LLC v. Arthur A. Highbridge (2014)

MEMORANDUM OF DECISION RE MOTION TO QUASH SERVICE OF PROCESS OF SUMMONS AND FOR DISMISSAL OF PLAINTIFF'S/PETITIONER'S CAUSE OF ACTION (# 101) OBJECTION TO MOTION TO QUASH (102)

FACTS AND PROCEDURAL HISTORY

This is a debt collection action brought by the plaintiff, Cach, LLC against the defendant, Arthur A. Highbridge for a debt plaintiff claims the defendant owes in connection with a consumer loan in the amount of $17,535.36.   The plaintiff filed a two-count complaint alleging in count one that the plaintiff defaulted on the loan by failing to make payments in accordance with the terms of the loan agreement.   Count two is a claim of unjust enrichment.

On August 30, 2014, the defendant filed an appearance as a self-represented party and also filed a “Motion to Quash Service of Process of Summons and for Dismissal of Plaintiff's/Petitioner's Cause of Action.”   In his motion, the defendant argues that he was never served with a summons from the plaintiff and that the plaintiff's cause of action should therefore be dismissed.

The plaintiff objects to the motion to quash on grounds that the defendant's motion is not the proper pleading to challenge the court's personal jurisdiction over a civil action.   The plaintiff further argues that the defendant has failed to offer any testimony that the address where service of process was effectuated was not a valid abode of the defendant.   The motion was initially scheduled as take papers on the court's September 23, 2013, nonarguable calendar.   The court scheduled oral argument on October 21, 2013.   The court heard argument on the motion, however, the court gave the parties an opportunity to try to resolve the matter.   The parties were unable to resolve the matter and subsequent to the October 21, 2013 hearing date, the defendant reclaimed his motion to the short calendar.   The motion was heard again at short calendar on March 10, 2014.

DISCUSSION

Although the defendant's motion is titled “Motion to Quash” it is clear from the information in the motion, which includes the defendant's sworn affidavit, that he seeks to have the plaintiff's cause of action dismissed for lack of personal jurisdiction because he was not properly served.   The motion therefore contains sufficient information to put the plaintiff on notice of the defendant's claim of lack of personal jurisdiction, particularly since the plaintiff filed an objection in response to the motion.  “As long as the pleadings provide sufficient notice of the facts claimed ․ and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.”  (Citation omitted;  internal quotation marks omitted.)  Montanaro v. Gorelick, 73 Conn.App. 319, 323–24, 807 A.2d 1083 (2002).   Likewise, in the present case, since the defendant's motion sufficiently apprises the plaintiff of the defendant's claim that the court lacks personal jurisdiction over him, this court will not conclude that his motion is improper.   The court, therefore, will not place form over substance, and will consider the defendant's motion to quash as a motion to dismiss for lack of personal jurisdiction.   In addition, the defendant's appearance and motion to quash/dismiss were both filed on August 30, 2013.   Thus, the defendant's motion was filed within thirty days of the filing of his appearance and therefore timely.   See Practice Book § 10–30.¹

“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),² 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 a true and attested copy of this original Writ, Summons and Complaint, at the usual place of abode of the within named defendant Arthur A. Highbridge, 106 Glen Hills Road, Meriden, CT with my endorsement thereon.”   (Return of Service.)   As previously noted, the defendant claimed that he did not reside at 106 Glen Hills Road in Meriden, Connecticut at the time plaintiff attempted service.   In support of this claim, the defendant submitted a sworn affidavit with his motion dated August 30, 2013, in which he attested that “ ․ he was never served with a summons from the plaintiff and that counsel for the plaintiff [was] in possession of his current address having received repeated written correspondence via certified mail over the last two years ․ No one who lives with [him] and who is 13 or older was served with the summons from the plaintiff ․” (Def's.Affidavit.)   The defendant signed his affidavit and included his address as 34 Mattabeseck Rd., Middlefield, CT, 06450.

In its objection to the defendant's motion, the plaintiff merely asserts that the defendant's motion was not the proper motion to assert lack of personal jurisdiction.   Other than its argument that the defendant failed to file the proper motion, the plaintiff has offered no affirmative evidence whatsoever showing, or even suggesting, that 106 Glen Hills Road, Meriden, Connecticut was, in fact, the defendant's usual place of abode at or about July 27, 2013, when service of process was attempted at that address.   In fact, it appears from the plaintiff's objection 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 it 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 106 Glen Hills Road, Meriden, Connecticut was not his usual place of abode on July 27, 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 quash/dismiss is hereby granted.

Wilson, J.

FOOTNOTES

FN1. Practice Book § 10–30 provides in relevant part:  “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 filing an appearance ․”.  FN1. Practice Book § 10–30 provides in relevant part:  “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 filing an appearance ․”

FN2. Connecticut General Statutes § 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. Connecticut General Statutes § 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.”

Wilson, Robin L., J.