Opinion
No. CV05 401 05 06 S, 40 CLR 123
October 7, 2005
MEMORANDUM OF DECISION
Before the court is defendant Ronald Dodsworth's motion to dismiss based on insufficiency of service of process and lack of personal jurisdiction. Plaintiff's opposition to said motion raises the additional claim that the plaintiff is entitled to further discovery and an evidentiary hearing before the court rules on the motion to dismiss.
On July 27, 2005, the plaintiff, Thomas Weihing, filed a seven-count complaint against the defendants Ronald Dodsworth and Enrico Vaccaro. This action arises out of past litigation by the defendants against the plaintiff that was allegedly malicious without probable cause.
Counts one and two allege vexatious litigation against Dodsworth and Vaccarro, respectively. Counts three and four allege intentional infliction of emotional distress against Dodsworth and Vaccaro, respectively. Counts five and six seemingly allege negligent infliction of emotional distress against Dodsworth and Vaccaro, respectively. Count seven alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., on the part of Vaccaro.
On September 1, 2005, Dodsworth filed a motion to dismiss the complaint due to insufficiency of service of process and lack of personal jurisdiction. In response, Weihing filed a memorandum in opposition, as well as a request for further discovery and an evidentiary hearing.
The motion to dismiss was only filed by Dodsworth.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "The grounds which may be asserted in a [motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10.31. "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirement of mandatory statutes in that regard are essential to jurisdiction over the person." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
In support of his motion to dismiss, Dodsworth argues that this court lacks jurisdiction over him because at the time he was served he was a resident of Colorado and was present in Connecticut in order to testify before an arbitrator in the matter of Weihing v. Dodsworth. Weihing counters that immunity from service of process does not extend to nonresident parties such as Dodsworth.
Weihing v. Dodsworth, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0375062.
It is long established that a nonresident individual in our state for the purpose of serving as a witness in legal proceedings is immune from service of process. Chittenden v. Carter, 82 Conn. 585, 74 A. 884 (1909). This immunity is not extended to nonresident plaintiffs attending legal proceedings of their civil action in this state. Bishop v. Vose, 27 Conn. 1 (1858). The court in Bishop found that a plaintiff in pursuit of his rights in another action is not entitled to greater rights or immunities than such as are enjoyed by our own citizens. Id., 11-12. This exception to the general rule of immunity is limited to party plaintiffs only. Wilson Sewing Machine Co. v. Wilson, 51 Conn. 595 (1884). Immunity from service of process applies to nonresident party defendants. Id. Whether a defendant is "clothed with immunity from service of process depends upon whether he was a plaintiff in the proceeding in [Connecticut] at the time he was served with civil process." (Emphasis added.) Jakaboski v. Jakaboski, Superior Court, judicial district of Middlesex, Docket No. 074460 (March 7, 1995, Arena J.) ( 13 Conn. L. Rptr. 580, 581), citing Tierney v. Tierney, 12 Conn.Sup. 91, 94 (1943).
This case was argued before the United States Circuit Court, District of Connecticut.
The parties in the present case have a storied past rife with litigation. The record indicates that the current arbitration was based on a suit initiated by Weihing. Therefore, the posture of Dodsworth was as a defendant in the lawsuit that led to the arbitration proceeding.
Having determined that Dodsworth was a defendant in the arbitration proceeding, it is necessary to determine whether an arbitration proceeding is the equivalent of a "judicial proceeding" for purposes of the nonresident witness immunity rule. It is recognized that no Connecticut court has addressed this question. Connecticut courts, however, have held that the nonresident witness immunity rule is implicated in proceedings other than civil trials.
See, e.g., Electric Boat Corp. v. Cooke, Superior Court, judicial district of New London, Docket No. 53714 (July 29, 1996, Hendel, J.) ( 18 Conn. L. Rptr. 266) (defendant was attending a deposition in connection to a federal court trial); Jakaboski v. Jakaboski, supra, 13 Conn. L. Rptr. 580 (defendant was serving as a witness in a probate court hearing); Tierney v. Tierney, supra, 12 Conn.Sup. 91 (defendant testified in lawyer's office in connection to a final account filed in probate court.)
In Tierney, the court noted that the doctrine of nonresident witness immunity "embraces witnesses who testified by deposition as well as those who give their testimony during the course of a trial, hearing or other proceeding." Tierney v. Tierney, supra, 12 Conn.Sup. 92. Arbitration is favored by law and is designed to avoid litigation and secure prompt settlement of disputes. Gaer Bros., Inc. v. Mott, 144 Conn. 303, 307, 130 A.2d 804 (1957). Furthermore, arbitrators and any other persons qualified by law to issue subpoenas in civil actions are empowered by statute to issue subpoenas for the attendance of witnesses at arbitration proceedings. General Statutes § 52-412(a). Also, the Appellate Court has referred to arbitration as a "quasi-judicial proceeding" and extended the doctrine of testimonial immunity to statements made during arbitration proceedings. Preston v. O'Rourke, 74 Conn.App. 301, 312, 811 A.2d 753 (2002). Arbitration proceedings serve the same function as judicial proceedings when parties agree to be bound by an arbitrator's decision. When all said this court finds no reason to distinguish an arbitration proceeding such as the one in this case from a judicial proceeding for purposes of applying the nonresident witness immunity rule. Since Dodsworth was testifying as the defendant in an arbitration proceeding, he was immune from service of process. In applying the immunity rule to Dodsworth, it is not suggested that he is not subject to Connecticut's long-arm jurisdiction. See General Statutes § 52-59b.
New York and Florida have extended the rule to arbitration proceedings. Pavlo v. James, 437 F.Sup. 125 (S.D.N.Y. 1977); Treadway Inns Corp. v. Chase, 47 Misc.2d 937, 263 N.Y.S.2d 551 (1965); Lee v. Stevens of Florida, Inc., 578 So.2d 867 (1991).
Weihing also requested an extension of time to conduct discovery, as well as have an evidentiary hearing. "When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). In Pinchbeck v. Dept. of Public Health, 65 Conn.App. 201, 782 A.2d 424, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001), however, the court explained that "[i]n the absence of any disputed facts pertaining to jurisdiction, a court is not obligated to hold an evidentiary hearing before dismissing an action for lack of jurisdiction." Id., 209.
The plaintiff has not alleged, and the record does not indicate, that there is any fact in dispute that would require further discovery or an evidentiary hearing pertaining to the service of process on Dodsworth. The plaintiff's arguments are addressed to the issue of the personal jurisdiction over Dodsworth and whether he had sufficient minimum contacts with the state according to the standards set out in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The defendant, however, was served in hand and does not contest the issue of his minimum contacts with this state, but rather that he was immune from service at the time he was served. To this issue, the plaintiff has presented no disputed issue of fact. Due to the absence of a disputed fact, the court is not required to permit further discovery or an evidentiary hearing.
For the foregoing reasons, defendant Dodsworth's motion to dismiss is granted and plaintiff Weihing's request for an extension of time for further discovery and an evidentiary hearing is denied.
Skolnick, J.