Opinion
CV156029341S
02-28-2017
Lloyd Prout v. Mukul Luxury Boutique Hotel & Spa
UNPUBLISHED OPINION
MEMORANDUM OF DECISION, RE MOTION TO DISMISS (NO. 124)
PETER EMMETT WIESE, JUDGE.
I.
PROCEDURAL HISTORY
In an amended complaint dated January 7, 2016, the plaintiff, Lloyd Prout, asserts negligence and recklessness claims against the defendants, Mukul Luxury Boutique Hotel & Spa, Mukul Beach Golf & Spa and Marina De Guacalito, S.A. The following facts are alleged in the complaint and submitted evidence. The defendant, Marina de Guacalito, S.A. is a Nicaraguan corporation which owns and operates the Mukul Beach, Golf & Spa Resort (" hotel") located in Nicaragua. The plaintiff, a Connecticut resident, was an invitee at the defendants' hotel on February 11, 2014. The plaintiff was riding in an electric cart operated by an employee when the cart overturned. As a result, the plaintiff sustained injuries and now seeks monetary damages and costs.
The defendants filed an appearance by counsel on December 10, 2015. The defendants filed a motion to dismiss the plaintiff's second amended complaint for lack of personal jurisdiction on July 8, 2016 (no. 124.00). The plaintiff filed an objection to the motion to dismiss on October 21, 2016 (no. 139.00). The defendants filed a reply to the objection on November 4, 2016 (no. 146.00). The parties presented oral argument at short calendar on November 7, 2016. Subsequently, the plaintiff filed a surreply on November 14, 2016 (no. 147.00).
As a preliminary matter, the court ordered supplemental briefs addressing whether the defendants had waived their personal jurisdiction claims pursuant to the rules of practice (no. 148.00). Practice Book § 10-30(b) provides that " [a]ny defendant, wishing to contest the court's jurisdiction, shall do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-32 further states, " [a]ny claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by Section 10-30." The defendants filed an appearance by counsel on December 10, 2015. The motion to dismiss for lack of personal jurisdiction was filed on July 8, 2016. Upon review of the record, the court's initial scheduling order issued on December 17, 2015, includes a notation that the defendants' motion to dismiss was to be filed by February 9, 2016 (no. 113.00). In subsequent, timely filed joint motions to modify the scheduling order, which the court approved, the defendants' motion to dismiss deadline was extended to April 22, 2016, May 14, 2016 and finally to July 8, 2016 (nos. 117.00, 122.00, 123.00). Because the defendants sought timely extensions with the court's permission, the court considers the defendants' motion to dismiss as timely filed pursuant to the rules of practice. See Arnold v. FYC Entertainment, LLC, Superior Court, judicial district of Hartford, Docket No. CV-15-6062624-S (October 4, 2016, Elgo, J.) (63 Conn.L.Rptr. 176, 178, ) (" whether or not an order granting a motion to extend the time to file a responsive pleading encompasses a motion to dismiss, Practice Book § 1-8 allows this court to consider the underlying merits of the motion to dismiss"); see also Ellison v. Macci, Superior Court, judicial district of Hartford, Docket No. CV-15-6062155-S (May 17, 2016, Dubay, J.) (62 Conn.L.Rptr. 370, ) (motion to dismiss timely filed after court granted extension of time).
II.
DISCUSSION
Motion to Dismiss--Personal Jurisdiction
" [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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Footnote omitted; internal quotation marks omitted.) Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 825, 917 A.2d 959 (2007).
" A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
The plaintiff argues that " because the [defendants'] motion [to dismiss] was filed early and in the absence of any evidentiary hearing, [the plaintiff] need only satisfy an eased, lesser standard" and that he simply needs to make a " prima facie showing that [personal] jurisdiction exists." The court reiterates that the defendants' motion to dismiss was filed on July 8, 2016, after the court granted three extensions of joint motions to modify the scheduling order. The original complaint was filed on May 27, 2015, and the operative amended complaint was filed on January 7, 2016. As discussed subsequently in part B of this opinion, the plaintiff bears the burden to prove the court's jurisdiction over a foreign corporation.
As supporting authority, the plaintiff cites H. Lewis Packaging, LLC v. Spectrum Plastics, Inc., 296 F.Supp.2d 234, 237-38 (D.Conn. 2003). The court notes that this is a district court decision discussing rule 12(b)(2) of the Federal Rules of Civil Procedure. Accord Olson v. Accessory Control & Equipment Corp., Superior Court, judicial district of Hartford, Docket No. CV-93-0525839-S (April 13, 1995, Corradino, J.) (14 Conn.L.Rptr. 82, ) (discussing Fed.R.Civ.P. 12(b)), aff'd, 54 Conn.App. 506, 735 A.2d 881 (1999) (agreeing with trial court's decision without discussing federal procedure), aff'd on other grounds, 254 Conn. 145, 757 A.2d 14 (2000).
Parties' Arguments
In their motion to dismiss, the defendants assert that the court lacks personal jurisdiction because Connecticut's longarm statute, General Statutes § 33-929(f), is not applicable as the contract was not made in Connecticut, nor do the defendants specifically solicit business in the state. In addition, the defendants argue that exercising jurisdiction over them would violate their due process rights under the fourteenth amendment because of a lack of minimum contacts with the state. Lastly, the defendants assert that the court lacks subject matter jurisdiction over Mukul Luxury Boutique Hotel & Spa and Mukul Beach Golf & Spa because these are trade names and are not legal entities. In support of their position, the defendants include an affidavit from the hotel's marketing manager, who states that the defendants do not specifically target Connecticut residents in their advertisements, and also an affidavit from the hotel's chief financial officer, who states that the hotel does not conduct business in Connecticut and only derives " an insubstantial" amount of revenue from Connecticut residents.
In his opposition, the plaintiff contends that the defendants' conduct satisfies the jurisdictional requirements under § 33-929(f) because the hotel reservation contract was made in Connecticut and the defendants solicited business from Connecticut residents. Furthermore, the plaintiff avers that the longarm statute does not violate the defendants' rights under the due process clause because they have sufficient minimum contacts with the state. In support of his position, the plaintiff supplied his own affidavit and attached over eight hundred pages of exhibits containing the hotel's various advertisements, articles and marketing materials in online and print publications. The parties have not filed objections contesting the affidavits or exhibits.
Accordingly, the court will consider this information in ruling on the motion to dismiss.
A: Personal Jurisdiction
" [A] court may exercise two types of personal jurisdiction over a corporate defendant properly served with process. These are specific (also called 'case-linked') jurisdiction and general (or 'all-purpose') jurisdiction. Specific jurisdiction is available when the cause of action sued upon arises out of the defendant's activities in a state. General jurisdiction, in contrast, permits a court to adjudicate any cause of action against the corporate defendant, wherever arising, and whoever the plaintiff." Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2016). It is by specific jurisdiction, based upon the defendants' activities in the state, that the plaintiff asserts the court's exercise of personal jurisdiction.
" As a matter of federal constitutional law, state courts may exercise 'specific' personal jurisdiction over a defendant whenever a cause of action 'arises out of' the defendant's contacts with the forum. For the purposes of defining 'specific' jurisdiction, federal courts have construed the words 'arising out of' to require some sort of causal connection between the defendant's forum contacts and the plaintiff's injuries." Thomason v. Chemical Bank, 234 Conn. 281, 287, 661 A.2d 595 (1995).
" When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two-part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. 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.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 514-15. " If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction." Id., 515. " Only if we find the [longarm] statute to be applicable do we reach the question whether it would offend due process to assert jurisdiction." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 543, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014).
Moreover, " [t]he rule is that a trial court must accept all undisputed factual allegations for the purpose of determining whether a plaintiff has sustained his burden of proving that the court has personal jurisdiction over a defendant under the long arm statute." (Emphasis in original.) Pitruzello v. Muro, 70 Conn.App. 309, 315, 798 A.2d 469 (2002).
General Statutes § 33-929(f) is the longarm statute that applies to foreign corporations. The language of § 33-929(f) empowers only " a resident of this state" or a " person having a usual place of business in this state" to sue a foreign corporation in a Connecticut court. Here, the plaintiff is a resident of the state, thereby fulfilling the residency requirement. The first inquiry is whether the plaintiff's cause of action arises from any contract made in this state, pursuant to § 33-929(f)(1), or whether the defendants solicited business in this state pursuant to § 33-929(f)(2).
General Statutes § 33-929(f) provides in relevant 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, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state . . ."
General Statutes § 33-929(f)(2).
General Statutes § 33-929(f)(2) states in relevant part: " Every foreign corporation shall be subject to suit in this state . . . on any cause of action arising . . . out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state . . ." The defendants argue that they have not repeatedly and specifically solicited business from Connecticut residents. The plaintiff contends that the defendants solicit business in the state by three methods: through advertisements in national and international publications, through contracts with travel agencies that include Connecticut travel agents, and through the hotel's interactive website.
Solicited Business
The seminal case regarding the exercise of personal jurisdiction under our longarm statute is Thomason v. Chemical Bank, supra, 234 Conn. 281, in which the Supreme Court interpreted General Statutes § 33-411(c)(2) as " a plaintiff's cause of action aris[es] . . . out of . . . business solicited in this state if, at the time of the defendant engaged in solicitation in Connecticut, it was reasonably foreseeable that, as a result of that solicitation, the defendant could be sued in Connecticut by a solicited person on cause of action similar to that now being brought by the plaintiffs." (Internal quotation marks omitted.) Id., 296. The court further explained that " [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 hauled 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." (Emphasis in original.) Id.
General Statutes § 33-411(c) is the statutory precursor to § 33-929(f) with identical language. See Public Acts 1994, No. 186, § § 193, 214; see also Thorton & Co., Inc. v. Lindamar Industries, Inc., United States District Court, Docket No. 3:11CV375, 2011 WL 6140891, *4 n.4 (D.Conn. December 9, 2011).
In reviewing Thomason, the Appellate Court in Pitruzello v. Muro, supra, 70 Conn.App. 318-19, further commented that, " [t]he plaintiff is, therefore, right to remind us that, in deciding the question of personal jurisdiction, we must take into account the totality of business allegedly solicited by the defendant in this state, including but not limited to transactions between the defendant and the underlying plaintiffs. The applicability of this principle depends, however, on the factual circumstances under which the issue of jurisdiction has been raised." In Pitruzello, the court determined that the plaintiff's complaint failed to satisfy the longarm jurisdiction requirements set out in § 33-929(f)(2) or (4), because " [the plaintiff] has not sufficiently alleged that the defendant repeatedly solicited in this state. To state the obvious, there is no allegation that the defendant ever solicited business from any other Connecticut residents to buttress the plaintiff's argument for jurisdiction." (Emphasis omitted.) Id., 320.
Our trial court decisions have debated the degree of solicitation of business required in order to establish personal jurisdiction. In Delvecchio v. Dayton Hudson Corp., Superior Court, judicial district of New Haven, Docket No. 430408 (February 23, 2000, Blue, J.) (26 Conn.L.Rptr. 458, ), the court determined that the defendant did not solicit business in Connecticut pursuant to § 33-929(f)(2) when the plaintiff, a Connecticut resident, slipped and fell in a Target store in Florida. In comparing the facts to appellate court and district court cases, Judge Blue wrote, " O'Brien [v. Okemo Mountain, Inc., 17 F.Supp.2d 98 (D.Conn. 1998)] and Mallon [v. Walt Disney World Co., 42 F.Supp.2d 143 (D.Conn. 1998)], like Thomason [v. Chemical Bank, 234 Conn. 281, 661 A.2d 595 (1995)] and Frazer [v. McGowan, 198 Conn. 243, 502 A.2d 905 (1986)], show that it is not categorically impermissible to bring a negligence action in Connecticut against a nonresident defendant for an injury suffered in another state . . . In each of those cases, the defendant--Chemical Bank, Westerly Hospital, Okemo Mountain, Disney World--specifically enticed Connecticut residents to travel out of state to do business with it or visit it. Many Connecticut residents, for example, travel to Florida for the specific purpose of visiting Disney World. Disney World encourages this with its advertising and can hardly be surprised when a Connecticut resident, so solicited, falls down and sues in the Connecticut courts. The same can be said of Chemical Bank, Westerly Hospital, and Okemo Mountain." Id., 460, . But see Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 460 A.2d 481 (1983); see also Centennial Helicopters, Inc. v. Sterling Corp., Superior Court, judicial district of Middlesex, Docket No. CV-05-04002666-S (November 22, 2005, Silbert, J.) (40 Conn.L.Rptr. 342, ) (motion to dismiss granted because § 33-929(f)(2) requirements not satisfied).
Here, the defendants' affidavits state the following facts. The hotel is not registered to transact business, have any offices or bank accounts, does not have any representatives or conduct any business in the state of Connecticut. The hotel derived approximately 1.7 percent of its revenue from Connecticut residents from March 2014 through June 2016 (no. 126.00). The hotel does not engage or specifically target Connecticut residents in its national and international marketing and advertising campaigns. In addition, it operates a website that is accessible throughout the world and links to a third party that can book hotel reservations.
According to the chief financial officer's affidavit, Connecticut residents accounted for $380,864 out of total revenue of $21,895,191 or 1.7 percent from March 2014 through June 2016.
The court notes that the marketing manager's affidavit refers to the room reservation website as " a separate website operated by a third party, " whereas the defendants' responses to the plaintiff's interrogatory no. 17 states that " users of the website are directed by hyperlink to defendants' booking agent's website."
On the other hand, the plaintiff's affidavit states that he made a reservation with the hotel after reviewing the advertisement in Food & Wine magazine from his home in Connecticut. He also received additional e-mail solicitations from the defendants after his initial reservation. The defendants state that they advertise in national and international publications " which target a worldwide or national community." Although they do not specifically target Connecticut residents, at least one such publication, Food & Wine magazine, reached the plaintiff at his residence. The defendants also state that they received at least one reservation from a Connecticut travel agent--New Canaan TravelWorld, which booked a reservation for seven nights for total revenue of $9,631. The defendants also state that they have " contracts with large national and international travel agencies, such as Virtuoso, Signature and American Express Travel." The plaintiff's search of Virtuoso's website resulted in fifty-eight travel agents listed in Connecticut (Exhibit K, no. 141.00). In addition, the defendants state that they advertise through Conde Nast and Andrew Harper since 2012. The defendants have also derived more than an " insubstantial amount of revenue" from Connecticut residents from 2014 through 2016 (approximately $380,864). The defendants could reasonably have anticipated being hauled into court here by some person who had been solicited in Connecticut (such as the plaintiff) to stay at the hotel, and sustained injuries while staying at the hotel. See, e.g., O'Brien v. Okemo Mountain, Inc., 17 F.Supp.2d 98, 101 (D.Conn. 1998) (" the defendant could reasonably foresee that Connecticut residents would respond to its various advertisements by skiing at its facility and, if harmed by the defendant's negligence, suing the defendant in Connecticut"); see also Mallon v. Walt Disney World Co., 42 F.Supp.2d 143, 145 (D.Conn. 1998) (" [a] defendant that systematically solicits Connecticut residents to travel to its Florida resort should expect to be amenable to suit in Connecticut under § 33-929(f)"). The totality of these circumstances demonstrates that the defendants have repeatedly solicited business in the state; however, the court will further discuss the operative features of the hotel's website in order to supplement the analysis.
According to the exhibits attached to the plaintiff's affidavits, Conde Nast is a media company that attracts " more than 100 million consumers across its industry-leading print, digital and video brands" and Andrew Harper LLC is a " full service luxury travel company" that has a total monthly audience of 100, 000+. The defendants' hotel has profiles on both the Conde Nast Traveler and Andrew Harper websites.
The Website
It is undisputed that the defendants operate a website accessible to Connecticut residents. The defendants argue that the website is passive, and that it directs viewers to a third-party webpage to book hotel reservations. As the website does not specifically target Connecticut residents, the defendants assert that it is insufficient to establish personal jurisdiction. The plaintiff disagrees, contending that the website is interactive, contains contact information, permits booking of various activities and links to various social media pages.
See http://www.mukulresort.com/.
" While there is no appellate authority in Connecticut on when a foreign corporation's Internet activities will satisfy the jurisdictional requirements of § 33-929(f)(2), the Superior Court has followed the reasoning in Rios v. Fergusan, 51 Conn.Supp. 212, 978 A.2d 592 (2008), in deciding such matters . . . In Rios, the court held that merely placing information on the Internet is not sufficient by itself to [subject] that person to personal jurisdiction in each State in which the information is accessed . . . Otherwise, a person placing information on the Internet would be subject to personal jurisdiction in every State, and the traditional due process principles governing a State's jurisdiction over persons outside of its borders would be subverted . . . Something more than posting and accessibility is needed to indicate that the [defendant] purposefully (albeit electronically) directed [its] activity in a substantial way to the forum state . . . Moreover, [s]everal Connecticut trial courts, following the logic of Thomason v. Chemical Bank, [234 Conn. 281, 661 A.2d 595 (1995)], have specifically decided the issue of personal jurisdiction against foreign corporations premised on their Internet postings on the basis of whether the corporation had specifically targeted Connecticut residents." (Citations omitted; internal quotation marks omitted.) Forsa v. LIB/GO Travel, Inc., Superior Court, judicial district of New Haven, Docket No. CV-09-6006686-S (November 18, 2014, Fischer, J.) (59 Conn.L.Rptr. 304, 306-07, ).
" Connecticut courts have adopted the reasoning in Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997) . . . In Zippo, the court adopted a sliding scale approach to determine whether the nature of a foreign corporation's internet activities established sufficient 'minimum contacts' in order to constitutionally subject the corporation to personal jurisdiction within the forum state . . . Personal jurisdiction is proper over a defendant that maintains a so-called 'interactive' internet site that permits its users to enter into contracts and/or transmit computer files over the internet . . . On the other hand, a defendant that maintains a so-called 'passive' website, one that simply posts information that is accessible to users in foreign jurisdictions, is not subject to the forum court's jurisdiction on the basis of such contacts . . . The more 'interactive' a website is, the more likely the court will find the defendant to be subject to the court's jurisdiction . . . This analysis comports with the more traditional notion of personal jurisdiction, which evaluates whether the defendant has intentionally reache[d] beyond its boundaries to conduct business with foreign residents." (Citations omitted; internal quotation marks omitted.) Bernaud v. Sazdov, United States District Court, Docket No. 3:15CV1239 (SRU), (D.Conn. June 23, 2016). See also Comtech 21, LLC v. Broadvox, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5016700-S (July 8, 2010, Licari, J.) (50 Conn.L.Rptr. 255, ) (relying on and citing other Connecticut courts that have relied on Zippo ).
" This sliding scale is consistent with well developed personal jurisdiction principles. At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper . . . At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction . . . The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site." (Citations omitted.) Zippo Manufacturing Co. v. Zippo Dot Com, Inc., supra, 952 F.Supp. 1124.
According to an affidavit from the plaintiff's counsel, the " defendants' website allows a user to do many things, including but not limited to the following: learn information about the resort; obtain contact information for the resort; click on a link to e-mail the resort directly . . . access the resort's blog and recent press; submit messages concerning special packages and/or wellness retreats at the resort; book (1) a tee time for golfing at the resort, (2) a spa experience at the resort, and (3) a yoga experience at the resort; access defendants' social medial pages, including Facebook, Twitter, and Instagram; and click 'Book Now, ' which then brings users to a website where they are able to select dates and rooms to reserve a room at the resort and then pay for such reservation."
An affidavit from the hotel's marketing manager states that " the hotel operates a website that is viewable throughout the world and available in multiple languages. The hotel's website does not and never has contained any advertisements or marketing directed towards Connecticut residents. The hotel's website provides information and photos regarding the hotel and its facilities and offerings. Visitors to the website cannot book reservations directly through the hotel's website. In order to book reservations, visitors can either click a link on the hotel's website which directs them to a separate website operated by a third party which allows them to make a reservation or they can contact the hotel via e-mail to book a reservation."
After reviewing the entire record presented including the affidavits and exhibits, the court finds that the plaintiff's arguments are more persuasive and that the hotel's website is more interactive according to the Zippo sliding scale. The website permits users to book golf, spa and yoga experiences, obtain multiple forms of contact information for the hotel, and book room reservations through a website that resembles the hotel's website and bears its name (Exhibit I, no. 141.00). Again, the defendants' interrogatory responses state that the room reservation website is operated by their " booking agent." Although the website does not specifically target Connecticut residents nor have a Connecticut specific webpage or menu, the interactiveness of the website is an additional factor in weighing the applicability of § 33-929(f)(2). Compare Lis v. Delvecchio, United States District Court, Docket No. 3:11CV01057 (AWT), (D.Conn. August 13, 2012) (" [Defendant] operated an interactive website whereby Connecticut residents could purchase from their home computers hotel accommodations and tickets offered by [defendant]. Thus, this activity can be considered to have taken place 'within the state' for purposes of [Connecticut's longarm statute]"), with Forsa v. LIB/GO Travel, Inc., supra, 59 Conn.L.Rptr. 307, (passive website insufficient to show personal jurisdiction because " the website contains only information, cannot be used to conduct commercial activity or reserve hotel rooms, and cannot be used to contact the defendant").
In summary, on January 22, 2014, the plaintiff called the hotel from his home in Connecticut based upon the advertisement in Food & Wine magazine. He made a room reservation using his credit card, and confirmed the reservation with an e-mail to the hotel. The hotel advertises in national and international publications, at least one of which reaches Connecticut. The hotel contracts with large national and international travel agencies, including Virtuoso, which has travel advisors located in Connecticut. The hotel is also aware of at least one reservation from a travel agent located in the state. The hotel's website has a " middle ground" amount of interactiveness that is accessible by Connecticut residents. The hotel has sent additional e-mail advertisements directly to the plaintiff, after the plaintiff's original January 2014 reservation. The hotel receives more than " a miniscule portion" of total revenue from Connecticut residents: from March 2014 through June 2016, the hotel received reservations for 246 room nights for a total revenue of $380,864 or 1.7 percent of global production. Accordingly, this court finds that based upon the totality of circumstances, it has specific personal jurisdiction pursuant to our longarm statute § 33-929(f)(2).
For a hotel that advertises nationally and internationally and does not specifically target Connecticut residents, 1.7 percent of the hotel's total revenue that comes from Connecticut residents provides a substantial amount of revenue for the defendants.
General Statutes § 33-929(f)(1)
General Statutes § 33-929(f)(1) states in relevant part: " Every foreign corporation shall be subject to suit in this state . . . on any cause of action arising . . . [o]ut of any contract made in this state or to be performed in this state . . ." The defendants assert that § 33-929(f)(1) is inapplicable because the plaintiff's cause of action does not arise out of any contract made or performed in the state. The plaintiff contends that his cause of action arises out of the contract for booking a hotel room, " because his injury would not have occurred but for his contract with defendants to stay at the resort." In addition, the plaintiff contests that the contract was made in this state because of the telephone call he made to the hotel and the e-mail confirmation he received from his home computer in Connecticut. The parties do not dispute the existence of a contract, but rather where the contract was made and where the contract was performed.
Where the contract was made or to be performed.
" [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 . . . It follows that an oral contract entered into over the telephone is considered made in the state where a party accepts an offer." (Citation omitted; internal quotation marks omitted.) Centennial Helicopters, Inc. v. Sterling Corp., Superior Court, judicial district of Middlesex, Docket No. CV-05-04002666-S (November 22, 2005, Silbert, J.) (40 Conn.L.Rptr. 342, 343,, *6).
The plaintiff states that he called the hotel from his home in Connecticut " to accept the offer that the defendants made in the Food & Wine advertisement." On the contrary, " [s]tatements that urge members of the general public to take some action in response thereto usually are characterized as advertisements. Advertisements invite offers rather than acceptances. See 1 Restatement (Second), Contracts § 26, p. 75 (1981) . . ." 111 Whitney Ave., Inc. v. Commissioner of Mental Retardation, 70 Conn.App. 692, 701, 802 A.2d 117 (2002). " It is elementary black letter law that an advertisement is not an offer, but is merely an invitation to bid or to enter into a bargain." State v. Cardwell, 246 Conn. 721, 735 n.11, 718 A.2d 954 (1998).
The second part of § 33-929(f)(1) also confers personal jurisdiction on a cause of action arising out of any contract to be performed in this state. The defendants argue that the contract was to be performed in Nicaragua, whereas the plaintiff contends that he performed all of his contractual obligations in Connecticut, and thereby " the exchange of performance from and into Connecticut constitutes a course of conduct that satisfies § 33-929(f)(1)."
This issue was similarly contemplated in SDA Laboratories, Inc. v. Hogil Pharmaceutical Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5008828-S (January 8, 2010, Tierney, J.T.R.) (49 Conn.L.Rptr. 174, 177, ), where the court determined that " [w]henever a plaintiff has sought to rely on its own performance of the contract in Connecticut to satisfy the long arm statute, General Statutes § 33-929(f)(1), jurisdiction may be found only if (1) the contract expressly contemplated or required performance in Connecticut; or (2) the plaintiff had actually performed its obligations in Connecticut and such performance was the most substantial part of the obligations to be performed under the contract." See Teleco Oilfield Services, Inc. v. Skandia Ins. Co., 656 F.Supp. 753, 757 (D.Conn. 1987) (finding contract performance because " [plaintiff's] payment of [insurance] premiums from Connecticut constitutes actual and substantial performance of the terms of the contract with [Scandinavian defendants] in this state"). Compare Loughery v. Commissioner of Corrections, Superior Court, judicial district of Hartford, Docket No. CV-01-0812161-S, (July 9, 2002, Hennessey, J.) (finding negligence action against Virginia department of correction nurse arose out of a contract formed in Connecticut pursuant to § 33-929(f)(1)); with Garfield v. Trump Plaza Hotel, Superior Court, judicial district of Fairfield, Docket No. CV-94-0313229-S (December 8, 1994, Rush, J.) (13 Conn.L.Rptr. 175, ) (alleged negligence in New Jersey did not arise out of defendant's activities in Connecticut).
Nevertheless, because the court finds that § 33-929(f)(2) grants specific personal jurisdiction against the defendants, it is unnecessary to address the applicability of § 33-929(f)(1). Frazer v. McGowan, 198 Conn. 243, 254, 502 A.2d 905 (1986).
B: Due Process
The second question is whether the exercise of jurisdiction over the defendants comports with due process. The exercise of specific jurisdiction comports with due process when a defendant has undertaken activity in which it has purposefully availed itself of the privilege of conducting business in the forum state, thereby invoking the benefits and protections of its laws. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). " [T]he constitutional due process standard requires that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . The due process test for personal jurisdiction has two related components: the minimum contacts inquiry and the reasonableness inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction . . . A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed [its] activities at residents of the forum . . . and the litigation [has] resulted] from alleged injuries that arise out of or relate to those activities . . ." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 523-24. " Once minimum contacts have been established, [t]he second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice-that is, whether it is reasonable under the circumstances of the particular case." (Internal quotation marks omitted.) Id., 525.
Minimum Contacts
" The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate defendant that has certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . Either specific jurisdiction or general jurisdiction can satisfy the constitutional requirement of sufficient minimum contacts between the defendant and the forum . . . [E]ven when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum State, due process is not offended by a State's subjecting the corporation to its in personam jurisdiction if the defendant has had continuous and systematic general business contacts with the state.' (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Thomason v. Chemical Bank, supra, 234 Conn. 287-88.
Stated another way, " [s]pecific jurisdiction exists if (1) the defendant purposefully directed its activities at residents of the forum, (2) the claim arises out of or relates to those activities, and (3) assertion of personal jurisdiction is reasonable and fair . . . The first two prongs of this test correspond to the 'minimum contacts' prong of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)." (Citation omitted; internal quotation marks omitted.) Simoniz U.S.A., Inc. v. Motor City Wash. Works, Inc., United States District Court, Docket No. 3:07CV392 (JCH), (D.Conn. November 9, 2007).
The defendants argue that they do not have the minimum contacts with the state, nor is there a causal connection between the defendants' forum contacts and the plaintiff's injuries, because " none of the alleged injuries suffered by plaintiff 'arise out of' his having made a reservation or any alleged marketing or advertising that the hotel undertook." The plaintiff contends that given the extensiveness of the defendants' advertisements and internet activities, it is reasonably foreseeable that a Connecticut resident would book a room at the hotel and may sustain injuries while staying there.
In the present matter, court finds that the defendants have sufficient contacts with Connecticut to justify the exercise of personal jurisdiction. As discussed previously, the plaintiff booked a hotel reservation from his home in Connecticut based upon the advertisement in Food & Wine magazine, a publication read by this Connecticut resident. As a result of this activity, he sustained injuries at the defendants' hotel. The negligence and recklessness causes of action against the defendants arose out of the plaintiff's hotel reservation and subsequently being an invitee at the defendants' hotel. Put another way, the plaintiff would not have been involved in the electric cart accident and sustained injuries had he not contracted with the defendants to stay at the hotel.
Additionally, the defendants have also received hotel reservations and revenue from other Connecticut residents. Although the defendants do not specifically target Connecticut residents in their solicitation of business, their national and international marketing and advertising efforts certainly include Connecticut residents. Although the hotel's website is not specifically directed at any individual state, the website also does not avoid Connecticut residents when providing information on booking golf, spa, yoga or hotel room reservations. Given the totality of these factual circumstances, the culmination of the defendants' national and international marketing and advertising campaigns, a number of e-mail advertisements sent directly to the plaintiff, and an interactive website that is accessible to Connecticut residents, accordingly satisfies the minimum contacts with the forum state such that the maintenance of this suit " does not offend traditional notions of fair play and substantial justice."
Unreasonable or Unfair
Next, " [o]nce the minimum contacts test has been satisfied, the burden shifts to the defendant to show that the assertion of personal jurisdiction would be unreasonable or unfair." Simoniz U.S.A., Inc. v. Motor City Wash. Works, Inc., supra, United States District Court, Docket No. 3:07CV392 (JCH), . " [W]hile the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 525. " Five factors are considered in determining whether the exercise of jurisdiction is reasonable: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies . . . Defendant must, however, make a compelling showing that the exercise of jurisdiction is unreasonable under the circumstances." (Internal quotation marks omitted.) H. Lewis Packaging, LLC v. Spectrum Plastics, Inc., 296 F.Supp.2d 234, 240 (D.Conn. 2003), citing Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996).
The plaintiff's affidavit states that " litigating the case in Nicaragua would create a significant financial burden for me to travel to Nicaragua, to retain counsel there, and to produce American witnesses there." The affidavit further states that his wife, a witness, resides in Connecticut, as well as all but one of his treating physicians subsequent to the accident are located in state. The defendants' affidavits do not contain countering information and the defendants are currently represented by counsel in this jurisdiction. It is the defendants' burden to demonstrate that the exercise of jurisdiction is unreasonable or unfair. The court finds that the defendants have failed to make a compelling showing that the exercise of jurisdiction is unreasonable or unfair.
C. Trade Names
Lastly, the defendants' affidavit states that the parties, Mukul Luxury Boutique Hotel & Spa and Mukul Beach Golf & Spa, are trade names and " are not legal entities, not registered to do business anywhere and have no legal existence" and therefore should be dismissed for lack of subject matter jurisdiction. The plaintiff contends, without citing any authority or law, that given the lack of the defendants' completion of discovery requests, it would be premature, " unfair and a violation of due process" for the court to dismiss the trade name defendants.
" It is elemental that in order to confer jurisdiction on the court the plaintiff must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue . . . Although a corporation is a legal entity with legal capacity to sue, a fictitious or assumed business name, a trade name, is not a legal entity; rather, it is merely a description of the person or corporation doing business under that name . . . Because the trade name of a legal entity does not have a separate legal existence, a plaintiff bringing an action solely in a trade name cannot confer jurisdiction on the court." (Citations omitted; internal quotation marks omitted.) America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 477, 866 A.2d 698 (2005). See also Coldwell Banker Manning Realty, Inc. v. Cushman & Wakefield of Connecticut, Inc., 136 Conn.App. 683, 47 A.3d 394 (2012) (relying on America's Wholesale Lender, court determined plaintiff's trade name lacked standing); Greco Construction v. Edelman, 137 Conn.App. 514, 49 A.3d 256 (2012) (same).
" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). As the plaintiff has failed his burden to demonstrate that the defendants' trade names are legal entities, the motion to dismiss the trade name entities is granted. See State v. Lamar Advertising of Hartford, Superior Court, judicial district of Hartford, Docket No. CV-08-5020325-S (April 5, 2011, Sheldon, J.) (51 Conn.L.Rptr. 661, ) (court granted motion to dismiss for lack of subject matter jurisdiction against trade name defendant, a non-existing legal entity, for lack of justiciability). " [W]hen a party, such as an estate, is not a legally recognized entity, it can neither sue nor be sued, and thus that any claim brought by it or for it must be dismissed for lack of subject-matter jurisdiction for lack of standing." Id., 663,, *7.
CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss for lack of personal jurisdiction is denied. The plaintiff's objection is sustained. The defendants' motion to dismiss the trade name entities is granted.
SO ORDERED.