Opinion
No. CV 09-4038054 S
May 6, 2010
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiffs commenced this action by service of process against the defendants on July 16, 2009. The plaintiffs are Daniel Seufert, Matthew Suraci, John Merry and Eric Blinn. The defendants are Temple Management, LLC; Joseph Bergman. individually; Barbara Bergman, individually; Jacob Bergman, individually; Joseph Bergman DBA Thirty Three Twenty Seven Whitney, LLC and 3327 Whitney, LLC; Barbara Bergman DBA Thirty Three Twenty Seven Whitney, LLC and 3327 Whitney, LLC; Jacob Bergman DBA Thirty Three Twenty Seven Whitney, LLC and 3327 Whitney, LLC; and Thirty Three Twenty Seven Whitney, LLC/3327 Whitney, LLC.
Unless otherwise noted, the court will hereinafter refer to Seufert, Suraci, Merry and Blinn collectively as the "plaintiffs."
Unless otherwise noted, the court will hereinafter refer to all of the listed parties collectively as the "defendants" and to Barbara, Jacob and Joseph Bergman collectively as the "individual defendants."
The five-count complaint alleges the following facts. The plaintiffs entered into a lease agreement with the defendants for the premises located at 3327 Whitney Avenue in Hamden (the premises). During the plaintiffs' tenancy, the defendants entered into a contract to sell the premises to Quinnipiac University. The defendants wrongfully terminated the plaintiffs' tenancy via electronic mail on or about December 17, 2008.
The following counts comprise the complaint. Count one is against the defendants and alleges that they have not returned the plaintiffs' security deposit with accrued interest. Count two is against the defendants and alleges that the plaintiffs have been damaged by the wrongful termination because they were forced to seek more expensive and less conveniently located housing. Count three is against the defendants and alleges that the defendant Thirty Three Twenty Seven Whitney, LLC/3327 Whitney, LLC is a nonexistent limited liability company whose use by the individual defendants is "unscrupulous" and "violat[ive]" of "public policy." Count four is against the defendants and alleges that the individual defendants have violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., because they operate Thirty Three Twenty Seven Whitney, LLC/3327 Whitney, LLC under a fictitious trade name in violation of General Statutes § 35-1. Finally, count five is against the defendant Thirty Three Twenty Seven Whitney, LLC/3327 Whitney, LLC and alleges that the defendant violated § 35-1 because it operated in the state of Connecticut without having a license, registering with the secretary of state and/or filing a trade name certificate with the town of Hamden.
The plaintiffs filed the complaint on July 29, 2009. The return date was August 11, 2009. The plaintiffs filed a motion for default for failure to appear on August 21, 2009. It was denied by the court on August 31, 2009 because there was "no return of service filed." On the same day, the defendants filed an appearance. The plaintiffs then filed a "Notice of Filing of Duplicate Original Return" on September 9, 2009, to which they attached a duplicate original return of service. The defendants filed the present motion to dismiss and a memorandum of law on September 28, 2009. The plaintiffs filed an objection to the motion accompanied by a memorandum of law and four exhibits on October 28, 2009. One exhibit was an affidavit given by Frank Kolb, the plaintiffs' attorney, in which he attested that the marshal's return of service was attached to the complaint when he filed the process with the court on July 29, 2009. The court heard the matter at short calendar on December 21, 2009 and held a Standard Tallow hearing on April 14, 2010.
A Standard Tallow hearing is an evidentiary hearing held pursuant to a motion to dismiss for the following purpose: "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 present evidence and to cross-examine adverse witnesses." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
DISCUSSION
"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 . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008). "The grounds which may be asserted in [a motion to dismiss] are [ inter alia] . . . (2) lack of jurisdiction over the person . . . (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31. "A defect in process . . . implicates personal jurisdiction . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost." (Citation omitted; internal quotation marks omitted.) Rock Rimmon Grange #142, Inc. v. Bible Speaks Ministries, Inc., 92 Conn.App. 410, 415-16, 885 A.2d 768 (2005).
"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." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). The plaintiff also bears the burden of proof "[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." Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008)."When a [trial] 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." (Internal quotation marks omitted.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).
The defendants argue that the court should dismiss the plaintiffs' action for two reasons. First, the plaintiffs did not file the return of service with the court at least six days before the return date, as required by General Statutes § 52-46a, and they cannot now amend their complaint to attach the return because such amendment can only occur within two months of the process date, as provided by General Statutes § CT Page 10864 52-48(b). Second, the court does not have personal jurisdiction over the individual defendants.
The plaintiffs object to the motion for three reasons. First, the motion is untimely because it was not filed within thirty days of the return date, as provided by Practice Book § 10-8. Second, the plaintiffs filed the return of service well within the six days before the return date; the return's absence from the court's file is the fault of the clerk's office; and the filing of the "duplicate original return" corrected any remaining process defects. Third, the court has jurisdiction over the individual defendants.
I THE TIMELINESS OF THE MOTION TO DISMISS
The court will first consider the plaintiffs' argument that the motion is untimely. Practice Book § 10-8 provides in relevant part: "Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day . . ." However, Practice Book § 10-30 seems to set a different deadline: "Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance."
The plaintiffs argue that § 10-8 required the defendants to file the motion by September 11, 2009 and that the defendants should have filed a motion for extension of time if they wanted to take advantage of the deadline provided by § 10-30. The plaintiffs also argue that the motion's untimeliness prevents the defendants from claiming lack of personal jurisdiction because Practice Book § 10-32 provides in relevant part: "Any claim of lack of jurisdiction over the person . . . or insufficiency of process . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by [§]10-30." In support, the plaintiffs cite J B Movers Storage, Inc. v. Morse Moving Co., Superior Court, judicial district of Litchfield, Docket No. CV. 03 0090983 (November 12, 2003, Pickard, J.) ( 35 Conn. L. Rptr. 748, 749), in which the court concluded: "[I]n those situations where the defendant does not file its appearance on or before the return day, in order to file a motion to dismiss pursuant to [§]10-30, within thirty days of the filing of the appearance, but subsequent to the thirty-day period after the return day, the movant must file a motion for extension of time to file a motion to dismiss." (Internal quotation marks omitted.)
The Supreme Court took a different approach in Kenny v. Banks that focused upon the deadline set by § 10-30. Specifically, the court addressed the plaintiff's argument that the trial court had improperly granted the defendant's motion to dismiss: "The plaintiff . . . claims that the court improperly granted the defendant's motion to dismiss because the defendant had waived his personal jurisdiction claim by untimely filing the motion. [Section] 10-32 provides in relevant part: `Any claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by [§]10-30 . . . In this case, the defendant filed his motion one day after filing his appearance . . . Accordingly, we reject the plaintiff's claim." (Emphasis added.) Kenny v. Banks, supra, 289 Conn. 530 n. 1.
See also W. Horton K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2009) § 10-30, authors' comments, p. 497 (citing case for conclusion that "[t]he Supreme Court held a motion to dismiss for lack of personal jurisdiction timely filed when filed within one day of the appearance but more than 30 days after the filing of the originating motion").
Some trial courts have also looked to § 10-30 and not § 10-8 when deciding whether motions to dismiss are timely. For example, the court in University of Connecticut v. Atlantic Coast Conference, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 03 0082695 (February 23, 2004, Sferrazza, J.) ( 36 Conn. L. Rptr. 555, 556), concluded that "only § 10-30 pertains" to a motion to dismiss for lack of personal jurisdiction for four reasons. First, "the purview of the time constraints of § 10-8 and its predecessors could not have been intended to apply to motions to dismiss for lack of personal jurisdiction because such a motion was impermissible as an ordinary pleading under a general appearance until 1978." Id. Second, "§ 10-30 ought to predominate" under the "time honored rule of construction" that "the intention expressed in [a] particular provision . . . be given effect and to that extent [a conflicting] general provision . . . be modified." Id. Third, § 10-32 refers to § 10-30 but not to § 10-8. Finally, the Supreme Court "devoted considerable attention and analysis" to § 10-30 in Pitchell v. Hartford, 247 Conn. 422, 722 A.2d 797 (1999), but never mentioned "§ 10-8 as having any bearing on the timeliness of the motion [to dismiss]." Id. See also, e.g., Danbury v. ARC Icesports Danbury, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 00 0162973S (February 8, 2001, Hodgson, J.) ( 29 Conn. L. Rptr. 422).
In light of these cases, the court finds that the motion to dismiss is timely, because it was filed within thirty days of the appearance date.
II THE PROPRIETY OF THE DUPLICATE ORIGINAL RETURN OF SERVICE
General Statutes § 52-46a provides in relevant part: "Process in civil actions . . . if returnable to the Superior Court, except process in summary process actions and petitions for paternity and support, [shall be returned] to the clerk of such court at least six days before the return day." General Statutes § 52-72(a) allows for the amendment of process: "Any court shall allow a proper amendment to civil process which has been made returnable to the wrong return day or is for any other reason defective, upon payment of costs taxable upon sustaining a plea in abatement." General Statutes § 52-48(b) limits, however, the extent to which a party may amend its process: "All process shall be made returnable not later than two months after the date of the process and shall designate the place where court is to be held." See also Coppola v. Coppola, 243 Conn. 657, 666, 707 A.2d 281 (1998) ("Allowing an amendment of the return date [under § 52-72] . . . does not render § 52-46a meaningless. A return date may be amended but it still must comply with the time limitations set forth in § 52-48(b).").
The defendants argue that the court lacks personal jurisdiction because the plaintiffs have not complied with § 52-46a, even with the "Notice of Filing of Duplicate Original Return," and cannot comply now by virtue of § 52-72(a) because, per § 52-48(b), more than two months have passed since the process date. The plaintiffs argue in turn that the return of service was filed on July 29, 2009 because it accompanied the complaint and the writ; that the return was separated from the rest of the process when the process was placed in the court's file; and that the "Notice of Filing of Duplicate Original Return" cured any process defect within two months of the return date. The court is unpersuaded by the argument that "[c]ounsel cannot be held responsible for any errors or omissions that may have been made by the clerk's office" and that "a claim for insufficiency of process . . . must fail as there is no way to establish that the marshal's original return of service was not attached to the process when it was returned to the court," because the plaintiffs bear the burden of proving the court's personal jurisdiction over the defendants.
At the April 14, 2010 Standard Tallow hearing, Attorney Kolb testified as a witness on the issue of whether the return of service was filed on July 29, 2009 with the complaint and the writ. Attorney Kolb made the following factual assertions. When Attorney Kolb received the complaint, return of service and writ from the marshal, after the marshal made service, Attorney Kolb examined the documents to make sure that service had been proper. He took the documents from his office to the New Haven county courthouse and placed them in the drop box in the clerk's office on the second floor. It is standard practice in his office that documents to be filed with the court are placed in a specific area and then taken by somebody who is exiting the office for mailing. He hand-delivered the process in the present case because "it was time sensitive." He did not receive stamped copies of the documents from the clerk's office. He last saw the return of service attached to the complaint "some time between the time I left my office and I got to the second floor." He first learned that there was no return of service in the file when he received a notice from the clerk's office. The notice indicated that the plaintiffs' August 21, 2009 motion for default for failure to appear had been denied on August 31, 2009 because "no return of service filed." In response to the notice, he filed the Notice of Filing of Duplicate Original Return, accompanied by the duplicate original return of service. His position is that "somebody in the clerk's office lost" the return. He has never moved to amend the writ to reflect a late return.
"In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence." (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D'Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004). As the trier of fact, the court "can . . . decide what — all, none, or some — of a witness' testimony to accept or reject." (Internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999). The court in the present case finds Attorney Kolb to be a credible witness. His testimony is factually and logically consistent with his argument that the return of service was attached to the complaint when he filed the process with the court on July 29, 2009, and, is also consistent with the fact that he did not know that the return of service was not attached to the complaint because he proceeded to move for a default for failure to appear, in accordance with Practice Book § 17-20. Furthermore, the court notes that Attorney Kolb gave his testimony as both a witness under oath and a commissioner of the Superior Court. The court therefore accepts Attorney Kolb's testimony as true and therefore finds that at the time he filed the process the return of service was attached.
Practice Book § 7-8 provides in relevant part: "If any file or pleading be mislaid, lost or destroyed the clerk may permit the original duplicate or a sworn copy to be substituted therefore in the files, and such substitution shall be certified by the clerk thereon." There are few cases that cite the rule, and none are relevant to the present case. In the present case, the return of service attached to the plaintiffs'"Notice of Filing of Duplicate Original Return" bears the date of July 16, 2009 and the marshal's signature. The return also "show[s] clearly and fully the manner m which the service was made." Carter v. Carter, 147 Conn. 238, 244, 159 A.2d 173 (1960), overruled on other grounds by Hodge v. Hodge, 178 Conn. 308, 422 A.2d 280 (1979). A "duplicate" is a "copy which repeat[s] the original notice and ha[s] the validity of the original" and therefore must be "made by the hand that made the original." Lorch v. Page, 97 Conn. 66, 72, 115 A. 681 (1921). The return attached to the "Notice of Filing of Duplicate Original Return" therefore qualifies as an "original duplicate" because it contains the necessary formalities, i.e., the date of service and the marshal's signature, and it establishes how and when the marshal served the defendants.
The return has not been certified, however, by the clerk's office. This is a mere clerical error. "[M]ere clerical errors may be corrected at any time . . ." Blake v. Blake, 211 Conn. 485, 494, 560 A.2d 396 (1989). "In fairness to all parties, the court must and should have the power to correct, at any time, an error made by the clerk's office, to ensure that the parties are given the opportunity for a full and fair hearing of their matter." State v. $4,753.00, Superior Court, judicial district of New Haven, Docket No. CV 23 13983 (April 3, 2007, Keegan, J.) ( 43 Conn. L. Rptr. 193, 195). The court in the present case corrects the error of the clerk's office by treating the return attached to the "Notice of Filing of Duplicate Original Return" as certified for the purpose of making it part of the court's file under § 7-8. The filing of the duplicate original return therefore cures the process defect upon which the defendants rely in bringing the present motion.
Accordingly, the court denies the defendants' motion to dismiss on the ground that the plaintiffs have not properly filed the return of service.
III THE COURT'S JURISDICTION OVER THE INDIVIDUAL DEFENDANTS
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 . . . who in person or through an agent [ inter alia]: (1) Transacts any business within the state . . . (3) commits a tortious act outside the state causing injury to person or property within the state . . . if such person or agent (A) regularly does or solicits business . . . in the state . . . [or] (4) owns, uses or possesses any real property situated within the state." "When a defendant files a motion to dismiss challenging the court's jurisdiction, a two-part inquiry is required. The trial court must first decide whether the applicable state longarm 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, Inc., 236 Conn. 602, 606, 674 A.2d 426 (1996).
The defendants argue in their memorandum that the court does not have jurisdiction over the individual defendants because they are Michigan residents who have never personally conducted business or owned property in Connecticut. The plaintiffs argue that the court has personal jurisdiction over all three individual defendants. First, they argue that the court has jurisdiction over Barbara Bergman and Joseph Bergman individually because they owned the premises during the plaintiffs' tenancy under the guise of Thirty Three Twenty Seven Whitney, LLC/3327 Whitney, LLC, "a shell company." Second, they argue that the court has jurisdiction over Jacob Bergman individually because Temple Management, LLC is a duly authorized Connecticut limited liability company of which Jacob Bergman is an agent and a member, a capacity in which he contacted the plaintiffs when he wrote them via electronic mail on or about December 17, 2008.
Attached to the plaintiffs' memorandum are two exhibits pertaining to Temple Management, LLC. The first is a copy of a listing on the secretary of state's website, which documents that Temple Management, LLC is a registered domestic limited liability company. The second is a copy of the e-mail, dated December 17, 2008 but sent on December 22, 2008.
Attorney Kolb stated during the April 14, 2010 Standard Tallow hearing that the plaintiffs would withdraw the action against Barbara Bergman and Joseph Bergman if the court rules in favor of the plaintiffs on the return of service issue. Because the court rules in favor of the plaintiffs on the return of service issue, it need not address the personal jurisdiction ground with respect to Barbara Bergman and Joseph Bergman. The court will address the personal jurisdiction ground with respect to Jacob Bergman, however, because the plaintiffs have not offered to withdraw the action against him, and the defendants have not changed the position stated in their memorandum.
The defendants essentially argue that the court cannot exercise personal jurisdiction over Jacob Bergman individually because of the "fiduciary shield doctrine." "The fiduciary shield doctrine is based upon the notion that it is unfair to subject a corporate employee personally to suit in a foreign jurisdiction when his only contacts with that jurisdiction have been undertaken on behalf of his corporate employer." (Internal quotation marks omitted.) West State Mechanical, Inc. v. Paramount Health Resources, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 07 5002640 (March 12, 2008, Marano, J.) ( 45 Conn. L. Rptr. 178, 179). This court has previously considered the doctrine in relation to a member of a limited liability company. Garcia v. Two by Six, LLC, Superior Court, judicial district of New Haven, Docket No. CV 04 5000021 (January 29, 2010, Wilson, J.). There is no Supreme Court or Appellate Court case law addressing the doctrine. There is a split of authority amongst the Superior Courts on the viability of the doctrine which was recently addressed in Pasquariello Electric Corp. v. Nyberg, Superior Court, judicial district of New Haven, Docket No. CV 08 5024983 (October 7, 2009, Zoarski, J.T.R.).
The court in Pasquariello Electric Corp. noted: "Historically, the majority of Superior Courts in this state [have] recognize[d] the `fiduciary shield' and appl[ied] it where appropriate . . . `The trend, however, is to the contrary . . . The more recent cases question whether there is a sensible rationale for the doctrine. They note that our longarm statute was modeled after the New York statute, and New York has rejected the fiduciary shield doctrine. See Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 522 N.E.2d 40 (1988). The more recent cases have stressed that any unfairness to the agent is addressed by the due process requirements, in that the demand for the agent's presence in the foreign jurisdiction must be consistent with "fair play and substantial justice," and that there very easily could be unfair prejudice to the plaintiff if a putative defendant enjoys, in effect, blanket immunity from answering in the jurisdiction where at least some of the transaction in issue occurred.' Sobol Family Partnership v. Cushman Wakefield, Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 04 4003559 (October 28, 2005, Beach, J.) . . . These decisions find their support in Judge Blue's well-reasoned opinion in Under Par Associates, LLC v. Wash Depot A, Inc., 47 Conn.Sup. 319, 793 A.2d 300 (2001)." (Citations omitted; internal quotation marks omitted.) Id., fn. 9.
In Under Par Associates, LLC, Judge Blue wrote: "The doctrine . . . finds no support in the long-arm statute itself. Nothing in the statute's language or the legislative history relating to it suggests that the [l]egislature intended to accord any special treatment to fiduciaries acting on behalf of a corporation or to insulate them from long-arm jurisdiction for acts performed in a corporate capacity." (Internal quotation marks omitted.) Under Par Associates, LLC v. Wash Depot A, Inc., supra, 47 Conn.Sup. 326. He further noted that "[n]or . . . is the rule necessary as a matter of fairness," given the protections afforded by the due process requirements of "fair play and substantial justice." (Internal quotation marks omitted.) Id. He concluded his analysis by determining that "the `fiduciary shield' doctrine is undesirable as a matter of public policy" because it "prejudices plaintiffs who seek relief against defendants conducting affairs in this [s]tate." (Internal quotation marks omitted.) Id. The possibility of such prejudice is evident in "the numerous exceptions created along the way by the courts adopting" the doctrine. Id.
This court is persuaded by the approach taken by Judge Blue in Under Par Associates, LLC and the courts that have rejected the fiduciary shield doctrine. Accordingly, Jacob Bergman cannot avoid the court's personal jurisdiction simply because he has never individually owned property or transacted business in Connecticut. The court now proceeds by determining whether Jacob Bergman owned property or transacted business in Connecticut by virtue of his involvement in Thirty Three Twenty Seven Whitney, LLC/3327 Whitney, LLC and/or Temple Management, LLC.
"[A]lthough the term `[t]ransacts any business' is not defined by statute, we previously have construed the term to embrace a single purposeful business transaction . . . Moreover, a nonresident individual who has not entered this state physically nevertheless may be subject to jurisdiction in this state under § 52-59b(a)(1) if that individual has invoked the benefits and protection of Connecticut's laws by virtue of his or her purposeful Connecticut related activity." (Citations omitted; internal quotation marks omitted.) Ryan v. Cerullo, 282 Conn. 109, 119, 918 A.2d 867 (2007). "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, Docket No. CV 97 128590 (March 3, 1998, Levin, J.) ( 22 Conn. L. Rptr. 94, 95). "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).
In the present case, the court considers the December 22, 2008 e-mail message and the April 14, 2010 Standard Tallow hearing in determining whether Jacob Bergman has transacted business in the state under § 52-59b(a)(1). The e-mail message from Jacob Bergman to the plaintiffs establishes that he served as a point of contact between the plaintiffs and the owners of the premises. The e-mail message also contains references to other in-state properties managed by Temple Management, LLC. The court further notes that the defendants' attorney identified Jacob Bergman as "the Bergman who runs Temple Management" and Temple Management, LLC as the party that "collected the rents" during the Standard Tallow hearing. These facts establish that Jacob Bergman engaged in "affirmative conduct allowing or promoting the transaction of business within the forum state," and he is therefore subject to the court's personal jurisdiction under § 52-59b(a)(1). Zemina v. Petrol Plus, Inc., supra, 22 Conn. L. Rptr. 95.
The court must now undertake the second part of the long arm jurisdiction inquiry. "[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 . . . In other words, [t]he Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations . . . 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 . . .
"For the purposes of this initial inquiry, the Supreme Court of the United States has articulated, and this court has recognized, two types of personal jurisdiction. Either specific jurisdiction or general jurisdiction can satisfy the constitutional requirement of sufficient minimum contacts between the defendant and the forum. 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] result[ed] from alleged injuries that arise out of or relate to those activities . . .
"Due process demands more, however, than the existence of minimum contacts between the defendant and the forum state. 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." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 523-25.
In the present case, the factual allegations — made by the plaintiffs indicate that Jacob Bergman purposefully directed the activity of Temple Management, LLC toward Connecticut by managing multiple properties within the state, including the premises. The loss claimed by the plaintiffs of their security deposit and the benefit of residing at the premises arises from, or is related to, the activity of Jacob Bergman in his capacity as an agent and/or a member of Temple Management, LLC. Thus, the court concludes that the plaintiffs have shown that Jacob Bergman has sufficient minimum contacts with Connecticut. The court further concludes that Jacob Bergman's contacts with Connecticut are sufficient to cause him to reasonably anticipate that he could be sued in the state. Specifically, Jacob Bergman knew or should have known that he could be haled into court in Connecticut by virtue of managing the premises, located in Connecticut, and serving as a point of contact for the plaintiffs, also located in Connecticut. The court's exercise of personal jurisdiction over Jacob Bergman is therefore reasonable under the circumstances of the present case. Accordingly, the court denies the motion to dismiss based on the ground that the court lacks personal jurisdiction over Jacob Bergman individually.
CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss is denied.