JOSEPH ABATE, ADMINISTRATOR ET AL. v. AAF-MCQUAY, INC. ET AL.

2011 Ct. Sup. 14195
No. CV 10-6006228 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
June 27, 2011

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE MOTION TO DISMISS (Motion #127.00)
BELLIS, J.

FACTS
The plaintiff, Joseph Abate, Jr., brings this action in his individual capacity, as well as in his capacity as administrator of the estate of his decedent/spouse, Sharon Abate. In his fourth amended complaint, filed on March 2, 2011, Abate alleges exposure to asbestos-containing products during the period between 1962-1990 through direct and second hand exposure “while the spouse [Joseph Abate] of the plaintiff’s decedent was working in Connecticut as a professional auto mechanic . . .” and also alleges that the “[d]ecedent was also exposed to asbestos containing products while working alongside her husband at his garage.” Abate contends that such exposure contributed to his decedent’s asbestos-related mesothelioma and other asbestos-related pathologies. Abate further claims, in pertinent part, that the defendants “supplied, distributed, delivered, marketed and/or sold asbestos-containing products” to Abate’s employer or to others working at various Connecticut job sites “or to third persons who, in turn, delivered and sold such products and materials to such employers or to others working at such [job sites] for use by employees, including [Abate].” Abate alleges he was exposed to asbestos and materials as part of his employment and he was forced to come into contact with, breathe, inhale and ingest asbestos fibers and particles.

Specifically, counts one and two allege causes of action pursuant to Connecticut’s Product Liability Act and wrongful death statute, respectively. The third count claims that for decades the defendants possessed medical and scientific data, studies and reports establishing that health and safety hazards existed with respect to asbestos-containing products but that the defendants failed to publish this information. Abate characterizes the defendants’ actions as grossly negligent, willful, wanton, malicious and CT Page 14196 outrageous. Count four alleges loss of consortium.

On July 6, 2010, one of the defendants, Tomco, Inc., filed a motion to dismiss and supporting memorandum of law on the basis that General Statutes § 33-929, which deals with service of process on foreign corporations, is inapplicable to Tomco and that Abate’s service of process upon Tomco was insufficient pursuant to General Statutes §§ 52-46 and 52-46a. Abate filed an opposition on August 18, 2010 and Tomco filed its reply to Abate’s opposition on September 2, 2010. Abate further filed two supplemental memoranda in opposition to Tomco’s motion.

The defective service of process and the defective return of process issue is dispositive of the motion to dismiss, therefore, it will be addressed first.

DISCUSSION
“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.” (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. Of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). “A motion to dismiss tests inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.)Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).

Defective Process
Tomco claims that its motion to dismiss should be granted on the basis that Abate failed to comply with the provisions of General Statutes §§ 52-46 and 52-46a. Concerning the time for service, General Statutes § 52-46 provides that “[c]ivil process shall be served at least twelve days, inclusive, before such date [the day of the sitting of the court].” General Statutes § 33-929(d) provides that service is effective “at the earliest of:” (1) the date the foreign corporation received the mail; (2) the date indicated on the return receipt when signed on behalf of the foreign corporation; and (3) five days following its deposit in the United States mail. Further, General Statutes § 52-46a, governing return of process, provides that such process shall be returned to the “clerk of such court at least six days before the return date.”

CT Page 14197 Contrary to Abate’s assertion that the delay in service is “a technical, superficial flaw” that has no substantive bearing on the claims being asserted, “[p]roper service of process is not some mere technicality. [It] gives a court power to render a judgment which will satisfy due process under the 14th amendment of the federal constitution and the equivalent provisions of the Connecticut constitution and which will be entitled to recognition under the full faith and credit clause of the federal constitution . . . All process must be served at least twelve days before the return date, including the day of service and excluding the return day.” (Citations omitted; internal quotation marks omitted) Hibner v. Bruening, 78 Conn.App, 456, 458, 828 A.2d 150 (2003).

Here, the return date indicated on the summons is January 26, 2010. The marshal’s return indicates that civil process was mailed to Tomco on January 13, 2010 by depositing the process at the United States Post Office in New Haven, certified mail postage prepaid, return receipt requested. As evidence by his affidavit attached to Tomco’s Motion to Dismiss, Robert Killion, Tomco’s president, attested that he received the process on January 19, 2010. Further, the process was returned to the court on January 22, 2010. Accordingly, Abate has not complied with General Statutes § 52-46 and § 52-46a because the process was not served at least twelve days before the return day, nor was it returned to court six days prior to the return day.

Although General Statutes § 52-72 provides for a proper amendment to civil process under certain circumstances, a plaintiff must move to amend affirmatively. Szeligowski v. Lowe’s Cos., Superior Court, Judicial District of New Haven, Docket No. CV 06 5004507 (January 23, 2007, Holden, J.) [42 Conn. L. Rptr. 714]; Batura v. Turk, Superior Court, Judicial District of Fairfield Docket No. CV 02 400165 (September 8, 2003, Rush, J. (35 Conn. L. Rptr. 509, 511) (where plaintiff did not comply with General Statutes § 52-46 and § 52-48, court dismissed action when plaintiff did not move to amend return date and return date violates § 52-48). In any event, the parties could not have amended the return date and complied with the two-month time limit imposed by General Statutes § 52-48(b) when the return date was dated more than two months following the date of the process. See, e.g. Szeligowski v. Lowe’s Cos., supra. Superior Court, Docket No. CV 06 5004607.

Previously, this court has emphasized the importance of conforming CT Page 14198 to the statutory scheme regulating the timeliness of service of process and the return of process. In D’Agostino v. Orange, Superior Court, Judicial District of New Haven, Docket No. CV 07 5015301, (March 14, 2008, Bellis, J.), a case that had been dismissed for dormancy, the court emphasized that it could “dismiss an action for failure to timely return the service of process.” The court cited Batura v. Turk, supra, Superior Court, Docket No. 02 400165, as an example of a proper dismissal because i Batura the plaintiff returned the process to court seven weeks following the return date, three months after the date of process “and where the plaintiff had not moved to amend the return date.”[1] Ultimately, distinguishing the D’Agostino
case from Batura, this court denied the motion to dismiss i D’Agostino, emphasizing that the parties properly had moved to amend the return date. In the present case, however, although the return date is dated within two months of the date of the process, there is no indication that Abate has filed a motion to amend the return date.

Accordingly, as both the service of process and the return of process are in derogation of General Statutes § 52-46 and § 52-46a and, because no authority has been cited to allow the court to amend the return date, this is a proper grounds for dismissal.

Also, as previously set forth, Tomco moves to dismiss on the ground that Connecticut’s long-arm statute does not apply to it and subjecting Tomco to Connecticut’s jurisdiction violates due process protections.

“When a defendant challenges personal jurisdiction . . . the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.”Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).

Connecticut’s long-arm statute, General Statutes § 33-929(f), asserts jurisdiction over a foreign corporation (1) out of any contract made or performed in Connecticut; (2) out of any business solicited in Connecticut by mail or otherwise; “(3) out of the production, manufacture or distribution of goods by such corporation CT Page 14199 with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers . . .”; and, finally, (4) out of tortious conduct in the state.

Count one alleges that Tomco has conducted business in Connecticut and “has produced, manufactured or distributed asbestos and/or asbestos products with the reasonable expectation that such products were so used or consumed . . .” Tomco contends that the complaint fails to allege any facts that would assert jurisdiction under subsections (1), (2) or (4), and, therefore, the only provision that could apply is subsection (3). Tomco further maintains that it has never solicited business in Connecticut, sold directly to end-use customers nor received revenue exceeding more than one-tenth of one percent of its total yearly revenue. Further, it argues that it is not registered in Connecticut, has not owned or leased property in the state, and has not maintained employees in the state.

In its objection, dated August 18, 2010, Abate counters that the evidence demonstrates that, through intermediaries, Tomco sold products into a Connecticut market and that it received a substantial profit as a result of such sales. In its supplemental objection to Tomco’s motion to dismiss, dated October 14, 2010, Abate argues that in its responses to Abate’s discovery requests, Tomco admits that it has sold or distributed products in Connecticut and that, from the early 1980s to the present, Tomco was aware that its products were sold to customers and used by end-users in Connecticut. Abate further claims that Tomco was aware that its sales and marketing literature was distributed in Connecticut from 1983 to the present.[2]

Both parties cite to Goldstein v. Nutrition Now, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 96 0150429 (August 23, 1999, Sheldon, J.) (25 Conn. L. Rptr. 447), to support their respective positions. In the Goldstein case, the moving party, Brewster Foods, moved to dismiss Nutrition Now’s complaint on the basis that Brewster had never engaged in any conduct falling within Connecticut’s long-arm statute’s limited scope and that asserting jurisdiction over it would violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The president of Brewster Foods averred that the company was a California corporation that sold its CT Page 14200 products to two non-Connecticut customers only. Occasionally, however, one of Brewster’s California-based customers would order Brewster’s products and then instruct Brewster to ship the products directly to a customer located in Middletown, Connecticut — one such customer was Nutrition Now.

The court concluded that Nutrition Now had failed to meet its burden of establishing jurisdiction over Brewster on the facts as presented. The court observed that twelve transactions had taken place over the period of two years when Brewster had shipped small quantities of its product to Connecticut at the behest of its non-Connecticut customer, shipments that Brewster neither solicited, directed or controlled. Further the court noted that such “sales represented approximately one-quarter of one percent” of Brewster’s gross sales during the two-year period in question, and that Brewster was not licensed in Connecticut and had never maintained an office, phone number, employee, sales force or agent for service of process here. Further, Brewster had neither solicited business nor published advertising in Connecticut.

Upon determining that Connecticut’s long-arm statute did not exert jurisdiction over Brewster, the court, after undergoing a pro forma constitutional due process analysis, concluded that Brewster’s motion to dismiss should be granted.

In the present case, Killion’s affidavit, attached to Abate’s second supplemental objection, attests to the following.[3] Tomco is neither registered to do business in Connecticut nor does it possess any real property in this state. Tomco does not actively solicit business in Connecticut, maintain employees, nor maintain a telephone number in Connecticut. In addition, Tomco has never sold products directly to automotive repair shops in this state and, if any Tomco products were sold to repair shops, it was under a three-step distribution process: initial sale to a warehouse distributor that sold the product to a parts store, who then sold it to an automotive repair shop.

General Statutes § 33-929(f)(3) not only provides that a foreign corporation is subject to suit here when that corporation has a “reasonable expectation that such goods are to be used or consumed in this state,” but it further provides that this is so “regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers.” Killion attests that “[i]f any products sold by Tomco were ever ultimately sold to an automotive repair shop in CT Page 14201 Connecticut prior to and including 1990 they were first sold to a warehouses distributor who then sold to a jobber (parts store) who then sold to an automotive repair shop. This was the common practice (three step distribution) prior to and including 1990.” Killion further attests that the yearly revenue “from sales ultimately to Connecticut prior to 1999, including the period prior to 1990, always accounted for less than one-percent of Tomco’s total yearly revenue.” In addition, “sales ultimately to Connecticut from January 1, 2010 to July 1, 2010 . . . represents 0.0003% of Tomco’s total revenue during that period.” Finally, “total revenue from sales ultimately to Connecticut in 2000, which accounted for 0.1740% of Tomco’s total revenue that year, was the most yearly revenue that Tomco has ever derived from Connecticut.”

Again, in Goldstein v. Nutrition Now, Inc., Brewster shipped its goods at the behest of its non-Connecticut customer to Connecticut over a two-year period and the sales represented “approximately one-quarter of one percent of . . . Brewster’s gross sales . . .” Goldstein v. Nutrition, Inc., supra, 25 Conn. L. Rptr. 455. In the present case, Killion attests that sales were “ultimately” made to Connecticut over a multi-year period. Unlike the Goldstein case, where several shipments were made to Connecticut only at the behest of Goldstein’s California customer, Tomco’s sales, extending over a ten-year period were sufficiently frequent to constitute a purposeful connection with Connecticut.

The court further finds that Tomco’s due process arguments are unavailing. The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness United States Trust Co. v. Bohart, 197 Conn. 34, 41 495 A.2d 1034 (1985). Tomco availed itself of the privilege of conducting business with Connecticut by shipping its products to Connecticut warehouse distributors and, as indicated above, it did so in a continuous and systematic way.

Accordingly, Tomco’s motion to dismiss on the ground that Connecticut’s long-arm statute is inapplicable to Tomco or that asserting jurisdiction over it would violate due process is denied on that basis.

Conclusion
Tomco’s motion to dismiss on the basis that process was ineffective as to service and as to the return of process is CT Page 14202 granted.

[1] In Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998), the seminal case addressing the amendment of return dates, the court admonished that allowing such amendments was “consistent with our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court.” (Internal quotation marks omitted.) The Coppola court emphasized that allowing the plaintiff’s motion to amend would not result in a deprivation of the defendant’s substantive rights and would simply correct the return date. In that case, however, the plaintiff affirmatively had sought to amend the date.
[2] Abate’s initial objection to the motion to dismiss requested the court to defer ruling on Tomco’s motion until Tomco responded to certain “jurisdictional interrogatories” that were served on July 21, 2010 as well as a notice for a corporate deposition filed on July 21, 2010. In its reply to Abate’s objection, Tomco stated that it had no objection to Abate’s request. There is no court ruling on this issue nor did Abate request further time to respond to the motion to dismiss.
[3] Abate has attached responses to supplemental requests for admission that he served upon Tomco. Tomco’s responses to each of the requests, however, are set forth as follows:

RESPONSE: Objection pending. Subject to and without waiving said objection, the defendant submits the following response. Admitted. (or Denied.]
“Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney . . . The statement relied on as a binding admission must be clear, deliberate and unequivocal.” (Citation omitted; internal quotation marks omitted.) National Amusements, Inc. v. East Windsor, 84 Conn.App. 473, 482, 854 A.2d 58 (2004). Accordingly, this court will not rely on Tomco’s responses to Abate’s request for admissions in determining whether Connecticut may exercise personal jurisdiction over Tomco, but, rather, will rely on Tomco’s attestations contained in CT Page 14203 his affidavit in making this determination.

CT Page 14204