Juan Lopez v. Carl D. Eldredge et al. (2012)

MEMORANDUM OF DECISION RE MOTIONS TO DISMISS (# 104, # 109)

I

FACTS

The following two cases have been formally consolidated.   All references in this memorandum to “the plaintiffs” will refer to Juan Lopez and Ada Velazquez, collectively.

On November 5, 2008, plaintiff Juan Lopez filed a complaint against the defendants, Carl Eldredge and David Eldredge, alleging that he suffered personal injuries and damages as a result of a motor vehicle accident.   On December 16, 2009, the defendants filed a motion to dismiss the complaint on the ground that they had not been properly served (# 104).   The motion was granted by the court, Robaina, J., on March 8, 2011.   Thereafter, on July 6, 2011, Lopez filed a motion to open and set aside the judgment of dismissal on the ground that he had not received notice of the short calendar marking relative to the motion to dismiss.   The court, Miller, J., granted the motion to open and set aside the judgment of dismissal on July 18, 2011.   On January 27, 2012, Lopez filed a memorandum of law in opposition to the defendants' motion to dismiss.   The defendants filed a reply memorandum on March 13, 2012.

Similarly, on November 5, 2008, plaintiff Ada Velazquez filed a complaint against the defendants ¹ alleging that she suffered personal injuries and damages as a result of a motor vehicle accident.   On December 16, 2009, the defendants filed a motion to dismiss the complaint on the ground that they had not been properly served (# 109).   The motion was granted by the court, Wagner, J., on March 4, 2011.   Thereafter, on July 1, 2011, Velazquez filed a motion to open and set aside the judgment of dismissal on the ground that she had not received notice of the short calendar marking relative to the motion to dismiss.   The court, Domnarski, J., granted the motion to open and set aside the judgment of dismissal on July 20, 2011.   On January 27, 2012, Velazquez filed a memorandum of law in opposition to the defendants' motion to dismiss.   The defendants filed a reply memorandum on March 13, 2012.

The motions to dismiss (# 104, # 109) ² were heard on the April 9, 2012 short calendar.

II

DISCUSSIONAMotion to Dismiss Standard

“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.

“A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”  (Internal quotation marks omitted.)  Henriquez v. Allegre, 68 Conn.App. 238, 242, 789 A.2d 1142 (2002).  “Where ․ the motion [to dismiss] is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Internal quotation marks omitted.)  Ferreira v. Pringle, 255 Conn. 330, 346–47, 766 A.2d 400 (2001).  “[A]ffidavits are insufficient to determine the facts unless ․ they disclose that no genuine issue as to a material fact exists.”  (Emphasis omitted;  internal quotation marks omitted.)  Weihing v. Dodsworth, 100 Conn.App. 29, 39, 917 A.2d 53 (2007).

“When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer's] return ․ 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 ․ If the defendant challenging the court's personal jurisdiction is ․ a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction ․ Thus, once the defendant [contests] personal jurisdiction ․ it [is] the plaintiff's burden to produce evidence adequate to establish such jurisdiction.”  (Citations omitted;  internal quotation marks omitted.)   Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515–16, 923 A.2d 638 (2007).

B

Analysis

The defendants move to dismiss both cases on the ground that the court lacks personal jurisdiction because the defendants were not properly served.   According to the defendants, the marshal's return indicates that, on October 8, 2008, the marshal attempted service, pursuant to General Statutes § 52–62, by leaving a true and attested copy of the summons and complaint with the Commissioner of Motor Vehicles for the State of Connecticut.   Thereafter, the marshal mailed the same by certified mail to the defendants at 26 Fulton Street, Wappingers Falls, New York. According to the defendants, they have not lived at the Wappingers Falls address since October 10, 2006.   In support of their position, the defendants submit individual affidavits attesting that, at the time of the accident on October 4, 2006, they resided at the Wappingers Falls address, but on October 10, 2006, they moved to a new address in Carmel, New York. The defendants attest that they did not receive service at the Carmel address.

In opposition, the plaintiffs argue that service was proper, pursuant to General Statutes § 52–62, and the fact that the defendants never received the process sent via certified mail does not deprive this court of personal jurisdiction.

In reply, the defendants contend that compliance with General Statutes § 52–62 required that process be mailed to the defendants at their last known address, which does not mean the last address known to the plaintiffs, but rather the last address of the defendants as to those who under the ordinary circumstances of life would know it, i.e., the defendants' actual address.   The defendants assert they had not “departed for parts unknown,” and, therefore, service should have been sent to their Carmel address.   Finally, the defendants note that it is the plaintiffs' responsibility to ascertain the defendants' address and burden to prove that reasonable efforts were made to locate the defendants.

The plaintiffs bear the burden to prove jurisdiction because they used constructive service described in General Statutes § 52–62 in their attempt to serve the defendants.   See Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983) (“the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used”).

General Statutes § 52–62 provides in relevant part:  “(a) Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally ․ (c) Process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner, at least twelve days before the return day of the process, a true and attested copy thereof, and by sending to the defendant ․ by registered or certified mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon the commissioner, addressed to the defendant ․ at his last-known address.”

“Our Supreme Court has construed the constructive service requirements of § 52–62(c) as comprising a single act of service upon the commissioner.”   Kim v. Wu, Superior Court, judicial district of New Haven, Docket No. CV 11 6019943 (November 8, 2011, Silbert, J.) (52 Conn. L. Rptr. 788).  “The leaving of a copy with or at the office of the commissioner and the sending of a copy to the defendant are by the statute both made a part of the service of the process and are linked up in such a way that the legislature obviously regarded them as parts of one act.”  Hartley v. Vitiello, 113 Conn. 74, 79, 154 A. 255 (1931).   Moreover, “what the legislature evidently meant by the words [that service upon the commissioner shall have the same validity as if served upon the nonresident personally] is that service under the statute would be as effectual to confer jurisdiction over the defendant as would service made directly upon him, provided the steps necessary under the law to secure judgment be followed ․” Id., 83.

“In order that a valid judgment may be rendered against a nonresident upon whom it is claimed that constructive service has been made, [the statute authorizing such service] must be strictly observed and the facts showing compliance with it must appear of record.”  (Internal quotation marks omitted.)  Trichilo v. Trichilo, 190 Conn. 774, 778, 462 A.2d 1048 (1983).   “A statute such as this ․ being in derogation of common law, is to be strictly construed and must be strictly followed in order to secure the intended benefits.”  Tyler v. Barry, 18 Conn.Sup. 290, 292 (1953).

In the present case, the plaintiffs assert that it is not necessary to establish that the defendants received actual notice, only that the plaintiffs served notice on the Commissioner of Motor Vehicles.  “The [plaintiffs] [are] correct that it is not necessary ․ to establish that the [defendants] received actual notice”;  Harris v. Wood, Superior Court, judicial district of Litchfield, Docket No. CV 10 6002010 (December 9, 2010, Danaher III, J.);   so long as the plaintiffs can establish that process was mailed to the defendants' last known address.   See Hartley v. Vitiello, supra, 113 Conn. 79.

There is no dispute that process was not sent to the defendants' actual address, i.e., the Carmel address.³  Thus, “the essential question before the court is whether it was sent to the last address of the [defendants] so far as it is known ․ by those who under the ordinary circumstances of life would know it.”  (Internal quotation marks omitted.)  Harris v. Wood, supra, Superior Court, Docket No. CV 10 6002010, citing Hartley v. Vitiello, supra, 113 Conn. 80.

“The Supreme Court described the ‘last known address' requirement in the predecessor to § 52–62:  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.”  (Internal quotation marks omitted.)   Ortega v. Sutch, Superior Court, judicial district of Middlesex, Docket No. CV 11 6004497 (October 12, 2011, Wiese, J.) citing Hartley v. Vitiello, supra, 113 Conn. 80–81.

“Regarding a similarly construed statute,⁴ the Superior Court has held that plaintiffs who do not send process to the defendant's actual address can satisfy the last known address requirement by providing evidence of their effort to locate the defendant.   For example, in Harris v. Wood, [supra, Superior Court, Docket No. CV 10 6002010], the court denied a motion to dismiss because the plaintiff attempted to locate the defendant at the defendant's most recent employer.   On the other hand, in Ross v. Castelano, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 02 0190247 (May 6, 2003, Lewis, J.), the court granted a motion to dismiss when the plaintiffs served the defendant by mail at his former wife's address but failed to file any document demonstrating why they believed that it was his last known address ‘so far as it is known ․ by those who under the ordinary circumstances of life would know it.’  “ Ortega v. Sutch, supra, Superior Court, Docket No. CV 11 6004497.

In the present case, the plaintiffs rely on three cases in support of their position.   First, the plaintiffs cite Andrews v. Leddy, Superior Court, judicial district of New Britain, Docket No. CV 08 6001440 (March 3, 2010, Swienton, J.) (49 Conn. L. Rptr. 427) in which the court found substantial compliance with General Statutes § 52–62 and denied the motion to dismiss.   There, process was served on the motor vehicle commissioner and mailed to the defendant at the correct street address, but the wrong unit number.  Id., 428.   The court found that the defendant received actual notice as evidenced by his signature on the receipt acknowledging acceptance of the certified mail.   Id., 428–29.   The court distinguished those facts from a situation where process is sent to an address but the defendant never receives it.  Id., 429.   The court also found that “[t]he plaintiff made reasonable efforts to locate the defendant's address by performing a credit search ․ “Id.

The plaintiffs also rely on Medeiros v. Kaye, 31 Conn.Sup. 370, 371, 331 A.2d 351 (1974), in which the court denied a motion to dismiss where the defendant's father received process by registered mail, “signed for [it] as agent for his son ․ and then forwarded [it] to the defendant's insurance carrier.”   The court found that “the purpose of the statute was fulfilled” because the defendant received actual notice through his father and there was no prejudice to the defendant or his insurance carrier.  Id., 372–73.

The facts of the present case, however, indicate that the plaintiffs' reliance on Leddy and Medeiros is misplaced.   Here, no evidence has been submitted indicating that the defendants received actual notice as a result of the process sent by certified mail to the Wappingers Falls address.   In fact, the defendants attest in their affidavits that they never received the process.   Furthermore, the plaintiffs have not offered evidence indicating that they made any efforts to locate an address for the defendants.

Finally, the plaintiffs rely on Varrone v. Outman, Superior Court, judicial district of Waterbury, Docket No. CV 09 6001755 (March 12, 2010, Gallagher, J.) in which the court addresses the very issue presented in this case, i.e., whether the use of the address given by the defendants to the police and contained in the police report satisfies the “last known address” requirement of General Statutes § 52–62.   In Varrone, the court held that “it was reasonable for the plaintiffs to rely on the defendant's disclosure in the accident report ․ [because] [it] was the only address that was publicly available to them ․” Id. Although the defendant asserted that her last known address was “readily ascertainable,” the court found that there was “no indication that the plaintiffs had access to the Colorado motor vehicle registry ․ [and] no indication that the defendant established a forwarding address with the post office.”  (Internal quotation marks omitted.)  Id.

Varrone reveals, however, that there is disagreement amongst our superior courts as to what standard should be used in determining whether the last known address requirement has been satisfied.   Some Superior Courts have found that

[e]vidence that the plaintiff conducted a formal search before sending service to the defendant's address is sufficient to show the plaintiff used a proper ‘last-known address,’ as required by Hartley.   See Updike, Kelly & Spellacy, P.C. v. Beckett, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 0497890 (March 6, 2002, Aurigemma, J.) [31 Conn. L. Rptr. 500] (the plaintiff's investigation supported the conclusion establishing that defendant was reasonably probable to receive notice at address);  and Prudential Home Mortgage Co. v. Gajnos, Superior Court, judicial district of Litchfield, Docket No. CV 95 0060886 (November 17, 1995, Pickett, J.) (address determined by search firm constituted defendant's last-known address for purposes of service).

Other Superior Court cases have found that a valid ‘last-known address' includes one in which the defendant has himself provided to the plaintiff for the purposes of correspondence.   See Medeiros v. Kaye, [supra, 31 Conn.Sup. 370–73];  Cadle Co. v. Crown Amoco, Superior Court, judicial district of New Haven, Docket No. CV 93 0350875 (August 11, 2000, Pittman, J.) (27 Conn. L. Rptr. 680).   In Medeiros v. Kaye, supra, 31 Conn.Sup. 372, for instance, the court explained that [i]t appears that notice should be sent to a place or address where it is probable that the notice will be received by the addressee ․ A plaintiff may utilize the address supplied by the defendant motorist in his accident report or the best address available to the plaintiff and either address will establish a reasonable probability that the motorist will receive actual notice of the pending action, satisfying due process ․ The court in Medeiros found the plaintiff's service to the address provided by the defendant in the accident sufficient under the circumstances, as the purpose of the statute was fulfilled ․

Other Superior Court cases have taken into consideration the actions taken by the defendant after relocating in order to determine whether the plaintiff's attempted service was reasonable.   See Cadle Co. v. Crown Amoco, supra, 27 Conn. L. Rptr. at 681 (‘defendants cannot passively avoid service of process under the long arm statute by moving thereafter and leaving no forwarding address');  DeManche v. Downs, Superior Court, judicial district of Hartford, Docket No. CV 96 0559483 (February 5, 1997, Sullivan, J.) (19 Conn. L. Rptr. 259) (‘[i]t is probable that this process [by registered mail] would have come to the attention of the defendant had he taken customary, reasonable and prudent steps of maintaining a forwarding address at the post office’).   In particular, in DeManche v. Downs, supra, 19 Conn. L. Rptr. at 259, the court found that the plaintiff's use of the defendant's address provided in the accident report was sufficient to satisfy § 52–62 where the defendant moved, failed to notify anyone of his change of address, did not leave forwarding mail instructions, and then refused to accept process at his new residence.   The court found that [t]he concept of probability presupposes that citizens will be prudent in the handling of their affairs and that certainly presuppose the maintenance of forwarding addresses for the delivery of mail.

(Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Varrone v. Outman, supra, Superior Court, Docket No. CV 09 6001755.

In the present case, the plaintiffs contend that their reliance on the address listed in the police report was sufficient because process was reasonably certain to reach the defendants at that address.   However, in those cases where reliance on the address listed in police report was found to be sufficient, the facts indicate that the defendant received actual notice as a result of that service.   See Andrews v. Leddy, supra, 49 Conn. L. Rptr. 427 (defendant received actual notice as evidenced by his signature on the certified mail receipt);  Yates v. Peppers, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 02 0187190 (December 11, 2002, D'Andrea, J.T.R.) (defendant's mother received and signed for process, and forwarded it to defendant's father who advised defendant of the suit and promptly notified their insurance carrier);  Estefan v. Rolls, Superior Court, judicial district of Danbury, Docket No. CV 99 0336409 (April 28, 2000, Moraghan, J.) (27 Conn. L. Rptr. 129) (process was sent to the address listed in the accident investigation report and defendant's mother signed the return receipt for the certified mail);  Medeiros v. Kaye, supra, 31 Conn.Sup. 371–73 (defendant received actual notice through his father and there was no prejudice to defendant or his insurance carrier).

In the present case, however, the defendants never received actual notice as a result of process mailed to the address listed in the police report.   The plaintiffs submit the marshal's returns, the marshal's supplemental returns,⁵ and the police report.   The supplemental returns indicate that on or about October 25, 2008, the marshal received the certified mail addressed to the defendants, indicating that such mail was “not deliverable as addressed, unable to forward.”   Attached to the supplemental returns are copies of the returned first class, certified mail envelopes addressed to the defendants and bearing a stamped statement:  “Not Deliverable As Addressed—Unable to Forward.”   The defendants submit individual affidavits in which they attest that they moved to the Carmel address on or about October 10, 2006, and, at no time, did they receive process at the Carmel address by mail, service by a marshal or by abode service.   The defendants also attest that they did not receive a copy of the process from the Commissioner of Motor Vehicles.

Our Supreme Court has made it clear that “[t]he 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 ․ 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.”  (Internal quotation marks omitted.)  Hartley v. Vitiello, supra, 113 Conn. 80–81.

Although the Wappingers Falls address was the last known address to the plaintiffs, there is no evidence that it was, nonetheless, the defendants' last known address so far as it is known by those who under the ordinary circumstances of life would know it.   The plaintiffs did not submit any evidence showing that they conducted a diligent search to verify the defendants' actual address, such as, for example, through postal or motor vehicle records;  see Glatzel v. Brittle, Superior Court, judicial district of Danbury, Docket No. CV 08 4008461 (July 1, 2008, Sheedy, J.);   or evidence that these tools were unavailable to them, and, thus, the Wappingers Falls address was the only one publicly available to them.   See Varrone v. Outman, supra, Superior Court, Docket No. CV 09 6001755.

“Our Supreme Court requires no more than learning ․ [the last known address of the defendant] so far as it is reasonably possible to ascertain it.”   (Internal quotation marks omitted.)  Harris v. Wood, supra, Superior Court, Docket No. CV 10 6002010 citing Hartley v. Vitiello, supra, 113 Conn. 80.   In the present case, however, the plaintiffs offered no evidence of efforts made to discover the address at which the defendants could reasonably be expected to have received service.   See Glatzel v. Brittle, supra, Superior Court, Docket No. CV 08 4008461.   As such, service of process was not in compliance with General Statutes § 52–62, and this court lacks personal jurisdiction over the defendants.   The motions to dismiss are granted.

Woods, J.

FOOTNOTES

FN1. In addition to defendants David and Carl Eldredge, Velazquez also named Lopez as a defendant, alleging that Velazquez was a passenger in a vehicle being driven by Lopez at the time of the motor vehicle accident with David and Carl Eldredge.   The motions to dismiss, however, were filed by defendants David and Carl Eldredge.   Therefore, all references to “the defendants” refer only to David and Carl Eldredge..  FN1. In addition to defendants David and Carl Eldredge, Velazquez also named Lopez as a defendant, alleging that Velazquez was a passenger in a vehicle being driven by Lopez at the time of the motor vehicle accident with David and Carl Eldredge.   The motions to dismiss, however, were filed by defendants David and Carl Eldredge.   Therefore, all references to “the defendants” refer only to David and Carl Eldredge.

FN2. The grounds and arguments relative to the two motions to dismiss are identical and will be addressed collectively..  FN2. The grounds and arguments relative to the two motions to dismiss are identical and will be addressed collectively.

FN3. The parties also do not dispute that service was properly made upon the Commissioner of Motor Vehicles..  FN3. The parties also do not dispute that service was properly made upon the Commissioner of Motor Vehicles.

FN4. “General Statutes § 52–59b, which governs constructive service of process on nonresident individuals, foreign partnerships and foreign voluntary associations, also has a ‘last known address' requirement.   In Cadlerock Joint Venture II, L.P. v. Milazzo, [287 Conn. 379, 949 A.2d 450 (2008) ] the Supreme Court applied the same principles to § 52–59b as it applied to § 52–62 in Hartley v. Vitiello, supra, 113 Conn. 74.”  Ortega v. Sutch, supra, Superior Court, Docket No. CV 11 6004497..  FN4. “General Statutes § 52–59b, which governs constructive service of process on nonresident individuals, foreign partnerships and foreign voluntary associations, also has a ‘last known address' requirement.   In Cadlerock Joint Venture II, L.P. v. Milazzo, [287 Conn. 379, 949 A.2d 450 (2008) ] the Supreme Court applied the same principles to § 52–59b as it applied to § 52–62 in Hartley v. Vitiello, supra, 113 Conn. 74.”  Ortega v. Sutch, supra, Superior Court, Docket No. CV 11 6004497.

FN5. The supplemental return, not previously part of the court record, was entered into evidence at the short calendar hearing on the motions to dismiss..  FN5. The supplemental return, not previously part of the court record, was entered into evidence at the short calendar hearing on the motions to dismiss.

Woods, Glenn A., J.