Opinion
KNLCV166028397S
09-07-2017
Patricia Jancaterino v. Edward Karban
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR RECONSIDERATION (#109)
Leeland J. Cole-Chu, J.
The motion of defendant Edward Karban to reargue his motion (#101) to dismiss this action for " [p]laintiff['s] fail[ure] to properly serve Karban" and for reconsideration of the court's denial (#101.50) of said motion was submitted on the papers on August 14, 2017. The defendant claims that, because service of process in this case was by abode service, not in-hand, " [t]he Court lacks personal jurisdiction over Karban under the Connecticut long-arm statute and as required by due process."
The defendant admits that this court would have personal jurisdiction over him if service of process had been in-hand. For present purposes, the defendant does not challenge the court's finding that service of process on him " complied with the abode service portion of [General Statutes] Section 52-57(a)." As a practical matter, the question before the court is whether § 52-57, particularly subsection (a), authorizes abode service on the defendant, given that his domicile is in Florida. The court finds no reason to reconsider its ruling that § 52-57(a) does so.
The defendant " reserves the right to demonstrate otherwise, " i.e., that service of process did not comply with § 52-57(a). Since it appears to this court that failure to include in the present motion any challenge to the validity of such service of process as was effected amounts to waiver, the point and the utility of that reservation elude the court.
The defendant claims that the court's ruling failed to articulate whether the basis for the court's finding of personal jurisdiction over the defendant is specific jurisdiction or general jurisdiction; that general jurisdiction cannot, as a matter of law, be found over the defendant because his domiciliary state is Florida; that the court omits " an articulation of how the [c]ourt's exercise of personal jurisdiction, absent 'in-hand' service, satisfies 'traditional notions of fair play and substantial justice' (footnote omitted); and that the court cannot find it has specific jurisdiction over the defendant because such jurisdiction " exists only if the injury at-issue arises out of or relates to a defendant's forum-specific activities."
It is true that the court's ruling did not discuss the distinction between specific jurisdiction over the defendant and general jurisdiction over the defendant. It is also true that cases such as Solano v. Calegari, 108 Conn.App. 731, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008), require the two-part inquiry advocated by the defendant is necessary when jurisdiction pursuant to the Connecticut long arm statute, General Statutes § 52-59b, is challenged. Essentially, the defendant claims that, though in-hand service under § 52-57(a) would have sufficed for personal jurisdiction purposes, abode service under the same statute does not suffice unless the court specifically finds that, under the circumstances of the particular case, the court's assumption of personal jurisdiction over the defendant does not " offend traditional standards of fair play and substantial justice." The court rejects that claim for two reasons. First, § 52-57(a) provides, " [e]xcept 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." Section 52-57 has for decades provided the general method of service of process in civil actions. See Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962). The court perceives neither logic nor power to apply the proposed--or any--additional requirement for personal jurisdiction under § 52-57(a) to one of the methods of service provided and not to the other.
More fundamentally, the two-part inquiry urged by the defendant does not apply if the long arm statute, General Statutes § 52-59b, does not apply. Solano v. Calegari, supra, 108 Conn.App. 736. In denying the defendant's motion to dismiss, the court found the long arm statute does not apply. Essentially, by maintaining an abode in this state, the law--§ 52-57(a), in particular--allows service on the defendant by abode service as an alternative to in-hand service. In other words, § 52-57(a) provides the courts of this state with general in personam jurisdiction over individuals who maintain a usual place of abode in this state. See Clegg v. Bishop, 105 Conn. 564, 570, 136 A. 102 (1927). As a matter of public policy, this is fair and reasonable, in this court's view, since maintaining a usual place of abode in this state--rented let alone owned--means availing oneself of a wide variety of laws and other benefits of this state.
See Smith v. Smith, supra, 150 Conn. 17 (defendant's usual place of abode was rented).
If the court were required to determine whether the assumption of personal jurisdiction over the defendant in this case offends traditional standards of fair play and substantial justice, the court would conclude it does not offend traditional standards of fair play and substantial justice for these general reasons and, in particular, because the defendant earns a living here and has sought relief from the court of this state.
Residence and domicile are different legal standards. See Smith v. Smith, supra, 150 Conn. 17 (parties residence and domicile discussed separately). The unstated, but clear, distinction is that individuals who have a usual place of abode in this state are treated as residents, and therefore subject to general jurisdiction, while jurisdiction over " nonresident individuals, " to whom § 52-59b expressly applies, requires the two-part inquiry sought by the defendant. While § 52-57(a) provides, " [e]xcept as otherwise provided . . ." the court finds nothing in § 52-59b which can reasonably be construed as requiring service to be effected in a manner other than that provided in § 52-57(a) if the defendant has a " usual place of abode, in this state." Section 52-59b was enacted in 1969, after § 52-57(a). Instead of the phrase " nonresident individual" in subsections (a) and (c) of § 52-59b, the General Assembly could have used the phrase " individual whose domicile is in another state, " or " individual whose domicile is in another state even if he has a usual place of abode in this state, " or some other language making clear that the intent of § 52-59b was to " otherwise provide . . ." i.e., to make service of process under § 52-57(a) improper despite the defendant having a usual place of abode in this state. The General Assembly did not do so.
In Foye v. Foye, 8 Conn.Supp. 293 (1940), the defendant made a similar challenge to abode service on the ground that the process was not left at his domicile. There, the court concluded that one's abode need not be his domicile, but need only be his residence. Id., 294. The court held that " the validity of such service does not depend upon whether the defendant was domiciled at the place where the process was left, but only whether such location was his 'residence' within the intendment of the statute . . . The phrase 'usual place of abode' as used therein is connotative of residence only and 'residence' has been held to mean a mere temporary place of living in contradistinction to the element of permanency combined with a present intention to remain, which is essential to an acquisition of a domicile." (Citation omitted.) Id.
See Smith v. Smith, supra, 150 Conn. 15, 20 n.1 (giving examples of statutes providing other methods of service).
For the foregoing reasons, the court will not reconsider the denial of the motion to dismiss.