Van Leuven v. Nielsen

          FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION TO DISMISS

          Michael P. Shea, U.S.D.J.

         Plaintiff 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.

         I. Introduction

         Van 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.

         (ECF 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. 16.)

         II. Findings of Fact

         At the 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 property.

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 ...