United States District Court, D. Connecticut
FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION TO
Michael P. Shea, U.S.D.J.
Joseph Van Leuven (“Van Leuven”) brought this
suit against Defendant Bjorn Nielsen (“Nielsen”),
alleging that Nielsen initiated malicious and vexatious
litigation against him in a prior lawsuit. Nielsen moved to
dismiss Van Leuven's complaint for improper service and
lack of personal jurisdiction. (ECF No. 13.) Because the
parties submitted papers related to the motion that raised
factual disputes, the Court held an evidentiary hearing on
the motion on January 22, 2019. At the hearing, Van Leuven
presented a single witness-a private investigator-and
introduced two exhibits. Nielsen called no witnesses and
presented no exhibits. This memorandum sets forth my factual
findings and legal conclusions following the hearing, as a
result of which I DENY Nielsen's motion to dismiss.
Leuven filed this suit against Nielsen on June 13, 2018. (ECF
No. 1.) On June 22, 2018, Van Leuven filed a proof of service
form completed by John Corelli, a state marshal. (ECF No.
10.) The form indicated that on June 19, 2018, Corelli left
the summons at Nielsen's residence or usual place of
abode, noted as 172B Milbank Avenue in Greenwich,
Connecticut, with an individual named Carol Gellos
(“Gellos”). (ECF Nos. 10, 10-1.) Nielsen moved to
dismiss the complaint for lack of service, arguing that
Gellos, and not Nielsen, lived at 172B Milbank Avenue at the
time of service, and attaching affidavits from both Nielsen
and Gellos contesting service.
Nos. 13-1 at 2-3, 13-2, 13-3.) Following Van Leuven's
opposition, which included opposing affidavits and public
records (ECF Nos. 14, 14-1, 14-2, 14-3, 14-4), and
Nielsen's reply brief and declaration (ECF No. 15, 15-1),
I ordered that an evidentiary hearing be held on “both
the propriety of ‘abode' service and the existence
of diversity jurisdiction, ” which I found
“turn[ed] on disputed issues of fact.” (ECF No.
Findings of Fact
evidentiary hearing, Van Leuven elicited testimony from
Michael Hunter (“Hunter”), a licensed private
investigator who was hired by Van Leuven's counsel to
investigate Nielsen's whereabouts. Van Leuven also
successfully moved into evidence two exhibits: (1) a State of
Connecticut, Department of Motor Vehicles driving history as
of 12/31/2018 showing a Connecticut operator's license
for Bjorn Nielsen; and (2) a notarized letter attaching
several documents, including Mr. Nielsen's voter
registration card with the Town of Greenwich. Nielsen did not
elicit any testimony or offer any exhibits, but simply
cross-examined Mr. Hunter. Based on the foregoing evidence, I
make the following findings of fact:
1. Hunter was hired by Van Leuven's counsel to locate
Nielsen. Hunter obtained Nielsen's cell phone number from
a LexisNexis search.
2. 172 Milbank Avenue is a building two to three stories
high. The front of the building has a door for apartment
“A, ” and down the driveway on the right side of
the building is a door for apartment “B.” Each
apartment is a one-family residence.
3. Soon after running the background check on Nielsen but
before June 11, 2018, Hunter visited 172 Milbank Avenue and
knocked on the door for both apartments. Only the tenant for
172A Milbank Avenue opened the door. Nobody answered the door
to 172B Milbank Avenue during that visit.
4. On or about June 11, 2018, Hunter called the cell phone
number he obtained from LexisNexis on two occasions. On both
calls, Hunter reached someone who identified himself as
Nielsen, and who I conclude was in fact Nielsen.
5. On the first call, Hunter told Nielsen that Hunter was
trying to deliver a package to Nielsen. Hunter may have also
said that Hunter worked for a package delivery company.
Hunter did not tell Nielsen what the contents of the package
was. Nielsen responded that he was out of the country at the
time, but that Hunter could leave the package at his
residence. Nielsen said that his residence was 172 Milbank
Avenue in Greenwich. Nielsen also said that 172 Milbank
Avenue was his “home” and that he owned the
6. Following the first call, Hunter went to 172B Milbank
Avenue and again called Nielsen.
7. On the second call, Nielsen told Hunter to go ahead and
deliver the package to ...