Opinion
No. CV05-4007509S
October 25, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS (NO. 125)
Procedural Background
In this foreclosure case, a judgment of foreclosure by sale has entered, and the appointed committee has conducted the auction sale at the property, prepared her Committee Deed to the successful high bidder, and filed her report with the Court with a motion to approve the sale. After the auction but prior to the motion for approval of sale being heard, the defendant Parish Stream Limited, ("Parish Stream") holder of record title to the property, appeared by counsel and simultaneously filed a Motion to Reopen Judgment and a Motion to Dismiss. Parish Stream had been defaulted for failure to appear before judgment entered. In the Motion to Dismiss Parish Stream claims that the court lacked jurisdiction in personam over the corporation, premised on its claim that it was not validly served with process when the action was commenced. Since the Motion to Reopen depends entirely on the validity of the Motion to Dismiss, the court will first decide whether or not valid service of process was made on the defendant Parish Stream.
Facts
The motion to dismiss was heard on June 27, 2006. Evidence was presented in the form of exhibits and statements of undisputed facts. The court finds the following facts proved by a preponderance of the evidence:
1. The defendant Parish Stream Limited is a Connecticut corporation.
2. Service was made upon the defendant Parish Stream Limited by State Marshal Mark A. Pesiri who filed his return which states, in part:
And I made a diligent search throughout my precincts pursuant to G.G.S. § 33-663 for JOSEPH F. McKEON, JR., P.C. the registered agent for service for PARISH STREAM LIMITED but could not find said agent at 1200 Post Road East, Suite 110, Westport, Connecticut, the last known address on file with the Secretary of State of the State of Connecticut.
And afterwards, on the same day, I made service pursuant to G.G.S. § 33-663 upon PARISH STREAM LIMITED by sending a true and attested copy of the original Writ, Summons, Complaint Lis Pendens by certified mail, return receipt, addressed to "The Secretary" PARISH STREAM LIMITED at 1200 Post Road East, Suite 110, Westport, Connecticut 06880.
And also on the same day, service was made upon PARISH STREAM LIMITED by serving its president JOHN J. WALPUCK pursuant to C.G.S. § 52-59b(c) by leaving a true and attested copy of the original Writ, Summons, Complaint Lis Pendens in the office of the Secretary of State of the State of Connecticut along with the fee of $25.00, and by sending a true and attested copy of the original Writ, Summons, Complaint Lis Pendens by certified mail receipt requested and postage prepaid, addressed to JOHN J. WALPUCK at 58 Leroy Avenue, Tarrytown, N.Y. 10591.
3. At the time in question the most recent annual report on file with the Secretary of State for Parish Stream Limited was its 2000 report (Exhibit B), which lists the business address of Parish Stream Limited as 1200 Post Road East, Suite 1100, c/o Joseph F. McKeon, Jr., P.C. Westport, Ct. 06880-5426 and lists the business address of John J. Walpuck as president and director and Joseph F. McKeon, Jr. as secretary, at 1200 Post Road East, Suite 110, Westport, Ct. 06880. The report also designates the agent for service of process as Joseph F. McKeon, Jr., PC with a business address of 1200 Post Road East, Suite 110, Westport, CT. 06880. The agent's residence address is listed as "none."
4. At the time in question the most recent annual report on file with the Secretary of State for Joseph F. McKeon, Jr., P.C. was its 2003 report (Exhibit A) which lists the business address of Joseph F. McKeon, Jr., P.C. as 2551 Post Road, Southport, CT. 06890.
Discussion
The plaintiff claims proper service under Conn. Gen Stat. §§ 52-57, 52-59b, and 33-663. Because Conn. Gen. Stat. § 52-57 contemplates service in-hand or abode service, neither of which was accomplished by the Marshal in this case, and § 52-59b only applies only to service of process upon nonresident individuals, foreign partnerships, or foreign voluntary associations, the court will limit its consideration to whether or not valid service has been made under Conn. Gen. Stat. § 33-663.
Conn. Gen. Stat. § 33-663 provides:
(a) A corporation's registered agent is the corporation's agent for service of process, notice or demand as required or permitted by law to be served on the corporation. Service may be effected by any proper officer or other person lawfully empowered to make service 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) If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by any proper officer or other person lawfully empowered to make service by sending a true and attested copy of the process, notice or demand by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is effective under this subsection at the earliest of; (1) The date the corporation receives the mail; (2) the date shown on the return receipt, if signed on behalf of the corporation; or (3) five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postage prepaid and correctly addressed.
(c) This section does not prescribe the only means, or necessarily the required means, of serving a corporation.
The defendant claims that service was not validly made under § 33-663 because ". . . the Marshal specifically stated in his return, that he could not find the registered agent for the corporation and that he knew that neither the agent for service nor the corporation were located at 1200 Post Road East, Suite 110, Westport, CT" and that "Therefore, any mailing to that address would not provide them any notification of the lawsuit." (Defendant's Memorandum in Support of Motion to Dismiss, p. 3).
Actually, the marshal's return recites that he could not find the agent, but makes no mention about being able or unable to find the defendant corporation at that address.
When service of process is made by personal service or abode service and jurisdiction turns on the truth of the matters stated in the officer's return, there is a presumption of the truth of the matters stated in the officer's return, and the burden of proving lack of jurisdiction is on the defendant. Where, however, jurisdiction cannot arise solely from the acts recited in the return, the burden of proof is on the plaintiff to prove contested factual issues pertaining to jurisdiction. Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 53 (1983). (Constitutionality of longarm jurisdiction under due process clause depended on whether or not defendant had "minimum contacts" in Connecticut.) In this case jurisdiction or proper service of process depends entirely on the facts stated in the marshal's return. No extrinsic evidence is necessary to establish jurisdiction. See Reiner, Reiner, Bendett, P.C. v. Cadle Company, 278 Conn. 92, 109-10 (2006). The defendant then has the burden of disproving the facts stated in the return in order to invalidate service under § 33-663. The court finds that the defendant has not met that burden and that the court therefore has valid personal jurisdiction over the corporate defendant Parish Stream Limited.
The marshal's return recites that he made a diligent search throughout his precincts for the defendant's agent for service of process. The defendant has presented no evidence to the contrary. The marshal also recites that he was unable to find the agent at 1200 Post Road East Suite 110, Westport, Connecticut, the last known address on file with the Secretary of State of the State of Connecticut. The defendant does not dispute that statement as to the agent not being found at that address, but has presented evidence (Exhibit A) that the agent, Joseph F. McKeon, Jr., P.C., had filed its own annual report with the Secretary of State listing its business address as 2551 Post Road, Southport, CT. 06890. That is of no moment. The annual report of Parish Stream Limited, upon which the marshal was attempting to make service of process, listed its agent as Joseph F. McKeon, Jr., P.C. and listed that agent's address as 1200 Post Road East, Suite 110, Westport, Connecticut, the address where the marshal looked. The marshal was entitled to rely on the information filed by the defendant in its annual report. If the agent had changed address and wanted the new address to be on file with the Secretary of State with specific reference to Parish Stream Limited, the agent could have filed a statement under Conn. Gen. Stat. § 33-661(b). There is no evidence that it did so. The court therefore finds that the marshal's statement that he could not locate the agent — presumed by law to be true — has not been disproved by the defendant, and that service under § 33-663(b) was therefore appropriate.
§ 33-661(b) provides: "If a registered agent changes the street address of his business office, he may change the street address of the registered office of any corporation for which he is the registered agent by notifying the corporation in writing of the change and signing, either manually or in facsimile, and delivering to the secretary of State for filing a statement that complies with the requirements of subsection (a) of this section and recites that the corporation has been notified of the change."
The marshal then recites in his return that he proceeded under § 33-663(b) by mailing a copy of the process to The Secretary of Parish Stream Limited at a business address listed in its annual report. The defendant does not challenge that statement, but argues that such mailing would not provide notification to the corporation because ". . . the marshal specifically stated in his return . . . that he knew that neither the agent for service nor the corporation were located at 1200 Post Road East, Suite 110, Westport, CT." (Memorandum in Support of Motion to dismiss, p. 3.) As previously pointed out in footnote 1 of this memorandum, however, the marshal said in his return that he was unable to locate the agent at that address; he did not say that he was unable to locate the defendant corporation at that address. A letter properly addressed, stamped, and mailed is presumed to have been duly delivered to the addressee: Reiner, Reiner, Bendett P.C. v. Cadle Company, supra, 278 Conn. at 111. The defendant offered no evidence to rebut that presumption. In any event, failure of the corporation to keep up to date the address of its corporate agent for service of process could be ". . . a waiver of the right to receive the notice that would thereby be required and will justify service on a state official without any attempt to give further notice to the corporation." Stephenson, Connecticut Civil Procedure, Third. Ed. § 25.
The annual report of Parish Stream Limited (Ex. B) lists the address at 1200 Post Road East in response to six separate questions. The suite number is listed as Suite 1100 two times and as Suite 110 four times. The marshal used the "Suite 110" address on his mailing which is the listed business address of the secretary of the corporation, to whom the mailing was addressed.
Order
For the foregoing reasons, the Motion to Dismiss is denied.
So ordered. CT Page 19832