Opinion
No. DBD CV08-4008461 S
July 1, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
This action follows the publication of a book which it is alleged by the plaintiffs was defamatory in that it falsely asserted one of the two plaintiffs was possessed by demons and that the other plaintiff was influenced by demonic forces into physically assaulting others. Subsequent to a re-publication of that book, a screenplay of the book was drafted with the intent of interesting potential investors into financing a movie. That screenplay is the centerpiece of this action.
The motion is brought by three California residents (Malloy, Smith, and Wimmer), all of whom are in the movie industry and all of whom claim the court lacks personal jurisdiction over them under both this state's longarm statute (C.G.S. § 52-59b) and the Due Process Clause of our federal constitution. Additionally, two of those defendants (Smith and Wimmer) assert they were not properly served with process pursuant to Conn. Gen. Stat. § 52-59b(c). The plaintiffs have objected to the motion; each party has filed a memorandum of law and, following oral argument on June 2, 2008, each has submitted case law believed to support their respective positions.
A. Service of Process As to Smith and Wimmer
C.G.S. § 52-59b(c) in pertinent part provides that process in any civil action on a nonresident is effected by service of that process on the Secretary of the State at least twelve days before the return date and "by sending to the defendant at the defendant's last known address . . . a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State." (Emphasis added.)
The state marshal's return of service of the writ, summons and verified complaint in this action (Exh. B to Defendants' Memorandum) provides the Secretary of State's office at 30 Trinity Street in Hartford was served on February 6, 2008, and that, on February 7, 2008, service was made on, inter alia, Smith and Wimmer in accord with the provisions of § 52-59b(c) by sending the required documents to them at "11664 National Blvd., Suite 322, Los Angeles, Ca. 90064." That address is the address of Malloy Media Group. Exhs. C, D, and E to Defendants' Memorandum. The defendants' affidavits aver that neither Smith nor Wimmer is employed by Malloy Media Group and that they do not work or live at that address. Thus, they argue, they were not notified of this action at their "last known address" as required by § 52-59b(c). "[W]hen a particular method of serving process is set forth by statute, that method must be followed." Comm'r of Transportation v. Kahn, 262 Conn. 257, 272 (2003). Unless service of process is made as prescribed by statute, the court does not acquire personal jurisdiction. Id. When a motion to dismiss for lack of personal jurisdiction raises a factual question not determinable from the face of the record, it is the plaintiff's burden of proof to present evidence establishing jurisdiction; if the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident, it is plaintiff's burden to prove the court's jurisdiction. Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 (1996).
The plaintiffs' argument is that 11664 National Blvd., Suite 322, Los Angeles, Ca. 90064 "is the last address known to the plaintiff" (P. 4 of Plaintiffs' Memorandum). Yet the plaintiffs, in the preceding paragraph of their memorandum, correctly cite to D'Occhio v. Connecticut Real Estate Commissioner, 182 Conn. 162, 171 (1983) for the often cited proposition that "last known address" does not mean the last address known to the plaintiff but means instead "the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it." Id. Where, as here, a plaintiff invokes § 52-59b of the statutes (See Exh. B to Defendants' Memorandum — Marshal's Return of Service on Non-Residents), the plaintiff has the burden of proving compliance with that statute.
The court rejects the plaintiffs' argument there was sufficient service of process because the address is the only one known to them. Indeed, that argument was rejected in 1931 when Chief Justice Maltbie had this to say about "last known-address," "Unless the defendant has departed for parts unknown, it means his actual address; if he has disappeared, it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute." Hartley v. Vitiello, 113 Conn. 74, 80 (1931). The plaintiffs appear to rely on their bare allegations that the address to which process was sent was Malloy Media Group "which represented Smith and Wimmer" and that all communications between the plaintiffs and Smith and Wimmer were made through Malloy Media. (P. 4 of Plaintiffs' Memorandum.) The court is referred to Plaintiffs' Exhibits 1 and 2. Plaintiffs' Exhibit 1 is a memo to the plaintiffs from defendant Malloy of Malloy Media Group (Interestingly, the address there given for Malloy Media is not the address at which service was made but yet another L.A. address!). While the memo references "Josh and Seth" (presumably, Smith and Wimmer), it does not establish either that Malloy "represented" them in the matter of the screenplay or that all communications between the plaintiffs and Smith and Wimmer were made through Malloy Media. Exhibit 2 consists only of Page 3 of a five-page document; it is only a portion of a draft agreement; it is clearly unexecuted and the court has no way of knowing to whom it may have been sent or by whom. All that can be learned from it is that there is included a reference to Smith and Wimmner as "producers" represented by Malloy Media Group with regard to a potential movie based on the previously published book. It offers no contribution to the analysis to be undertaken regarding the underlying motion.
The plaintiffs have offered no evidence of efforts made to discover the address at which either of these individuals could reasonably be expected to have received service. Despite the allegation that the address to which service was sent (one of the two addresses of which the court is now aware Malloy Media Group was located) was appropriate because these defendants worked there, no evidence is offered in support of that claim and Defendants' Exhibits C and D (affidavits of Wimmer and Smith) assert they have never resided at 11664 National Blvd., Suite 322, Los Angeles, Ca. 90064 (where service was sent), were not employed by Malloy Media Group (the commercial group there located), and do not work at that address. No attempt was evidently made to learn the home address of these men — either through the postal or motor vehicle departments.
The court cannot therefore conclude reasonable efforts were made to learn the last known address of either of them. The plaintiffs having failed to meet their burden of proving compliance with § 52-59(c), there is not personal jurisdiction and the motion to dismiss as to Smith and Wimmer is granted.
B. Personal Jurisdiction As to James Malloy
The action having been dismissed as to Smith and Wimmer, the court need not consider whether, as to them, there is personal jurisdiction under our longarm statute or the Due Process Clause of our federal constitution.
The plaintiffs claim personal jurisdiction over James E. Malloy, III (Malloy) exists under C.G.S. § 52-59b(a) because: (1) he transacted business within Connecticut; (2) he committed tortious acts within this state; or (3) he committed "a tortious acts" (sic) outside of Connecticut that caused injury to the plaintiffs in Connecticut.
The court quotes the language of the plaintiffs' opposing memorandum merely because it is not clear whether, as to this named defendant, one or more wrongdoing(s) is claimed.
The claimed injuries are invasion of privacy rights, libel, and the intentional infliction of emotional distress (Counts One-Three).
C.G.S. § 52-59b (a) provides a court "may" exercise personal jurisdiction over a nonresident (such as Malloy) if that nonresident, either in person or through an agent: (1) transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act (Emphasis added); or (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act under special circumstances. (Emphasis added.)
§ 52-59b(a) also provides there may be personal jurisdiction over a nonresident who owns, uses, or possesses real property in this state (§ 52-59[a][4]) or who uses a computer or computer network within this state (§ 52-59b[a][5]). The plaintiffs make no claim under either of these provisions.
It needs first be stated the longarm statute specifically excludes its application to defamation actions and thus there is no personal jurisdiction to be asserted against Malloy (a California resident) under the Second Count of the complaint. It further needs be stated the plaintiffs have the burden of proving there is jurisdiction over Malloy under § 52-59b(a) because there was constructive service made upon him (and not here disputed). Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54 (1983).
The assertion of state court jurisdiction over Malloy must be evaluated according to the standard of International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95 (1945) and its progeny. Simply put, the standard requires the nonresident have certain minimum contacts with the foreign state such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." 326 U.S., at 316. The standard requires a determination of "reasonableness" which requires the facts of each case be weighed to determine in personam jurisdiction. Thus, the inquiry is two-fold; the first is whether the statute — in one of the ways asserted by the plaintiffs — authorizes the assertion of jurisdiction and, second, if the statutory requirements are met, whether the exercise of personal jurisdiction violates the constitutional principles of due process as enunciated in International Shoe, supra. See e.g., Hart, Nininger Campbell Associates v. Rogers, 16 Conn.App. 619, 624 (1988).
Regarding § 52-59b(a)(1), the phrase "transacts any business within the state" has been scrutinized in its application by our appellate courts. In Rosenblit v. Danaher, 206 Conn. 125 (1988), the Court concluded the physical presence in Connecticut of a nonresident attorney for the purpose of reviewing and commenting upon the draft of an antitrust complaint was insufficient to constitute the "transacting of business" here under § 52-59b(a)(1) and the exercise of in personam jurisdiction did not satisfy the minimum contacts requirement of International Shoe, supra, 206 Conn., at 141-42. The plaintiffs' appeal of the trial court's finding it was without jurisdiction was premised upon the Supreme Court's construing, in Zartolas v. Nisenfeld, 184 Conn. 471 (1981), the phrase "transacting any business" to embrace a "single purposeful business transaction" Id. at 474. The Court in Rosenblit, however, had little difficulty distinguishing Zartolas from the case before it. In Zartolas, the defendants conveyed Connecticut real estate to the plaintiff by a warranty deed executed in Iowa. The Court described the execution of a warranty deed pursuant to the sale of realty as a legal act of "a most serious nature" ( Rosenblit, supra, at 139) because, by owning land in this state, the defendants had invoked the benefits and protection of this state's real property laws and because the warranties in the deed clearly anticipated litigation in Connecticut which was the only possible forum that could determine title to Connecticut land. Id., at 140. The Rosenblit Court also eschewed resort to a rigid formula in applying the "transacting of any business" standard in favor of a determination premised upon a balancing of "consideration of public policy, common sense, and the chronology and geography of the relevant factors." Id. The trial court's finding that there was not personal jurisdiction was upheld. In Green v. Simmons, 100 Conn.App. 600 (2007), the defendants were a South Carolina law firm and two of its principals whose only contact with Connecticut was their mailing of two unanswered letters of representation to Sam's Wholesale Club in Manchester. The trial court denied a motion to dismiss for lack of in personam jurisdiction finding the location of the site of the alleged injury, the fact that our courts were opened to the injured party, and the mailing of the letters was to transact business in this state. Id., at 603. Having weighed such considerations as public policy, common sense, and other relevant factors, the Court concluded the defendants' mailing of two unanswered letters to this state constituted even less contact then presented in Rosenblit and that the defendants did nothing to project themselves into Connecticut or to purposefully avail themselves of the benefits or protections of its laws. 100 Conn.App., at 608. Of interest in the case before this court is the deference of the Green Court to New York law for the reason that § 52-59b is modeled on that state's long-arm statute. It noted the Appellate Division of the New York Supreme Court had stated that "[t]elephone calls and written communications, which generally are held not to provide a sufficient basis for personal jurisdiction under the long-arm statute, must be shown to have been used by the defendant to actively participate in business transactions in New York . . . unless the defendant projected himself by those means into New York in such a manner that he purposefully availed himself . . . of the benefits and protections of its laws." Id., at 605, citing to Liberatore v. Calvino, 293 App.Div.2d 217, 220 (2002). Similarly, in Lombardi v. Paige, United States District Court, Docket No. CV2605, 2001 WL 303831 (S.D.N.Y. March 28, 2001), a New York court concluded a Connecticut attorney's "few sporadic efforts" in New York to collect information in furtherance of the plaintiff's personal injury claims did not satisfy the transacting business requirement of New York's long-arm statute.
Subsequently, the plaintiff brought an action in Connecticut against the defendants for damages for breach of a covenant in the deed and the defendant nonresidents moved to dismiss for lack of in personam jurisdiction.
In the instant case, the plaintiffs' complaint asserts only that Malloy committed tortious acts within this state by drafting and circulating a screenplay adaptation of the previously published book (said to be the work of co-defendants Warren and Brittle) to others, which screenplay was made available to potential investors, partners and other diverse persons, and that he, with others, advertised that the plots of the book and the screenplay described were "true and unsavory incidents" in the plaintiffs' lives, thereby subjecting the plaintiffs to an invasion of their right to privacy, the intentional infliction of emotional distress, and ridicule, shame, humiliation and embarrassment. ¶¶ 5, 13, 16-20, 22 of all counts; ¶¶ 30-32 of the Third Count. In their opposing memorandum and at argument, however, plaintiffs' counsel made claim to Malloy's having additionally "transacted business" here (in violation of § 52-59b(a)(1) and having committed a tortious act outside the state causing injury to the plaintiff-residents of this state (in violation of § 52-59b[a][3]).
This court cannot find that, in the drafting of a screenplay in California and the mailing of that screenplay to Connecticut, Malloy projected himself into this state in such a manner as to purposefully avail himself of the benefits and protections of Connecticut law. This mailing constitutes significantly less contact with the forum state than presented in Rosenblit, supra. The screenplay never became a movie; Malloy did not financially benefit from a screenplay, and the option expired. The plaintiff has not established this defendant transacted business in Connecticut under the earlier cited case law. C.G.S. § 52-59b(a)(1) does not confer upon the court personal jurisdiction. Nor does § 52-59b(a)(2) confer personal jurisdiction. The alleged tortious acts committed here are the drafting and publication of the screenplay and the advertising of the plot of the book (authored by others). The complaint is silent with regard to where the screenplay was drafted; it is, however, reasonable to conclude that was not done in Connecticut because: a) Malloy resides in California; b) Malloy's business (Malloy Media Group) is located in Los Angeles, Ca., where it is likely he wrote — if he wrote at all; and c) had Malloy written the screenplay in Connecticut, it would in all likelihood have been alleged. Likewise, although the complaint frequently references the "circulation" of the screenplay, nowhere is there the allegation it was circulated to Connecticut residents or to Connecticut investors. The court cannot be expected to "fill in the blanks." In the absence of any facts which permit the court to conclude the screenplay (which — given a broad reading of the complaint — asserts the plaintiffs were named within) was drafted or circulated or advertised within this state, the court cannot premise in personam jurisdiction on § 52-59b(a)(2). The claim the "harm" (as opposed to the actor's conduct) occurred in Connecticut widely misses the jurisdictional requisite. Finally, there is not jurisdiction under § 52-59b(a)(3) because, even if a tortious act were committed in another state with resulting harm to the plaintiffs in Connecticut, Malloy's affidavit, which avers he does not regularly do or solicit business or engage in any other persistent course of conduct here, does not derive substantial revenue from goods used or consumed here, and does not derive substantial revenue from interstate or international commerce here, is not refuted.
Nowhere is there in the complaint the allegation that Malloy (identified as an attorney) drafted the Life Rights Agreement which he forwarded to the plaintiffs for execution. Were there such an allegation, the argument might have been advanced that he was intending to avail himself of the protection of our laws because, had the plaintiffs signed such Agreement and then breached some provision of that document, Malloy could conceivably have brought suit here. That, however, is not alleged.
Given the above analysis, the Due Process Clause of the United States Constitution prohibits this court from the assertion of personal jurisdiction over Malloy as contrary to the traditional notions of fair play and substantial justice. Gaudio v. Gaudio, 23 Conn.App. 287, 299 (1990).
The motion to dismiss is granted as to Smith and Wimmer for insufficient service of process. It is granted as to Malloy as violative of Connecticut's longarm statute and prohibited by our federal constitution. The Second Count as to all three defendants is prohibited by § 52-59b and the motion to dismiss that count is also granted.