BRODIE v. DITULLIO, No. CV08 501 86 84 (Feb. 2, 2009)

BELLIS, J.

The case presently before the court arises out of a three-car motor vehicle accident of July 27, 2006. The complaint, returnable September 16, 2008, alleges that the plaintiffs, Doris Brodie and Amin Brodie-Yakubu, were the operator and passenger respectively in a vehicle which was struck by a vehicle operated by one Judith Mucyk, whose vehicle was propelled into the plaintiffs' vehicle by the vehicle owned by the defendant Patsy Ditullio and operated by the defendant Samantha Ditullio. The complaint, which is comprised of four counts, claims that both plaintiffs sustained injuries and damages as a result of the negligence of Samantha Ditullio.

On October 31, 2008, the defendants filed a timely motion to dismiss the complaint, based on a lack of personal jurisdiction over the defendant Samantha Ditullio due to insufficient service of process. A memorandum of law and affidavit of Samantha Ditullio Blessi were filed in support of the motion. While no written opposition was filed by the plaintiffs, counsel on behalf of the plaintiffs argued in opposition to the motion at the evidentiary hearing on January 26, 2008.

"Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of an appearance . . ." "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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 CT Page 2073 (2007) "[A]ny claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days in the sequence required by Practice Book § 10-6 . . ." (Emphasis in original.) Pitchell v. Hartford, 247 Conn. 422, 433, 711 A.2d 797 (1999).

"One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003); Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 234-35, 755 A.2d 990, cert.denied, 254 Conn. 939, 761 A.2d 760 (2000).

"The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "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); Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007); Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004).

"If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). "This general rule is different with respect to determining whether the court has jurisdiction over a defendant that is served personally or through abode service. In those situations, as opposed to situations where service is constructive, i.e., service on a foreign corporation or nonresident individual by mail, the defendant bears the burden of disproving personal jurisdiction. The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer's] return." (Internal quotation marks omitted.) CT Page 2074 Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n. 9, 674 A.2d 426 (1996); Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).

The defendant takes the position that the action should be dismissed due to insufficiency of service of process. Specifically, the defendant argues that the plaintiff has failed to satisfy the service requirements set forth in Connecticut General Statutes § 52-57.

Connecticut General Statutes § 52-57(a) provides as follows: "Except 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, at his usual place of abode, in this state."

Here, the return of service indicates that the state marshal, Thomas Foldy, made service on the defendant by "leaving a true and attested copy of the original Summons-Civil" at the defendant's "usual place of abode" at 48 Brookside Drive in Trumbull, Connecticut, on July 30, 2008. However the affidavit of the defendant as well as her testimony which was entirely consistent with her affidavit, establishes that the defendant moved to 101 Country Place in Shelton, Connecticut in May of 2008, and that she notified the State of Connecticut Department of Motor Vehicles of this change of address on July 11, 2008. By agreement, a copy of her Connecticut driver's license was submitted as an exhibit. The license, which had an issue date of July 11, 2008, lists her address as 101 Country Place and provides further support for the defendant's argument.

Here, there was no indication on the return of service nor was there any evidence presented that the marshal served the defendant at the address on file at the Department of Motor Vehicles nor was there any indication that the marshal attempted to use the constructive service procedure set forth in Connecticut General Statute § 52-63. Niskanen v. Koen, Superior Court, judicial district of New London, Docket No. 546907 (July 6, 1999, Mihalakos, J.) (service of process upheld when return of service indicated that marshal served the address on file at the department of motor vehicles even though plaintiff presented a driver's license with a new address that was issued before the service of process date); Lucarelli v. Cianciolo, Superior Court, judicial district of Waterbury, Docket No. 0120229 (October 7, 1994, Flynn, J.) (same); Gallagher v. Bluestein, Superior Court, judicial district of Fairfield, Docket No. CV04 4002473 (April 28, 2005, Doherty, J.) (39 Conn. L. Rptr. 262) (constructive service at address on file with the department of motor vehicles upheld even though defendant had submitted a change of CT Page 2075 address form that was improperly recorded by the department of motor vehicles).

For the foregoing reasons, the defendant's motion to dismiss is granted.