Opinion
No. CV 02 0470704
December 1, 2003
MEMORANDUM OF DECISION MOTION TO DISMISS
The defendant, pursuant to Practice Book § 10-31, has filed a motion to dismiss the plaintiff's complaint, arguing that the plaintiff cannot exercise personal jurisdiction over the defendant. The plaintiff is a Connecticut corporation, and the defendant is a non-resident individual.
The plaintiff's complaint contains five counts. It alleges that the defendant, a Georgia resident, agreed to act as a manufacturer's sales representative in a territory covering the states of South Carolina, North Carolina, Georgia and Florida. It further alleges that the defendant failed to perform as he was obligated to, thereby causing the plaintiff damages in the form of monies paid to the defendant for his services, as well as, lost sales within the defendant's sales territories.
On August 21, 2003, the court conducted an evidentiary hearing on the motion to dismiss. The court heard testimony from the defendant Tomblin and the plaintiff's representative Martin Adamo. Adamo is the owner of M.O.A., Inc., which is the holding company for Century Fireplace and Colonial Fireplace Furnishings, Inc. M.O.A. had purchased the assets, machinery, equipment, trade names and trade marks of these two entities from the First International Bank in 1999. Following the close of testimony the court allowed the parties to file supplemental legal briefs by September 5, 2003, and the parties have done so.
I
Pursuant to Connecticut Practice Book § 10-31 a motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person and (3) improper venue. "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." CT Page 13357 Richardello v. Butka, 45 Conn. Sup. 336, 18 Conn. L. Rptr. 409 (1997), Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). "A motion to dismiss is used to assert jurisdictional flaws that appear on the record or are alleged by the defendant in a supporting affidavit as to facts not apparent on the record." Villager Pond, Inc. v. Darien, 54 Conn. App. 178, 182 (1999), Bradley's Appeal from Probate, 19 Conn. App. 456, 461-62 (1989). "In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Villager Pond, Inc. v. Darien, supra at 183, Mahoney v. Lensink, 213 Conn. 548, 567 (1990).
`The motion to dismiss shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." Practice Book § 10-31. "Where . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). "If the defendant challenges the court's jurisdiction, it is then incumbent on the plaintiff to prove the facts establishing the requisite minimum contacts." Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983). "When 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., 54. In meeting this burden of proof, the plaintiff is not required to prove the defendant's liability, but only the commission of acts in relation to the state which justify the court's exercise of jurisdiction. Stephenson, Conn.Civ.Proc. (2nd Ed.) 96, p. 390, citing Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957).
A challenge to personal jurisdiction involves a two-part inquiry. Hart, Ninninger Campbell Associates v. Rogers, 16 Conn. App. 619, 624, 548 A.2d 758 (1988); Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). "The first inquiry is whether the applicable state long arm statute authorizes the assertion of jurisdiction over the [defendant]; and, [second,] if the statutory requirements are met, whether the exercise of in personam jurisdiction would violate constitutional principles of due process." Id.; Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905 (1986). Gaudio v. Gaudio, 23 Conn. App. 287, 298-99, 580 A.2d 1212 (1990); Knipple v. Viking Communications, Ltd., supra; Montalvo v. Adirondack Trust Company, Superior Court, judicial district of New Haven at New Haven, No. CV02-0459602S (Jun. 19, 2002) (Arnold, J.), 32 CLR 377; Basta v. Today's Adoption, Superior Court, judicial district of Waterbury, Docket No. 119321 (July 24, 1995, Sullivan, J.).
II
Jurisdiction over a non-resident defendant is conferred by General Statutes § 52-59b, which provides as follows:
(a) 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, or foreign partnership, or his or its executor or administrator, who in person or through an agent:
(1) Transacts any business within the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; 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, if he (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or (4) owns, uses or possesses any real property situated within the state.
The plaintiff relies on General Statutes § 52-59b(a)(3). Under General Statutes § 52-59b(a)(3), this court can exercise jurisdiction over anon-resident individual who (1) in person or through an agent (2) commits a tortious act outside the state (3) causing injury to a person or property within the state, (4) if the individual regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (5) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.
The defendant in filing the motion to dismiss argues that (1) the injury claimed by the plaintiff did not occur in the State of Connecticut as required by General Statutes § 52-59b(a)(3); (2) that the defendant does not regularly conduct or solicit business, engage in any other persistent course of conduct or derive substantial revenue from goods used or services rendered in Connecticut per General Statutes § 52-59b(a)(3)(A); and (3) that the defendant did not expect nor should he reasonably expect any act to have consequences in Connecticut as required under General Statutes § 52-59b(a)(3)(B).
The plaintiff, a Connecticut corporation, sells fireplace equipment and related products throughout the country under the trade name Colonial Fireplace Furnishings. The defendant is a Georgia citizen who had worked as a manufacturer's sales representative for a company called Century Fireplace Furnishings, Inc., which had no relation to the plaintiff. The plaintiff purchased the assets and not the liabilities of Century from a banking institution after Century failed. Thereafter, the defendant agreed to work as a sales representative for the plaintiff and was assigned a sales territory.
The defendant is the sole proprietor of a business known under the registered trade name of Autumn Products, located in Lawrenceville, Georgia, through which he has acted as a manufacturer's sales representative for various manufacturers of fireplace products with a territory including several states in the southeastern United States, but never Connecticut. The defendant has never resided in Connecticut. He has never physically visited Connecticut prior to his court appearance, nor has he owned any property or maintained any bank accounts in Connecticut. Additionally, he has never instituted any legal proceedings in Connecticut, nor maintained a mailing address or telephone listing in Connecticut. The defendant maintains that he is unfamiliar with the corporate entity M.O.A., Inc., and has only done business with Fireguard, Inc. and its successor, Century Fireplace Furnishings, Inc., currently has entered a legal action against those two corporate entities in Georgia, maintaining that he has not been paid in full for services performed in behalf of those two corporations. While the defendant did have a prior written agreement with the defunct company Fireguard, Inc., which can be interpreted as conferring jurisdiction on Georgia in the event of a dispute, the defendant admits that he does not have a written contract with M.O.A., Inc., Century or Colonial Fireplace Furnishings, Inc., which would define the proper jurisdictional venue for disputes arising between the present parties.
The evidence establishes that the defendant represents companies from many states and has customers in numerous states. The defendant testified that as a sole proprietorship he is an independent contractor and has total control over how he performs his duties. He has been an independent sales representative for various manufacturers since 1975. His duties in this capacity require him to promote products, handle customer service matters and to physically visit the customers from time to time.
The defendant has admitted that he agreed to act as a sales representative for the plaintiff in 1999 after discussions with Adamo. The defendant was not aware of the fact that M.O.A., Inc. was the holding company for the new Century Fireplace Furnishings and Fireguard which were now owned by M.O.A. and Adamo. He has also admitted that despite the fact that he was to service the sales territories of North Carolina and South Carolina, he did not visit these states in behalf of the plaintiff. However, he accepted sales commissions for these states from the plaintiff totaling thousands of dollars over a two-year period. The commissions were paid by checks drawn on Colonial Fireplace Furnishings's Connecticut bank account at the Hudson United Bank. The defendant testified that he knew he was representing a Connecticut corporation, owned by Adamo, when he accepted commissions for sales in North Carolina and South Carolina despite never having visited North Carolina and South Carolina in the plaintiff's behalf. The defendant admitted that he accepted the payments from the plaintiff M.O.A., d.b.a. Colonial in the form of commission checks from Fireguard and Colonial because he believed that he was owed commissions from the former owners of Century Fireplace Furnishings, Inc. and he wanted to recoup his lost commissions, which totaled approximately $4,000. Adamo had refused to pay these previous commissions in a telephone conversation with the defendant from Adamo's office in Connecticut and in a face to face conversation outside of Connecticut when he engaged the defendant's services as a manufacturer's sales representative.
The defendant's attempt to have a Connecticut corporation, the plaintiff, pay commissions that the defendant claims was owed to him by a previous and now insolvent Connecticut corporation is sufficient to confer jurisdiction on the Connecticut courts. "A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed his activities at residents of the forum and the litigation has resulted from alleged injuries that arise out of or relate to those activities." (Internal quotation marks omitted) Thompson v. Chemical Bank, 234 Conn. 281, 288, 661 A.2d 595 (1995). General jurisdiction will exist even where the litigation does not arise out of or relate to the nonresident's activities in the forum as long as the defendant had continuous and systematic general business contacts with the state. Id.; Updike, Kelly Spellacy v. Beckett, Superior Court, Complex Litigation Docket at New Britain, Docket No. X03 CV0497890S (March 6, 2002) (Aurigemma, J.) 31 Conn. L. Rptr. 500. It should be no surprise to the defendant that Connecticut corporations, with which the defendant has many years of experience, would hale him into Connecticut for litigation surrounding the defendant's business practices. The defendant has hired Connecticut counsel to represent his interests and was able to appear to attend the evidentiary hearing on this motion to dismiss.
The unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum state. The application of that rule will vary with the quality and nature of a defendant's activity, but it is essential in every case that there be some act by which the defendant avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105A. S.Ct. 2174, 85 L.Ed.2d 528 (1984); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Basta v. Today's Adoption, Superior Court, judicial district of Waterbury, supra. "The defendant's conduct and connection with the forum state must be such that it should reasonably anticipate being haled into court here." Austin v. Austin, Superior Court Judicial district of Litchfield, Docket No. FA87 0061557 (June 4, 1993) (Dranginis, J.), 9 Conn. L. Rptr. 211, 212, citing Burger King Corp. v. Rudzewicz, supra 471 U.S. 474.
"Section 52-59b(a)(2) authorizes jurisdiction where a tort has been committed in Connecticut. In Knipple v. Viking Communications, Ltd., 236 Conn. 602, 610, 674 A.2d 426 (1996) our Supreme Court ruled that false representations entering Connecticut by wire or mail constitute tortious conduct in Connecticut under § 33-411(c)(4). In David v. Weitzman, 677 F. Sup. 95, 98 (D.Conn. 1987), the court held that transmitting fraudulent misrepresentations into Connecticut by mail and telephone was conduct "within the state" for purposes of both General Statutes § 52-59b(a)(2) and § 33-411(c)(4). Our Supreme Court's citation of David v. Weizman, supra, indicates that it too would construe the language of General Statutes § 52-59b(a)(2) the same way it has construed the nearly identical language of § 33-411(c)(4). American Protective Services v. Brady, Superior Court, judicial district of New Haven at New Haven, No. CV 00-0436227 (Dec. 7, 2001) (Jones, J.), 30 CLR 755. The defendant has placed calls to, and received calls from, Connecticut businesses, plaintiff among them, in order to operate his Georgia business. The defendant initiated contact with Adamo and M.O.A., Inc. by telephone and discussed his commissions by phone calls to Connecticut and phone calls received from Connecticut.
The complaint, which must be viewed in a light most favorable to the plaintiff, alleges that the defendant committed a tort outside the state of Connecticut in fraudulently taking commissions for services not performed, and that this activity had a negative impact on M.O.A., Inc., a Connecticut corporate entity. The intentional nature of the defendant's admitted activity in trying to have the plaintiff pay commissions allegedly owed by a previous insolvent employer of the defendant carries with it a reasonable expectation of consequences within Connecticut.
The defendant has carried on interstate commerce with various employers from states other than Georgia, servicing their clients in a number of states. The defendant has profited from interstate contracts with Connecticut manufacturers, having purchased goods from Connecticut for resale out of state and having derived commissions from Connecticut corporations, plaintiff among them. Whether the defendant derived substantial income from its commerce in Connecticut is not the determining factor in the exercise of personal jurisdiction. The defendant has derived substantial income from interstate commerce since 1975. Montalvo v. Adirondack Trust Co., Superior Court, judicial district of New Haven at New Haven, Docket No. CV02 0459602S (June 19, 2002) (Arnold, J.) 32 Conn. L. Rptr. 377. It can hardly be a surprise to the defendant that he might be called to a Connecticut court to answer for his business practices. The plaintiff has properly invoked § 52-59b(a)(3).
The court also finds that the exercise of in personam jurisdiction over the defendant would satisfy the minimum contacts requirements of the due process clause. Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905 (1986); Gaudio v. Gaudio, supra. 23 Conn. App. 298.
The United States constitution allows state courts to assert jurisdiction over nonresident defendants only when minimum contacts exist between the defendant and the forum state. The nature of these contacts must be such that requiring the defendant to defend in the forum state does not offend" traditional notions of fair play and substantial justice." World-Wide Volkswagen Corporation v. Woodson, [ 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed.2d 95 (1945)]; Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed.2d 278 (1940).
The documentation before the court, interpreted in a light most favorable to the plaintiff, shows that the conduct of the defendant was calculated to have the plaintiff pay him commissions that it did not owe in the defendant's attempt to recoup unpaid commissions by a previous Connecticut corporate employer. The consequences of receiving and accepting commissions that he has allegedly not earned can reasonably be expected to be known by the defendant. The plaintiff is a Connecticut corporation with all of its offices in Connecticut. Connecticut is the appropriate forum. In weighing and balancing the difficulties of the defendant in defending the action in Connecticut, as opposed to the plaintiff's prosecuting the action in Georgia, the court finds that the action belongs in a Connecticut court. Requiring the defendant to defend allegations against him in Connecticut does not offend "traditional notions of fair play and substantial justice." World-Wide Volkswagen Corporation v. Woodson, supra, 444 U.S. 286 (1980); International Shoe Co. v. Washington, supra, 326 U.S. 310 (1945); Milliken v. Meyer, 311 U.S. 457 (1940).
The court finds that its exercise of in personam jurisdiction over the defendant does not violate the minimum contacts requirement of the due process clause. Therefore, for the reasons set forth herein, the defendant's motion to dismiss is denied.
The Court
By ARNOLD, JUDGE.