United States District Court, D. Connecticut
RULING RE: MOTION TO DISMISS (DOC. NO. 19)
C. Hall, United States District Judge.
plaintiff, Founders Insurance Co., filed a Complaint on
September 1, 2017, seeking a declaratory judgment against the
defendants, Cuz DHS, LLC (“Cuz”), Gary Cavallaro,
Jeffrey Winslow, Pub 67, LLC, Craig Strilka, and Daniel
DeGeorge. See Complaint (“Compl.”) (Doc.
No. 1). The defendants, Cuz and Gary Cavallaro, filed a
Motion to Dismiss the claims against them on October 9, 2017.
See Motion to Dismiss (“Mot. to
Dismiss”) (Doc. No. 19). Founders Insurance filed an
Amended Complaint on November 2, 2017, in which it removed
Gary Cavallaro as a defendant and added Gina Cavallaro in her
capacity as executrix of Gary Cavallaro's estate.
See Amended Complaint (“Am. Compl.”)
(Doc. No. 25).
reasons set forth below, the court terminates as moot the
Motion to Dismiss with respect to Gary Cavallaro. With
respect to Cuz, the court defers dismissal and, pursuant to
Federal Rule of Civil Procedure 4(m), extends the time to
effectuate service. Founders Insurance is hereby ordered to
execute proper service of process on Cuz by December 18,
FACTS AND PROCEDURAL BACKGROUND
September 1, 2017, Founders Insurance filed a Complaint
against the defendants, Cuz, Gary Cavallaro, Jeffrey Winslow,
Pub 67, Craig Strilka, and Daniel DeGeorge. See
Compl. The Complaint sought a declaratory judgment that
Founders Insurance had no duty to defend or indemnify Cuz or
Gary Cavallaro in the pending case before the Connecticut
Superior Court, Jeffrey Winslow v. Pub 67, LLC et al. See
id. at ¶ 1; Am. Compl. at ¶ 1. In that case,
Jeffrey Winslow alleged that, on May 9, 2015, Cuz, doing
business as Dark Horse Saloon, and Gary Cavallaro sold
alcohol to Daniel DeGeorge, who became aggressive toward and
injured Winslow. See Am. Compl. at ¶¶ 13,
15-18. Winslow alleged, inter alia, that
Cuz and Gary Cavallaro negligently prevented Winslow from
avoiding interaction with DeGeorge and failed to exercise
reasonable care in preventing Winslow's injuries, in
supervising the conduct of the patrons, in providing adequate
security, and in warning Winslow about DeGeorge's
conduct. See id. at ¶¶ 19-22. Winslow sued
Cuz and Gary Cavallaro for negligence and violation of Conn.
Gen. Stat. § 30-102. See id. at ¶¶
Insurance had issued an insurance policy for liquor liability
to Cuz, effective from July 18, 2014, to July 18, 2015.
See id. at ¶ 12. Founders Insurance alleges
that the insurance policy included an “Assault and/or
Battery Exclusion, ” providing that the insurance would
not cover, inter alia, “failure to suppress or
prevent assault and/or battery, ” “selling,
serving, or furnishing alcoholic beverages with results in an
assault and/or battery, ” or “negligent: a)
Employment; b) Investigation; c) Supervision; d) Reporting to
the proper authorities, or failure to report.”
Id. at ¶ 25. Founders Insurance seeks a
declaration that the claims in the Winslow lawsuit are
covered by the exclusion and, therefore, that it is not
obligated to defend or indemnify Cuz or Gary Cavallaro in
that lawsuit. See id. at ¶ 27.
October 4, 2015, Cuz filed for dissolution, effective July
16, 2016-after the events at issue in the Complaint, but
before the filing of the Complaint in this case. See
Memorandum in Support of the Motion to Dismiss (“Mem.
in Supp.”) (Doc. No. 20), Ex. A. Additionally,
Gary Cavallaro passed away on March 16, 2017. See
id. Ex. B. Gary Cavallaro had previously been the sole
member of Cuz and its registered agent of service. See
id. Ex. A. On September 15, 2017, a summons for
defendant Gary Cavallaro was served on Gina Cavallaro, the
executrix of Gary Cavallaro's estate. See
Summons Returned Executed (Doc. No. 17) at 1-2. On that same
date, another summons for Cuz was also served on Gina
Cavallaro. See id. at 1. Summons were also returned
executed for the other defendants, but are not at issue in
this Motion to Dismiss. See id. at 2-3.
October 9, 2017, defendants Gary Cavallaro and Cuz filed a
Motion to Dismiss. See Mot. to Dismiss. As to the
claim against Gary Cavallaro, the Motion argues that the
court lacks subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) because Gary Cavallaro was deceased
at the time the action commenced. See Mem. in Supp.
at 3. Therefore, Cavallaro's estate, not the decedent
himself, was the proper defendant in the suit. See
id. As to the claim against Cuz, the Motion to Dismiss
argues that the court lacks personal jurisdiction under Rule
12(b)(2) because service on Gina Cavallaro was insufficient.
See id. at 4-5. Founders Insurance filed an
Objection to the Motion to Dismiss on October 30, 2017.
See Objection to the Motion to Dismiss (“Obj.
to Mot. to Dismiss”) (Doc. No. 21). It also filed an
Amended Complaint on November 2, 2017, which replaced as a
defendant Gary Cavallaro with Gina Cavallaro, the executrix
of his estate. See Am. Compl.
Rule 12(b)(1) Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1), “[a] case is
properly dismissed for lack of subject matter jurisdiction .
. . when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). The
plaintiff bears the burden of proving the existence of
subject matter jurisdiction by a preponderance of the
evidence. See id.
Rule 12(b)(2) Lack of Personal Jurisdiction
Rule 12(b)(2), “[a] civil action should be dismissed if
the Court lacks personal jurisdiction over a party.”
Bull Bag, LLC v. Remorques Savage, Inc., No.
3:16-CV-1735 (VLB), 2017 WL 3763836, at *2 (D. Conn. Aug. 30,
2017). The plaintiff bears the burden to prove that the court
has jurisdiction over the defendants. See id. In
deciding a motion to dismiss under 12(b)(2), the court has
“considerable procedural leeway” to decide the
motion on pleadings and affidavits, to permit discovery, or
to hold an evidentiary hearing. Perez v. Conn. Dep't
of Corr. Parole Div., No. 3:13-CV-150 JCH, 2013 WL
4760955, at *2 (D. Conn. Sept. 4, 2013). If the court chooses
to rely on the pleadings and affidavits, the plaintiff can
survive a motion to dismiss by making in good faith
“legally sufficient allegations of jurisdiction”
to establish a prima facie showing of jurisdiction. Bull
Bag, 2017 WL 3763836, at *2; see also O'Reilly
v. BJ's Wholesale Club, Inc., No. 3:16-CV-01351,
2017 WL 3032217, at *2 (D. Conn. July 17, 2017). In such
cases, “[a]ll allegations are construed in the light
most favorable to the plaintiff and doubts are resolved in
the plaintiff's favor.” O'Reilly, 2017
WL 3032217, at *2.
of service is a precondition for the court's exercise of
jurisdiction over a party and, therefore constitutes an
interrelated ground on which to dismiss a case for lack of
personal jurisdiction pursuant to Rule 12(b)(2).”
Carliell v. Am. Inv. Exch., LLC, No. 3:12-CV-1700
JCH, 2013 WL 4782133, at *2 (D. Conn. Sept. 5, 2013); see
also Jackson v. State of Conn. Dep't of Pub. Health,
No. 3:15-CV-750 (CSH), 2016 WL 3460304, at *8 (D. Conn. June
20, 2016) ...