LLC v. Lori Choyce–Flanagan (2012)

MEMORANDUM OF DECISION RE MOTIONS TO DISMISS # 101, 105 SHORT CALENDAR MARCH 12, 2012

ISSUE

The issue before the court is whether to grant the defendant's motions to dismiss on the grounds of insufficiency of process, insufficiency of service of process and lack of subject matter jurisdiction.

I

FACTS

On September 27, 2011, the plaintiff, Portfolio Recovery Associates, LLC,¹ filed a collection action against the defendant, Lori Choyce–Flanagan.   On November 9, 2011, the defendant filed a motion to dismiss the complaint due to insufficiency of process and insufficiency of service of process.   The plaintiff filed an objection on November 23, 2011.   Thereafter, on January 4, 2012, the defendant filed a second motion to dismiss on the grounds of insufficient process and lack of subject matter jurisdiction.   The plaintiff filed an objection on January 13, 2012.   The matter was heard on the March 12, 2012 short calendar.

II

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.

In the first motion to dismiss (# 101), the defendant moves to dismiss the complaint due to insufficiency of process and insufficiency of service of process.   According to the defendant, she was not properly served, no separate statement of amount in demand was served and the marshal's return of service does not state the date that service was made.   Furthermore, the defendant argues that the last page of the complaint indicates that it is an attempt to collect a debt, which makes the plaintiff's attorney a debt collector.   The defendant attached her own affidavit in which she attests that the writ, summons and complaint were hand delivered on an unknown date at the usual place of abode.   At oral argument, the defendant also argued that although service was made at her usual place of abode, it was made on an incompetent person.   The plaintiff objects, arguing that the marshal's return of service indicates that service was made on September 6, 2011, and the defendant has failed to overcome the presumption of the marshal's return as to the date service was made.

“[A]n action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).  “[W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ The jurisdiction that is found lacking ․ is jurisdiction over the person ․” (Internal quotation marks omitted.)  Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).  General Statutes § 52–57(a) provides that service of process on an individual defendant shall be made by leaving a copy with the defendant or at his or her usual place of abode.  “[A] sheriff's return indicating that he made service by leaving an attested copy at the defendant's place of abode ․ is prima facie evidence of the facts stated therein ․ It is true that those facts may be contradicted and other facts introduced to show otherwise.”  (Citations omitted.)   Genung's, Inc. v. Rice, 33 Conn.Sup. 554, 558, 362 A.2d 540 (1976).   The defendant bears the burden of showing that she was not served in compliance with General Statutes § 52–57(a).  “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.”  (Internal quotation marks omitted.)   Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n.9, 674 A.2d 426 (1996).  “[A] defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction.”  (Emphasis in original.)  Jimenez v. DeRosa, supra, 341.   A defendant can accomplish this by introducing “sufficient evidence ․ to prove otherwise.”  (Internal quotation marks omitted.)  Id., 339.

In the present case, the marshal's return indicates that service was made on September 6, 2011, by leaving the writ, summons and complaint at the defendant's usual place of abode.   The defendant did not introduce any evidence to contradict the date of service.   The return of service indicates that service of process complied with General Statutes § 52–57(a).   Accordingly, the Court concludes that the defendant's motion to dismiss (# 101) is to be denied.

In the second motion to dismiss (# 105), the defendant argues that the court lacks subject matter jurisdiction because (1) on the writ and summons, the signatures of the plaintiff's attorney, Mr. Tobin, vary in penmanship in such a way that the legitimacy of the signatures is in question, and (2) Mr. Tobin's office is in New Haven, CT and, therefore, the writ and summons were not signed by a commissioner of the Superior Court where the writ and summons were returnable.   The defendant also moves to dismiss for insufficient process because the complaint does not state the amount in demand on a separate page.   The plaintiff objects, arguing that the writ, summons and complaint were properly signed by Mr. Tobin, that the complaint complies with General Statutes § 52–91 and that the defendant's motion to dismiss is not timely.

The court is satisfied that Mr. Tobin was the signatory on all relevant documents.   Mr. Tobin submitted an affidavit attesting that “the signatures contained on the writ, summons and complaint ․ are my signatures.”   Moreover, at oral argument, Mr. Tobin represented, as an officer of the court, that he signed the writ, summons and complaint.

Next, any attorney admitted to practice in Connecticut, while in good standing, is a commissioner of the Superior Court.  General Statutes § 51–85.   Attorneys are commissioners of the Superior Court in its entirety, as opposed to any specific judicial district.   As such, Mr. Tobin, as an attorney admitted to practice law in Connecticut and in good standing, is a commissioner of the Superior Court with the power to sign any writ or summons returnable to the judicial district of Litchfield.

Finally, a failure to attach a separate page stating the amount in demand is not a jurisdictional issue necessitating dismissal of the complaint.   See Colon v. State, 129 Conn.App. 59, 67–68, 19 A.3d 699 (2011).

Accordingly, the Court concludes that the defendant's motion to dismiss (# 105) is to be denied.

BY THE COURT,

Roche, J.

FOOTNOTES

FN1. The complaint alleges that the plaintiff is the successor in interest to Capital One Bank, N.A..  FN1. The complaint alleges that the plaintiff is the successor in interest to Capital One Bank, N.A.

Roche, Vincent E., J.