PPA v. Jonathan J. Weiner et al. (2014)

MEMORANDUM OF DECISION IN RE MOTION TO DISMISS, # 101

The defendant Jonathan J. Weiner filed a motion to dismiss the counts against him on the ground that the court lacks personal jurisdiction over Weiner due to improper service of process.   For the reasons set forth below, the motion to dismiss is granted.

FACTS AND HISTORY

This action arises out of an alleged pattern of harassment, bullying, and physical and verbal abuse by teacher Jonathan J. Weiner, which took place between October 2012 and February 2013 upon the minor plaintiffs who were students at the Roberto Clemente Leadership Academy.   In their ninety-six-count complaint, the minor plaintiffs set forth various claims against the defendants, Jonathan J. Weiner (the defendant), who was employed as a teacher by the New Haven Board of Education at the time of the alleged events, Pam Franco, who was the principal of the school at the time of the alleged events, the New Haven Board of Education (Board of Education), and the city of New Haven.¹  These claims include assault, negligent infliction of emotional distress, common-law negligence, statutory negligence, and indemnification.

The plaintiffs served process on the Board of Education on August 26, 2013 and the defendant on August 26, 2013.   The state marshal filed a return on August 26, 2013, which states:  “I served the within named defendants, Jonathan J. Weiner, c/o city of New Haven, city clerk, Ronald Smith,” “Pam Franco, c/o city of New Haven, city clerk, Ronald Smith,” “city of New Haven, c/o city clerk, Ronald Smith,” and “New Haven Board of Education, c/o Garth Harris, superintendent.”   The return further states in relevant part:  “By leaving with and in the hands of said defendants, city clerk Ronald Smith, person authorized to accept service for Jonathan J. Weiner ․ Pam Franco ․ and city of New Haven ․” As to the Board of Education, the return states:  “By leaving with and in the hands of said defendant ․ New Haven Board of Education, c/o Garth Harris, superintendent (two copies each) and Doris Clark, secretary and person authorized to accept service for New Haven Board of Education, c/o Garth Harris, superintendent.”

On October 7, 2013, the defendant and the Board of Education moved to dismiss the plaintiff's complaint on the ground that service was defective and the court therefore lacks personal jurisdiction.   In support of their motion, the defendants submitted a copy of the state marshal's return, a sworn affidavit of the director of human resources and labor relations of the city of New Haven board of education, and a memorandum of law.   On October 22, 2013, the plaintiffs filed an opposition to the defendants' motion to dismiss.   In support of their opposition, the plaintiffs submitted a copy of the state marshal's return, legislative history for Public Act 03–278, and a memorandum of law.   The court heard oral arguments on October 28, 2013.   During oral argument, the Board of Education withdrew its motion to dismiss.

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.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “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 § 10–30.

“[A]n action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Alldred v. Alldred, 132 Conn.App. 430, 434, 31 A.3d 1185 (2011), cert. dismissed, 303 Conn. 926, 35 A.3d 1075 (2012).   “[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.)  Morgan v. Hartford Hospital, supra, 301 Conn. 400.  “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.)  Id., 401.

The defendant argues that because he was a former employee at the time of service and continues to be a former employee, service of process in accordance with General Statutes § 52–57(b)(7) was improper.   The defendant specifically argues that because § 52–57(b)(7) is only applicable to present employees, § 52–57(a) is the proper applicable provision for service process on former employees.

The manner of service upon individuals, municipalities, corporations, partnerships and voluntary associations is set forth in General Statutes § 52–57.   The two relevant subsections for the case at hand are (a) and (b).  Subsection (a) of § 52–57 states:  “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.”   Subsection (b) of § 52–57 specifically pertains to employees of a town, city or borough, and states in relevant part:  “(7) against an employee of a town, city or borough in a cause of action arising from the employee's duties or employment, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the employee.”  (Emphasis added.)   As seen, the statute does not differentiate between a present employee and a former employee, thereby raising the question of whether the former is inclusive of the latter.

Although there is a dearth of appellate level authority as to whether “employee,” as it is used in § 52–57, also includes former employees, there are two trial level decisions that address this issue.  Crane v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV–13–6036221–S (May 29, 2013, Blue, J.) (56 Conn. L. Rptr. 172);  Meade v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV–04–0834669 (March 24, 2005, Wagner, J.T.R.) (39 Conn. L. Rptr. 51).   For example, in Meade v. Hartford, one of the defendants, a former school superintendent, was served pursuant to subsection (b)(7) of § 52–57.   The defendant claimed that because he was not served in hand or at his usual place of abode, as required by General Statutes § 52–57(a), such service was ineffective.   Given that prior to the addition of subsection (b)(7) courts had found that former employees were to be served in accordance with subsection (a), the court in Meade addressed the consequences, if any, of subsection (b)(7), and the manner in which it affects service under subsection (a).   The court in Meade stated:  “In the past, this court has interpreted [General Statutes] § 52–57 as requiring former town employees to be served at their usual place of abode or in hand, not upon the agent of the town where the employee formerly worked ․ In 2003, however, the legislature via Public Act No. 03–278 (P.A. 03–278) amended [General Statutes] § 52–57(b) to add the present subsection 7. As a consequence of [General Statutes] § 52–57(b)(7), a plaintiff now has two available options by which to obtain personal jurisdiction over the defendant who is an employee of a town:  Where it is alleged that an employee of a town is liable for misconduct arising out of his duties as a town employee, the plaintiff can serve the town clerk under [General Statutes] § 52–57(b)(7) or the plaintiff can simply serve the employee in hand or abode pursuant to [General Statutes] § 52–57(a).”  (Citations omitted.)  Meade v. Hartford, supra, 52.   Thus, the addition of subsection (b)(7) merely meant to provide an alternative method of service of process on present employees.

The court in Meade went on to address the issue of whether a “former employee” could also be served by either method.   In concluding that “former employees” did not fall within the purview of subsection (b)(7), the court stated:  “Although, the statute does not define the term employee, the term employee commonly refers to one who is presently employed in an agency relationship, and furthermore, analyzing subsection (b)(7) of § 52–57 in relation to the rest of the other subsections of [General Statutes] § 52–57 and other statutes in chapter 52, clearly indicate that [General Statutes] § 52–57(b)(7) is designed to alert both a town and an employee of a pending lawsuit.   Any other conclusion would permit any former employee no matter how far back he was employed to be served under this statute.”  Meade v. Hartford, supra, 39 Conn. L. Rptr. 53.   Given the purpose of the statute, which is to provide notice to employees of a pending suit, the court explained that construing the subsection to include present employees would be most logical:  “First, an employer is more likely to have contact with or know where a current employee resides since the agency relationship still exists and employer is still responsible for supervising the employee's actions.   Hence, when dealing with a current employee, the employer can better carry out its obligation of forwarding a copy of the writ, summons and complaint to the employee.   Second, in many instances the town will actually be the one defending the suit or indemnifying the employee where the alleged harm occurred within the scope of the employer/employee agency relationship.   On the other hand, an employer in many circumstances will not have frequent contact with a former employee and is no longer responsible for keeping tabs of where the employee resides.   This lack of contact makes forwarding a complaint, writ and summons to a former employee more difficult.”  Id., 53.   Accordingly, the court in Meade ultimately decided that service upon the defendant pursuant to subsection (b)(7) was defective, and therefore granted the motion to dismiss as to that defendant.

Likewise, the court in Crane v. New Haven also faced the issue of whether service of process on three former employees pursuant to § 52–57(b)(7) was proper.   As the defendant in Meade, the defendants in Crane also moved to dismiss, and argued that “former employees” were not included in subsection (b)(7).   The court in Crane found that former employees did not fall under (b)(7), and turned to canons of statutory construction and emphasized underlying public policy to support its conclusion.   The court stated:  “The purpose of service of process is to provide notice.   Notice is, of course, a requirement of the Constitution.   An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections ․ If § 52–57(b)(7) were construed to encompass persons who were employees of a municipality at the time of the alleged malfeasance but were not employees at the time of service of process, service of process under that provision would not be ‘reasonably calculated,’ under all the circumstances, to apprise such former employees of the pendency of the action.”  (Citations omitted;  internal quotation marks omitted.)  Crane v. New Haven, supra, 56 Conn. L. Rptr. 172, quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652 (1950).

The court in Crane, like the court in Meade, also took into account the possible difficulty that could arise in locating a former employee.   The court explained:  “Under § 52–57(b)(7), the clerk of the municipality is directed to ‘forward’ a copy of the process to the ‘employee’ in question.   This procedure is ordinarily unproblematic if the ‘employee’ is employed by the municipality at the time of service of process.   But if the ‘employee’ is not so currently employed, the responsibility of finding the person sued—a responsibility that should be placed on the plaintiff—is placed on the [c]lerk.   Depending on the circumstances, this process may be easy, difficult, or impossible.   Some persons leave former employers with forwarding addresses, while others do not.   Of course, in the extreme circumstances presented here, even a ‘forwarding address' may have long since ceased to be current.   In any event, municipal clerks will inevitably vary in their diligence, and many will not have the interests of former employees in mind.   The statutory construction advocated by Crane is not ‘reasonably calculated’ to apprise former employees of the pendency of legal actions.”  (Internal quotation marks omitted.)   Crane v. New Haven, supra, 56 Conn. L. Rptr. 173.   Ultimately, the court held that the term “employee” in § 52–57(b)(7) does not include persons who were employees of a municipality at the time of the alleged malfeasance but are no longer employees of the municipality at the time of service of process.

In the present case, the state marshal served process upon the defendant pursuant to § 52–57(b)(7) by leaving process with the city clerk on August 23, 2013.   The defendant asserts he was a former employee of the city at the time of service, and therefore service of process cannot be made pursuant to subsection (b)(7).   He has provided support for the assertion that he is a former employee and was a former employee at the time of service through a sworn affidavit of Jim Prunty, who is currently employed by the city of New Haven Board of Education as director of human resources and labor relations.   Prunty states that he has personal knowledge of the matters and states that the board of education accepted the defendant's resignation, which became effective June 30, 2013.   The plaintiff does not dispute this fact, or submit any counteraffidavits or evidence to demonstrate to the court that the defendant was a present employee at the time of service.   Court have stated that “if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If 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.”  (Emphasis in original;  footnote omitted.)  Conboy v. State, 292 Conn. 642, 651–52, 974 A.2d 669 (2009).   Thus, given the defendant's affidavit demonstrating that he was and continues to be a former employee, as well as the lack of any counterevidence or affidavit submitted by the plaintiff, the court may construe the facts alleged in the defendant's supporting affidavit as true.   The court may therefore find that because the defendant is a “former employee,” and was a former employee at the time of service, service of process pursuant to subsection (b)(7) was defective, as articulated by the court in Meade and in Crane.

The plaintiffs here do not dispute that service of process was made upon the defendant pursuant to (b)(7), and more importantly, do not submit any argument countering the defendant's argument that a “former employee” does not fall within the purview of subsection (b)(7).   Instead, the plaintiffs argue that the two cases upon which the defendant relies do not apply here because at the time the court decided those cases, it did not have the legislative history of Public Act 03–278.   The plaintiffs, in their memorandum, point to Estrella v. Stamford, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–04–0200832 (October 21, 2005, Jennings, J.) (40 Conn. L. Rptr. 180), and Farina v. Branford Board of Education, Superior Court, judicial district of New Haven, Docket No. CV–10–5033085–S (May 27, 2010, Wilson, J.) (50 Conn. L. Rptr. 204).   It is worth signifying that these cases, however, were not relied upon by the defendant in the context of whether service upon the defendant was proper, and whether a “former employee” constitutes an “employee” for purposes of subsection (b)(7).   Instead, these cases were relied upon by the Board of Education in the context of whether service upon the New Haven Board of Education was proper, and whether a board is to be served pursuant to subsection (b)(4) or subsection (b)(5).   The issue as to the proper method for service of process as to the defendant is distinct.   The defendant did not rely on either Estrella or Farina to address the issue of whether a “former employee” constitutes an “employee” for purposes of service under subsection (b)(7).   Thus, the plaintiffs' attempt to distinguish the manner in which Estrella and Farina apply is misplaced.

The plaintiffs also submit the legislative history of Public Act 03–278.   In particular, the plaintiffs rely on the following excerpt from a letter to the judiciary committee from a state marshal.  “Service on municipal boards, commissions & individual employees of such employees of such entities by service upon the Town, City, or Borough Clerk.   Reasons:  This will save the employee's and board chairpersons from getting served at home and at work including police officers.”   Based on this particular excerpt, the plaintiffs argue that service upon the defendant comported with (b)(7).   As stated, the defendant does not dispute that service was made pursuant to (b)(7).   Instead, the defendant argues that service pursuant to (b)(7) was improper because he was not a present employee at the time of service and therefore subsection (b)(7) is entirely inapplicable.   There is nothing in this excerpt provided by the plaintiffs, or in the remainder of the legislative history for Public Act 03–278, that suggests to the court that a “former employee” constitutes an “employee” for purposes of subsection (b)(7).

Lastly, during oral argument, the plaintiffs set forth an additional argument, which attempts to draw an analogy between the Freedom of Information Act (FOIA) and § 52–57(b)(7).   The plaintiffs argue that because §§ 1–200 et seq. of FOIA charges an employer with the responsibility of notifying a former employee of a request for his or her personnel information and does not charge the requesting party with providing such, it is proper to construe subsection (b)(7) to allow service on those former employees to be made on the town clerk and to require the municipality to forward the summons and complaint to its former employee.   This argument is unpersuasive.   The public policy underlying FOIA and service of process are distinct.   The overarching legislative policy of the FOIA is one that favors the open conduct of government and free public access to government records;  Perkins v. Freedom of Information Commission, 228 Conn. 158, 166, 635 A.2d 783 (1993);  whereas the legislative policy of service of process is to provide notice to the individual being sued.   Service of process does not pertain to any individual requesting information or access to governmental records.   If anything, FOIA would be pertinent to the plaintiffs to the extent that it gives the plaintiffs an avenue to request from the employer information of the former employee, such as current residential address, so that personal or abode service may be made upon the former employee pursuant to subsection (a).   See General Statutes § 1–217 (does not provide for nondisclosure of residential address of employee of school board).

Accordingly, given that it is undisputed that the defendant was a former employee at the time of service and the court in Meade and in Crane held that a “former employee” does not fall within the purview of § 52–57(b)(7), as well as the fact that plaintiff's arguments are misplaced and unpersuasive, service of process upon the defendant was defective.

CONCLUSION

The court lacks personal jurisdiction over the defendant.   For the foregoing reasons, the defendant's motion to dismiss is granted.

It is so ordered,

Nazzaro, J.

FOOTNOTES

FN1. Jonathan J. Weiner will be referred to as “the defendant” because the Board of Education, as will be mentioned below, has withdrawn its motion, and Pam Franco and the city of New Haven are not parties to this motion to dismiss..  FN1. Jonathan J. Weiner will be referred to as “the defendant” because the Board of Education, as will be mentioned below, has withdrawn its motion, and Pam Franco and the city of New Haven are not parties to this motion to dismiss.

Nazzaro, John J., J.