Docket No.

: WWM-CV16-50065130-S : Superior Court

:
Southbridge MA, SNF, LLC : Judicial District of Windham

: At Putnam
v.

Keith M. Curran : January 02, 2017, Monday

Memorandum of Law in Support of

Defendants Motion to Dismiss

This action must be dismissed because this court; (1) lacks of jurisdiction over the
subject matter, (2) lacks of jurisdiction over the person(s), (3) insufficiency of process, (4)
insufficiency of service of process. (5) failure to follow statutory mandates and procedure.

Procedural History:
The matter before this court seeks to determine prejudgment remedy and the
plaintiffs allegations the defendants conducted a fraudulent transfer of property. The
return date was set forth as 8/16/2016.
A return of service was filed in this matter at position #101.00, on 08/09/2016.
Defendant Keith Curran filed a Motion for Extension of Time to Plead at position # 106.00
on 09/19/2016 within 30-days of his filing an appearance, preserving AND tolling his
right to plead before the court. (emphasis) Plaintiff then filed a supplemental return on
09/22/2016 at position # 107.00 (Exhibit A), which attests to failure of service as to all
parties, and is absent indispensable parties. It states an incorrect address as the
defendants abode which violates CGS 52-57. On 9/28/2016 plaintiff objected to the
defendants request for extension of time to plead. Defendant filed a Reply, at position #
111.00 on the same date.
This court granted a case flow request to hear the motion for extension of time to
plead and that matter is presently before the court on January 03, 2016. The defendants
motion is not presently moot due to its filing of this motion to dismiss, and the defendant
has marked and asked this court to adjudicate upon it. It is properly before the court and
should be heard before any other of plaintiffs motions. Furthermore, once the court has
decided on the issue of defendants request for extending time to plead, this court must
contextually evaluate the defendants motion to dismiss challenging its subject matter
jurisdiction based upon this motion for all the reasons so stated below. In fact, this court
may not consider any matters until the issue of its subject matter jurisdiction is determined.

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 Preliminary Issue Affecting the Legal Basis and Standard of a Motion to Dismiss:

The right to attach property on mesne process is created and regulated by statute.

The plaintiff seeks a prejudgment remedy governed under the relevant statutes yet states

in the case history it attempted to serve a signed complaint and proposed summons

alleging that Keith Curran and Dr. Haiying Tao fraudulently transferred property to

themselves. 1 Which appears to make this an attempt to create a civil action.

In the case history of the instant matter; plaintiff has stated that it served a signed

complaint with its service on 8/9/2016. The defendant disagrees. No new or proper

summons to commence an action in mesne was returned or alleged to have been

served. Procedurally, the issue of whether or not the action before this court is an action

in mesne is wholly relevant to the nature of a defendants motion to dismiss the action.

The defendant approaches its motion to dismiss accordingly.

Legal Basis for the Motion:

Practice Book 10-30: A motion to dismiss shall be used to assert (1) lack of

jurisdiction over the subject matter; (2) lack of jurisdiction over the person. (3) insufficiency

of process (4) insufficiency of service of process.

1
The same subject matter property belonging to defendant that the Connecticut probate court conducted
hearings in December 2013, voiding a 2011 quit claim deed from Eileen Curran to the defendants on April
7, 2014. The same property subject to an appeal in AC 38833, and also subject to reargument in the docket
and appeal of the timely filed motion to open and vacate the judgment of CV14-5005838 based upon fraud
upon the court and judicial bias.

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Defendants Motion for Extension of Time to Plead Puts This Pleading Properly
Before The Court:

A motion for extension of time to plead was filed within 30-days of Keith Curran

filing an appearance and has been marked take papers for a hearing set for January 03,

2017. The motion was necessary due to a unexpected death in his family and his

requirement to fly internationally for an extended period of time. Defendant finds it

particularly odd that this court would rule on a continuance moving the hearing, but not

rule on the actual request for extension of time to plead.

This court is required to adjudicate upon it to render no appealable issue on the

timeliness of a motion to dismiss involving the personal jurisdiction over the defendant.

Even if this court were to deny the defendants motion for extension of time to plead; it

cannot avoid the challenge to its subject matter jurisdiction due to the failure to serve

indispensable parties, and statutory mandates for service of process.

Furthermore; Even if this court were to rule against the defendants request for an

extension of time to plead, tolling has occurred: The filing of this motion to dismiss prior

to the decision being issued on the defendants request for extension of time properly puts

this pleading of dismissal before the court and the court must hear and decide upon the

merits set forth herein. If the court determines the request for an extension of time moot

due to any of the aforementioned, or for other reasons, it should properly state so in its

order rather than set the motion to off.

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Facts Relevant to Dismissal:

1. Two indispensable parties who are joint owners by deed are not named or joined
in this action as required under CGS 47-31, (1) Anna Zubkova & (2) Paul B.
Kaplan. (Exhibits 4-6)

2. Supplemental Return of Service: (a.) Indicates Plaintiffs had constructive notice

of the defendants actual abode at 400 NW Parr Dr. Unit A, Pullman, Wa. 99163.
(b.) Establishes fact that attempted service by certified mail was returned
unclaimed from all current and former addresses of the defendant(s). (Exhibit 2)

3. Return of Service: Service Processor attests to mailing documents by certified

mail on August 03, 2016. (Exhibit 1)

4. USPS Change of Service Notice Indicates that a Service Change Request was
made on August 02, 2016. The request was made for FAMILY (Emphasis) which
implicates the USPS mail service of Keith Curran and the other unserved
indispensable party, Dr. Haiying Tao. (Exhibit 3)

5. Return of Service: indicates an incorrect abode address of 10 Pine Ridge Lane,

Mansfield Center CT. 06250. Defendants were not a resident of this address since
August 01, 2015. (Exhibit 1)

6. Return of Service: All of the documents which plaintiff attempted service -

Continuation of Parties, Summons, Application for Prejudgment Remedy, Lis
Pendens; Et Al.. etc.. have an incorrect address on them, (778 SE Ridgeview
Street, Pullman, Wa. 99163) are unsigned, undated and / or otherwise fatally
flawed to conduct a process in mesne despite plaintiffs claim to have served a
signed complaint on 8/9/2016. (Exhibit 1)

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7. Supplemental Return of Service: Indicates that attempted service to an incorrect
address where the plaintiffs never resided, (400 NE Parr Dr. Unit A, Pullman, Wa.)
was Refused. Presumably by the resident of that address and not the defendant,
and leaves this to the plaintiffs proof. (Exhibit 2)

8. Plaintiffs Summons: dated on July 25, 2016 and mailed by service processor on
August 03, 2016 commands service upon an incorrect address. An address where
the defendants no longer resided. While the defendants lease was not technically
terminated until five-days later, practically speaking, this was not the stated abode,
the defendants were in the process of packing a 3600 sq ft. sorting through their
deceased mothers belongings and moving into a tiny apartment. Changes to mail
service, other services, and the logistical fact that the defendants lives were literally
upended during this period of time where computers, paperwork & documents, all
possessions were being packed, stored or in transport for unpacking. Anyone who
has ever moved knows that logistically it can take weeks and sometimes months
to effectively restore ones life and services. (Exhibit 1)

9. Notice of Application for Prejudgment Remedy: States an old, invalid address of

the defendants where service could not be lawfully completed..

10. Notice to Defendants of the Rights, Lawsuit, and Collect a Debt was Not Served:

11. Motion for Prejudgment Disclosure of Property and Assetts: was Not Served.

12. Complaint: Was not Served.

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Standard, Motion to Dismiss:

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. Bacon Construction Company, Inc. v. Department of Public
Works, 294 Conn 695, 706 (2010)
In considering a motion to dismiss the court must consider the allegations of the
complaint in their most favorable light. The motion to dismiss admits all facts which are
well pleaded, invokes the existing record and must be decided upon that alone. Bennet
v. New Milford Hospital, Inc. et al. 300 Conn. 1 (2011)
"[i]t is a fundamental rule that a court may raise and review the issue of subject
matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the
court to adjudicate the type of controversy presented by the action before it. . . . [A] court
lacks discretion to consider the merits of a case over which it is without jurisdiction . . . ."
(Citations omitted; internal quotation marks omitted.) Lewis v. Gaming Policy Board, 224
Conn. 693, 698, 620 A.2d 780 (1993); id., 699 (law of case doctrine did not preclude one
trial judge from reexamining previous determination by another trial judge that subject
matter jurisdiction existed).
The subject matter jurisdiction requirement may not be waived by any party, and
also may be raised by a party, or by the court sua sponte, at any stage of the proceedings,
including on appeal. Id., 698-99; see also, e.g., Webster Bank v. Zak, 259 Conn. 766,
774, 792 A.2d 66 (2002)

Because the plaintiff's right to a PJR is founded and regulated by statute, the law
mandates strict compliance with the authorizing statute. Ledgebrook Condominium
Assn., Inc. v. Lusk Corp., 172 Conn. 577, 582-83, 376 A.2d 60 (1977)." William Beazley
Co. v. Business Park Associates, Inc., 34 Conn. App. 801, 803, 643 A.2d 1298 (1994)

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 This Court Lacks Subject Matter Jurisdiction:

Once the question of subject matter jurisdiction has been raised, cognizance of it
must be must be taken and the matter passed upon before [the court] can move
one further step in the cause; as any movement is necessarily the exercise of
jurisdiction [Internal quotation marks omitted] Schaghticoke Tribal Nation v.
Harrison, 264 Conn. 829, 839 n. 6 (2003)

There are at least three indispensable parties absent from this action. The failure

of the plaintiff to serve notice upon Keith Curran and the other joint property owner(s)

indicated in the Woodstock land records:

(1) Dr. Haiying Tao (indispensable Property Owner Party)

(2) Anna Zubkova (Indispensable Property Owner Party)
(3) Paul Kaplan, (Indispensable Property Owner Party);

- requires this court to sua sponte evaluate its subject matter jurisdiction. I cannot

represent Dr. Haiying Tao, my wife. I have never talked with her about this case or

anything relating to this case whatsoever as so stated in my sworn affidavit attached

hereto. The plaintiffs attached exhibits and the attested service processors affidavit

demonstratively illustrate failure of service of process.

It is a fundamental tenet of due process of law as guaranteed by the fourteenth

amendment to the United States constitution and Article First, 10, of the
Connecticut constitution that persons whos property rights will be affected by a
courts decision are entitled to be heard at a meaningful time and in a meaningful
manner. Bartley v. Bartley, 27 Conn. App. 195 Conn: Supreme Court 1995

Non-joinder of a party will general implicate a courts subject matter jurisdiction

and require dismissal if statute mandates naming and serving the party.
DAppollonio v. Griffo-Brandeo, 138 Conn. App. 304 313, 53 A.3d 1013 (2012)

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 Anna Zubkova and Paul Kaplan took a mortgage out on the sole subject matter of

litigation, the subject property in this docket. (Exhibits 4-6) A mortgage deed is an

instrument which effects title and implicates ownership rights and interests.

This court is imbued with a duty, sua sponte, to evaluate its ability to hear a

controversy particularly when required parties are not before it, did not receive notice

implicating their interests in real property which may lead to an inequitable result if

adjudication were to proceed. The plaintiffs exhibits establish that neither of the named

parties were served and that at least two other unnamed property owners who are

indispensable to these proceedings must be (1) noticed and, (2) joined to the action and

served notice of this lawsuit as it will impact their rights as owners in the property and

therefore they must be properly before the court to satisfy the requirements of this courts

subject matter jurisdiction.

An Appearance does not Confer Personal Jurisdiction (CGS 52-59(b) );

Even if this court were to disagree it is still mandated to evaluate its Subject matter

jurisdiction as it applies to non-noticed, unserved joint property owners rights and

interests. Indispensable parties must be before the court to determine the controversy,

and the failure of service by the plaintiff to serve Haiying Tao and the other property

owners makes the absence of her interest before this court ripe for its jurisdictional

analysis.

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 I have never received a copy of this lawsuit.

Plaintiffs attempts at service take place during a time when: (1) my family was

dealing with the death of my mother. (2) my family was moving out of a 3600 sq. ft. house

rental into a tiny apartment in Washington State. (4) It took approximately three weeks

for our mail to be sorted out and forwarded properly while (5) I was dealing with multiple

lawsuits and trying to be a father to my children. In construing the facts plead and

introduced by the pleader, this court must consider that the facts introduced by the

pleading party which prove a conclusive failure of service.

C.G.S. 47-31 Mandates Notice and Service Upon All Interested Parties:

This is the statute governing action to settle title or claim interest in real or personal
property. The action sought by the plaintiffs seeks to implicate an equity interest in title
to real property which the defendant, Keith Curran presently owns and has been asserting
his property rights to since December of 2013 well before the plaintiffs alleged interest.
This statute is relevant because an application of prejudgment remedy is pursued with
the hope that if granted, execution of judgment can be obtained. If granted, title is effected,
rights of the property owners are effected. The statute mandates service and notice to
all parties having interest in the subject property. Plaintiffs return of service clearly
establish that this statutory mandate has not been met. I do not waive any other rights I
may have under this statute and construe my argument herein for the sole purpose of
determination that a statutory mandate has not been followed pursuant to the requirement
of notice to all parties having interest in real property, and service of process.

Non-joinder of a party will general implicate a courts subject matter jurisdiction and
require dismissal if statute mandates naming and serving the party. DAppollonio
v. Griffo-Brandeo, 138 Conn. App. 304 313, 53 A.3d 1013 (2012)

Absence of Indespensable party ordinarily requires dismissal of action.

Standard Mattress Co. v. Union & New Haven Trust Co. 91 Conn. Supp. 279,
329, A.2d, 613, 619, (Supr. Ct. 1974)

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 Invalid Service of Process

Service of process is necessary for many reasons, but the primary reason is to

make sure that the due process of law is upheld in United States. If papers aren't served

properly, the court is not able to rule on a case relating to an individual if they were not

legally made aware of it. Service of process is further complicated in the instant matter

because a prejudgment remedy is not an action in mesne AND I am not indebted to the

plaintiff. I owe them nothing.

Except as otherwise provided, process in any civil action shall be served

by leaving a true and attested copy of it, including the declaration or
complaint, (1) with the defendant, or (2) at his usual place of abode, in this
state. CGS 52-57

The service of a writ of summons shall be made by the officer reading it

and the complaint accompanying it in the hearing of the defendant or by
leaving an attested copy thereof with him or at his usual place of abode.
When service is made by leaving an attested copy at the defendants usual
place of abode, the officer making service shall note in his return the
address at which such attested copy was left. CGS 52-54

Return of Service Attests to an Improper Abode for the Defendant(s):

The plaintiffs return of service at position # 101.00 states that 10 Pine Ridge Ln.,
Mansfield Center, Ct. 06250 is the abode address. This is incorrect. Plaintiff Tao has
been a resident of the state of Washington since August 2015 and Keith Curran has been
a resident of the State of Washington since December 23, 2015. (Exhibit 1, Pg. 1)

This court lacks personal jurisdiction over the Defendants:

Neither Keith Curran, Dr. Haiying Tao or the other two unnamed indispensable
parties were served notice of this action. Even if this court were (despite my objection)
to determine that Keith Curran has constructive notice by virtue of his appearance to
assert he was not served notice; the property is owned by four individuals who are

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indispensable parties. As previously stated, I have never spoken with my wife about this
case, in fact we barely speak at all anymore and live very separate lives. Because I
cannot represent her interests, her interests before this court are presently silent and this
court does not have personal jurisdiction over her but must consider the absence of those
interests in the context of its jurisdictional analysis to hear the matter before it.

This court must have personal jurisdiction over both property owners to properly
adjudicate the property owners rights. The subject matter jurisdictional requirement
demands that those parties interests be before this court.

The plaintiff bears the burden of proof for personal jurisdiction. My

experience with John Boland suggests that documents are hearsay until testimony is
given authenticating them. Another thing Mr. Boland and Harry Calmar taught me when
I was constantly thwarted by this court in obtaining discovery is that out of state residents
cannot be compelled to appear before this court. I leave the plaintiffs to their proof for
authenticating their evidence.

Judge Boland is quoted below citing the following:

The general rule putting the burden of proof on the plaintiff as to jurisdictional
issues raised is based on the presumption of truth in of the matters stated in the
officers return, if true, confer jurisdiction unless sufficient evidence is introduced
to prove otherwise. Tax Collector v. Stettinger, 79 Conn. App. 823, 825, (2003);
Irby v. Yagovone, Superior Court, Judicial district of New Haven, Docket No. CV11
6023362., and Tao v. Zubkova, CV14-5005817.
Here, plaintiffs exhibits of the service processors attestment clearly establish a
failure of service favoring dismissal and lack of personal jurisdiction of this court over the
defendants who are residents of the State of Washington.

No Proper Abode Service Was Performed, Nor Was the Proper Abode Recognized
by the Plaintiff:

Abode Service is authorized under C.G.S. 52-57 for the service of superior court
service process. In Fine Homebuilders, Inc. v. Perrone, 98 Conn. App. 852, 857,
(2006), cert. granted, 292 Conn. 901 (2007) the court held that, the purpose of abode
service is to afford a defendant actual notice of a pending action. (emphasis) Abode

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service is only a step removed from manual service and serves the same dual function of
conferring jurisdiction and giving notice Its chief purpose is to ensure actual notice to
the defendant that action is pending.

In light of clear evidence establishing failure of notice, even if this court were to
determine that Keith Curran had constructive notice; it cannot be construed to determine
that the joint property owner, the indispensable party, Dr. Tao has constructive notice and
most certainly proves she did not have actual notice under any permutation of the
evidence. Anna Zubkova and Paul Kaplan who are joint owners remain unnamed and
unserved. Therefore without having all required parties of interest before the court, this
court lacks subject matter jurisdiction to hear the claims before it.

Service to The Secretary of State Is Invalid In the Instant Action:

It is axiomatic that actual notice be given to the parties having interest in and
ownership in the real property.

Plaintiffs knew the defendants actual abode address but failed to serve them. The
service to the Connecticut Secretary of State would be valid if the plaintiffs had not known
the address of the defendant(s). However, the return of service filed by the plaintiffs
indicate that they had knowledge of the defendants actual address at 400 NW Parr Dr.
Unit A, Pullman, Wa. 99163 but that the Certified Mail was returned Unclaimed. Service
of Process and the summons is completely absent of the other property owners, Anna
Zubkova and Paul Kaplan and states no valid address for them or the named defendant
herein. If the plaintiffs had no knowledge of the defendants actual address then service
to the Secretary of State would have been appropriate. In this case, plaintiffs knew the
proper address, they just failed to service the defendant(s).

The land records at Woodstock clearly indicate that the joint owners of the
subject matter property are (1) Keith Curran (2) Dr. Haiying Tao, (3) Anna Zubkova and
(4) Paul Kaplan. No Service was performed for indispensable parties Kaplan and
Zubkova and therefore under the requirement that all parties having interest in the
property require notice, the plaintiffs action before this court is fatally flawed and must
be dismissed.

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 WHEREFORE:

Defendant hereby requests that for all the aforementioned, this court dismiss the
action against them.

DEFENDANT

\s\ Keith M. Curran _

Keith M. Curran 4.6.2017
400 NW Parr Dr., Unit A
Pullman, Wa. 99163
(860) 838-1865
kcurran@journeyeast.org

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