John Wade v. Christopher Hubbard (2012)

MEMORANDUM OF DECISION

This case concerns constructive service of process on an out-of-state defendant.   The issue to be decided is whether the court has personal jurisdiction over an out-of-state defendant under the applicable long-arm statute, specifically General Statutes § 52–59b, whose constructive service was attempted at the defendant's actual address, but was returned to the marshal as unclaimed mail.

The plaintiff, John Wade, commenced this negligence action against the defendant, Christopher Hubbard, pursuant to the accidental failure of suit statute, General Statutes § 52–59b, claiming damages for personal injuries arising out of an incident that occurred in Connecticut.   At all relevant times, the defendant was a Rhode Island resident.   A complaint by the plaintiff against the defendant, Christopher Hubbard d/b/a Emergency Production, was dismissed for lack of personal jurisdiction.

The defendant filed a motion to dismiss in the present action on the ground that the court lacks personal jurisdiction over him, along with a memorandum of law in support of his motion and an affidavit.¹  The plaintiff filed an opposing memorandum and an affidavit by Mark J. White, the state marshal whose service is challenged (the “marshal”).   The defendant filed a reply memorandum to which the plaintiff filed a surreply.

The following undisputed facts are relevant to a determination of the issue.   The defendant is a resident of Rhode Island.   According to the marshal's return, on March 24, 2011, he effectuated service pursuant to General Statutes § 52–59b both by serving the secretary of state of Connecticut as agent for service and by mailing a copy addressed to the defendant, return receipt requested, to 184 Federal Highway, Apt. 302, Johnston, RI 02919.   The defendant attests in his affidavit that he resides at that address, which is also his business address, and that he has resided there since June 2009.   He attests further that he did not receive actual notice of this action through the marshal's purported service.   The marshal attested in his affidavit that the materials that he mailed to the defendant were returned to him as undelivered by the postal service.   The marshal attests further that notations on the envelope indicated that delivery notices from the postal service were left at the defendant's address on at least three dates before the materials were returned to him.²

Our rules of practice provide that a motion to dismiss shall be used to assert lack of jurisdiction over the person.  Practice Book § 10–31(a).  “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 ․ 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).

Service of process is key to establishing the jurisdiction of the court over the person as “[o]ne 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. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).  “[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.”  (Citations omitted;  internal quotation marks omitted.)  Commissioner of Transportation v. Khan, 262 Conn. 257, 272, 811 A.2d 639 (2003).  “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.”  Standard Tallow Corp v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983).

The defendant's affidavit establishes that he did not receive actual notice of the suit through the service that was attempted.   Simply stated, the defendant did not accept the mail sent to him at his address in Rhode Island.   The plaintiff submitted the marshal's affidavit as evidence of his compliance with the statutory procedures.   The parties do not dispute that the defendant did not receive actual notice of the suit.   Rather, they disagree as to whether the defendant can properly be charged with constructive notice sufficient to establish jurisdiction over him.   The gravamen of the defendant's argument is that, because he did not receive the copy sent and because the plaintiff could have done more to ensure he had actual notice, the court lacks jurisdiction over him.

To the extent that the defendant argues that the plaintiff failed to comply with the requirements of General Statutes § 52–57(a), “[t]he clear impact of § 52–57(a) is that one of its two alternatives, personal or abode service, must be followed ‘[e]xcept as otherwise provided’ in the General Statutes.”  Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 150 (2003).   The plaintiff elected to proceed under § 52–59b, which concerns service of process on an out-of-state resident.   As a threshold matter, the defendant does not contest that § 52–59b(a) ³ authorizes the exercise of jurisdiction over him under the facts of this case.   See Frazer v. McCowan, 198 Conn. 243, 246, 502 A.2d 905 (1986) (noting that court's first inquiry when construing long-arm statute is whether statute authorizes assertion of jurisdiction over defendant).

Constructive service in the case of a nonresident must be strictly construed since it is in derogation of the common law.  Holt v. DeHay, 24 Conn.Sup. 172, 173, 188 A.2d 355 (1963).  “When a plaintiff invokes § 52–59b to obtain such jurisdiction, he must demonstrate that in so doing there is ‘a reasonable probability of actual notice of the pendency of the action to the defendant.’   Hartley v. Vitiello, 113 Conn. 74, 81, 154 A. 255 (1931).”   Westcott v. Exwood Property Corp., Superior Court, judicial district of New Britain, Docket No. CV 96 0475950 (May 28, 1998, Gaffney, J.) (22 Conn. L. Rptr. 351, 352).   The pertinent inquiry is whether the statutory provisions were complied with.

Proper service under § 52–59b(c) ⁴ requires service upon the secretary of state.   Judges of our Superior Court have held that failure to serve the secretary of state as required by the statute mandates dismissal of the action.   See, e.g., Jackson v. Truly Green Landscape, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 10 6006476 (November 2, 2011, Jennings, J.T.R.) (52 Conn. L. Rptr. 732, 733) (collecting cases).   In the present case, there is no dispute that the marshal properly served the secretary of state, as reflected in the marshal's affidavit and return.

Proper service under § 52–59b(c) also requires “sending to the defendant at his last-known address, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the secretary ․” Our Supreme Court has stated with respect to this requirement:  “In Hartley v. Vitiello, [supra, 113 Conn. 81] in which we considered whether a nonresident, who had been sued for allegedly causing a motor vehicle accident, had been properly served under [a different] long arm statute, we stated that it is reasonable probability of notice, not actual notice, which is the test ․ The requirement that the copy be mailed to the defendant at his last-known address does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it.   Unless the defendant has departed for parts unknown, it means his actual address;  if he has disappeared it means his last address so far as it is reasonably possible to ascertain it.   This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute ․ Interpreted in the sense which the legislature intended, our statute, if complied with, will certainly bring about a reasonable probability of actual notice of the pendency of the action to the defendant.”  (Emphasis added;  internal quotation marks omitted.)  Cadlerock Joint Venture II, LP v. Milazzo, 287 Conn. 379, 393, 949 A.2d 450 (2008).

Accordingly, failure to mail the copy to the defendant's last-known address as required by the statute would deprive the court of jurisdiction over the defendant;  the statute does not require that the defendant actually receive it.   See, e.g., Harris v. Wood, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002010 (December 9, 2010, Danaher, J.) (copy was returned to marshal as undelivered;  court had jurisdiction because plaintiff complied with statute and efforts to ascertain defendant's last-known address were reasonable);  Teele v. Barbieri, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000478 (April 20, 2006, Matasavage, J.) (same).

In the present case, there is no dispute that the court may exercise jurisdiction over the nonresident defendant pursuant to § 52–59b(a).   The plaintiff has produced sufficient evidence that he complied with the procedures required by § 52–59b(c).  That the materials mailed to the defendant's actual, present address were returned to the marshal by the postal service because they were unclaimed after several delivery attempts is of no moment.   Actual notice is not the standard.   When the statutory provisions have been complied with, they ensure a reasonable probability of actual notice to the defendant.   As evidenced by the marshal's return and his affidavit, the statutory requirements have been met in the present case.   Since the materials were duly served on the secretary of state, they have been validly served upon the defendant, and the court has jurisdiction over him.   Based upon the foregoing, the defendant's motion to dismiss is denied.

THE COURT

SYBIL V. RICHARDS, JUDGE

FOOTNOTES

FN1. The defendant claimed as an alternate ground that this action should be dismissed because the accidental failure of suit statute, General Statutes § 52–592, does not apply to the present case.   The plaintiff objected, arguing, inter alia, that the court cannot resolve this question on a motion to dismiss if the plaintiff objects.  Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 155 n.14, 976 A.2d 723 (2009).   Accordingly, the parties agree that the only issue presently before the court is whether the court has jurisdiction over the defendant..  FN1. The defendant claimed as an alternate ground that this action should be dismissed because the accidental failure of suit statute, General Statutes § 52–592, does not apply to the present case.   The plaintiff objected, arguing, inter alia, that the court cannot resolve this question on a motion to dismiss if the plaintiff objects.  Viejas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 155 n.14, 976 A.2d 723 (2009).   Accordingly, the parties agree that the only issue presently before the court is whether the court has jurisdiction over the defendant.

FN2. Although the marshal's affidavit purports to have copies of the envelope attached as exhibits thereto, the exhibits were not filed with the court..  FN2. Although the marshal's affidavit purports to have copies of the envelope attached as exhibits thereto, the exhibits were not filed with the court.

FN3. Section 52–59b(a) provides, in relevant part:  “[A] court may exercise personal jurisdiction over any nonresident individual ․ who in person or through an agent ․ commits a tortious act within the state ․.  FN3. Section 52–59b(a) provides, in relevant part:  “[A] court may exercise personal jurisdiction over any nonresident individual ․ who in person or through an agent ․ commits a tortious act within the state ․

FN4. Section 52–59b(c) provides, in relevant part:  “Any nonresident individual ․ over whom a court may exercise personal jurisdiction, as provided in subsection (a), shall be deemed to have appointed the secretary of the state as its attorney and to have agreed that any process in any civil action brought against the nonresident individual ․ may be served upon the secretary of the state and shall have the same validity as if served upon the nonresident individual ․ The process shall be served by the officer to whom the same is directed upon the secretary by leaving with or at the office of the secretary, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at his last-known address, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the secretary ․ (Emphasis added.).  FN4. Section 52–59b(c) provides, in relevant part:  “Any nonresident individual ․ over whom a court may exercise personal jurisdiction, as provided in subsection (a), shall be deemed to have appointed the secretary of the state as its attorney and to have agreed that any process in any civil action brought against the nonresident individual ․ may be served upon the secretary of the state and shall have the same validity as if served upon the nonresident individual ․ The process shall be served by the officer to whom the same is directed upon the secretary by leaving with or at the office of the secretary, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at his last-known address, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the secretary ․ (Emphasis added.)

Richards, Sybil V., J.