Opinion
No. HHD CV 05 5001676 S
February 1, 2007
MEMORANDUM OF DECISION
In this case, the defendant Maria Gomez, also known as Maria Quintero, has filed a motion to dismiss the plaintiff's complaint as to her for lack of personal jurisdiction. The court notes that the defendant Maria Gomez is now allegedly known as Maria Quintero, following a name change pursuant to marriage. This case arises from alleged incidents of sexual misconduct by the defendant John Gomez perpetrated on the plaintiff, Ashley Quinlan, at the business allegedly co-owned by Maria Gomez. The parties have filed multiple memoranda of law on the subject of proper service to an out-of-state defendant and evidentiary hearings were held on June 27, 2006 and August 21, 2006.
Maria Gomez is now allegedly known as Maria Quintero, following a name change pursuant to marriage.
The plaintiff has sought to serve the defendant with a summons and complaint under the authority of General Statues § 52-59b(c) which states, in relevant part: "Any non-resident individual . . . over whom a court may exercise personal jurisdiction . . . 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 . . . personally. The process shall be served upon the Secretary of the State . . . and by sending to the defendant at the defendant's last known address . . . a like true and attested copy . . ." (Emphasis added.) While there is no dispute that the Secretary of the State received a copy of the summons and complaint, the parties dispute whether Maria Gomez has been served by certified mail at her last known address.
Although Maria Gomez is required to challenge the court's jurisdiction by a motion to dismiss, "the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983). "When a plaintiff invokes § 52-59b of the Statutes to obtain such service, he must demonstrate that in so doing there is a reasonable probability of actual notice of the pendency of the action to the defendant." (Citation omitted; internal quotation marks omitted.) Westcott v. Exwood Property Corp., Superior Court, judicial district of New Britain, Docket No. CV 96 0475950 (May 28, 1998, Gaffney, J.) ( 22 Conn. L. Rptr. 351).
"Affidavits are insufficient to determine factual issues raised on a motion to dismiss unless . . . they disclose that no genuine issue as to a material fact exists . . . If a motion to dismiss turns on disputed issues of fact, an evidentiary hearing must be held to afford the parties an opportunity to present evidence and to cross-examine adverse witnesses." (Citation omitted; internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn.App. 591, 594 n. 3, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002). In this case, the court granted the plaintiff's motion for an evidentiary hearing based on the existence of disputed issues of fact.
According to evidence presented at the hearing, the plaintiff obtained two possible Massachusetts addresses for Maria Quintero. These addresses were obtained from the Farmington Valley Health District, which issues food service permits. The owner listed on the 2002 application was Maria Quintero with her address as 86 Chapin Ten, Chicopee, Massachusetts. In addition, the Health District received a 2006 application that included the name of Maria Quintero as owner. The address listed on this application for Quintero was 53 Empire St., Apt. F, Chicopee, Massachusetts.
The marshal's return filed on December 8, 2005, however, indicates that a copy of the summons and complaint were placed in the mail, certified with return receipt requested, to Maria Gomez at the two following addresses: 161 Lawrence St., Gardner, Massachusetts 01440 and 139 Seventh St., Leominster, Massachusetts 01453. With respect to the Gardner address, the marshal's supplemental return indicates "attempted — not known" and with respect to the Leominster address, the return indicates "unclaimed." Moreover, as demonstrated by the testimony of the plaintiff's own witnesses at the evidentiary hearing, the Gardner address was the address that the Farmington Valley Health District had obtained for Elkin Gomez and Jacqueline Strickland. The plaintiff presented no evidence, however, demonstrating that this address was ever an address shared by Maria Gomez. Similarly, the plaintiff presented no evidence that the Leominster address listed in the marshal's return was ever utilized by Maria Gomez.
While no higher court decisions have addressed the issue of constructive service as it pertains to § 52-59b, case law emanating from similar provisions under General Statutes § 52-62 for constructive service upon non-residents in motor vehicle actions is instructive. The Supreme Court has stated that "it is reasonable probability of notice, not actual notice, which is the test . . . The requirement that the copy [of the summons and complaint] be mailed to the defendant at his `last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it. Unless the defendant has departed for parts unknown, it means his actual address; if he has disappeared it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute." (Citations omitted; emphasis added.) Hartley v. Vitiello, 113 Conn. 74, 80, 154 A. 255 (1931).
General Statutes § 52-62 states, in relevant part: "Any nonresident of this state who causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state shall be deemed to have appointed the Commissioner of Motor Vehicles as his attorney and to have agreed that any process in any civil action brought against him on account of any claim for damages resulting from the alleged negligence of the nonresident or his agent or servant in the use or operation of any motor vehicle upon any public highway or elsewhere in this state may be served upon the commissioner and shall have the same validity as if served upon the nonresident personally . . . Process in such a civil action against a nonresident shall be served by the officer to whom the process is directed upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner . . . a true and attested copy thereof, and by sending to the defendant by registered or certified mail, postage prepaid, a like true and attested copy . . . addressed to the defendant . . . at his last-known address."
Several Superior Court decisions have addressed the extent of the search the plaintiff is required to perform in order to determine the last-known address of the defendant in any particular set of circumstances. See D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 171, 455 A.2d 833 (1983) ("[s]ending a copy by registered mail to [the original defendant's] wife, under the circumstances of the case, would satisfy the `last-known address' requirement"); The Cadle Co. v. Crown Amoco, Superior Court, judicial district of New Haven, Docket No. CV 93 0350875 (August 11, 2000 Pittman, J.) ( 27 Conn. L. Rptr. 680) ("defendants cannot passively avoid service of process under the long arm statute by moving thereafter and leaving no forwarding address"); DeManche v. Downs, Superior Court, judicial district of Hartford, Docket No. CV 96 0559483 (February 5, 1997, Sullivan, J.) ( 19 Conn. L. Rptr. 259) ("[i]t is probable that this process [registered mail] would have come to the attention of the defendant had he taken customary, reasonable and prudent steps of maintaining a forwarding address at the post office"); Prudential Home Mortgage Co. v. Gajnos, Superior Court, judicial district of Litchfield, Docket No. CV 95 0060886 (November 17, 1995, Pickett, J.) (address determined by search firm was constituted defendant's last known address); but see Westcott v. Exwood Property Corp., supra, Superior Court, Docket No. CV 96 0475950 (plaintiff made only "a cursory, if not careless, effort . . . more than two years after the fact, to ascertain the third-party defendant's address or verify the accuracy of the address used").
At the hearing, the plaintiff established that she performed a search for Maria Gomez' address utilizing resources which are available to ordinary members of the public. The plaintiff, however, inexplicably made no attempt to serve the defendant at an address that the plaintiff had obtained for her (i.e. either of the two Chicopee addresses). As such, the plaintiff has failed to sustain her burden of proving that constructive service of process was accomplished for Maria Gomez.
The defendant has additionally claimed insufficiency of process as a ground for her motion to dismiss, asserting that she was not properly identified to the extent that she has not used the name Gomez for many years. Further, she claims that the restaurant which she was named as "doing business as" was variously referred to as Goomba's Pasta and Pizza, Goomba's Restaurant, Goomba's Pizza and Pasta, etc., in the complaint, which differed from how she was referred to in the summons, which was simply "Maria Gomez, d/b/a Goomba's Pasta and Pizza." The court, however, is not convinced that these defects are jurisdictional in nature, since had the defendant been properly served, the defendant should have known she was the intended defendant and that there is no basis to believe that the defendant was misled to her prejudice. See Andover Limited Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995). Indeed in Hillman v. Greenwich, 217 Conn. 520, 526, 587 A.2d 99 (1991), the court held that "[a]lthough the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons." See also Sargent v. Capital Airlines, Inc., 96 Conn.App. 320, 901 A.2d 55 (2006). Moreover, the Sargent court observed that "General Statutes § 52-123 provides . . . that `[n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.'" Id., 323. "It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of [his] complaint for mere circumstantial defects . . . Indeed, § 52-123 . . . protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties." (Internal quotation marks omitted.) Id., citing Hillman v. Greenwich, supra, 217 Conn. 527.
For the reasons stated, however, the court grants the motion to dismiss filed by Maria Gomez based on insufficiency of service of process. While the addresses obtained by the plaintiff for Maria Gomez were found in a reasonable manner, there is no evidence to indicate that the plaintiff actually attempted service at the addresses which the plaintiff had obtained during a diligent search of business records. The court cannot find that Maria Gomez would have reasonable probability of actual notice and thus is deprived of personal jurisdiction over her.