Connecticut Cases December 06, 2019: Thomas v. Pompea

Case Description

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.

MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)

Wilson, J.

FACTS

The plaintiff, Jermaine Thomas (plaintiff) commenced this negligence action against the defendant, Jon Pompea (defendant). The return date is April 2, 2019. The complaint was returned to court on March 20, 2019, and alleges the following facts. On December 5, 2017, at 9:00 p.m., the plaintiff was crossing East Main Street in Bridgeport as a pedestrian in a wheelchair when he was struck by a vehicle driven by the defendant, Jon Pompea. The plaintiff alleges that the defendant engaged in negligent conduct that caused this collision and the plaintiff’s injuries.

The marshal’s return, filed on March 20, 2019, states that the marshal left process for the defendant on February 25, 2019, at his abode, located at 32 Dayton Road in Redding, and it refers to this address as the address currently on file with the Commissioner of Motor Vehicles. The defendant filed an appearance on April 24, 2019. On May 13, 2019, the defendant timely filed a motion to dismiss the complaint on the ground of lack of personal jurisdiction due to improper service of process and on the ground of improper venue. The defendant submitted a memorandum of law in support of the motion. In response, on May 20, 2019, the plaintiff filed an objection to the defendant’s motion to dismiss. The court held a Standard Tallow evidentiary hearing regarding the motion to dismiss on August 19, 2019. The defendant filed a post-hearing supplemental memorandum in support of the motion to dismiss on September 4, 2019, and the plaintiff filed a post-hearing supplemental memorandum in opposition to the motion to dismiss on September 5, 2019.

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 court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).

"[A]n action commenced by ... improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). "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). "Proper service of process is not some mere technicality. Proper service of process gives a court 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 ..." (Internal quotation marks omitted.) Hibner v. Bruening, 78 Conn.App. 456, 458, 828 A.2d 150 (2003).

"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." General Statutes § 52-57(a). "[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 ... A proper officer serving process must comply with the provisions of [General Statutes] § 52-57(a), 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." (Citation omitted; internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008). The Appellate Court explained that "because an officer’s return of abode service is prima facie evidence of the facts stated therein ... a defendant who contests the facts stated in the return bears the initial burden of disproving personal jurisdiction. (Citation omitted; emphasis in original.) Id., 341.

In his memorandum of law in support of the motion to dismiss, the defendant argues that he did not receive process in person, nor did he receive it at his place of abode as required by General Statutes § 52-57 when the plaintiff attempted to serve process in Redding, instead of the defendant’s residence in Bridgeport, and, therefore, the court lacks personal jurisdiction over the defendant. The plaintiff counters in his objection, that the marshal’s return of service serves as prima facie evidence of the factual matters in the return of service and that the defendant has the burden of disproving personal jurisdiction if the defendant is contesting the facts stated in the return. Furthermore, although the defendant acknowledges that some courts have construed the term "abode" liberally in certain instances where a defendant has received actual notice, the defendant argues that actual notice in itself is insufficient to confer jurisdiction over the defendant because he was residing at an entirely different address when process was served. The plaintiff counters that service was adequate because the defendant was served in a way that would result in it being reasonably probable that he would receive notice in accordance with Fine Homebuilders, Inc. v. Perrone, 98 Conn.App. 852, 857, 911 A.2d 1149 (2006), cert. granted, 282 Conn. 857, 918 A.2d 888 (2007) (appeal withdrawn October 24, 2007).

"Whether a particular locale is the usual place of abode is a question of fact." Jimenez v. DeRosa, supra , 109 Conn.App. 338. "When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). "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." (Internal quotation marks omitted.) Matthews v. SBA, Inc., supra , 149 Conn.App. 528.

To determine whether a former address is no longer the defendant’s usual place of abode, the court looks to the defendant’s offered evidence demonstrating the measures he or she took to affirmatively change residences. In Amezouwoe v. Jackson, Superior Court, judicial district of Hartford, Docket No. CV-15-6062034-S (August 25, 2016, Huddleston, J.), the court determined that it lacked personal jurisdiction because the defendant was not properly served when the marshal served the plaintiff’s complaint to the defendant’s former address. The defendant had "notified the Department of Motor Vehicles of her change of address and got a sticker for her driver’s license." Id. The court also "specifically credits the defendant’s testimony that she moved" and noted that when she moved she had "removed all of her personal property" from the former residence. Id. Based on this evidence, the court held that the defendant met her burden of proving that the former address was not her usual place of abode. Id. In Caines v. Betts, Superior Court, judicial district of New Haven, Docket No. CV-18-6078354-S (February 5, 2019, Wilson, J.) (67 Conn.L.Rptr. 822), this court held that the defendant met his burden of disproving personal jurisdiction under § 52-57(a) and cited to the defendant’s affidavit and supplemental affidavits in which he averred to his place of residence as well as his actions to "[update] his address with the United States Postal Service, the Connecticut Department of Voter Registration, and Yale Law School." Id., 823-24. In Irby v. Yagovane, Superior Court, judicial district of New Haven, Docket No. CV-11-6023362 (May 2, 2012, Wilson, J.) (53 Conn.L.Rptr. 886), this court reasoned that "[t]he defendant has not submitted any evidence or raised any arguments in opposition to the statement in the amended officer’s return that process was left at the defendant’s usual place of abode ... Accordingly, the defendant has failed to demonstrate that the court lacks personal jurisdiction over her." Id., 887.

In the present case, the defendant met his burden of disproving personal jurisdiction under § 52-57(a). The defendant has offered evidence that the residence where the complaint was served was not his usual place of abode. See Caines v. Betts, supra, 67 Conn.L.Rptr. 823. Specifically, the defendant averred in his affidavit that he resides at 1069 Connecticut Avenue in Bridgeport and states, that this has been his "usual and exclusive place of abode continuously for a period of years, including throughout this year to the present." He also testified at the hearing that he changed the address on his driver’s license with the Department of Motor Vehicles in 2016 and offered a copy of the front and back of his driver’s license to the court as an exhibit. The defendant explained that the Department of Motor Vehicles updated the address on his driver’s license by placing a sticker with his Bridgeport address on the back of the license. The defendant also testified that an employee at the Department of Motor Vehicles handwrote the Bridgeport address on the sticker. He further testified that he has lived at his address in Bridgeport since he moved from Redding in 2015. The defendant also explained that his bank statements and legal paperwork come to his Bridgeport address. The court credits his testimony.

Moreover, the defendant’s ex-wife, Shirley Ann Pompea, testified that she and the defendant separated in September of 2015, that the defendant moved from 32 Dayton Road in Redding at that time, and that the defendant has not lived there since. She testified that they divorced in 2016. Shirley Ann Pompea also testified that while she and the defendant purchased the home in Redding in 1999, she now owns the home. She also explained that she has been to the defendant’s home in Bridgeport and that she knows where he lives in Bridgeport. The court finds this testimony credible as well. In addition, the plaintiff did not offer counter affidavits or other evidence, such as the testimony of the marshal. See Matthews v. SBA, Inc., supra , 149 Conn.App. 528. Accordingly, this court concludes that service of process was improper.

The plaintiff argues that even if service was improper, the court has jurisdiction over the defendant because the defendant received actual notice. Although the Appellate Court has acknowledged that actual notice is a significant, though not dispositive, factor in determining whether a complaint can be dismissed for lack of personal jurisdiction due to improper service of process; Fine Homebuilders, Inc. v. Perrone, supra , 98 Conn.App. 857; actual notice will not confer personal jurisdiction over a defendant where service was made at the wrong address. In Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 852, the court held that "in light of the fact that the front door of the defendants’ home was inaccessible, that the marshal affixed the process to the main entryway to the property, that the property is a single-family residence and the defendants actually received notice of the action ... the service of process effected by the marshal was reasonably likely to achieve personal notice." Id., 862. "In this case, it is significant, though not conclusive, that the defendants actually did receive the process, thereby accomplishing the purpose of abode service. Section 52-57(a), authorizing abode service, should be construed liberally in cases in which the defendant received actual notice." (Emphasis added.) Id., 861-62.

Since the Fine Homebuilders, Inc. v. Perrone, supra, 98 Conn.App. 862 decision, courts have compared circumstances where the defendant received actual notice, to the unique factual circumstances in Fine to determine whether a complaint can be dismissed for lack of personal jurisdiction due to improper service of process. In McBreairty v. Doherty, Superior Court, judicial district of New Britain, Docket No. CV-12-6014053 (December 13, 2013, Swienton, J.), the court held that whether a physician later received the process that was left with his office manager "does not alter the result mandated by § 52-57(a)" because he was not served at his usual place of abode. "The plaintiff’s reliance on [ Fine Homebuilders, Inc. v. Perrone, supra , 98 Conn.App. 857] is misplaced, and their interpretation over broad. 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." (Internal quotation marks omitted.) Id. See also Menchetti v. Bershtein, Superior Court, judicial district of New Haven, Docket No. CV-16-6066337-S (May 30, 2017, Wilson, J.) (64 Conn.L.Rptr. 574, 578) (explaining that in Fine Homebuilders, Inc. v. Perrone, supra , 98 Conn.App. 855-57, leaving service of process "at the front gate was reasonably calculated to achieve putting the defendant on actual notice" and in the present case, the defendant did not meet her burden of disproving jurisdiction because she had a part-time residency at the location where the marshal served process, and the state marshal’s abode service "was reasonably calculated to provide actual notice to the defendant" [emphasis in original] ); but see Trinidad v. Munez, Superior Court, judicial district of New Haven, Docket No. CV-06-5001231 (March 13, 2007, Rubinow, J.) (43 Conn.L.Rptr. 54, 57) ("[w]here the form of service employed is improper but it is undisputed that the defendant received timely notice of the suit and did in fact respond, the appropriate remedy is to allow amended service of process, rather than dismissal for insufficient process").

In the present case, though the defendant received actual notice, the circumstances are not analogous to the circumstances in Fine Homebuilders v. Perrone, supra , 98 Conn.App. 857, and therefore, the requirement set forth in § 52-57(a) has not been met because the defendant was not served at his usual place of abode. The defendant in the present case, who resides at his usual place of abode in Bridgeport, testified that he received the documents that the marshal served to his former address in Redding. The defendant explained that he did not remember who received service at the Redding address and stated that it could have been his ex-wife or daughter who lives there. He noted that after the marshal came to the door to deliver service to the Redding address, he was not certain how long it took for him to receive this paperwork but imagined that this would have been within a week or two. The defendant testified that he contacted his attorney about the paperwork and stated that he probably did this within a week of receiving it.

The circumstances in the present case most closely resemble those in McBreairty v. Doherty, supra , Superior Court, Docket No. CV-12-6014053, because the defendants in both cases were not served at their usual place of abode but eventually received actual notice. Therefore, the motion to dismiss for lack of personal jurisdiction on the ground of improper service of process is granted. In light of the conclusion that the court lacks personal jurisdiction over the defendant, it is not necessary for the court to reach the alternative ground for the motion to dismiss, that of improper venue.

CONCLUSION

For the foregoing reasons, the defendant’s motion to dismiss is granted on the ground of lack of personal jurisdiction due to improper service of process.

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Notes:

"When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow v. Jowdy , 190 Conn. 48, 56, 459 A.2d 503 (1983).

The plaintiff also argues that granting the defendant’s motion to dismiss would only result in delay because the plaintiff would be able to re-file, and states that the statute of limitations for the resent case expires on December 5, 2019. Nevertheless, the plaintiff does not cite to any case law or statutory authority to establish why this would be a ground to deny the motion to dismiss. Accordingly, the court will not decide the motion to dismiss on this ground.

In Trinidad v. Munez, supra , 43 Conn.L.Rptr. 57-58, the court determined that the purpose of General Statutes § 52-62(c), a statute involving serving process on a nonresident in an action for negligent operation of a motor vehicle, was met despite improper service because the defendant received actual notice. The court held that "the principles of [ Fine Homebuilders, Inc. v. Perrone, supra , 98 Conn.App. 861-62], fully support the determination that under the circumstances of the present case, the clear purpose of § 52-62(c) was fully achieved" because the purpose of this statute is "to provide reasonable notice" and the defendant in this case had actual notice of the lawsuit. Trinidad v. Munez, supra, 43 Conn.L.Rptr. 57-58. "This court declines to follow the reasoning in [ Trinidad v. Munez, supra, 43 Conn.L.Rptr. 54], because first, it involves a nonresident and the application of § 52-62, which is not the case here, and, that holding, if extended, would render nearly all objections to jurisdiction based on insufficient service of process moot since the only way to contest jurisdiction is to file an appearance followed by a timely motion to dismiss as prescribed in Practice Book § 10-30. Further, that decision’s interpretation of [ Fine Homebuilders, Inc. v. Perrone, supra , 98 Conn.App. 852], which was an appeal from this trial court’s ruling, is over broad." Finucane v. Cruz, Superior Court, judicial district of New Haven, Docket No. CV-13-6038063-S (September 5, 2013, Wilson, J.).

Though it is not necessary to reach the issue of improper venue, the court notes that, effective January 1, 2015, Practice Book § 10-30 no longer includes improper venue as a ground for filing a motion to dismiss. As stated in the commentary to the Practice Book (Rev. to 2014) § 10-30, "[s]ince [General Statutes § 51-351] became effective, the courts have found that the appropriate remedy for improper venue is the transfer of the case to the proper venue by the court upon its own motion, or upon motion or agreement of the parties." Moreover, § 51-351 provides: "No cause shall fail on the ground that it has been made returnable to an improper location." Accordingly, a motion to transfer would be the suitable way to remedy improper venue, not a motion to dismiss.

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