Opinion
No. CV07 5007053S
September 4, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The defendants have filed a motion to dismiss pursuant to Practice Bock §§ 10-30, et seq. Seeking to dismiss the plaintiff's complaint against Anthony Land for lack of personal jurisdiction over the person and insufficient service of process.
The plaintiff filed a writ summons and complaint on February 28, 2007, bearing a return date of March 6, 2007. The complaint contains four causes of action against Land. Count Two brings a claim for libel/defamation. Count Four alleges a claim for emotional distress, as a result of the alleged defamatory statements made by Land. Count Six alleges a claim for tortious interference with the plaintiff's business operations, stemming from the alleged defamatory statement. Count Seven alleges conspiracy against Land and the co-defendant Mason, collectively as a result of the alleged defamatory statements of Land and Mason.
The marshal's return of service indicates that he served the defendant Anthony Land at his usual place of abode, 29 Lonetown Road, Redding, Connecticut on February 3, 2007. The return of service also states that the marshal "made further service upon the within named defendant Anthony Land by leaving a true and attested copy of the within original Summons-Civil, Complaint, Statement of Amount in Demand and Affidavit of Diligent Search at the office of the Secretary of State, 30 Trinity Street, Hartford, Ct." pursuant to General Statutes § 52-59b. The marshal additionally made service upon Land by mailing a copy of the aforesaid documents to Land's last known address via certified mail. The defendant claims that at this time Land did not live at the Redding, Connecticut address, having left the State of Connecticut in June 2005, more than eighteen months before service was made. Further, Land claims he did not maintain the Redding, Connecticut address as his usual place of abode and that at the time of service, he was, in fact, residing in the State of Florida.
The marshal delivered the service to Land's mother at the Redding, Connecticut address. On February 10, 2007, the marshal was notified by certified mail by Land's mother that Land was not residing with her, and that she had accepted service in error, believing said service was for her husband.
Sec. 52-59b(a)(b) reads as follows:
(a) 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, or over the executor or administrator of such 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, except as to a cause of action for defamation of character arising from the act; 3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, 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; or (5) uses a computer, as defined in subdivision (1) of subsection (a) of section 53-451, or a computer network, as defined in subdivision (3) of subsection (a) of said section, located within the state.
(b) Where personal jurisdiction is based solely upon this section, an appearance does not confer personal jurisdiction with respect to causes of action not arising from an act enumerated in this Section.
I Standard of Law
Before proceeding further the court reviews the relevant standard of law when entertaining a motion to dismiss. A motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "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." Richardello v. Butka, 45 Conn.Sup. 336, 717 A.2d 298 (1997); Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999); Bradley's Appeal from Probate, 19 Conn.App. 456, 461-62, 563 A.2d 1358 (1989)." In ruling upon whether a complaint survives a motion to dismiss, 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." Villager Pond, Inc. v. Darien, supra, 54 Conn.App. 183; Mahoney v. Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990).The plaintiff bears the burden of establishing the existence of jurisdiction by a preponderance of the evidence. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 51, 459 A.2d 503 (1983). When faced with a foreign defendant's motion to dismiss for a lack of personal jurisdiction, Connecticut courts conduct a two-step inquiry. Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608, 674 A.2d 426 (1996). First, the court examines whether the applicable long-arm statute authorizes reaching out of state to assert jurisdiction over the defendant. Id. If the statutory requirements are met, only then does a court decide whether the exercise of jurisdiction would violate the principles embodied in the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. Id.; See also, Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983). When a plaintiff fails to produce enough evidence to satisfy one or both of these independent tests, the court must dismiss the claims against a defendant for a lack of personal jurisdiction. Knipple v. Viking Communications, Ltd., supra, 236 Conn. 608.
II Discussion
Proper service of process is necessary to confer jurisdiction by the court over the defendant. The 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. Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999), citing Commissioner, Enviro. Prot. v. Conn. Bldg. Wrecking, 227 Conn. 175, 195, 629 A.2d 1116 (1993). "A court has no jurisdiction over persons who have not been made parties to the action before it." Exley v. Conn. Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990 (2000); cert. denied 254 Conn. 939, 761 A.2d 763 (2000). "[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, however, is jurisdiction over the person, not the subject matter." (Citations omitted.) Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 848 A.2d 418 (2004); Commissioner of Transportation v. Kahn, 262 Conn. 257, 272, 811 A.2d 693 (2003); Connor v. Statewide Grievance Committee, 260 Conn. 435, 442, 797 A.2d 1081 (2002).
General Statutes § 52-54 provides that:
The service of a writ of summons shall be made by the officer reading it and the complaint accompanying it in the hearing of the defendant or by leaving an attested copy thereof with him or at his usual place of abode. When service is made by leaving an attested copy at the defendant's usual place of abode, the officer making service shall note in his return the address at which such attested copy was left.
General Statutes § 52-57(a) provides that:
"(a) 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 § 52-59b(c) additionally provides in relevant part that:
Any nonresident individual . . . 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 in any civil action brought against the nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual . . . The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State . . .
Additionally, General Statutes § 52-59b(a) states that this particular method of service applies to a non-resident individual who "commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act.
See n. 2 of this opinion.
As noted earlier herein, the marshal's return of service indicates that he served the defendant Anthony Land at his usual place of abode, 29 Lonetown Road, Redding, Connecticut. Service was also made at the Secretary of State and by mailing of copy of the writ, summons and complaint via certified mail to Land's last known address. The defendant has denied that this address was his place of abode, and claims he has been living in Florida since June 2005.
[W]hether a particular place is the usual place of abode of a defendant is a question of fact. Although the sheriff's return is prima facie evidence of the facts stated therein, it may be contradicted and facts may be introduced to show otherwise." Tax Collector v. Stettinger, 79 Conn.App. 823, 825 (2003) "[O]ne may have two or more places of residence within a State . . . and each may be a usual place of abode . . . Service of process will be valid if made in either of the usual places of abode." Id. at 826, quoting Knutson Mortgage Corp. v. Bernier, 67 Conn.App. 768, 772, 789 A.2d 528; see also Clegg v. Bishop, 105 Conn. 564, 570, 136 A. 102 (1927).
Generally, the burden is placed on the defendant to disprove personal jurisdiction. "`The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return . . .' 1 [E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970)] § 96, p. 390." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983). "When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." Id., 54. 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. Knipple v. Viking Communications, Ltd., supra, 236 Conn. 607. Thus, once the defendant contested personal jurisdiction in the present case, it was the plaintiff's burden to produce evidence adequate to establish such jurisdiction.
While the court heard oral argument on the motion to dismiss on May 7, 2007, an evidentiary hearing was not requested by the parties or conducted by the court. It is apparent from the documentation received by the court that the marshal served process by abode service on Land at the Redding, Connecticut address on February 3, 2007. By way of a letter dated February 6, 2007, a month before the return date, Land's mother notified the marshal that her son, the defendant Land, did not live at the subject address. She stated that she did not have an address for the defendant, and while she had a telephone number for the defendant, she did not inform the marshal that he was residing in Florida. The marshal's return does not indicate specific efforts by him to investigate whether or not the defendant Land actually resided at the Redding, Connecticut address other than the recitation that he made a diligent search and that he "was unable to locate said defendant at the last known place of abode 29 Lonetown Road, Redding, Ct." In support of the motion to dismiss the defendant land has submitted his sworn affidavit stating that he has resided in the State of Florida since June 2005 and currently resides in Tamarac, Florida. In February 2007 when the marshal made abode service, service on the Secretary of State and service by certified mail, Land was living in Oakland Park, Florida. The affidavit also states that Land's motor vehicle has been registered in Florida since November 30, 2005, and that he has made one social visit to Connecticut since moving to Florida.
The plaintiff states in his memorandum of law opposing the motion to dismiss that the marshal received Mrs. Land's certified letter on February 10, 2007.
A defendant "may have two or more places of residence within a State, or in two or more States, and each may be a usual place of abode, . . . Service of process will be valid if made in either of the usual places of abode. It will reach [the defendant) in one as well as the other. One may have a home and residence outside this State and yet have a usual place of abode in this State for service of process . . ." (Citation omitted; internal quotation marks omitted.) Dorus v. Lyon, 92 Conn. 55, 101 A. 490 (1917). "A person may be a part-time or full-time resident of the state and he may have a usual place of abode outside the state and may have one within the state at the same time and each be sufficient for service." (Internal quotation marks omitted.) Capitol Light Supply Co. v. Gunning Electric Co., 24 Conn.Sup. 324, 326, 190 A.2d 495 (1963).
In Capitol Light Supply Co. v. Gunning Electric Co., supra, 24 Conn.Sup. 324, the court found that the defendant maintained a usual place of abode at his parent's house in West Hartford, Connecticut, despite the defendant's contention that he no longer resided in Connecticut. The court held that service of process in Connecticut was proper because the defendant had lived with his parents for many years at the West Hartford address and continued his ties of blood and affection by visiting them during two holidays within approximately four months of the time he is claimed to have left the state. He continues to maintain his voting address in Connecticut at West Hartford and . . . [h]e has continued to hold a Connecticut motor vehicle operator's license, with his residence remaining at [the West Hartford address]." (Internal quotation marks omitted.) Id., 327-28; see also Ossorio v. Faillance, Superior Court, judicial district of Stamford-Norwalk at Stamford, No. FST CV 04 4001932 (May 2, 2006, Lewis, JTR), 41 Conn. L. Rptr. 318. In the present case, however, the plaintiff has not presented any documentary evidence or sworn affidavits to indicate that the defendant has maintained any legal or residential ties with Connecticut. The only evidence the court has is that the defendant visited his parents once in two years. The court, therefore is convinced that at the time of the subject abode service in Redding, Connecticut, the defendant Land was, in fact, a resident of Florida.
The court, having found that the defendant land was a resident of Florida, must determine whether the subsequent marshal's service on the Secretary of State was proper in pursuant to General Statutes § 52-59b pertaining to non-resident individuals who commit a tortious act in Connecticut, except for a "cause of action for defamation of character arising from the act." The court finds that at the time of the alleged tortious acts, the defendant was a resident of Connecticut and the alleged tortious acts occurred in Connecticut. The plaintiff is authorized to utilize General Statutes § 52-59b to serve the defendant, who has resided in Florida since 2005. Exercise of jurisdiction would not violate the principles embodied in the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. Knipple v. Viking Communications, Ltd., supra, 236 Conn. 602, 608.
The defendant argues that the bar to defamation claims contained in § 52-59b(a)(2) should extend to the plaintiff's other claims as they are based upon and incorporate by reference, the same allegations that provide the basis for the plaintiff's defamation claims. Therefore, the defendant argues service cannot be made pursuant to § 52-59b. The plaintiff, on the other hand, argues that while service may not be proper as it applies to Count Two, alleging defamation of character, service was proper as to Counts Four, Six and Seven alleging causes of action for intentional and/or negligent infliction of emotional distress, tortious interference with the plaintiff's business operation and conspiracy, respectively. The plaintiff argues that Counts Four, Six and Seven are causes of action distinct from any claim of defamation.
The commonality of facts underlying the plaintiff's claims do not necessarily convert all of his claims into causes of action for defamation. See, Delcath Systems, Inc. v. Enney, United States District Court, Civil Action No. 3:05-CV-1281 (JCH), (D.Conn.) (May 25, 2006, Hall, J.). While § 52-59b(a)(2) specifically bars a cause of action for defamation, its language does not bar causes of action for intentional and/or negligent infliction of emotional distress, tortious interference with the plaintiff's business operation and conspiracy. Had the legislature intended to do so, they would have incorporated language within § 52-59b(a)(2) to bar other causes of action in addition to a defamation cause of action.
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) GMAC Mortgage Corp. v. Glenn, 103 Conn.App. 264, 268 (2007), quoting Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 212, 901 A.2d 673 (2006).
Accordingly, for the reasons set forth herein, the court grants the motion to dismiss as to Count Two alleging defamation, but denies the motion as to Counts Four, Six and Seven alleging causes of action for intentional and/or negligent infliction of emotional distress, tortious interference with the plaintiff's business operation and conspiracy, respectively.