Betty Smalls v. Saint Raphael Health Care System et al. (2013)

MEMORANDUM OF DECISION IN RE MOTION TO DISMISS (# 112)

Pursuant to Practice Book §§ 10–30 and 10–31, the defendant Renal Research Institute, LLC filed a motion to dismiss.   The defendant alleges that it was not properly served with a copy of the summons and complaint and as a result, personal jurisdiction is lacking.   The plaintiff objects and asserts that proper service was effectuated by a licensed state marshal on February 5, 2013.   On September 13, 2013, the court heard argument based essentially on competing affidavits.   As a result, an evidentiary hearing was ordered and conducted on October 21, 2013.   The court heard testimony from Gary Scappini, an official with CT Corporation System, which is the agent for service of process for Renal Research Institute, LLC. The court also heard testimony from Andrew Esposito, a licensed state marshal regarding his service of process in this case.   Several exhibits were introduced as well.

In reaching its conclusions, the court has fairly and impartially considered all of the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, and measured the probative force of conflicting evidence, reviewed all exhibits and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.

For the reasons set forth below, the motion is hereby granted.

Analysis

The governing principles of law are well established.  “[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).  “[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).  “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.”  City of Bridgeport v. Debek, 210 Conn. 175, 179–80 (1989).  Connecticut General Statutes § 52–57(c) states in relevant part:  “In actions against a private corporation established under the laws of any other state, ․ service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33–922.”  Connecticut General Statutes § 52–57(c).  Section 33–922, in turn, states:  “A Foreign corporation may apply for a certificate of authority to transact business in this state by delivering an application to the Secretary of the State for filing,” which includes, among other things, “the address of its registered office in this state and the name of its registered agent at that office.”  Connecticut General Statute § 33–922(a).  Connecticut General Statutes § 34–225 states in relevant part:  “Any process, notice or demand in connection with any action or proceeding required or permitted by law to be served upon a foreign limited liability company authorized to transact business in this state which is subject to the provisions of section 34–224, may be served upon the foreign limited liability company's statutory agent for service by any proper officer or other person lawfully empowered to make service.”  Connecticut General Statutes § 34–225(a).

The court has considered the testimony of the witnesses and the exhibits, and makes the following factual findings:  Defendant's Exhibit 1 is a “sign in log” kept and maintained in the ordinary course of business by CT Corporation System.   CT Corporation System is located on the 14th floor of an office building on 20 Church Street in Hartford, CT. On February 5, 2013, Gary Scappini was employed as a manager for CT Corporation System.   CT Corporation System provides registered agent services for corporations, and on said date, was the registered agent for service of process for Renal Research Institute.   In that capacity, he observed Marshal Andrew Esposito prior to February 5, 2013.

Mr. Scappini identified defendant's Exhibit 1 as the “sign in log” used on February 5, 2013.   In order to effectuate proper service of process on a CT Corporation System client, a licensed State Marshal must “ring a bell,” and “come to a window.”   Mr. Scappini was working the window on February 5, 2013.   Mr. Scappini requires that any Marshal attempting to serve process first identify the entity to be served, so that the CT Corporation System data base can be checked to confirm the entity is a client.   Assuming that the entity is a client, the “sign in log” is completed by Mr. Scappini.   The “sign in log” contains, among other things, the company name being served, and the name of the process server.   The “sign in log” also contains a place for the process server's signature.   Defendant's Exhibit 1, which is the “sign in log” for February 5, 2013, does not contain the name of either Renal Research Institute or Marshal Andrew Esposito.   It also does not contain Esposito's signature.   Mr. Esposito was familiar with CT Corporation System, having conducted business with them in the past.   Defendant's Exhibit 8, which is other “sign in logs” from CT Corporation System—from different dates, contains his signature and name.   Mr. Espositio admitted that he “always” observed the individuals at CT Corporation Systems “fill out” the “sign in log” when delivering process, even if he had not himself always personally signed it.

There was no testimony from Mr. Scappini that process would be accepted without recording the process servers name and signature.   Indeed, defendant's Exhibit 1 and 8 do not contain any blank lines with regard to either designation, and Esposito himself acknowledged “sign in logs” were always completed in his presence.   Notwithstanding his testimony regarding a lack of “specific recollection” regarding February 5, 2013, his claim that he did not “always sign” the “sign in log” and his reliance on his return of service, Mr. Esposito's performance on cross examination adversely affected his credibility.   The court is therefore not persuaded that service of process on Renal Research Institute was made as the statute prescribes.

For the foregoing reasons, the motion to dismiss as to Renal Research Institute is granted.

Vitale, J.

Vitale, Elpedio N., J.