Lucia Fasetta v. LLC (2015)

MEMORANDUM OF DECISION ON MOTION TO DISMISS (# 105)

On October 31, 2014, the plaintiff, Lucia Fassetta, filed a ten-count complaint in this action against eight defendants.  The plaintiff seeks dissolution, winding up, and accounting of Pawcatuck Landing, LLC (Pawcatuck Landing), a Connecticut limited liability company of which she is a member.  The plaintiff also brings claims sounding in breach of contract, unjust enrichment, promissory estoppel, fraud, constructive trust, breach of fiduciary duty, and violation of the Connecticut Unfair Trade Practices Act.

In addition to Pawcatuck Landing, the complaint names the following defendants:  Investar Redevelopment, LLC (Investar), David Dunham, Randall [S.] Russ (individually and for Randall S. Russ SEP IRA), John Corey, L & M, LLC (L & M), Michael Pervier, and David R. Consigli for David R. Consigli SEP IRA. On January 16, 2015, Investar, Dunham, Corey, L & M, Pervier and Consigli—all the defendants except Pawcatuck Landing and Russ—moved to dismiss this action as to them for lack of personal jurisdiction.  The plaintiff filed an opposing brief on February 18, 2015.  The motion was argued on May 26, 2015.

FACTS

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).  Viewed in this light, the pertinent facts are as follows.

Pawcatuck Landing is a Connecticut limited liability company.  Pursuant to its operating agreement, Pawcatuck Landing purchased real property, including an old mill building, at 75 Stillman Avenue in Stonington for development into luxury condominiums.

The moving defendants are or were members of Pawcatuck Landing.¹  The individual movants—Dunham, Corey, Pervier, and Consigli—are not residents of Connecticut.  The limited liability company movants—Investar and L & M—are both organized under Massachusetts law and have principal places of business in Massachusetts.  The individual movants were all “served” with process by mail, “Certified, Return Receipt requested,” to their respective out of state addresses.  Investar and L & M were “served” in the same manner to their respective agents, David Dunham and Michael Pervier.  Investar was also “served” by service on the Connecticut Secretary of the State.²

DISCUSSION

“A motion to dismiss shall be used to assert:  ․ lack of jurisdiction over the person.”  Practice Book § 10–30.  The basis for the present motion is, first, that certified mail is not valid service under the circumstances of this case and, second, as to the individual movants, the plaintiff does not allege that they did, or transacted, business in this state such as would create jurisdiction of this court over them.

“If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction.”  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).

The plaintiff has provided the court with no authority for certified mail being a valid method of service of process on the defendants.  To the contrary, General Statutes § 52–57a requires service on out of state defendants, except where otherwise provided by statute, to be by the same kind of personal service as is required for defendants in this state and that service is by in-hand or abode service.  See § 52–57(a).³

As to Investar, the only defendant “served” through the Secretary of the State as well as by certified mail, the plaintiff claims that manner of service is permitted by General Statutes § 52–59b(c).⁴ § 52–59b, the applicable longarm statute in this case, does apply to foreign limited liability companies;  Matthews v. SBA, Inc., 149 Conn.App. 513, 545, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014);  provided the court finds the applicable long-arm statute authorizes the assertion of jurisdiction over the company.  Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008). § 52–59b, provides in subsection (a), that “a court may exercise personal jurisdiction over any nonresident individual [or LLC] ․ who in person or through an agent:  (1) Transacts any business within the state ․ [or] (4) owns, uses or possesses any real property situated within the state ․” In neither the allegations of the complaint nor the plaintiff's opposition to the present motion does the court find facts showing that Investar transacted any business within this state, owned, uses or possesses any real property in this state, or meets any of the other criteria in § 52–59b(a) (see footnote 4) for being subject to the jurisdiction of this court.  It is undisputed that Pawcatuck Landing owns the subject real property in Stonington and Investar's only interest in the property is as a member of Pawcatuck Landing.  The Connecticut Limited Liability Company Act, General Statutes § 34–167(a), provides, “Property transferred to or otherwise acquired by a limited liability company is property of the limited liability company and not of the members individually.  A member has no interest in specific limited liability company property.”  The plaintiff has cited no authority for the proposition that § 34–167(a) does not mean what it says;  that is, for the proposition that § 52–59b confers jurisdiction over a foreign limited liability company simply because it is a member of an Connecticut limited liability company which owns real property in this state.

Nor has the plaintiff presented any facts showing that, even if they had been properly served with process in this case, any of the movants meets any of the criteria in § 52–59b(a) for being subject to the jurisdiction of this court, particularly considering § 34–167(a), supra.

Because the plaintiff has failed to show that the court has jurisdiction over defendants Investar, Dunham, Corey, L & M, Pervier and Consigli;  Cogswell v. American Transit Ins. Co., supra;  their motion to dismiss the plaintiff's complaint is granted.

Cole–Chu, J.

FOOTNOTES

FN1. Hereinafter, “defendants” refers only to the six defendants moving for dismissal..  FN1. Hereinafter, “defendants” refers only to the six defendants moving for dismissal.

FN2. The marshal's return shows mail to John L. Corey at a Maine address;  to “L & M, LLC Registered agent Michael C. Pervier” and, separately, to Michael C. Pervier at a Massachusetts address;  to “David R. Consigli for David R. Consigli SEP IRA” at a Massachusetts address;  to “David J. Dunham Investar Redevelopment, LLC” and, separately, to David J. Dunham at a Massachusetts address.  Although the return of service is by a Connecticut marshal and the receipt forms filed with the return are addressed to that marshal, the return address on all the mailings is “Sabilia Law Firm, LLC, P.O. Box 774, Waterford, CT 06385.”  There is a first supplemental return filed (# 102) on December 10, 2014, reporting essentially that the mailings (said in the return to be annexed, but not annexed) to David “Durham” (sic) individually and as agent for Investar were returned to the marshal on November 3, 2014.  There is a second supplemental return filed (# 108) on February 26, 2015—a copy of which is exhibit A to the plaintiff's brief—reporting service on Investar (only) by service on the Connecticut Secretary of the State on October 10, 2014..  FN2. The marshal's return shows mail to John L. Corey at a Maine address;  to “L & M, LLC Registered agent Michael C. Pervier” and, separately, to Michael C. Pervier at a Massachusetts address;  to “David R. Consigli for David R. Consigli SEP IRA” at a Massachusetts address;  to “David J. Dunham Investar Redevelopment, LLC” and, separately, to David J. Dunham at a Massachusetts address.  Although the return of service is by a Connecticut marshal and the receipt forms filed with the return are addressed to that marshal, the return address on all the mailings is “Sabilia Law Firm, LLC, P.O. Box 774, Waterford, CT 06385.”  There is a first supplemental return filed (# 102) on December 10, 2014, reporting essentially that the mailings (said in the return to be annexed, but not annexed) to David “Durham” (sic) individually and as agent for Investar were returned to the marshal on November 3, 2014.  There is a second supplemental return filed (# 108) on February 26, 2015—a copy of which is exhibit A to the plaintiff's brief—reporting service on Investar (only) by service on the Connecticut Secretary of the State on October 10, 2014.

FN3. § 52–57a provides, “A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.” § 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.”.  FN3. § 52–57a provides, “A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.” § 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.”

FN4. § 52–59b(c) provides in pertinent part, “Any nonresident individual, foreign partnership or foreign voluntary association ․ over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process ․ against the nonresident individual, foreign partnership or foreign voluntary association ․ may be served upon the Secretary of the State and shall have the same validity as if served ․ personally.”§ 52–59b(a) provides in pertinent part, “As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association ․ who in person or through an agent:  (1) Transacts any business within the state;  (2) commits a tortious act within the state ․, (3) commits a tortious act outside the state causing injury to person or property within the state ․ if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce;  (4) owns, uses or possesses any real property situated within the state ․”.  FN4. § 52–59b(c) provides in pertinent part, “Any nonresident individual, foreign partnership or foreign voluntary association ․ over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process ․ against the nonresident individual, foreign partnership or foreign voluntary association ․ may be served upon the Secretary of the State and shall have the same validity as if served ․ personally.”§ 52–59b(a) provides in pertinent part, “As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association ․ who in person or through an agent:  (1) Transacts any business within the state;  (2) commits a tortious act within the state ․, (3) commits a tortious act outside the state causing injury to person or property within the state ․ if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce;  (4) owns, uses or possesses any real property situated within the state ․”

Cole–Chu, Leeland J., J.