2011 Ct. Sup. 4513
No. FBT-CV 10-6008474 SConnecticut Superior Court Judicial District of Fairfield at Bridgeport
February 8, 2011
MEMORANDUM OF DECISION
BELLIS, J.
In the case presently before the court, the plaintiff, Jesus Ruiz, claims personal injury from a March 6, 2008 fall at premises located at 101-105 Clinton Avenue, Bridgeport, which were allegedly owned, controlled and/or maintained by the defendants, The Young Men’s Christian Association of Bridgeport, Connecticut aka the Young Men’s Christian Association of Greater Bridgeport, Inc., (hereinafter referred to as YMCA of Bridgeport), the Community Capital Fund, Inc., and Central Connecticut Coast Young Men’s Christian Association, Inc. (hereinafter referred to as CCCYMCA).
On June 7, 2010, the defendant: CCCYMCA filed a timely[1] motion to dismiss the complaint based on a lack of personal jurisdiction over the defendant due to insufficient service of process. In support of the motion, the defendant filed an affidavit of Douglas Lisk, Senior Vice President of CCCYMCA. The plaintiff filed an objection and memorandum in opposition on August 11, 2010. An evidentiary hearing was held on January 31, 2011.
II
“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 . . .” Practice Book § 10-30. “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 (2007). “[A]ny claim of lack of jurisdiction over the person as a result of an insufficiency of CT Page 4514 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. Lumbermen’s 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 South-Eastern 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., supra at 515. “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 CT Page 4515 based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer’s] return.” (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n. 9, 674 A.2d 426 (1996); Cogswell v. American Transit Ins. Co., supra at 515.
CCCYMCA takes the position that the action should be dismissed due to insufficiency of service of process. Specifically, it argues that the plaintiff has failed to satisfy the service requirements set forth in Connecticut General Statutes § 52-57(c).[2] The plaintiff claims that proper service was effectuated pursuant to § 52-57(c). The plaintiff alleges in his complaint, and the defendant agrees, that the defendant is a Connecticut corporation[3] additionally, both parties agree that C.G.S. § 52-57(c) is the controlling statute.
Here, the return of service indicates that on March 8, 2010, the state marshal, N.E. Nikola, made service on CCCYMCA by “leaving a True and Attest Copy with and in the hands of Else Jones, person authorized to accept service for the within named defendant CCC, Inc., at 850 Park Avenue, Bridgeport, CT.” The testimony of Marshal Nikola established that while he did not recognize Jones, who was present in court, he served her with the documents and while he did not ask her for her title or her supervisor, she did not indicate that she was not authorized to accept service.
Jones also testified, establishing that she was employed as the member service coordinator at the Bridgeport YMCA, which is a branch of CCCYMCA. Jones testified that CCC YMCA’s corporate office is in New Haven, which she routinely communicates with, and she also testified that she was paid by CCCYMCA.
Finally, the affidavit of Lisk indicates that CCCYMCA has twelve branch facilities, including the Bridgeport branch where Jones was employed as a Member Service Coordinator. According to Lisk, Jones was not the person in charge of the office or the business of CCCYMCA. Lisk, the senior vice president at CCCYMCA, indicates that its principal office is located at 1240 Chapel Street, New Haven, Connecticut.
Also received as a full exhibit was a certificate of merger filed on the Bridgeport land records on January 30, 1995, indicating that the YMCA of Greater New Haven had merged with the YMCA of Greater Bridgeport, Inc., with the YMCA of Greater Bridgeport, Inc. being the surviving corporation under the name of CCCYMCA, Inc., with a principal place of business at 651 State Street in Bridgeport, CT. Thus, according to the merger agreement, the YMCA of Bridgeport survived under the name CT Page 4516 of CCCYMCA.
The court finds that on March 8, 2010, Marshal Nikola served the writ, summons, and complaint in this case on Else Jones, who was employed as a member service coordinator at the YMCA of Bridgeport. The court further finds that the YMCA of Bridgeport had merged with another corporation, that the surviving corporation is CCCYMCA, with a principal place of business in New Haven, Connecticut, at 1240 Chapel Street, and that Jones worked for and was paid by CCCYMCA.
Here, the burden is on the plaintiff “to offer evidence or testimony relating to the position and responsibilities of the individual accepting service on behalf of the defendant . . .” Nelson v. Stop Shop Cos., 25 Conn.App. 637, 641 (1991). “When a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate.” Id. Se Pantein Chanarie Development Co. v. Hartford Cement, 196 Conn. 233 (1985) (trial court properly determined that service upon the defendant’s credit manager was proper service upon person “in charge of the office” pursuant to 52-57(c), where evidence established that defendant’s office clerk referred him to the credit manager for service of papers, credit manager accepted the papers and gave sheriff his business card, identifying himself as the credit manager, the only two officers or directors of the corporation were not present at the time, and there was no evidence of any one else who was in charge of the office at the time of service); Fischel v. Verkerke Reproductions U.S.A., Inc., 21 Conn.App. 339 (1990) (trial court properly dismissed the action for lack of jurisdiction resulting from improper service under 52-57(c), where the individual served was not employed by the defendant and was not, at the time of service, in charge of the office of the corporation); Konover Construction Corp. v. Homesteads, Superior Court, judicial district of Danbury, Docket No. 020345986 (January 28, 2003, White, J.) (granting motion to dismiss, finding service insufficient under § 52-57(c), where evidence established that the marshal served a woman located behind a desk in defendant’s lobby who identified herself as “Diane” and as the only one present in the building, and that no one named “Diane” worked for the defendant). The plaintiff has the burden of establishing that the person served was actually “in charge of the office”; proof that the person served appeared to be in control is insufficient.
In Brown v. Brookville Transport, Ltd., Superior Court, judicial district of New Haven, Docket No. 392820 (February 18, 1999, Blue, J.) [28 Conn. L. Rptr. 662], the court was confronted with a New Brunswick (Canada) service of process CT Page 4517 statute, which provided for service of process on corporations “by leaving a copy of the document with an officer, director, or agent, or with the manager or a person who appears to be in control or management of any office or other place where the corporation carries on business in New Brunswick. (Emphasis added.)” Judge Blue, in determining that the requirement of apparent control or management had been satisfied, provided the following cogent explanation:
New Brunswick’s requirement of apparent control or management is broader than what might be called the actual control requirement of Conn. Gen. Stat. § 52-57(e). Appearance of control is sufficient, even though it may turn out later that the appearance was deceptive. In this respect, New Brunswick law is analogous not to Connecticut law but to Wisconsin law. Wis. Stat. § 801.11(5)(a) provides that service on a corporation may be made upon “the person who is apparently in charge of the office.” The Wisconsin Supreme Court has construed that provision as requiring that a process server’s conclusion as to apparent authority be “reasonable under the circumstances.” Under this standard, a process server has no duty “to inquire and determine the actual authority of the individual summoned to receive service.” A process server specifically “has a right to expect that when he asks for a person to accept service, and, apparently in response to that request, a person comes out and accepts the papers, proper service has been obtained.” As the Wisconsin Supreme Court observed in an earlier decision, to hold otherwise would produce a situation whereby a process server becomes a participant in a game of hide-n-seek at the mercy of secretaries or anyone else who chooses to prevent him from accomplishing his task. (Citations and internal quotations omitted.)
Judge Blue further pointed out that there was no evidence that the person served was actually in charge of the office, and that under Connecticut law, had it applied, service would have been fatally deficient. See Fiore v. Stamford Winair Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 095021310 (May 28, 2009, Bellis, J.) [47 Conn. L. Rptr. 906] (granting motion to dismiss based on insufficiency of service of process, finding that actual control, not apparent control, of the office was required under C.G.S. § 52-57(c)). But see McEvoy v. Plancher, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 04199239 (March 14, 2005, Tyma, J.) [38 Conn. L. Rptr. 887] (where person served pursuant to 52-57(c) identified herself as defendant’s office supervisor and accepted service on behalf of the defendant, held, “it was reasonable for the marshal to believe that the supervisor was `the person in charge of the office’ at the time of service,” denying CT Page 4518 defendant’s motion to dismiss).
Here, Jones was employed as a coordinator of member services at an organization which went under the name of CCCYMCA, was paid by CCCYMCA, regularly communicated with CCCYMCA, and accepted service for CCCYMCA. “The question is whether the person’s position, rank, duties and responsibilities make it reasonably certain that the corporation will be apprised of service made upon that person.” Nelson v. Stop Shop Companies supra at 642 citing 17 A.L.R.3d 625, 630 (internal quotations omitted).
The court finds that Jones was in charge such that service was sufficient. The defendant’s motion to dismiss is therefore denied.
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