spano or anyone else to accept service of process.”   Dr. Gruen has made a similar representation as to “Sylvia Hopkins, Linda Spano or anyone else ․” In this regard, it bears mention that the doctrine of equitable estoppel has no application under the circumstances presented in this case.   See Bozzi v. Bozzi, 177 Conn. 232, 241–42 (1979) (explaining elements of equitable estoppel).   The plaintiffs have not alleged that any of the individual defendants made statements intended or calculated to induce the plaintiffs to believe that Linda Spano, Patricia Toni or Sylvia Hopkins were authorized agents for service of process.   Absent such statements, service made upon any of these women would be statutorily inadequate, even if Ms. Spano “insisted on accepting all copies” for the individual defendants, as is represented within the marshal's return..  FN3. Specifically, Dr. Bauman and Dr. Klein have sworn that they “never authorized Patricia Toni, Linda Spano or anyone else to accept service of process.”   Dr. Gruen has made a similar representation as to “Sylvia Hopkins, Linda Spano or anyone else ․” In this regard, it bears mention that the doctrine of equitable estoppel has no application under the circumstances presented in this case.   See Bozzi v. Bozzi, 177 Conn. 232, 241–42 (1979) (explaining elements of equitable estoppel).   The plaintiffs have not alleged that any of the individual defendants made statements intended or calculated to induce the plaintiffs to believe that Linda Spano, Patricia Toni or Sylvia Hopkins were authorized agents for service of process.   Absent such statements, service made upon any of these women would be statutorily inadequate, even if Ms. Spano “insisted on accepting all copies” for the individual defendants, as is represented within the marshal's return.

FN4. The defendants represent that “[a]ccording to the Commercial Recording Division of the Connecticut Secretary of State office, the legal agent for service of process for Norwalk Radiology Consultants, P.C. is the President, Dr. Alan Richman.”   Defendants' Memorandum, at 7..  FN4. The defendants represent that “[a]ccording to the Commercial Recording Division of the Connecticut Secretary of State office, the legal agent for service of process for Norwalk Radiology Consultants, P.C. is the President, Dr. Alan Richman.”   Defendants' Memorandum, at 7.

FN5. The court's research has failed to locate even a single case in which a plaintiff was deemed to have satisfied the burden of proof at issue here, in the absence of plaintiff's offer of affidavits or testimony directly relevant to the duties and responsibilities of the person or persons upon whom service was made..  FN5. The court's research has failed to locate even a single case in which a plaintiff was deemed to have satisfied the burden of proof at issue here, in the absence of plaintiff's offer of affidavits or testimony directly relevant to the duties and responsibilities of the person or persons upon whom service was made.

Gold, David P., J.