Opinion
FSTCV186037199S
06-05-2019
Keisha FRANCIS v. Rachel MAYERS
UNPUBLISHED OPINION
OPINION
POVODATOR, JTR
This is a lawsuit arising from a motor vehicle accident involving non-Connecticut resident defendants. The defendants have moved to dismiss the complaint, based on two somewhat-related personal jurisdictional grounds. First, the defendants contend that initial service made in accordance with General Statutes § 52-57a was improper, as the methodology for service set forth in General Statutes § 52-62 is claimed to be mandatory in connection with service upon a non-Connecticut defendant in a motor vehicle case. Second, the defendants contend that the subsequent service made upon them in accordance with the latter statute was improper because it required the plaintiff to amend the return date but that change was made without authorization from the court, and therefore could not cure the improper commencement of the litigation by way of service under § 52-57a.
The relevant facts as recited in the defendants’ brief in support of their motion are generally undisputed.
The [defendants] reside in New Rochelle, New York. The Plaintiff’s initial complaint is dated June 20, 2018, and her initial summons set a return date of Monday, July 30, 2018. The Plaintiff arranged for in personam service in New York, using [a New York procedure for service]. The server was a resident of New York, and was not a Connecticut State Marshal. His affidavit is dated July 2, 2018.
On July 10, 2018 plaintiff drafted a new complaint, as well as a new summons that set a return date of Tuesday, July 31, 2018. Plaintiff then dispatched a Connecticut State Marshal to serve the defendants once again, this time pursuant to Connecticut General Statutes Section 52-62. The marshal’s return of services dated July 18, 2018. Plaintiff filed her amended summons and complaint, and new return of service on July 24, 2018. Both the original complaint and the new complaint were filed under the same cause of action bearing the above referenced name and docket number.
The defendants’ primary contention is that in connection with a motor vehicle-based lawsuit involving a defendant who is a non-resident of Connecticut, service in accordance with § 52-62 is mandatory. The defendants recognize that there are trial court decisions going in both directions on this issue, but contend that the Appellate Court decision in Cortes v. Cotton, 31 Conn.App. 569, 574 (1993) provides binding authority in support of their position. The defendants note that in that decision, the Appellate Court cited Anderson v. Schibi, 33 Conn.Supp. 562 (App.Sess. 1976). The defendants also note that in 1993, the year in which Cortes was decided, the Connecticut Supreme Court issued a decision which discussed § 52-57a in the context of the domestic relations long-arm statute, without addressing the propriety or merits of Cortes, decided earlier in the same year (Cato v. Cato, 226 Conn. 1, 626 A.2d 734 (1993)). The defendants note that the decision in Codes has never been overruled, at least in explicit terms.
The relevant language in Codes is brief enough to be quoted in full:
The defendant’s reliance on General Statutes § 52-57a is equally flawed. That statute concerns the manner of service outside of the state on a party domiciled in the state. See Anderson v. Schibi, 33 Conn.Supp. 562, 364 A.2d 853 (1976). The uncontroverted evidence before the trial court in this case is that at no time prior to instituting the action did the plaintiff know where outside of the state the defendant had moved. Therefore, that argument is without merit. 31 Conn.App. 573-74.
It is not clear from the decision why, but it is clear that the court was addressing only a portion of the scope of the statute. Section 52-57a applies to "[a] person domiciled in or subject to the jurisdiction of the courts of this state" (emphasis added). The case centered on applicability of General Statutes § 52-590 providing for tolling of the statute of limitations while a defendant is outside the state, and the quoted passage arose in the context of a discussion of whether the defendant could have been sued notwithstanding his absence from the state. The decision’s focus on domicile in Connecticut underscores the questionable applicability to the current situation. There was no discussion of § 52-57a, other than the somewhat conclusory statement quoted above.
Further, to the extent that the court claimed to have relied upon Anderson, that decision does not stand for the categorical proposition that the defendants claim to rely upon. Anderson did include an analysis of § 52-57a and its proper place in civil procedure. The court noted the complementary roles of § 52-59b, defining the parameters for assertion of jurisdiction over non-residents, and § 52-57a, setting forth the general procedure for actually acquiring jurisdiction over non-residents. The focus in Anderson, notwithstanding the quoted language from Cortes, was not on the extent to which § 52-57a "concerns the manner of service outside of the state on a party domiciled in the state" and there is nothing in Anderson that appears to support a contention that the statute only "concerns the manner of service outside of the state on a party domiciled in the state." To the contrary, the decision clearly approves of use of § 52-57a to acquire jurisdiction over non-residents; e.g., "If process is correctly served in a manner prescribed by § 52-57a, the Connecticut court has personal jurisdiction over a nonresident defendant in an action brought under the long-arm statute."
Similarly, the reference to Cato does not support the defendants’ position. The court believes that it would be unreasonable to draw any inference from the silence of the court in Cato with respect to the decision of the Appellate Court in Cortes, a decision that had been released three weeks earlier. The court is unaware of any obligation or practice of the Supreme Court to survey all recent Appellate Court decisions that might have a passing mention of issues in decisions about to be released, and the absence of any meaningful analysis in Cortes would seem to militate against any attention paid to it even if the Supreme Court had been aware of it.
As quoted above, the decision contains four sentences pertaining to the subject of § 52-57a (plus a citation to an earlier Appellate Session decision). Two of the sentences are statements pertaining to the court’s general conclusions. ("The defendant’s reliance on General Statutes § 52-57a is equally flawed ... Therefore, that argument is without merit.") A third sentence recites the pertinent facts of the case relating to possible application of the statute. ("The uncontroverted evidence before the trial court in this case is that at no time prior to instituting the action did the plaintiff know where outside of the state the defendant had moved.") The fourth sentence is the court’s statement of its perception of the applicable law, followed by a reference to Anderson . ("That statute concerns the manner of service outside of the state on a party domiciled in the state.")
Perhaps more important is the fact that Cato recognizes that special-purpose statutes for acquiring jurisdiction are not necessarily the exclusive means for doing so. In Cato, the court recognized that the generalized procedure for acquiring jurisdiction by way of compliance with § 52-57a was not superseded in connection with domestic relations matters, where a statute applicable in domestic relations specifically provided for acquisition of jurisdiction over a non-resident defendant by way of an order of notice. If anything, the court expressed a preference for the more direct means of acquiring jurisdiction as set forth in § 52-57a- there, in hand service. The court rejected a position analogous to the defendants’ position here (and that of the dissent) that the particularized procedure in General Statutes § 46b-46 for an order of notice took precedence over service pursuant to § 52-57a.
"We note, additionally, the narrow construction advanced by the defendant would serve no practical function. The purpose of an order of notice is to ensure that the defendant actually receives notice. See 1 W. Moller & W. Horton, Connecticut Practice Book Annotated (3d Ed.1989) § 199, comment. "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." In this case, the defendant received in-hand service of process. We have often held that in-hand service of process is the "best and highest type of service" and should be used whenever possible. An order of notice could have done nothing more to ensure that the defendant actually received notice. Accordingly, it would ignore the very purpose of the statute to construe § 46b-46 so strictly as to make an order of notice a condition precedent to the form of service most likely to result in actual notice to the defendant. (Internal quotation marks and citation, omitted.) Cato v. Cato, 226 Conn. 1, 8-9, 626 A.2d 734, 738 (1993).
To be sure, there are distinctions. Section 46b-46 uses the term "may" rather than "shall" as used in § 52-62. The dissent in Cato effectively treated "may" as mandatory. The reverse is true- while "shall" generally is mandatory, in appropriate circumstances, "shall" can be treated as permissive or directory; Meadowbrook Center, Inc. v. Buchman, 328 Conn. 586, 181 A.3d 550 (2018).
Another distinction is that in Cato, service under authority of § 52-57a had been in-hand, whereas in this case, service appears to have been the New York version of abode service. Although abode service is not at the pinnacle of forms of service (unlike in-hand service as described in Cato), it presumptively is superior to service under § 52-62 which relies upon mailed process to the last known address of a defendant, rather than service at an actual abode/residence. Indeed, combining the two forms of service to create a hypothetical scenario, the defendant effectively is arguing that mailing to the last known address in accordance with § 52-62 is superior to actual in-hand service under § 52-57a, which directly would implicate the preferred status of in-hand service. ("We have often held that in-hand service of process is the ‘best and highest type of service’ and should be used whenever possible.") The perils of reliance on service via the Commissioner of Motor Vehicles to provide actual notice is exemplified in Megos v. Ranta, 179 Conn.App. 546, 180 A.3d 645 (2018).
"The defendant filed a motion to dismiss the complaint on the ground that service had not been effectuated on her at her ‘last known address’ as required under § 52-62, because it had been more than one year since she had lived on Central Park South and she did not receive a copy of the action." 179 Conn.App. 550.
The court, then, is satisfied that proper service was made upon the defendants, via the plaintiff’s initial effort to serve them under § 52-57a. Assuming, however, that service was improper- and in any event, the court must address the plaintiff’s unilateral change of the return date- the court will consider the effectiveness of the second attempt at service upon the defendants, this time via § 52-62, including a change of the return date to a Tuesday.
Initially, it may be helpful to identify that which is not in dispute, matters that are not being claimed by the defendants. The defendants are not claiming that the return date cannot be amended/changed, so long as the new return date does not run afoul of other statutory requirements relating to process. The defendants are not contending that it is not common practice- and permissible- for a plaintiff, prior to service of process, to change the return date originally typed onto the suit papers, e.g., if, for some reason, service cannot be effectuated in a timely manner, based on the initially-selected return date. The defendants are not contending that a plaintiff cannot re-serve a defendant after initial service of process, in order to cure any claimed/possible deficiency in the initial service of process (e.g., discovery of a new/better address for service).
The defendants are contending that once initially-served suit papers are returned to court, any changes to process require permission of the court, and cannot be undertaken unilaterally, even if undertaken prior to the initial return date. Trial court decisions have not required such procedural orthodoxy.
When pleadings have circumstantial defects, General Statutes § 52-722 allows a plaintiff to amend the pleadings. See New England Road, Inc. v. Planning & Zoning Commission, 308 Conn. 180 (2013) ("we have applied § 52-72 to cure only technical defects in the return date or the late return of process to court"). "[T]he purpose of § 52-72 is to provide for amendment of otherwise incurable defects that go to the court’s jurisdiction." (Internal quotation marks omitted.) Id., 187. Section 52-72 is a remedial statute and must be liberally construed. Id. Even when a plaintiff fails to file an amendment to correct the return date, courts have ordered the plaintiff to file an amendment to correct the return date in accordance with § § 52-72 and 52-48(b). See Adamovich v. East Hartford, Superior Court, J.D. of Hartford, Docket No. CV-10-6012652-S (February 18, 2011, Peck, J.) (denying motion to dismiss, without prejudice, and ordering that plaintiff, who did not file motion to amend improper return date, file amendment to correct return date); see also Brandriff v. Sellas, 40 Conn.Supp. 243 (1985). (Footnote omitted.) Vossbrinck v. Cheverko, No. FSTCV 1750168255, 2018 WL 794043, at *2 (Conn.Super.Ct. Jan. 19, 2018).
Indeed, in Vossbrinck, the court was faced with something of a reverse situation:
In the instant case, the summons had a printed return date of June 20, 2017, which was a Tuesday, but it was scratched out and replaced with a handwritten date of July 10, 2017, which was a Monday. Although the new return date was not a Tuesday, the defendant received actual notice of the cause of action, suffered no prejudice, and filed an appearance by that return date. See Coppola v. Coppola, supra, 243 Conn. 666-67. This court finds that the improper return date is a circumstantial defect. Id.
A somewhat more egregious situation existed in Todd v. Bradford Child Care Services, Inc., No. HHDCV 146049462S, 2014 WL 5094306, at *6 (Conn.Super.Ct. Aug. 29, 2014) , but with an argument strikingly similar to the one advanced by the defendants here:
The defendant next argues that the court must dismiss the plaintiffs’ claims on the ground that service of process was insufficient and the court therefore lacks personal jurisdiction over the defendant. By way of additional background, the plaintiffs electronically filed their return, summons, and complaint with the court on March 12, 2014, eight days after the March 4, 2014 return date. On March 13, 2014, the plaintiffs filed a notice of amendment as of right pursuant to Practice Book § 10-59, along with an amended summons and amended complaint. The plaintiffs’ amended summons and amended complaint were identical to the original summons and complaint, with the exception of the inclusion of a revised return date of March 25, 2014. The defendant states that the plaintiffs delivered those documents by certified mail to the defendant’s agent, the secretary of state.
In light of the foregoing, the defendant contends that service of process was insufficient because the plaintiffs failed to return process to the clerk at least six days prior to the March 4, 2014 return date listed on the original summons, in violation of General Statutes § 52-46a. The defendant further argues that the plaintiffs’ attempt to amend the return date by utilizing the procedure outlined in Practice Book § 10-59 did not cure the defect because the proper procedure for amending a return date is enumerated in General Statutes § 52-72. (Footnotes omitted.)
Later in the decision, the court observed that "§ 52-72 was enacted for the specific purpose of providing for the amendment of return dates, something that Connecticut courts had previously disallowed," id. at *7, citing New England Road, Inc. v. Planning & Zoning Commission of Town of Clinton, 308 Conn. 180, 186, 61 A.3d 505, 509 (2013).
In other words, after the return date, the plaintiff unilaterally amended the return date, and did not re-serve the defendant in accordance with the statutory procedure for service, instead simply mailing the corrective process to the Secretary of State, the statutory agent for service (by certified mail). The court held that such lack of compliance with claimed statutory procedures was not a proper basis for dismissing the action. The court’s analysis was premised in part on its conclusion that § 52-72 and not § 52-128 (and corresponding language of Practice Book § 10-59) governed, but under the latter statute and related rule, the result would be the same, if not clearer- "The plaintiff may amend any defect, mistake or informality in the writ ... without costs, during the first thirty days after the return day."
Coppola v. Coppola, 243 Conn. 657, 707 A.2d 281 (1998) is often cited with respect to amendments of the return date, a case in which the court reversed the trial court and Appellate Court determinations that the return date could not be amended- and in Coppola, the attempted amendment was filed not only after the return date had passed but also after a motion to dismiss had been filed; id. at 660. Although not emphasized, of significance to this case is that the attempted amendment of the return date was made under claimed authority of then-Practice Book § 175- what is now Practice Book § 10-59. (The text of § 175 is quoted in footnote 6, and is identical to the text of current § 10-59.) In other words, the amendment did not require any action by the court, and did not require use of a request (Practice Book § 11-2) which becomes an order of the court absent any objection (a mechanism for amendment set forth in Practice Book § 10-60); implicitly the court recognized the efficacy of unilateral action by a plaintiff in amending the return date (at least within the first 30 days after the return date).
Returning to the current situation, the unilaterally-amended suit papers were served in strict accordance with the procedure that the defendant claims should have been followed at the outset. In effect, the defendants effectively are focusing on the order in which certain actions were taken- timing- rather than substance. If the plaintiff had not filed the initial return of service but instead had made changes to the return date and directed a marshal to make service in accordance with § 52-62, there would appear to have been no basis for the defendants to object. Alternatively, once the initial return of service had been filed, the defendants appear to be arguing that the plaintiff should not have served corrected papers in a "correct" manner without having first obtained an order of the court, building in a pointless delay for an unopposed motion to be granted- since no appearance had been filed on behalf of the defendants in response to the initial service of process (and again, Practice Book § 10-59 does not require any involvement of the court prior to the expiration of 30 days after the return date). That also assumes that the unilateral right to amend without court approval under § 52-128 and Practice Book § 10-59 either is inapplicable or would require a filing of the amended suit papers prior to re-serving- to be followed by a subsequent refiling after service. All of these scenarios are form-over-substance technicalities that do not negate the existence of proper service on the defendants under § 52-62, and Coppola implicitly recognizes that no court action is required for such an amendment.
Conclusion
In simplest terms, the defendants are arguing that they were not served properly when the plaintiff initially made service pursuant to General Statutes § 52-57a, and that when the plaintiff subsequently made service pursuant to General Statutes § 52-62, she failed to follow a procedure for amending the return date that the defendants contend is required, notwithstanding the existence of rules and statutes furthering the oft-stated liberality of our courts with respect to amendments, particularly as to technical issues.
The defendants were served twice, such that even if they were not served properly the first time, they were served properly the second time.
The changing of a return date prior to service is commonplace- a motion to do so is typically an after-the-fact attempt to correct the process that actually was served. Since the defendants contend that the first service was improper and legally ineffective, their only basis for complaining about the pre-second-service changing of the return date to a Tuesday is that the plaintiff continued using the docket number assigned after the initial return of service such that the plaintiff should have paid an extra entry fee and treated the second service as commencing a new action, or filed a formal motion to change the return date.
The court concludes that the defendants were served properly twice, but even if the first service were to be determined to have been deficient, the second proper service was sufficient to confer jurisdiction. The defendants cannot have it both ways- that the first service was insufficient for jurisdiction but sufficient to compel the plaintiff to file a formal motion to modify the return date for purposes of subsequent procedurally-proper service of process. If it were necessary, the court would likely grant a motion to amend the return date on a nunc pro tunc basis.
For all of these reasons, the motion to dismiss is denied.