Barbara McBreairty et al. v. Patrick Doherty, M.D. et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT PATRICK DOHERTY'S MOTION TO DISMISS (# 101)

Before the court is the defendant, Patrick Doherty's motion to dismiss, as well as his motion for protective order and motion to quash (# 152), and the plaintiffs' objection to the motion to quash and protective order. (# 153.)  The defendant moves to dismiss the claims against him due to insufficient service of process.   He is also seeking to quash the subpoenas duces tecum, dated October 10, 2013, (“subpoenas”) which were served on Dr. Doherty, and his office manager, Bonnie Scogno, seeking to compel their appearance and testimony in connection with the issues surrounding the purported service of process.   The defendant argues that the subpoenas should be quashed, or at a minimum, the court should issue a protective order that Dr. Doherty and Ms. Scogno need not appear unless and until the court determines the threshold issue of whether their testimony is necessary to the resolution of the defendant's motion to dismiss.

BACKGROUND

The plaintiffs, Barbara McBreairty and Marshall McBreairty, filed the present action against the defendants, Patrick Doherty, M.D., Neurosurgical Associates, and Sound Medical Neurosurgical Associates.   In count one, it is alleged that Dr. Doherty, a neurosurgeon, was negligent in his care of the plaintiff, Barbara McBreairty, and in count two, the plaintiff, Marshall McBreairty, raises a loss of consortium claim against Dr. Doherty.

In his motion to dismiss, the defendant contends that the plaintiffs did not have the summons and complaint served with the defendant or at his usual place of abode as mandated by General Statutes § 52–57(a).   As indicated by the state marshal's return, service was made on January 13, 2012, as follows:

“Then and there by virtue hereof, and by direction of the plaintiffs' attorney, I made due and legal service of the within original Writ, Summons—Civil, Complaint, Ad Danmum, Exhibit A, Exhibit B and Exhibit C by leaving a true and attested copy of the within original with and in the hands of Bonnie Scogno, Officer Manger (sic) of the within named defendant Patrick Doherty, M.D. at 50 Faire Harbour Place Suite 2A in the town of New London.”

In support of his motion, the defendant's affidavit states that he was not served with the complaint by hand or at his usual place of abode, which is 51 Pepperbox Road, Waterford, Connecticut.  (Defendant's memorandum in support, Exh. A.)

In their objection to the motion to dismiss, the plaintiffs agree that Dr. Doherty was not served in hand nor was abode service effectuated.   They argue that either Ms. Scogno had the authority to accept service on behalf of Dr. Doherty and represented herself as such to the marshal, or that she delivered the process personally to Dr. Doherty so that he received the complaint in his hands from her shortly after the marshal left the office practice.   They contend that Dr. Doherty had constructive notice of the action.   The plaintiffs further contend that it is necessary to conduct an evidentiary hearing on the motion to dismiss to determine whether the service was legally adequate.

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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (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” (Emphasis in original;  internal quotation marks omitted.)  Bridgeport v. Debek, 210 Conn. 175, 179–80, 554 A.2d 728 (1989).

“The Superior Court ․ may enter jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction.”  (Internal quotation marks omitted.)  Bove v. Bove, 77 Conn.App. 355, 362, 823 A.2d 383 (2008).  “Any defendant wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”  Practice Book § 10–30.¹

“Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ․ 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.)  Morgan v. Hartford Hospital, 301 Conn. 388, 401, 21 A.3d 451 (2011).  “[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 prescribed, the court to which it is returnable does not acquire jurisdiction.”  (Internal quotation marks omitted.)  Narayan v. Narayan, 305 Conn. 394, 402, 46 A.3d 90 (2012).

“Proper service of process is not some mere technicality.   Proper service of process gives a court the power to render a judgment which will satisfy due process 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.”  (Internal quotation marks omitted.)  Weihing v. Dodsworth, 100 Conn.App. 29, 33 n.3, 917 A.2d 53 (2007).

General Statutes § 52–57(a) provides that “ ․ process in any civil action shall be served by leaving a true and attested copy ․ with the defendant, or at his usual place of abode, in this state.”  “The clear impact of § 52–57(a) is that one of its two alternatives, personal or abode service, must be followed ․” Hibner v. Bruening, 78 Conn.App. 456, 460, 828 A.2d 150 (2003).

Both parties submitted affidavits which indicate that Dr. Doherty was not served in hand nor was he served at his “usual place of abode.”   There is no dispute as to these facts.   Based on this, the court concludes that there is no material issue of fact in dispute as to compliance with § 52–57.   The undisputed evidence shows that the plaintiffs have not met their burden to prove that the defendant was served in accordance with the statutory requirements, and, therefore, in absence of service of process as prescribed by statute, the court has not acquired personal jurisdiction over the defendant, Dr. Doherty.

The plaintiffs argue that an evidentiary hearing is needed to resolve this issue, however.   Their argument appears to be that an evidentiary hearing is necessary to, “determine whether service was legally adequate.”   Citing Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 901, 918 A.2d 888 (2007), appeal withdrawn, October 24, 2007, they contend that personal jurisdiction may be based on constructive service depending on the facts of the case, and those facts are to be determined at hearing.

The plaintiff's reliance on Fine Homebuilders is misplaced, and their interpretation overbroad.   The decision addressed the scope of the term “abode,” as set forth in § 52–57(a), and related to a very narrow factual circumstance that does not apply in the present case.   In Fine Homebuilders, the defendants' home was surrounded by a locked gate that was 200 feet from the house.   After several unsuccessful attempts to enter the gate and reach the defendants from the call box, the plaintiff affixed the process to the gate.   The defendants claimed that, although they received the complaint, this was insufficient service of process because it was not served “at his usual place of abode,” but rather 200 feet from it.   The evidentiary hearing was necessary to establish the layout and characteristics of the abode in question.   The Appellate Court held that where the security gate prevented abode service by sliding process under the front door of the defendant's dwelling, 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.

The issue before the court is not whether service on the practice administrator of a medical group is sufficient to constitute service on a defendant member of that medical group.   Likewise whether Dr. Doherty received actual notice of the present action because Ms. Scogno delivered the process to him does not alter the result mandated by § 52–57(a).  “It is black letter law that the Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction ․” Hibner v. Bruening, supra, 78 Conn.App. 458.   Service of process in the present case fails to meet the statutory requirements.  “Indeed, reaching the opposite conclusion would require this court to find that service of process upon a purported representative is sufficient to confer personal jurisdiction over an individual defendant;  this position is unsupported by the text of § 52–57 and equally untenable under current case law.”   Dorry v. New Milford Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 09 6004823 (April 29, 2011).

CONCLUSION

The defendant, Dr. Doherty's, motion to dismiss is granted due to this court's lack of personal jurisdiction.   The court has resolved this motion to dismiss without the necessity of an evidentiary hearing because there were no factual issues in dispute.   The motion to quash the subpoenas is granted, there being no need for an evidentiary hearing on the issue of the adequacy of the service of process.

Swienton, J.

FOOTNOTES

FN1. The parties agree that the motion to dismiss is timely, the parties had agreed to delay action on the motion..  FN1. The parties agree that the motion to dismiss is timely, the parties had agreed to delay action on the motion.

Swienton, Cynthia K., J.