Opinion
No. CV 960564554
March 10, 1998
RULING RE: DEFENDANT'S MOTION FOR JUDGMENT OF DISMISSAL (FILE #115)
On September 30, 1996, the plaintiff, Asha Sodhi, acting pro se, filed a complaint against the defendant, Nationwide Mutual Ins. Co., which the defendant moved to dismiss on the ground that the return date was improper. On October 28, 1996, the court, Wagner, J., ordered the granting of the defendant's motion to dismiss unless the plaintiff properly amended the return date within three weeks. On November 4, 1996, the plaintiff moved to amend the return date with a notarized "Certification of Service" in which the plaintiff certified that a copy of the motion and accompanying papers were sent by certified mail to the defendant's attorney. This court found that it was unclear whether the plaintiff intended this November 4, 1996 filing to serve as her complaint with an amended return date; therefore, being particularly solicitous of the rights of pro se litigants, the court allowed the plaintiff a second opportunity to correct the defective service. The court treated the plaintiff's filing as a motion for an order to amend her complaint and to correct the return date. It was ordered that "unless plaintiff properly amends the return date of her complaint in accordance with General Statutes Section 52-48, and properly serves defendant in compliance with General Statutes Section 52-50, 52-57, and 52-72, within four (4) weeks of the date hereof, the defendant's motions . . . are to be granted, dismissing this action." (Ruling Re: Motion for Order to Amend Return Date and Defendant's Objection, May 6, 1997, Mulcahy, J.) On May 13, 1997, the plaintiff served the corrected complaint upon the attorney representing the defendant corporation, who took the process under protest that he was not the corporation's agent for service.
Judge Wagner's order cited Concept Asoc. Ltd. v. Board of Tax Review, 229 Conn. 618 (1994), and General Statutes Sec. 52-72.
General Statutes § 52-57 (c) provides that: "In actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents, or upon the agent of the corporation appointed pursuant to section 33-922." If the defendant qualifies as a foreign corporation, General Statutes §§ 33-926, 33-929, 38a-25, and 38a-26 are controlling.
General Statutes § 33-922 provides in relevant part: "(a) A foreign corporation may apply for a certificate of authority to transact business in this state by delivering an application to the Secretary of the State for filing. The application shall set forth: (1) The name of the foreign corporation . . . (4) the street address of its principal office; (5) the address of its registered office in this state and the name of its registered agent at that office; and (6) the names and business address or, if there is no business address for any such person, the residence address, of its current directors and officers."
General Statutes § 33-926 provides: "(a) Each foreign corporation authorized to transact business in this state shall continuously maintain in this state: (1) A registered office that may be the same as any of its places of business; and (2) a registered agent, who may be: (A) A natural person who is a resident of this state; (B) a domestic corporation; or (C) a corporation not organized under the laws of this state and which has procured a certificate of authority to transact business in this state.
(b) In addition to persons or entities who may act as a registered agent pursuant to subsection (a) of this section, a foreign corporation may appoint the Secretary of the State or his successor in office to act as its registered agent."
General Statutes § 33-929 provides in relevant part: "(a) The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the foreign corporation. Service may be effected by leaving a true and attested copy of the process, notice or demand with such agent or, in the case of an agent who is a natural person, by leaving it at such agent's usual place of abode in this state.
(b) A foreign corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent annual report if the foreign corporation: (1) Has no registered agent or its registered agent cannot with reasonable diligence be served. . . . When the Secretary of the State and his successors have been appointed such corporation's registered agent, a foreign corporation . . . may be served by any proper officer . . . by leaving two true and attested copies thereof together with the required fee at the office of the Secretary of the State or depositing the same in the United States mail, by registered or certified mail, postage prepaid, addressed to such office. . . ."
General Statutes § 38a-25, entitled " Insurance Commissioner as Agent for Service of Process" provides in relevant part:
(a) the Insurance Commissioner is the agent for receipt of service of legal process on the following:
(1) Foreign or alien insurance companies authorized to do business in this state in any proceeding arising from or related to any transaction having a connection with this state.
(b) Each foreign . . . insurer by applying for and receiving a license to do business in this state . . . is considered to have irrevocably appointed the Insurance Commissioner as his agent for receipt of service of process in accordance with subsection (a) of this section. Such appointment shall continue in force so long as any certificate of membership, policy or liability remains outstanding in this state.
(e) The right to effect service of process as provided under this section does not limit the right to serve legal process in any other manner provided by law.
Section 38a-26, entitled " Procedure for service of process" states: "(a) Service of process on the commissioner as provided in section 38a-25 shall be made by delivering two copies thereof to the commissioner, or to the office of the commissioner, or to an official or office of an official designated by the commissioner to receive service. . . .
(b) The commissioner shall immediately send by registered or certified mail one copy of the process to the person to be served as follows . . . (2) if a foreign insurance company, to the secretary of the company . . .
(d) Proof of service shall be evidenced by a certificate signed by the commissioner or by the official designated to receive service of process, showing the service made on him and mailing by him, attached to the second copy of the process."
"When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate." Nelson v. Stop Shop Cos., 25 Conn. App. 637, 641 596 A.2d 4 (1991); see also Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163 fn. 8 (1989). "Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. When the particular officers or employees of a corporation upon whom service may be made are designated, service upon any other person as a representative of the corporation is inadequate to confer jurisdiction upon the court to which the process is returnable." Hyde v. Richard, 145 Conn. 24, 25-26, 138 A.2d 527 (1958). "In general . . . an attorney is not authorized by general principles of agency to accept service of original process or behalf of a client." George v. Delpo, Superior Court, judicial district of Waterbury, Docket No. 124137 (January 2, 1997, Pellegrino, J.). "Acceptance of service of process by an attorney on behalf of another person cannot be effective unless the attorney has specific authority from that person. A plaintiff has the burden of establishing that the authority to receive process exists between the defendant and the person served." Keith v. Mellick Sexton, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 552399 (April 2, 1996, Wagner, J.); see also Jambor v. Bissett, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 330384 (June 24, 1996, Maiocco, J.) ( 17 Conn. L. Rptr. 115) (the court found no merit in the plaintiff's argument that the defendant's attorney, who was not an employee in defendant's business, was in charge of the business of the plaintiff's claim against the defendant; thus, it held that the attorney was not a proper person to accept service.). The burden of proving whether the person served meets the criteria required by the statute is on the plaintiff. Nelson v. Stop Shop Cos., supra, 25 Conn. App. 637, 642.
General Statutes § 52-57 (c) does not provide for service upon an attorney. There exists no statutory authority permitting the method of service attempted by the plaintiff. The plaintiff did not offer evidence indicating that the defendant specifically conferred agent status upon the attorney, served at her direction, by the sheriff. The plaintiff makes no claim of service upon the corporation's statutory agent for service or upon any person permitted to accept service pursuant to § 52-57 (c) or pursuant to § 33-929 or Sec. 38a-25, if the defendant is a foreign corporation.
General Statutes Section 52-72 authorizes the amendment of a defective return date and provides that "the amended process shall be served in the same manner as other civil process and shall have the same effect, from the date of service, as if originally proper in form . . ." (Emphasis added). The purpose of the statute, enacted in 1917, "`is to provide for amendment of otherwise incurable defects that go to the court's jurisdiction.'" Concept Associates Ltd. v. Board of Tax Review, 229 Conn. 623 (1994); see also Hoxie v. Payne, 41 Conn. 539, 540 (1874) ("When the power to hear and determine a cause is wanting, as in this case [defective return date], there is no jurisdiction, and no court can pass an order creating jurisdiction for itself."). The statute authorizes amendment, "but requires service of the amended writ." Stephenson's Connecticut Civil Procedure, (3rd Ed. 1997) Sec. 62, p. 205-06. The amendment of an incorrect return date is not merely a rectification of a "minor defect" in the writ, and therefore, it requires new service of process. Hartford National Bank Trust Co. v. Tucker, 178 Conn. 472, 478-79 (1979). While Section 52-72 is clearly a remedial enactment, and "`must be liberally construed in favor of those whom the legislature intended to benefit'"; Concept Associates, Ltd. v. Board of Tax Review, supra 229 Conn. 618, 623; Galluzzo v. Board of Tax, 44 Conn. Sup. 39 (1995); it nevertheless is evident that "new service of the amended writ", to be "served in the same manner as other civil process", requires service in compliance with the statutory provisions governing valid service of civil process.
It is recognized that certain cases refer to "original process" when requiring strict compliance with statutory requirements for service of process; these cases indicate that once an action has been properly instituted, service, in some cases, may be effected by serving the attorney who has appeared on behalf of the party. See e.g., George v. Delpo, supra; Keith v. Mellick Sexton, supra; Gangler v. Wisconsin Electrical Power Co., 329 N.W.2d 186, 190 (Wis. Supreme Court, 1983); Milwaukee County v. Labor and Ind. Rev. Commission, 418 N.W.2d 35, 38 (Wis.App. 1987). However, these cases do not deal with the amendment of a defective return date, or a statute permitting rectification of a jurisdictional defect not curable by amendment at common law, or a statute which expressly mandates that "[s]uch amended process shall be served in the same manner as other civil process. . . ."
The court conducted an evidentiary hearing on this motion; on the record established, it is clear that the plaintiff did not comply with the statutes dealing with service of process on corporate defendants. The testimony of the sheriff indicated that he informed the plaintiff that the defendant's attorney was not the proper agent for service of process. "Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996).
At the evidentiary hearing on this motion, Deputy Sheriff Paul A. Ruel, Jr. testified that he informed the plaintiff that the defendant had a designated or appointed agent for receipt of service of process, the number of copies of documents that were required to be served, and the costs involved in effecting proper service of the process. Upon being so informed, plaintiff insisted that the sheriff serve the papers on the defendant's attorney. Since Sheriff Ruel was concerned regarding the validity of merely delivering the documents to the attorney, he had the plaintiff set forth in writing her directive to him, a copy of which was marked as an exhibit for the purpose of this motion. In addition to Sheriff Ruel's testimony, and the plaintiff's written directive, there was also filed his affidavit reciting that the plaintiff "specifically instructed [him] to serve the defendant by serving Attorney Hickey notwithstanding [his] indications to her that the defendant had an agent for service of process designated," and that when, pursuant to the plaintiff's directive, he attempted to serve the papers at the attorney's office, he was informed by Attorney Hickey "that he was not the authorized agent of the defendant and [was] not authorized to accept service on behalf of the defendant."
The court recognizes the burdensome consequences the granting of this motion will have for this plaintiff; and, it is distressing to enter a ruling having the effect of curtailing an individual's court access on technical grounds raised by a corporate defendant. However, the pro se plaintiff in this case has been given considerable latitude and instruction by the court and, notwithstanding prior opportunities, still has not complied as directed. Since, for the reasons stated herein, it is the court's view that the grounds asserted in support of the motion to dismiss are sound, the motion is hereby granted.
Mulcahy, J.