Mitchell v. Patterson

Full title: RACHEL MITCHELL v. MARY PATTERSON

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Jun 21, 2005

2005 Conn. Super. Ct. 10186 (Conn. Super. Ct. 2005)

39 CLR 560

Opinion

No. 4001501

June 21, 2005

MEMORANDUM OF DECISION

LEVIN, JUDGE.

The defendants move to dismiss this civil action for lack of personal jurisdiction. The defendants allege that they lack the contacts required by General Statutes § 52-59b for the court to exercise jurisdiction over them.

The court held an evidentiary hearing on the motion. Where the court holds an evidentiary hearing on a motion to dismiss for lack of personal jurisdiction, the court does not assume the truth of the allegations in the complaint. See Bradley's Appeal from Probate, 19 Conn.App. 456, 462, 563 A.2d 1358 (1989). The court, however, reviews the allegations of the complaint to put the case in context.

The complaint alleges the following. The individual plaintiff, Rachel Mitchell, and James Clanton were partners in the plaintiff On Point Productions, a partnership in the business of managing entertainers, with a principal place of business in Connecticut. The individual defendant, Mary Patterson, is a partner in the defendant MYA Productions, a partnership in the business of promoting performances, and providing press kits and promotional items for entertainers, with a principal place of business in North Carolina.

In the spring of 2002, Dan Jenkins of Raw Entertainment, LLC, a New Jersey limited liability company with an office in Connecticut, contracted with Patterson to render promotional services for an entertainer he managed named Monte Gill. Later that spring, Jenkins introduced Clanton to Patterson. Clanton, on behalf of On Point Productions, entered into a contract with Patterson. Under the contract, Patterson was to provide promotional, marketing and related services and materials for a July 20, 2002, Bike Fest Summer Jam concert in North Carolina. These services were specifically for the benefit of an artist known as "Sunny." In turn, On Point Productions would pay Patterson compensation for her services.

The first count of the complaint alleges that the defendants breached the contract. The second count incorporates the allegations of the first count and further alleges that the plaintiffs received facsimiles, e-mails and other correspondence from Patterson to induce them to pay the defendants to participate in Bike Fest Summer Jam in North Carolina. The plaintiffs allege that they relied on the representations in these e-mails to their detriment, suffering financial losses. The third count incorporates the allegations of the second count and alleges that Patterson "has been unjustly enriched by accepting payment from the plaintiffs while failing to provide the services in return." The fourth count incorporates the allegations of the third count and alleges that Patterson's actions constitute a violation of the Connecticut Unfair Trade Practices Act. The plaintiffs claim money damages and other relief.

The defendants filed a motion to dismiss alleging that the Connecticut Superior Court lacked personal jurisdiction over them because they did not have sufficient contacts with Connecticut to satisfy the requirements of General Statutes § 52-59b. The motion was supported by the affidavit of Patterson. Patterson subsequently filed a supplemental affidavit.¹

1 In paragraph 8 of her supplemental affidavit, Patterson stated that she executed the contract giving rise to this litigation in Connecticut. She later filed a corrected affidavit stating that she executed the contract in North Carolina regarding work to be performed in North Carolina. The court does not condone the signing of affidavits by persons who do not carefully read, understand and agree with their contents.

The plaintiffs objected to the motion to dismiss, asserting that the defendants did have minimum contacts with Connecticut sufficient to satisfy General Statutes § 52-59b. According to the plaintiffs, "[t]he substantial minimum contacts include but are not limited to, facsimiles and other correspondence directed at the plaintiffs originating while the plaintiffs resided in Connecticut. The purpose and scope of these communications was to induce the plaintiffs to enter into a contract with the defendants. Also, some of the payments on the contract were made in Connecticut for the services that were to be provided by the defendants." The plaintiffs' objection was accompanied by a supporting brief and an affidavit by Clanton.

The summons states that the address of both defendants is in North Carolina. Service of process was made on them by constructive service, by a Connecticut marshal serving the secretary of state of Connecticut and mailing a copy of the summons and complaint to the defendants at their North Carolina address. When constructive service is used, the burden of proving facts sufficient to confer jurisdiction on the court is on the plaintiff. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983). Moreover, "[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." Id.

"[A] determination of whether sufficient minimum contacts with Connecticut exist is a fact question . . . A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists . . . When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to represent evidence and to cross-examine adverse witnesses." (Citations omitted; internal quotation marks omitted.) Id., 56. For this reason the court held an evidentiary hearing on the defendants' motion to dismiss.

Having heard the evidence, the court finds the following facts. Patterson, the individual defendant, is a resident of North Carolina where she is employed by NACCO Materials Handling Group, Inc., an entity that, among other things, manufactures fork lifts. In their spare time, she and her cousin, Anthony Daniels, a recording producer and North Carolina resident, create promotional materials. They also create "demo" compact discs in connection with concerts by contemporary entertainers.² Patterson and Daniels conduct this business under the name of the other defendant, MYA Productions or MYA Publishing, a North Carolina entity.

2 The American Heritage Dictionary of the English Language (4th Ed. 2000) defines a "demo" as "[a] brief tape or recording illustrating the abilities of a musician or other performer."

Sometime prior to entering into the contract giving rise to this litigation, Patterson had transported an entertainer named Monte Gill to Connecticut for a performance. At the performance, she met Clanton. Clanton was employed by a car dealership. He is also one of the two partners who comprise the plaintiff On Point Productions, a partnership. Notwithstanding the allegations of the complaint, the individual plaintiff, Rachel Mitchell, is not a partner in On Point Productions. Moreover, Mitchell did not testify at the hearing and never had any contact with Patterson.

Clanton and On Point Productions were planning to produce a concert in North Carolina in which their client, Sunny Gibson, was to perform. Dan Jenkins, a producer-promoter with an office in Norwich, Connecticut doing business as Raw Entertainment, recommended to Clanton that he retain Patterson promote the event. Clanton and Jenkins, who was not the agent of Patterson or MYA, were employed by the same car dealership.

Following Jenkins' recommendation, Clanton contacted Patterson in North Carolina. Patterson then prepared and signed the contract in North Carolina on May 15, 2002 and sent it to Clanton, who signed it in Connecticut on May 20, 2002.³ All of the services that Patterson was to provide under the contract were to be provided in North Carolina.

3 The contract provides:

"You have been retained by On Point Productions, as an independent contractor for the project of "Sunny" demo packaging, imaging, press kit, marketing, club promotions.

You will be responsible for successfully completing said project according to specifications. The project is to be completed by November 13, 2002.

The cost to complete will not exceed $

You will invoice us for your services rendered at the end of each month. $1,000

We will not deduct or withhold an[y] taxes, FICA or other deductions. As an independent contractor, you will not be entitled to any fringe benefits, such as unemployment insurance, medical insurance, pension plans, or other such benefits that would be offered to regular employees.

During this project you may be in contact with proprietary information which is important to our company and its competitive position. All information must be treated with strict confidence and may not be used at any time or in any manner in work you may do with others in our industry."

After entering into the contract, Patterson faxed a chart to Clayton depicting the services she would be rendering and when they would be rendered. Later in May 2002, when Daniels, Patterson's partner, was in Connecticut visiting relatives, he met with Clanton, and Clanton gave him approximately $2,500 for the services Patterson was to perform pursuant to the contract.

On June 6, 2002, Patterson faxed a memo to Jenkins, in Connecticut, in which she provided him with detailed information about upcoming regional conferences of the National Association of Campus Activities, at which Jenkins could showcase information about the performers he managed. The memo encouraged Jenkins to enroll in one of these conferences. Patterson faxed a copy of this memo to Clanton.

On June 13, 2002, Patterson faxed a one-page memo to a colleague in North Carolina, Yomi Shafau, advising him that Clanton and Gibson would be in North Carolina on June 20-23. The memo contained their itinerary. A copy of this memo was faxed to Clanton. Also on June 13, 2002, Patterson faxed information to Jenkins about promotional activities she was providing in connection with an August 30 concert featuring Gill and Gibson. A copy of this memo was faxed to Clanton.

Also, in June, Jenkins and Clanton were considering having other performers they each managed (Donell Jones, Monte Gill, Sunny Gibson and possibly Kim Travis) perform at a concert in North Carolina. They requested that Patterson give them a "break-even" analysis of promotional expenses. Patterson faxed a one-page analysis to Clanton.

On June 13, 2002, Patterson sent Jenkins a one-page e-mail in which she confirmed the details of a concert in North Carolina that she and Jenkins were working on in an unpaid capacity.

"When a defendant files a motion to dismiss challenging the court's [personal] jurisdiction, a two part inquiry is required. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). With regard to the first part of this inquiry, the plaintiffs argue that personal jurisdiction over the defendants is authorized by Connecticut's long-arm statute under General Statutes 52-59b(a)(1) and (5).

General Statutes § 52-59b(a) provides in relevant part: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association, or over the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, who in person or through an agent: (1) Transacts any business within the state . . . or (5) uses a computer, as defined in subdivision (1) of subsection (a) of section 53-451, or a computer network, as defined in subdivision (3) of subsection (a) of said section, located within the state." "In order to find jurisdiction over a nonresident defendant, only one of the provisions of § 52-59b needs to be satisfied." Pro Performance Corporate Services, Inc. v. Goldman, 47 Conn.Sup. 476, 483, 804 A.2d 248 (2002) ( 32 Conn. L. Rptr. 404).

The court may quickly dispose of the plaintiffs' claim that the court has jurisdiction over the defendants pursuant to General Statutes § 52-59b(a)(5). Section 52-59b(a)(5) expressly incorporates the definition of computer network in General Statutes § 53-451(a)(3) which states: "`Computer network' means a set of related, remotely connected devices and any communications facilities including more than one computer with the capability to transmit data among them through the communications facilities." The plaintiffs essentially argue that the fact that the defendants had, or made use of, a web site accessible by computer in Connecticut is evidence that they used a computer network. Such an interpretation would, at the very least, read the word "related" out of the statutory definition. "Related" means "connected by reason of an established or discoverable relation . . ." Merriam-Webster's Collegiate Dictionary (10th Ed. 1997). "Relation" is defined as "an aspect or quality . . . that connects two or more things or parts as being or belonging or working together or as being of the same kind . . ." Id. Quite clearly a web site is not a computer network, as statutorily defined. If the legislature had meant "internet" instead of "computer network" it would have said so, as it did in General Statutes §§ 1-96c, 1-267, 3-37, 4a-57, 4d-80, 4d-82, 4d-83, 9-348gg, 10-262n, 10a-151b, 11-23c, 12-407, 12-408, 12-411, 12-412, 17b-367, 19a-177, 20-327b, 22a-1b, 22a-263a, 22a-620, 28-25b, 30-86, 32-23d, 53-451, 53a-90a, 54-142i, 54-258.⁴

4 Such language or intent would cast grave doubt on the constitutionality of General Statutes § 52-59b and General Statutes § 53-451. "[T]he mere operation of a commercially interactive web site should not subject the operator to jurisdiction anywhere in the world. Rather, there must be evidence that the defendant `purposefully availed' itself of conducting activity in the forum state, by directly targeting its web site to the state, knowingly interacting with residents of the forum state via its web site, or through sufficient other related contacts." Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir. 2003). "In choosing between two constructions of a statute, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature's underlying intent." State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989).

The plaintiffs' remaining argument is that the defendants transacted business in Connecticut, thereby authorizing this court to assert jurisdiction over them. "In determining whether the plaintiffs' cause of action arose from the defendants' transaction of business within this state we do not resort to a rigid formula. Rather, we balance considerations of public policy, common sense, and the chronology and geography of the relevant factors." Zartolas v. Nisenfeld, 184 Conn. 471, 477, 440 A.2d 179 (1981). Moreover, "in enacting § 52-59b, the legislature used New York Civil Practice Law § 302 (McKinney 1980-81 Sup.) as a model . . . [Therefore] the judicial interpretation given to that New York statute" is pertinent to the interpretation of § 52-59b. (Citations omitted.) Id., 474. As such, this court turns to the judicial interpretations of the New York statute.⁵

5 N.Y.C.P.L.R. § 302(a)(1) provides in relevant part, "[a]cts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or though an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state . . ."

"In order to meet the `transacting business' element, a plaintiff must show that the defendant `purposefully avail[ed] [itself] of the privilege of conducting activities within [the forum state], thus invoking, the benefits and protections of its laws.' Cutco Indus[tries, Inc. v. Naughton], 806 F.2d 361, 365 [(2d Cir., 1986)] (citation and quotation marks omitted). Courts should examine the totality of defendant's contacts with [the forum], rather than focus on each isolated event. Id." Nassar v. Florida Fleet Sales, Inc., 69 F.Sup.2d 443, 446 (S.D.N.Y. 1999). Although "a single purposeful business transaction" in Connecticut can be sufficient to support jurisdiction;⁶ Zartolas v. Nisenfeld, supra, 184 Conn. 474 (adopting the New York rule); "the nature and quality of the [forum state's] contacts must be examined to determine their significance. George Reiner Co. v. Schwartz, 41 N.Y.2d 648, 394 N.Y.S.2d 844, 847, 363 N.E.2d 551 (N.Y. 1977). In judging whether there are sufficient contacts, the New York Court of Appeals has cautioned that . . .' defendants, as a rule, should be subject to suit where they are normally found, that is, at their pre-eminent headquarters or where they conduct substantial general business activities.' McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34, 38, 229 N.E.2d 604 (N.Y. 1967)." Nassar v. Florida Fleet Sales, Inc., supra, 69 F.Sup.2d 446-47).

6 This broad elliptical expression in Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981), was later in the decision by clarifying that "[i]n determining whether the plaintiffs' cause of action arose from the defendants' transaction of business within this state we do not resort to a rigid formula. Rather, we balance considerations of public policy, common sense, and the chronology and geography of the relevant factors . . . In this case each of those considerations leads us to conclude that the plaintiffs' cause of action against the defendants arose from the defendants' transaction of business, in person, within the state." Id., 477. Notably, Zartolas dealt with the out of state execution of a warranty deed conveying real property located in Connecticut, a fact highlighted in Rosenblit v. Danaher, 206 Conn. 125, 138, 537 A.2d 145 (1988). In Rosenblit, the court noted that "[t]he situs of the real property in Connecticut in Zartolas suggests . . . that Zartolas is distinguishable factually from the case before us"; id., 139; in which the evidence showed that two Connecticut plaintiffs went to Massachusetts and hired the defendants, members of a Massachusetts law firm, to bring an action that arose out of events that primarily occurred in that state, and that the individual defendant "was only physically present in Connecticut on this matter on one occasion . . ." Id., 137. The court explained that it was "the fundamental incidents of the warranty deed in Zartolas [that] render[ed] the defendants' purposeful execution of it [in Iowa] a transaction of any business within this state." Id., 139. Moreover, the court pointed out that in Zartolas, "we noted that the `execution of a warranty deed pursuant to a sale of real property was a legal act of a most serious nature' and that `the defendants' purposeful Connecticut related activity suffices to locate this transaction within this state.'" Id. In addition, "[w]e specifically pointed out that inasmuch as the defendants had `purposefully availed themselves of the privileges of owning and selling Connecticut land [then] this state may require them to defend a Connecticut suit alleging breach of the deed's warranties.' Id., 478. Clearly, Connecticut was the only possible forum in Zartolas.'" Rosenblit v. Danaher, supra 206 Conn. 140. In contrast, in Rosenblit, the court observed that "[e]ven though it is true that [one of the other defendants] resides in Connecticut and some witnesses may reside in Connecticut, on balance, we cannot say that Zartolas or Computer Assistance, Inc. [v. Morris, 564 F.Sup. 1054 (D.Conn. 1953)], required, under relevant legal principles, that the trial court hold [the individual defendant] amenable to in personam jurisdiction under § 52-59b(a)(1)." Rosenblit v. Danaher, supra, 206 Conn. 140-41.
As explained in one Superior Court decision, "[w]here the single transaction at issue is not so fundamentally based in Connecticut, as it was in Zartolas, the Supreme Court in Rosenblit v. Danaher . . . made it clear that the trial court should scrutinize the real locus of the underlying transaction at issue. While the words of § 52-59b(a)(1) could be read as allowing jurisdiction generally if a defendant transacts any business in Connecticut, the Supreme Court in Zartolas . . . made it clear that jurisdiction under this section exists only if the business that gives rise to the plaintiff's cause of action was transacted in Connecticut . . . Likewise, in Gaudio v. Gaudio, 23 Conn.App. 287 [ 580 A.2d 1212] (1990), the transaction of business that rendered the [defendant] subject to the jurisdiction of a Connecticut court [on a claim for fraudulent transfer of stock] was his visit to Connecticut to effectuate the purchase of the very stock at issue." Cooper Companies, Inc. v. Woodbridge Associates, LP, Superior Court, judicial district of New Haven, Docket No. CV 92 0329693 (May 19, 1992, Hodgson, J.) ( 6 Conn. L. Rptr. 415, 417-18). See also R.O.I. Development Corp. v. Weiss, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 91 0391584 (December 21, 1992, Dunn, J.) ( 8 Conn. L. Rptr. 122, 122-23) (distinguishing Zartolas and Rosenblit). Other trial courts have also recognized that "`jurisdiction is proper under § 52-59b(a)(1) only if the plaintiff's cause of action arises out of the business transacted in the state.' Weinberg v. Zimet, Haines, Friedman Kaplan, No. 3;94 CV 1681, slip opinion, at 3-4 (D.Conn., August 8, 1996), citing Sherman Associates v. Kals, 899 F.Sup. 868, 870 (D.Conn. 1995)." Sherman v. Physicians for Women, P.C., Superior Court, judicial district of Danbury, Docket No. 323672 (May 19, 1997, Stodolink, J.) ( 19 Conn. L. Rptr. 465, 466).
Another trial court has observed that, in applying the balancing standard announced in Zartolas, "courts have reached varying results. For example, in Zartolas, the Connecticut Supreme Court held that the defendants' execution, in Iowa, of a warranty deed for Connecticut realty satisfied the statute, as `execution of a warranty deed pursuant to a sale of real property is a legal act of a most serious nature.' [ Zartolas v. Nisenfeld] 184 Conn. 475 Similarity, Judge Dorsey held that the defendant's execution, in New York, of a guaranty of a lease, fell within this long-arm statute, where the office space being leased was in Connecticut, both the lessor and lessee were Connecticut entities, and all notices with respect to the lease were to be given in Connecticut. Corporate Park [Associates v. Goldstein, No. H89-173(PCD) (D.Conn., September 7, 1989)], slip opinion, 3-4.
"Less substantial involvement has led judges to conclude that the statutory requirements of § 52-59b(a)(1) were not met. See, e.g., Savin [v. Ranier] 898 F.2d [304] 306-07 (Kentucky defendant's execution of promissory note as part of New York syndication with payments to Connecticut plaintiff insufficient to confer jurisdiction in this state); Crestment [Federal Savings Loan Association v. Craumer, No. CV B89-503(TFGD) (D.Conn., November 16, 1989)], slip opinion, 7-8 (foreign defendants' guarantee of limited partnership's obligation to New Jersey plaintiff not within statute, where even though realty was located in this state, payments were to be made in New Jersey); Greene v. Sha-Na-Na, 637 F.Sup. 591, 595-96 (D.Conn. 1986) (no § 52-59b(a)(1) jurisdiction over partnership for advertisement in New York Post for New York performance or for broadcast into Connecticut of national telethon originating in California); Rosenblit v. Danaher, 206 Conn. 125, 140-42, 537 A.2d 145 (1988) (no long-arm jurisdiction present over Massachusetts attorneys in legal malpractice suit filed by Connecticut client, where only one meeting was held in Connecticut and litigation at issue had been filed in Massachusetts)." Coan v. Bell Atlantic Systems Leasing International, Inc., 813 F.Sup. 929, 946 (D.Conn. 1990).

"Several factors should be considered in determining whether an out-of-state defendant transacts business in [Connecticut], including: (I) whether the defendant has an on-going contractual relationship with a [Connecticut] corporation; (ii) whether the contract was negotiated or executed in [Connecticut] and whether, after executing a contract with a [Connecticut] business, the defendant has visited [Connecticut] for the purpose of meeting with parties to the contract regarding the relationship; (iii) what the choice-of-law clause is in any such contract; and (iv) whether the contract requires franchisees to send notices and payments into the forum state or subjects them to supervision by the corporation in the forum state. Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996) (internal citations omitted). Although all factors are relevant, no one factor is dispositive and other factors may be considered. See id. The ultimate determination is based on the totality of the circumstances. Id." (Internal quotation marks omitted.) Sunward Electronics, Inc. v. McDonald, 362 F.3d 17, 22-23 (2d Cir. 2004); see also Zartolas v. Nisenfeld, supra, 184 Conn. 477 ("we balance considerations of public policy, common sense, and the chronology and geography of the relevant factors"). Balancing the various factors, the court finds that the plaintiffs have not proven that the defendants transacted business in Connecticut within the meaning of General Statutes § 52-59b(1).

First, there is no evidence of an ongoing contractual relationship between the defendants and a Connecticut corporation or other entity, although there was some evidence that the defendants had done business with Jenkins and Raw Entertainment in the past and were hoping to do so in the future. Second, though the contract giving rise to this dispute was "made" in Connecticut, since Clanton was the last to sign it and did so in Connecticut — "[i]t is well established that a contract is considered made when and where the last thing is done which is necessary to create an effective agreement. Alfred M. Best Co., Inc. v. Goldstein, 124 Conn. 597, 602, 1 A.2d 140 (1938), and cases cited therein." Bilco Co. v. Carey Precast Concrete Co., Superior Court, judicial district of New Haven, Docket No. CV 97 405960 (June 19, 1998, Levin, J.) ( 22 Conn. L. Rptr. 309) — this alone is an insufficient basis on which to find that the defendants had transacted business in Connecticut. See Libra Global Technology Services (UK) Ltd. v. Telemedia International, Ltd., 279 App.Div.2d 326, 327, 719 N.Y.S.2d 53 (2001) (where "a defendant has signed a contract outside of this State, a court cannot exercise jurisdiction over that defendant pursuant to CPLR § 302(a)(1) [New York's long-arm statute] based simply on the circumstance that the plaintiff signed in New York see Standard Wine Liq. Co. v. Bombay Spirits Co., 20 N.Y.2d 13, 17; Millner Co. v. Noudar, Ltd., 24 App.Div.2d 326, 329, 330)."). Even when standing with other evidence of transacting business, the happenstance that a party is the last to sign a contract would seem to be a circumstance entitled to little weight.

Third, the contract did not contain a choice-of-law clause, and no franchise relationship was involved.

Other relevant circumstances are that Patterson had once driven a client of Jenkins to Connecticut and had been introduced to Clanton. Also her partner, Daniels, received money from Clanton in Connecticut, as consideration for the contract between Clanton and Patterson. Although the payment was made in Connecticut, Daniels' reason for coming to Connecticut was to visit family.

"A `purposeful business transaction' is one in which the defendant has engaged in some form of affirmative conduct allowing or promoting the transaction of business within the forum state." Zemina v. Petrol Plus, Inc., Superior Court, judicial district of New Haven, Housing Session, Docket No. CV NH 9712-8590 (March 3, 1998) ( 22 Conn. L. Rptr. 94); see also Mayacas Corp. v. Gulfstream Aerospace Corp., 190 Ga.App. 892, 380 S.E.2d 303, cert. vacated, 259 Ga. 455, 385 S.E.2d 412 (1989) (holding that company president's attendance at a trade show held in forum state was fortuitous and did not constitute transacting business in the state). Thus, Daniels' conduct in receiving the payment on behalf of Patterson while he was in Connecticut primarily for another, personal purpose was merely fortuitous and not an affirmative, purposeful act, as that term is used in connection with our statutes.

Beyond this there are seven single-page documents that the Patterson faxed or e-mailed to Clanton in Connecticut, dealing with her plan to promote Sunny Gibson, the services she would provide, and information about upcoming events not pertaining to the contract. It is true that "one need not be physically present in order to be subject to the jurisdiction of our courts . . . for, particularly in this day of instant long-range communications, one can engage in extensive purposeful activity here without ever actually setting foot in the State." (Internal quotation marks omitted.) Under Par Associates, LLC v. Wash Depot A, Inc., 47 Conn.Sup. 319, 322, 793 A.2d 300 (2002) ( 31 Conn. L. Rptr. 20). Nevertheless, "`[t]he transmission of communications between an out-of-state defendant and a [party] within the jurisdiction does not, by itself. constitute the transaction of business within the forum state.' Bross Utilities Service Corp. v. Aboubshait, 489 F.Sup. 1366, 1371-72 (D.Conn.), aff'd mem., 646 F.2d 559 (2d Cir. 1980) (construing Conn. Gen. Stat. § 33-411(b) [and § 52-59b(a(1)]) . . . See also Greene v. Sha-Na-Na, 637 F.Sup. 591, 596 (D.Conn. 1986) (nonresident's telephone call, telegram and letter to Connecticut plaintiff did not constitute transaction of business within meaning of § 52-59(a)(1)); Connecticut Artcraft Corp. v. Smith, 574 Conn. 626, 631 (D.Conn. 1983) (nonresident's telephone calls to alleged coconspirators in Connecticut concerning trade secrets of their former employer, a Connecticut corporation, did not constitute transaction of business within meaning of § 52-59b(a)(1))." Custom Navigation Systems, Inc. v. Pincus, 935 F.Sup. 117, 119 (D.Conn. 1995); see also Coan v. Bell Atlantic Systems Leasing International, Inc., 813 F.Sup. 929, 946 (D.Conn. 1990) (nonresident's transmission of a draft tax opinion to the plaintiff's Connecticut corporation is insufficient to confer jurisdiction under § 52-59); Schembri v. Physicians for Women, P.C., supra, 19 Conn. L. Rptr. 466 (nonresident's mailing of report to Connecticut resident does not constitute "`transacting business' within the state."); International Capital Realty Investment Co. v. West, 234 Ga.App. 725, 728, 507 S.E.2d 545 (1998), cert. denied, 1999 Ga. Lexis 199 (1999) (plaintiff's telephone and mail contact with out-of-state defendant and defendant's visits to forum are insufficient to establish purposeful activity with forum state).

Of course, the test is not whether each of these individual items standing alone constitutes the transaction of business in Connecticut but, rather, whether the totality of circumstances shows the transaction of business. "A court must consider the totality of circumstances when determining the existence of purposeful activity, and may not subject the defendant to jurisdiction based on `random,' `fortuitous,' or `attenuated' contacts. CutCo Indus., 806 F.2d at 365. It is the `nature and quality' and not the amount of New York contacts that determine the purposeful activity. PaineWebber, Inc. v. WHV, Inc., 1995 U.S. Dist. LEXIS 6514, 1995 WL 296398, at *2 (S.D.N.Y., May 16, 1995). The requisite minimum contacts must provide a fair warning to the defendant of a possibility of being subject to courts of the forum state." SAS Group, Inc. v. Worldwide Inventions, Inc., 245 F.Sup.2d 543, 548 (S.D.N.Y. 2003).

Focusing on the nature and quality of the defendants' acts, the court holds that they do not constitute transacting business in Connecticut. Other than the three e-mails or faxes Patterson sent to Connecticut in which she described actions that the defendants would undertake for the plaintiffs within the state of North Carolina pursuant to their contract, the plaintiffs did not provide evidence that the defendants engaged in purposeful acts in Connecticut. Furthermore, the plaintiffs did not prove that the defendants had an ongoing relationship with a Connecticut person. "As a broad generalization, a nondomiciliary who enters [the forum state's] service economy pursuant to a contract is more likely to be deemed to be transacting business in [the forum state] than is one who performs services out of State for [the forum state's] residents on a random basis . . . ". . . " McLenitban v. Bennington Community Health Plan, 223 App.Div.2d 777, 778, 635 N.Y.S.2d 812, appeal dismissed, 88 N.Y.2d 1017, 672 N.E.2d 609 (1996). Section 52-59b does not generally exert jurisdiction to the limits of due process. "The term `transacting business' is not broadly interpreted in Connecticut. Chemical Trading v. Manufacture de Produits Chimiques de Tourman, 870 F.Sup. 21, 23 (D.Conn. 1994); Hospitality Systems, Inc. v. Oriental World Trading Co., LTD., No. CV 99 0169927 2000 Conn. Super LEXIS 255 (February 1, 2000) (26 Conn. L. Rptr. 401)." Milne v. Catuogno Court Reporting Services, Inc., 239 F.Sup.2d 195, 198 (D.Conn. 2002).

Finally, the plaintiffs made no showing that anything the defendants did or said caused them any loss in Connecticut.

The court finds that the plaintiffs have failed to prove that the defendants transacted business in Connecticut, within the meaning of General Statutes § 52-59b. Because the statutory requirements have not been satisfied, it is unnecessary for the court to determine whether the exercise of jurisdiction over Patterson would violate due process. Rosenblit v. Danaher, 206 Conn. 125, 142, 537 A.2d 145 (1988). The motion to dismiss is granted.

BY THE COURT

Bruce L. Levin Judge of the Superior Court