Michael Finucane v. William Cruz (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 102)

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, Michael Finucane (plaintiff), commenced this action by writ, summons and complaint on April 17, 2013.   The plaintiff alleges in his one-count complaint that on the evening of April 16, 2010, into the early morning hours of April 17, 2010, he was at the Butterfied Bar and Restaurant located at 112 Bedford Street in Stamford, Connecticut.   The plaintiff alleges that at 1:30 a.m. on April 17, 2010, he left the bar and proceeded walking north on Bedford Street when he was approached by the defendant, William Cruz (defendant), and a Christopher Gonzalez.   The plaintiff further alleges that the defendant intentionally struck his jaw on the right side of his head, causing the plaintiff to fall sideways and to hit his head on a nearby building, knocking him unconscious and causing him to fall to the ground.   The plaintiff has alleged the defendant's violent and unprovoked assault and battery upon the plaintiff resulted in damages to the plaintiff.

The return of service by Marshall John Barbieri states that on April 17, 2013, he made “due and legal service upon the within named defendant:  William Cruz by leaving at the usual place of abode at 842 Bunker Hill Avenue, Waterbury, Connecticut, a true and attested copies of the within writ, summons, complaint and statement of amount in demand, with my endorsement thereon.”

On May 23, 2013, the defendant filed an appearance in this matter and on June 14, 2013, pursuant to Practice Book § 10–31 he filed a motion to dismiss the plaintiff's complaint for lack of personal jurisdiction due to insufficiency of service of process.   The defendant claims that on the date of the marshall's purported abode service, he did not reside at 842 Bunker Hill Avenue in Waterbury, Connecticut, and therefore the plaintiff's service of process did not conform with General Statutes § 52–57(a).¹  In support of his motion, the defendant submitted a memorandum of law, a certified copy of the warranty deed which shows that he and his wife sold their home at 842 Bunker Hill Avenue in Waterbury on March 29, 2007 (Def.'s Ex. A);  the affidavit of both he and his wife, in which they both attest that they did not reside at 842 Bunker Hill Avenue in Waterbury on April 17, 2013, and that they sold their home on 842 Bunker Hill Avenue in March 2007 (Def.'s Exs. B and C);  and a copy of the defendant's driver's license which was issued on April 16, 2011 and confirms that his address at that time was 36 Hiawatha Lane Extension in Westport, Connecticut, not 842 Bunker Hill Avenue in Waterbury, Connecticut.   (Def.'s Ex. D.)

On June 28, 2013, the plaintiff filed an objection to the motion to dismiss and submitted a memorandum of law in support of the objection.   The court heard oral argument on the motion on July 22, 2013.

DISCUSSION

Practice Book § 10–31(a) provides in relevant part that “[t]he motion to dismiss shall be used to assert ․ lack of jurisdiction over the person ․” “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 ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

“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.)  Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).  “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.

“Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person.”  (Internal quotation marks omitted.)   Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).  “One 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).   As a result, “an action commenced by improper service must be dismissed.”  (Internal quotation marks omitted.)  Jiminez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).

“When 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 693 (2003).  “A proper officer serving process must comply with the provisions of [General Statutes] § 52–57(a), which require that process be served by leaving it with the defendant, or at his usual place of abode ․ Abode service is not effective if it is left at an address that is not the usual address of the party to be served, and an action commenced by such improper service must be dismissed ․ For service pursuant to § 52–57(a), the ‘usual place of abode’ presumptively is the defendant's home at the time when service is made ․ Whether a particular locale is the usual place of abode is a question of fact.   When, however, the defendant is a resident of Connecticut who claims that no valid abode service has been made ․ that would give the court jurisdiction over [the defendant's] person, the defendant bears the burden of disproving personal jurisdiction ․ When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise.”  (Citations omitted;  internal quotation marks omitted.)  Jiminez v. DeRosa, supra, 109 Conn.App. 332, 338–39.

In the present case, the plaintiff's return of service states that the marshal left service of process for the defendant at his usual place of abode on April 17, 2013, at 842 Bunker Hill Avenue, Waterbury, Connecticut.   As previously noted, the defendant claimed that he did not reside at 842 Bunker Hill Avenue at the time plaintiff attempted service.   In support of his claim, the defendant submitted a certified copy of the warranty deed showing that he sold his home at 842 Bunker Hill Avenue in Waterbury in March 2007, six years ago.   In addition, the defendant submitted his affidavit and the affidavit of his wife, in which they both attest that in March 2007, he, his wife and their children moved from Waterbury to a home they rented at 52 Compo Road in Westport, Connecticut.   The affidavits further attest that the defendant, his wife and family lived at 52 Compo Road for approximately three years from 2007 to 2010.   Thereafter, they rented a home at 54 Drumlin Road in Westport for approximately one year from 2010 to 2011.   In April 2011, the defendant, his wife and their three children rented a home at 36 Hiawatha Lane Extension in Westport, Connecticut, where they lived at the time plaintiff attempted service on April 17, 2013, and where they presently reside.   The defendant's affidavit further attests that in April 2011, when he and his wife and family rented the house at 36 Hiawatha Lane Extension in Westport, he filed a change of address with the State of Connecticut Department of Motor Vehicles (DMV), and on April 16, 2011, the DMV issued to the defendant a new driver's license with his then new and current address of 36 Hiawatha Lane Extension, Westport, Connecticut.

The plaintiff argues that the defendant had actual notice of this lawsuit and, moreover, has suffered no prejudice as a result of the incorrect service.   The plaintiff argues that due to there being no prejudice to the defendant regarding this matter, the court should deny the defendant's motion to dismiss.   The plaintiff claims that evidence of the defendant's actual notice of this lawsuit is made known by the defendant's series of consecutive pleadings with the court.   The plaintiff argues that “[d]efendant clearly had actual notice of this lawsuit.   Defendant filed an appearance on May 23, 2013, 36 days after the Marshall served Defendant's former address and nine days after the return day of May 14, 2013.”

The plaintiff relies on Practice Book § 3–2 to support his argument that the defendant's appearance was filed late and therefore his motion to dismiss should be denied because he had actual notice of this lawsuit.  Section 3–2 provides in relevant part that appearances “should be filed on or before the second day following the return day” and, that appearances filed after that time shall be accepted, but appearances filed “after the entry against such party of a nonsuit or judgment after default for failure to appear shall not affect the entry of the nonsuit or any judgment after default.”   The plaintiff claims that because the defendant filed a “late” appearance and he did not file a motion for default against the defendant for filing a late appearance, and because the defendant had actual notice of the lawsuit due to the filing of his appearance and subsequent pleadings, and because there is no prejudice to the defendant, this court should deny the defendant's motion to dismiss.

The plaintiff further argues that the defendant's move from place to place left the plaintiff at a significant disadvantage in his attempt toward obtaining the correct address from which he could properly serve the defendant.   The plaintiff argues that the court “should not condemn parties who in good faith seek to serve individuals with an erratic abode presence.”   (Plaintiff's Brf. p. 4.)

The defendant filed his appearance and a motion for extension of time to plead on May 23, 2013.   On June 14, 2013 the defendant timely filed his motion to dismiss and memorandum of law along with exhibits in support of his motion.   No other pleadings were filed by the defendant.

The plaintiff's assertion that the defendant's appearance in the case demonstrates that the defendant had actual notice of the action, and therefore cures any defects in the service of process, is unavailing.   As the Appellate Court has noted, “prior to 1978, a defendant wishing to contest the presence of personal jurisdiction was required to file a ‘limited’ or ‘special’ appearance, as filing a general appearance was a submission to the general jurisdiction of the court ․ This type of appearance is no longer recognized or required ․ Practice Book § 10–30 currently provides that any defendant wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, so long as the defendant files a motion to dismiss within thirty days of the filing of an appearance.”  (Citation omitted).  Green v. Simmons, 100 Conn.App. 600, 603 n.6, 919 A.2d 482 (2007).   Thus, “the fact that an appearance of counsel for the [defendant] and a motion to dismiss were timely filed [does] not cure [defects in the service of process] as the Practice Book contemplates the validity of such motions under these circumstances.”   Cambridge Mutual Fire Ins. Co. v. Bemis, Superior Court, judicial district of New London, Docket No. CV 07 4007914 (April 30, 2008, Peck, J.).   Cf. Trinidad v. Munez, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5001231 (March 13, 2007, Rubinow, J.) [43 Conn. L. Rptr. 54].²

The plaintiff, other than to argue that the defendant filed an appearance in this case, and therefore has actual notice of this lawsuit, has offered no affirmative evidence whatsoever showing, or even suggesting, that 842 Bunker Hill Avenue was, in fact, the defendant's usual place of abode at or about April 17, 2013, when service of process was attempted at that address.   In fact, it appears from the plaintiff's memorandum in opposition to defendant's motion, and from oral argument on the motion, that plaintiff concedes that the defendant did not reside at this address at the time he attempted abode service on the defendant.   The plaintiff has therefore failed to dispute or bring into question any of the defendant's sworn representations.  “[Where] affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings.”  Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).

Under these circumstances, the defendant has proven to the court's satisfaction that 842 Bunker Hill Avenue was not his usual place of abode on April 17, 2013, and that service made on that date at that address was improper.   In this regard, the court must be mindful that “[p]roper service of process is not some mere technicality.”  Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003).   Rather, it is a requirement that “gives a court power to render a judgment ․” Id. Therefore, because the plaintiff attempted to serve the defendant at an address that was not his usual place of abode, the service violated § 52–57(a) and deprives the court of personal jurisdiction over the defendant.   Accordingly, the defendant's motion to dismiss is hereby granted.

CONCLUSION

Accordingly, for the foregoing reasons, the defendant's motion to dismiss is granted.

Wilson, J.

FOOTNOTES

FN1. Section 52–57(a) provides:  “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”.  FN1. Section 52–57(a) provides:  “Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.”

FN2. Trial court held in relying on Fine Home Builders, Inc. v. Perrone, 98 Conn.App. 852, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007), appeal withdrawn October 24, 2007, that filing an appearance in an action demonstrates the defendant's actual notice, and therefore fulfills the purpose of § 52–62.   This court declines to follow the reasoning in that case because first, it involves a nonresident and the application of § 52–62, which is not case here, and, that holding, if extended, would render nearly all objections to jurisdiction based on insufficient service of process moot since the only way to contest jurisdiction is to file an appearance followed by a timely motion to dismiss as prescribed in Practice Book § 10–30.   Further, that decision's interpretation of Fine Homebuilders which was an appeal from this trial court's ruling, is over broad.   The decision in Fine Homebuilders related to a very narrow factual circumstance that does not apply in the present case.   In that case, the Appellate Court held that where a security gate prevented abode service, by sliding process under the front door of the defendant's dwelling, the purpose of abode service, the reasonable likelihood that the defendant would receive actual notice, could be met by leaving process in the bars of the main gate.  Id., 861–62.   In addition, the defendant in Fine Homebuilders did receive actual notice.   This narrow situation is a far cry from the defendant, who, in the present case, was served process via abode service at a residence that he had not lived at for six years at the time plaintiff attempted abode service.   There is no evidence that the defendant in the present case received actual notice of the lawsuit.   Serving process to an invalid address does nothing to ensure that the defendant receives actual notice of the pending litigation and does not further the purpose of § 52–57(a) or “satisfy due process requirements under the 14th amendment of the federal constitution and equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the full faith and credit clause of the federal constitution.”  Id., 862–63..  FN2. Trial court held in relying on Fine Home Builders, Inc. v. Perrone, 98 Conn.App. 852, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007), appeal withdrawn October 24, 2007, that filing an appearance in an action demonstrates the defendant's actual notice, and therefore fulfills the purpose of § 52–62.   This court declines to follow the reasoning in that case because first, it involves a nonresident and the application of § 52–62, which is not case here, and, that holding, if extended, would render nearly all objections to jurisdiction based on insufficient service of process moot since the only way to contest jurisdiction is to file an appearance followed by a timely motion to dismiss as prescribed in Practice Book § 10–30.   Further, that decision's interpretation of Fine Homebuilders which was an appeal from this trial court's ruling, is over broad.   The decision in Fine Homebuilders related to a very narrow factual circumstance that does not apply in the present case.   In that case, the Appellate Court held that where a security gate prevented abode service, by sliding process under the front door of the defendant's dwelling, the purpose of abode service, the reasonable likelihood that the defendant would receive actual notice, could be met by leaving process in the bars of the main gate.  Id., 861–62.   In addition, the defendant in Fine Homebuilders did receive actual notice.   This narrow situation is a far cry from the defendant, who, in the present case, was served process via abode service at a residence that he had not lived at for six years at the time plaintiff attempted abode service.   There is no evidence that the defendant in the present case received actual notice of the lawsuit.   Serving process to an invalid address does nothing to ensure that the defendant receives actual notice of the pending litigation and does not further the purpose of § 52–57(a) or “satisfy due process requirements under the 14th amendment of the federal constitution and equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the full faith and credit clause of the federal constitution.”  Id., 862–63.

Wilson, Robin L., J.