Rivera v. Pereira

Edith RIVERA v. Carlos A. PEREIRA

No. HHDCV196110242S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

August 27, 2019

UNPUBLISHED OPINION

OPINION

ROBERT B. SHAPIRO, JUDGE TRIAL REFEREE

Before the court is the defendant’s motion to dismiss (#105). The issue presented is whether the court should grant the motion to dismiss on the grounds that the defendant’s affidavit conclusively established a lack of jurisdiction and rebutted the marshal’s return of service which provided that he served the defendant by abode service. The court heard oral argument at short calendar on July 8, 2019.

I Background

The plaintiff, Edith Rivera, brought an action against the defendant, Carlos A. Pereira, for damages she suffered when she allegedly slipped and fell on the defendant’s property located at 107 Hamilton Street, Hartford, Connecticut (property). The plaintiff alleged that on March 17, 2017, she was an invitee/guest walking on the defendant’s driveway when she slipped and fell on an accumulation of ice. The plaintiff commenced this action by abode service on March 16, 2019 which is the subject of this motion. The marshal’s return provided that service was made upon the defendant "by leaving a true and attested copy of original WRIT, SUMMONS AND COMPLAINT, at the usual place of abode at, 107 Hamilton Street, Hartford, CT 06106 ..." The marshal’s return further stated that he verified the defendant’s address with a phone conversation, at time of service.

On May 23, 2019, the defendant filed a motion to dismiss on the ground of insufficient service of process. The defendant has provided an affidavit stating that, on March 16, 2019, he was not living at 107 Hamilton Street, Hartford, CT 06106, nor has he ever lived at 107 Hamilton Street, Hartford, CT 06106. The defendant asserted that tenants occupied that property. In his affidavit the defendant also stated that he never told the marshal his address or that he lived at 107 Hamilton Street, Hartford, CT 06106. The affidavit provides the defendant’s address as of March 16, 2019 and his previous address, neither of which were 107 Hamilton Street, Hartford CT 06106. The plaintiff filed an objection to the motion in which the plaintiff stated that she "stands on the Officer’s Return, dated March 16, 2019 ..."

II Standard of Review

"The mode of service provided generally for civil actions in Connecticut appears in General Statutes § 52-57 ..." Smith v. Smith, 150 Conn. 15, 19, 183 A.2d 848 (1962). Section 52-57 requires that "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, or at his usual place of abode, in this state." "[W]hen a particular method of serving process is set forth by statute, that method must be followed ... Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ... The jurisdiction that is found lacking ... is jurisdiction over the person ..." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). "Failure to comply with the statutory requirements of service renders a complaint subject to a motion to dismiss on the ground of lack of personal jurisdiction ... Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Id., 401. Therefore, "an action commenced by ... improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).

III Discussion

In the present case, the defendant argued that the court should grant the motion to dismiss on the ground of insufficiency of service of process. Specifically, the defendant argued that service of process was insufficient because he did not reside at the address where the marshal left the service documents. The defendant further argued that he had never lived at the address where service was made, and although he owns the property, only tenants lived at that address. The plaintiff provided no arguments or evidence to counter the defendant’s rebuttal of the marshal’s return.

Under Connecticut law, it is well established that a marshal’s return of service constitutes prima facie evidence of factual matter that a marshal has stated therein. See People’s United Bank, National Assn. v. Purcell, 187 Conn.App. 523, 526, 202 A.3d 1112 (2019); Tax Collector v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). "[A] defendant who contests the facts stated in the [Marshal’s] return bears the initial burden of disproving personal jurisdiction." (Emphasis in original.) Jimenez v. DeRosa, 109 Conn.App. 332, 341, 951 A.2d 632 (2008). "When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction unless sufficient evidence is introduced to prove otherwise." (Internal quotation marks omitted.) Id., 339. Nevertheless, "[i]f affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings." Design for Health, Inc. v. Miller, 187 Conn.App. 1, 8, 201 A.3d 115 (2019).

Here abode service of process on the defendant was insufficient. Although the marshal’s return serves as prima facie evidence of...