Opinion
No. 537006
Memorandum Filed July 15, 1997.
MEMORANDUM OF DECISION ON DEFENDANT BELL'S MOTION TO DISMISS (#102)
I. Factual and Procedural Background
On January 10, 1996, Patricia T. MacVane (hereinafter the "plaintiff"), individually and as administratrix of the Estate of Lloyd P. MacVane (hereinafter the "decedent"), brought this action against Cassiar Mining Corporation (hereinafter "Cassiar"), Bell Asbestos Mines (hereinafter "Bell" or "Bell Asbestos"), and Cuno, Incorporated, alleging products liability, wanton, willful, and malicious misconduct, and loss of consortium. The plaintiff is a resident of Manchester, Connecticut. Cassiar Mining is a Canadian corporation with its principal place of business in British Columbia. Bell Asbestos is a Canadian corporation with its principal place of business in Quebec. Cuno, Incorporated is a Delaware corporation licensed to do business in the state of Connecticut.
f/k/a Cassiar Resources Ltd., f/k/a Cassiar Asbestos Corp., Ltd. and f/k/a Brinco Mining Ltd.
f/k/a Special Materials Inc., and f/k/a AMF Specialty Materials, Inc.
The plaintiff's complaint alleges the following pertinent facts. The decedent resided in Manchester, Connecticut and was employed as a production supervisor from 1956 to 1995 by the Rogers Corporation, also located in Manchester, Connecticut. The complaint alleges that the decedent's job required him to handle asbestos products produced and/or distributed by the defendants, that the plaintiff breathed and inhaled these asbestos fibers, and that he died as the result thereof.
On March 13, 1996, Bell Asbestos filed a motion to dismiss the action against it for lack of personal jurisdiction. On May 28, 1996, the plaintiff filed a memorandum of law in opposition to Bell's motion to dismiss. On August 19, 1996 Bell filed a reply memorandum to the plaintiff's opposition. On September 20, 1996, Bell filed a supplemental memorandum of law in support of its motion to dismiss. On June 2, 1997, the court Handy, J., heard oral argument on the motion.
Bell Asbestos filed an appearance on February 14, 1996.
On April 30, 1997, the case was ordered exempt from dormancy by the court.
II. Discussion
A. Motion to Dismiss, General Legal Standard
"A motion to dismiss . . . properly attacks the jurisdiction of the court . . . ." Garlacci v. Mayer, 218 Conn, 531, 544, 590 A.2d 914 (1991). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the person. . . ." Knipple v. Viking Communications, 236 Conn. 602, 604 n. 3, 674 A.2d 426 (1996), quoting Practice Book § 143. "The court must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981). However, "[w]hen a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction." Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983).
In its motion to dismiss, Bell Asbestos claims that this court cannot assert personal jurisdiction over it since Bell lacks sufficient contacts with the state of Connecticut to come within the ambit of the State's long-arm jurisdiction. The plaintiff argues that Bell Asbestos has more than sufficient contacts with the state of Connecticut to meet the statutory and constitutional requirements and has supplied several documents as proof thereof.
The plaintiff has provided the following uncontradicted documents in opposition to Bell's motion to dismiss: 1) a 1990 deposition transcript of Carl R. Welshman, a corporate officer of Rogers Corporation, located in Manchester, Connecticut, in which he represents that Rogers purchased asbestos mined by Cassiar and distributed by Bell: 2) an invoice dated December 28, 1976, from "Cassiar Asbestos Corporation Ltd. c/o Bell Asbestos Mines Ltd." to Rogers Corporation entitled "blanket order for AX Cassiar Asbestos during 1977"; 3) a letter, dated October 24, 1978, from Raybestos-Manhattan, Inc., located in Strafford, Connecticut, regarding its purchase of asbestos from Bell from 1958-1974, 5) a letter from Bell to Raybestos-Manhattan, dated June 26, 1968, discussing asbestos shipments to Raybestos-Manhattan: and 6) interrogatory responses from Raymark Industries acknowledging that it had acquired the assets of Raybestos-Manhattan, and that Raybestos-Manhattan had purchased raw asbestos from Bell.
B. Personal Jurisdiction
1. Two-Part Inquiry
Whether a trial court may exercise personal jurisdiction over a foreign corporation requires a two-part inquiry: (1) whether the pertinent statute reaches the foreign corporation in question; and (2) whether such statutory reach exceeds the "minimum contacts" threshold for constitutional due process. Thomason v. Chemical Bank, 234 Conn. 281, 285-86, 661 A.2d 595 (1995), citing Frazer v. McGowan, 198 Conn. 243, 252, 502 A.2d 905 (1986). General Statutes § 33-929 (formerly § 33-411) is Connecticut's long-arm statute governing jurisdiction over foreign corporations. Section 33-929 (e) provides that a foreign corporation will be subject to suit in the state of Connecticut by a resident of the state, regardless of whether the foreign corporation transacts business in the state, on any cause of action arising out of a 1) contract, 2) solicitation, 3) production, manufacture, distribution of goods, or 4) tortious conduct, by or with the foreign corporation. Specifically, § 33-929 (e)(3) provides that a "foreign corporation shall be subject to suit on an action arising out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers." General Statutes § 33-929 (e)(3).
General Statutes § 33-929 (e) provides in pertinent part: "Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce . . . ." General Statutes § 33-929 (e).
The Connecticut Supreme Court has stated that by "enacting [§ 33-929 (e)] the legislature intended to exercise its full constitutional power over foreign corporations in cases falling within one of the designated causes of action. Under [§ 33-929 (e)], consistent with the constitutional demands of due process, it is the totality of the defendant's conduct and connection with this state that must be considered, on a case by case basis, to determine whether the defendant could reasonably . . . anticipate being haled into court here." Thomason v. Chemical Bank, supra, 234 Conn. 291.
If the trial court determines that the statutory requirements for jurisdiction have been met, the court must then determine whether the statutory requirements are sufficient to meet the "minimum contacts" requirements for constitutional due process. Under the federal analysis, the contacts "must be of a nature where `the traditional notions of fair play and substantial justice' are not offended by requiring a party to defend his case in the forum state." Hover v. Asbestos Corp, Ltd., 678 F. Sup. 370, 373 (D.Conn. 1986), citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct 154, 158, 90 L.Ed. 95 (1945). "The defendant's conduct and connection with the forum State should be such that [it] should reasonably anticipate being hailed into court there. . . . [T]he due process requirement will not be satisfied where there is only a mere likelihood that a product will find its way into the forum state." (Brackets omitted.) Id. 373, citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).
2. Statutory Requirements
Defendant Bell appears to be arguing that there must be a casual connection between the defendant's contacts with the forum state and the plaintiff's cause of action in order for Connecticut to have jurisdiction pursuant to § 33-929 (e). First, Bell argues in its memorandum in support that § 33-929(e) requires proof of "direct sales" to Rogers in order for this court to assert jurisdiction over Bell. Second, Bell claims in both its reply brief and at oral argument that documents demonstrating that it sold raw asbestos fiber to a Connecticut corporation are irrelevant in determining whether Connecticut has jurisdiction over the defendant in this case.
In support of its motion, Bell has provided an affidavit from attorney, Richard Dufour, stating that at all times relevant to this action: 1) Bell Asbestos has not conducted business in Connecticut, 2) is not a Connecticut corporation, has no subsidiaries that are Connecticut corporations, has never done business in the state of Connecticut: 3) is not registered with the state of Connecticut: 4) has never applied for authority to do business within the state of Connecticut: 5) has never appointed nor authorized any agent to accept process for it for suit in the state of Connecticut: 6) does not maintain an office in the state, has no bank accounts in the state, and has never owned any real or personal property in that state 7) has never paid taxes or fees in the state, nor has it maintained employees, officers or agents in the state: 8) is solely a miner of asbestos fiber 9) that all sales are F.O.B. Thetford Mines, Quebec: and 10) that it was generally unaware of the chain of distribution after it sold its raw asbestos fiber, and that other parties subjected the raw asbestos fiber to formulation, processing, and manufacture beyond its control and knowledge.
In support of this assertion, Bell cites to In re Connecticut Asbestos Litigation, 677 F. Sup. 70 (D.Conn. 1986) and Hover v. Asbestos Corp., Ltd., 678 F. Sup. 370 (D.Conn. 1986). In both cases, Judge Nevas was asked to determine whether the State of Connecticut had jurisdiction pursuant to § 33-411 (c)(3), the analog of § 33-929 (e)(3). Judge Nevas determined that in those cases the statutory requirements to exercise jurisdiction had been met by evidence of direct sales by the defendants to Connecticut corporations. However, Judge Nevas' opinions did not state that proof of direct sales was a prerequisite to finding jurisdiction pursuant to § 33-929 (e), only that evidence of direct sales was sufficient to find jurisdiction.
Section 33-929 (e)(3) provides for jurisdiction over corporations participating at all levels of the market, from manufacturers to distributors. Thus, the reach of § 33-929 (e)(3) is not limited to those foreign corporations who distribute products they produce or manufacture: it also extends to those companies who merely distribute products. See General Statutes § 33-929 (e)(3).
In Thomason v. Chemical Bank, supra, the Connecticut Supreme Court addressed whether § 33-929 (e) required a causal nexus between the plaintiffs action and the defendant's contacts with the state. The Court began its analysis with a review of the constitutional due process limits of state jurisdiction over foreign corporations. Thomason v. Chemical Bank, supra, 234 Conn. 287. The Court observed that the due process clause is not offended when a forum state asserts jurisdiction over a foreign corporation which has "certain minimum contacts" with the forum state. Id. 287. The "minimum contacts" requirement can be satisfied by means of either "specific" or "general" jurisdiction. Id. Specific jurisdiction is satisfied where a nonresident defendant has "purposefully directed" its activities to the forum and the cause of action "arises out of or is related to" those activities. Id. 288, citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). General jurisdiction is satisfied if the corporation has had "continuous and systematic general business contacts with the forum state, even if the cause of action does not arise out of or relate to the foreign corporation's activities in the forum state. Id., citing Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 414, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The Court observed that while the exercise of specific jurisdiction did require a causal nexus, the exercise of general jurisdiction required no such nexus. Id. 289-90.
The Court then addressed the jurisdictional reach of § 33-929(e). It concluded that, despite the somewhat confusing use of the "arising out of" language peculiar to federal "specific" jurisdiction, Connecticut precedent had consistently held that a causal connection was not required for asserting jurisdiction under § 33-929 (e). Id. 290-91, citing Frazer v. McGowan, supra, 198 Conn. 249; Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 254-55, 460 A.2d 481 (1983). Thus, the Connecticut statute permits a greater jurisdictional reach then that afforded by federal "specific" jurisdiction, but something less than the jurisdictional reach afforded by unabated, federal "general" jurisdiction. Id. 293, 295.
The words `arising out of' therefore must be interpreted in a manner that reconciles the legislative decision to impose some limits on constitutionally permitted jurisdiction with its decision not to require a causal connection between the defendant's solicitation here and the plaintiff's lawsuit. Id. 296.
Addressing the specific jurisdictional requirements set forward in § 33-929 (e)(2), the Court concluded that for purposes of establishing jurisdiction pursuant to § 33-929 (e)(2), a "plaintiff need not show that, because of the act of solicitation, the defendant was on notice that it might be sued by the plaintiff. . . . A plaintiff similarly need not show that the defendant solicited his or her business in Connecticut. A plaintiff need only demonstrate that the defendant could reasonably have anticipated being hailed into court here by some person who had been solicited in Connecticut and that the plaintiff's cause of action is not materially different from an action that might have resulted directly from that solicitation." Id. 296.
Applying the Thomason analysis to the facts in this case, this court finds that the statutory requirements set forward in § 33-929 (e)(3) for asserting jurisdiction over a foreign corporation have been met. The plaintiff is a resident of the state of Connecticut and has brought an action against, among others, Bell, for injuries allegedly sustained as a result of the inhalation of asbestos fibers. Bell Asbestos is a Canadian corporation which both distributes and mines asbestos fiber. The plaintiff has submitted an invoice from Bell to Rogers, a corporation located in Connecticut, regarding the shipment of raw asbestos fiber to Rogers in Connecticut. In addition, the plaintiff has provided correspondence between Bell and Raybestos-Manhattan, a corporation located in Connecticut, which indicates that Bell shipped raw asbestos fiber to Raybestos-Manhattan in Connecticut for a number of years. This court finds that Bell as a supplier of raw asbestos fiber to corporations located in Connecticut, could have reasonably anticipated being hailed into a Connecticut court by an individual such as the plaintiff if its product caused injury. Thomason v. Chemical Bank, supra, 234 Conn. 296.
Though Thomason is specifically directed to § 33-929 (e)(2), the Court's analysis is applicable to the other categories as well. See Senior v. American Inst. for Foreign Study, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 139183 (January 6, 1997. D'Andrea, J.).
3. Constitutional Due Process
Once the trial court determines that the statutory criteria for personal jurisdiction have been met, it must then determine whether the state's exercise of long-arm jurisdiction would offend due process. Frazer v. McGowan, supra, 198 Conn. 252. "The twin touchstones of due process analysis under the minimum contacts analysis are foreseeability and fairness." United States Trust Co. v. Bohart, 197 Conn. 34, 41, 495 A.2d 1034 (1985).
This court concludes that the exercise of personal jurisdiction over Bell does not offend due process. The plaintiff's documents demonstrate that Bell has had a continuous and systematic relationship with various Connecticut corporations which forecloses any assertion by Bell that subjecting it to suit in Connecticut would be either unforeseeable or unfair. Helicopteros Nacionales de Columbia, S.A. v. Hall, supra, 466 U.S. 414, 416.
III. Conclusion
For the foregoing reasons, this court finds that it has personal jurisdiction over defendant Bell pursuant § 33-929 (e)(3), and that such jurisdiction is not precluded by the due process clause. The defendant's motion to dismiss the complaint is denied.
Handy, J.