Opinion
No. X05 CV 09 4017091S
January 15, 2010
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (#106)
Introduction
This case involves allegations of fraud in the auction rate securities market and related causes of actions brought by a group of banks against a securities broker-dealer and several of its employees. All of the eleven plaintiffs are Connecticut-chartered banks that are FDIC-insured, and are banks which primarily do business within the state of Connecticut. The defendant, Merrill Lynch Co., Inc., is a Delaware corporation. Its subsidiaries include the co-defendant Merrill Lynch, Pierce, Fenner Smith, Inc. (collectively, Merrill Lynch or the defendants). Among other businesses, Merrill Lynch acts as a broker-dealer for corporate and institutional clients in the purchase and sale of various securities. The remaining named co-defendants are eight individual Merrill Lynch brokers. During the time frame of the allegations, two of these brokers, John Schweizer and Declan Mahar, worked out of Merrill Lynch offices located in Connecticut. Six other individuals, Frances Constable, Kevin Conery, James Brewer, Robert Tomney, Derek Sin and Keith Raymond, worked out of Merrill Lynch offices in New York.
The complaint sounds in six counts. Each of those six counts is pleaded "against all defendants." Those six counts are fraud, fraudulent inducement, a violation of General Statutes §§ 36b-4 and 36b-5 (the Connecticut Securities Law), negligent misrepresentation, fraudulent misrepresentation and rescission. The allegations center around the plaintiff banks' purchase of certain auction rate securities marketed and sold to the plaintiffs by Merrill Lynch and its employees, and the inability of the plaintiffs to later sell or liquidate their positions when they attempted to do so, due to the failure of the auction market for such securities.
The nonresident individual defendants in this case are the six Merrill Lynch brokers mentioned above who worked out of New York. Those six defendants have moved to dismiss the complaint as against them for lack of jurisdiction. Specifically, these nonresident defendants argue that they are not subject to personal jurisdiction in Connecticut courts pursuant to the long-arm statute, General Statutes § 52-59b(a) and considerations of due process. As an alternative grounds for dismissal, four of these nonresident defendants, Merrill Lynch employees Constable, Conery, Sin and Raymond, further assert a failure of the plaintiffs to properly serve them with process. The court will first discuss the legal standards for motions to dismiss, followed by a discussion of the personal jurisdictional issues in light of the allegations in the complaint. Finally, the court will consider whether the service of process was proper as to these four defendants.
The two Merrill Lynch defendant brokers based in Connecticut during the time frame in the allegations, Schweizer and Mahar, are not contesting jurisdiction.
Motion to Dismiss
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "The standard governing a trial court's review of a motion to dismiss is well established. 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." (Internal quotation marks omitted.) Davis v. Environmental Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4007475 (January 26, 2007, Tobin, J.) [ 42 Conn. L. Rptr. 691].
"When issues of fact are necessary to the determination of the court's jurisdiction, [however] due process requires a trial like hearing be held, in which an opportunity is provided to present evidence . . ." (Internal quotation marks omitted.) Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004). "Affidavits are insufficient to determine factual issues raised on a motion to dismiss unless . . . they disclose that no genuine issues as to a material fact exists." (Internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn.App. 591, 594 n. 3, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002). "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 Corp. v. Jowdy, 190 Conn. 48, 53, CT Page 3543 459 A.2d 503 (1983).
"When a [nonresident] 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 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 [nonresident defendant] would violate constitutional principles of due process . . . 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 . . . A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action." (Citations omitted; internal quotation marks omitted.) Christiani v. Benefitpoint, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 04 4025119 (March 7, 2008, Berger, J.).
The Allegations
Essentially, the plaintiff banks allege that the Merrill Lynch defendants who sold them millions of dollars worth of securities via the New York-based Auction Rate Securities (ARS) market had misinformed the banks about the true nature of these investments, both before, during and after the transactions. The defendants allegedly told the plaintiffs that these securities were cash equivalents, easy to get out of and relatively safe. But the promised liquidity turned false in early 2008 when buyers for the ARS disappeared and the auctions began failing. The market for auction-rates ground to a halt, entrapping investors like the plaintiffs. The complaint alleges that the defendants, Merrill Lynch, Pierce, Fenner Smith, Inc., Merrill Lynch Co., Inc., and its employees John Schweizer, Declan Mahar, Frances Constable, James Brewer, Robert Tomney, Derek Sin, Kevin Conery and Keith Raymond (collectively "defendants") engaged in a scheme to defraud the plaintiff banks in the purchase and sale of ARS. The defendants allegedly induced the plaintiffs to purchase ARS and/or continue to hold their current ARS positions in the face of eroding market conditions.
The complaint defines auction rate securities as instruments with long-term nominal maturity that are issued at par value. The interest rate is periodically reset via reverse auction, where bidders submit proposed rates at which they will purchase the ARS. The lowest interest rate at which all sellers of the ARS can be matched to willing buyers becomes the operative interest rate on the ARS until the next auction is held.
According to the allegations in the complaint, Merrill Lynch's ARS program operated in four branches: (1) an investment bank that underwrote issues of ARS; (2) the ARS desk, which acted as a remarketing agent for ARS; (3) a sales forces, including financial advisors, that sold ARS to the plaintiffs; and (4) the purportedly independent research department that acted in concert with the ARS desk to increase sales of ARS. Plaintiffs allege the relationship between the research department and the ARS desk included the prohibited transfer of non-public information about Merrill Lynch's ARS business, as well as improper influence of the ARS Desk in exerting pressure on the research department to manipulate information and create documents that misrepresented the true state of the ARS market, all to the detriment of the plaintiffs, who purchased additional ARS, or held onto positions they might otherwise have liquidated, had the banks known the true circumstances.
The complaint further alleges that the defendants made material misrepresentations to the plaintiffs, both orally and through written sales literature, that ARS were the equivalent of cash or money market funds, meaning they were highly liquid, safe investments, and that the ARS auction market was functioning properly. Additionally, the plaintiffs claim that the defendants knew, but failed to disclose, material facts about the true liquidity of ARS, particularly that: (a) ARS were not cash alternatives, but rather complex, long-term financial instruments with thirty-year or longer maturity dates; (b) ARS were only liquid at the time of the sale to plaintiffs because the Merrill Lynch defendants were artificially supporting and manipulating the auction market, in order to give the appearance of liquidity and stability; (c) ARS would become illiquid once the defendants stopped supporting and maintaining the auction market (liquidity for ARS was only available through the auction process); and (d) that no auctions for such securities had failed in the 2007-2008 time frame, when in fact Merrill Lynch's bidding actions had single handedly prevented numerous auctions from failing.
According to the complaint, the problems in the ARS market "took hold in July 2007 when investors began selling out of ARS related to collateralized debt obligations and collateralized loan obligations." The plaintiffs allege that the defendants knew in the summer of 2007 that the ARS market was slowly failing. Discussions in internal emails between Merrill Lynch's ARS personnel support this allegation, as the emails discuss "failed auctions" and "challenges stemming from lack of market liquidity." Constable, sitting on the ARS trading desk wrote in August 2007 that the "[ARS] [m]arkets are shutting down bit by bit." Despite this knowledge, the plaintiffs allege that the defendants acted deceptively to maintain and stabilize the market for ARS by purchasing excess supplies in the auctions. The plaintiffs claim that the defendant Merrill Lynch did this to keep the auction market alive, and thus maintain the fraud on the plaintiffs. The plaintiffs allege that the defendants continued with this course of conduct through the fall and winter of 2007 and into early 2008.
During this same time, the defendants marketed ARS to the plaintiffs. The plaintiffs continued to purchase additional ARS and/or continued to hold or rollover their existing ARS positions, allegedly because Merrill Lynch both directly (through the individual defendants and other Merrill Lynch financial advisors and sales personnel) and indirectly (though the publications and research reports) provided fraudulent information about ARS to the plaintiffs. As briefly discussed previously, the plaintiffs contend that the Merrill Lynch research department, rather than acting independently, worked closely with its ARS desk to support the false, misleading and fraudulent representations Merrill Lynch made about ARS. Specifically, the plaintiffs allege that while working in the research department, Conery violated Merrill Lynch policies and procedures by having regular communications with Constable and others on the desk that breached a "Chinese Wall" in violation of Merrill Lynch policies and procedures. These communications included regular meetings where non-public, prohibited topics relating to Merrill Lynch's inventory of ARS and its transaction partners were discussed. By the summer of 2007, Conery allegedly became aware of a growing liquidity crisis in the ARS market, and Conery and the research department continued to produce false and materially misleading research materials to entice buyers like the plaintiffs and reduce Merrill Lynch's inventory of these products.
During the relevant period, Constable was the managing director of Merrill Lynch's ARS trading desk in New York. Constable was one of the principal individuals who prepared the presentation materials entitled "Introduction to Auction Market Securities."
Additionally, the complaint alleges that in the summer and fall of 2007, the ARS desk improperly requested favorable research articles about the ARS market from the research department in order to assist with sales. On August 21, 2007, the research department had produced an article distinguishing ARS from other similar options, with the article making those options more attractive investments than ARS. The next day, Constable contacted the Merrill Lynch employee who authored the article and demanded a retraction. The research department agreed, and published a new article two days later that significantly altered the content of the original article, and added a discussion of ARS as a higher-yield option to highly-liquid money market investments. On November 30, 2007, Constable emailed the research department suggesting an ARS article and the content of the article because "of a renewed crumbling of confidence on the part of investors." Additionally, in January 2008, Conery asked another member of the research department to review an article "to make sure that research cannot be accused of causing a run on the auction desk, like was the case in August [2007]." The plaintiffs further allege that in February 2008, just days before Merrill Lynch "pulled the plug" on its ARS business by ceasing to support auctions, Conery stated, in a conference call to advisors, that "Merrill Lynch . . . is committed to this [ARS] product." The next day, Merrill Lynch published a research note authored by Conery which stated that ARS continued "to be attractive" investments.
While the ARS desk and research department were collaborating on producing materials that misrepresented the state of the ARS market, Merrill Lynch employees, namely defendants Schweizer and Mahar, were giving presentations in Connecticut in which they touted the liquidity of ARS. Based on their communications with the defendant Schweizer, the plaintiff Dime Bank increased its holdings in ARS during the relevant period. The complaint alleges that on a December 12, 2007 national sales call with Merrill Lynch sales staff, both Constable and Conery misrepresented the state of the ARS market and Merrill Lynch's position on the sustainability of the ARS market. Conery falsely stated that the pressure on the ARS market since August, combined with the purportedly seasonal year-end spike in rates "have made things that were already attractive even more attractive and that the closed-end funds ARS sector is "the conservative's conservative investment." On the call, Constable stated that "we are working with research to provide the best ideas and to give assurance as the solidity and ongoing endurance of some terrific markets" and further stated that ARS "should be considered a great cash management gathering tool." At the time, it is alleged that both Constable and Conery knew that the ARS market was failing, and that Merrill Lynch was looking to leave the market entirely in the near future.
Finally, the plaintiffs allege that on February 13, 2008, Merrill Lynch intentionally allowed the vast majority of its auctions to fail by failing to place any "support bids." The failure to provide support bids resulted in the failure of the entire ARS market, and with it the promise of liquidity, and the plaintiffs were left holding completely illiquid ARS that have significantly declined in value.
Personal Jurisdiction Connecticut's Long-Arm Statute
The nonresident defendants argue that jurisdiction is lacking because they have not conducted any business in the state of Connecticut, either in their personal capacity or as employees of Merrill Lynch. Further, the plaintiffs' claim of a single contact between nonresident defendant Brewer and one of the plaintiffs, Dime Bank, illustrates the extent to which any of the nonresidents had contacts with any clients, including Connecticut-based clients. The nonresident defendants contend that the plaintiffs would join in on calls directed to the nonresident defendants in New York, but that the nonresident defendants themselves did not initiate any calls with the plaintiffs, nor with any other clients in Connecticut.
As previously noted, the complaint sounds in six counts as against all defendants, both corporate and individual. None of the defendants are specifically identified by name in the recitation of any of the six counts themselves. However, the complaint itself is a forty-nine page document, and the enumeration of the six counts take up only the last five pages of the complaint. The bulk of the complaint is a series of numbered paragraphs setting forth the plaintiffs' narrative of the events and actions of the various Merrill Lynch defendants in connection with the sale of ARS, and the overall conditions in the ARS market. It is to those paragraphs that the court must turn in determining whether it may assert jurisdiction over any of the nonresident defendants here.
Connecticut's long-arm statute, General Statutes § 52-59b(a), provides in relevant part: "[A] court may exercise personal jurisdiction over any nonresident individual who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state . . . [and] (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, 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 . . . Before addressing whether the complaint alleges facts sufficient to subject these nonresident defendants to this court's jurisdiction pursuant to the long arm statute, the court must address their argument that as corporate employees, they cannot be held responsible for acts carried out while the nonresident defendants were acting in their official capacity, and when such acts are within the scope of their employment. This is referred to as the "fiduciary shield doctrine."
"The appellate courts in Connecticut have not yet ruled on the viability of [the fiduciary shield] doctrine, and there is a split of authority in the Superior Court. Memberworks, Inc. v. Heartland Direct, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 03 0197372 (September 27, 2004, Lewis, J.) [ 38 Conn. L. Rptr. 24]. [A] number of Superior Court cases have held that exercise of jurisdiction over a nonresident is improper if based only on acts undertaken as an agent of another entity. If Acme Corporation sends a salesman to exotic lands to transact business for Acme, it has been said to be unfair for the salesman, rather than Acme, to be haled back to answer in a court in the exotic locale. Sobol Family Partnership v. Cushman Wakefield, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 4003559 (November 1, 2005, Beach, J.) [ 40 Conn. L. Rptr. 214] . . .
"The trend, however, is to the contrary . . . [as the] more recent cases question whether there is a sensible rationale for the doctrine. As the court noted in one such case, `[o]ur long-arm statute . . . § 52-59b, was modeled on a statute enacted in New York . . . Thus, that state's analysis of its long-arm statute is very relevant. In 1988, the New York Court of Appeals rejected the doctrine in Kreutter v. McFadden Oil Corp., [ 71 N.Y.2d 460, 527 N.Y.S.2d 195,] 522 N.E.2d 40 (N.Y. 1988). Kreutter notes that the fiduciary shield doctrine is based on 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 . . . The Court of Appeals further notes that: [n]othing in the statute's language or the legislative history relating to it suggests that the Legislature 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 . . .
"The case also states that the rule is not necessary as a matter of fairness. The equitable concerns which motivated development of the doctrine are amply protected by constitutional due process requisites which guarantee that jurisdiction over a nonresident will be sustained only when the demand for his presence is reasonable and consistent with notions of fair play and substantial justice. Kreutter also notes that the fiduciary shield doctrine is undesirable as a matter of public policy . . . The case states that the doctrine unfairly prejudices plaintiffs who seek relief against defendants conducting affairs in this State . . . That the application of this purportedly equitable rule has required the courts to develop so many exceptions to it to avoid inequitable results suggests that the foundation of the rule is unsound, or at a minimum, that the rule is unworkable . . . Memberworks, Inc. v. Heartland Direct, Inc., supra, Superior Court, Docket No. 030197372. Accordingly, in Memberworks, Inc., the court concluded that the fiduciary shield doctrine is not available to the individual defendant to defeat this court's personal jurisdiction . . .
"In Under Par Associates, LLC v. Wash Depot A., Inc., the court (Blue, J.) [ 31 Conn. L. Rptr. 20] noted, Kreutter is important not only for its lucid policy analysis but because it interprets the very New York long arm statute that the Connecticut legislature used as a model for the text of § 52-59b. Zartolas v. Nisenfeld, [ 184 Conn. 471, 474, 440 A.2d 179 (1981)]. The judicial interpretation given to the New York statute by New York's highest court is, consequently, especially pertinent . . . Kruetter's analysis and authority leads this court to conclude that the fiduciary shield doctrine finds no place in the text or underlying policy of § 52-59." (Citations omitted; internal quotation marks omitted.) Ruocco v. Metropolitan Boston Hockey League, Superior Court, judicial district of New Haven, Docket No. CV 07 4024835 (December 7, 2007, Robinson, J.).
The court finds the above reasoning persuasive, and declines to apply the fiduciary shield doctrine to the facts of the present case. The court will now address the three specific subsections of Connecticut's long-arm statute, and their applicability to the nonresident defendants.
General Statutes § 52-59b(a)(1) of the Long-Arm Statute
Pursuant to § 52-59b(a)(1), "a court may exercise personal jurisdiction over any nonresident individual who in person or through an agent . . . transacts any business within the state." Our Supreme Court stated that, "although the term `[t]ransacts any business' is not defined by statute, we previously have construed the term to embrace a single purposeful business transaction. Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981) (looking to identical New York statute for guidance in interpreting § 52-59b); see also Kreutter v. McFadden Oil Corp., [ supra, 71 N.Y.2d 467] (under New York's long-arm statute, proof of one transaction in New York is sufficient to invoke jurisdiction, even though defendant never entered New York, as long as defendant's activities in New York were purposeful and there was substantial relationship between transaction and claim asserted). 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 . . . Zartolas v. Nisenfeld, supra, 475; see also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (determination of whether exercise of personal jurisdiction satisfies due process will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum [s]tate, thus invoking the benefits and protections of its laws)." (Internal quotation marks omitted.) Ryan v. Cerullo, 282 Conn. 109, 119-20, 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." (Internal quotation marks omitted.) Ruocco v. Metro Boston Hockey League, Superior Court, judicial district of New Haven, Docket No. CV 07 4024835 (December 7, 2007, Robinson, J.).
As Connecticut's long-arm statute is modeled after New York's, "New York case law is helpful to this court's analysis of whether the actions of the [defendants] . . . constitute the transaction of business within the state of Connecticut. In Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 256 N.E.2d 506, 508 (1970), the Court of Appeals noted that [i]t is important to emphasize that one need not be physically present in order to be subject to the jurisdiction of our courts under CPLR 302 for, particularly in this day of instant long-range communications, one can engage in extensive purposeful activity here without ever actually setting foot in the State. Further, proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enter[ed] New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted . . . A single transaction would be sufficient to fulfill this requirement . . . so long as the relevant cause of action also arises from that transaction." (Citations omitted; internal quotation marks omitted.) Waitts Trust v. American General Life Ins., Co., Superior Court, complex litigation docket at New London, judicial district of New London, Docket No. X04 CV 00 0123024 (June 5, 2002, McLachlan, J.).
"Several factors are relevant to the consideration of whether an out-of state defendant has transacted business in Connecticut, including: (1) whether the defendant has an on-going contractual relationship with a [Connecticut] corporation; (2) whether the contract was negotiated or executed in [Connecticut] and whether, after executing a contract with a [Connecticut] business, the defendant visited [Connecticut] for the purpose of meeting with parties to the contract regarding the relationship; (3) what the choice-of-law clause is in any such contract; and (4) whether the contract requires franchisees to send notices and payments into the forum state or subjects them to supervision by the corporation in the forum state. The Connecticut Supreme Court construes transacts any business to embrace a single purposeful business transaction . . .
"All factors are relevant, however, no one factor is dispositive; the ultimate determination is based on the totality of the circumstances . . . Although a single purposeful business transaction might be sufficient to confer jurisdiction, courts generally do not apply a rigid formula but balance considerations of public policy, common sense, and the chronology and geography of the irrelevant factors . . . Courts should examine the nature and quality, rather than the amount of Connecticut contacts to determine whether there was purposeful activity . . . The inquiry focuses on whether the defendant engaged in some purposeful activity here . . . in connection with the matter in suit." (Citations omitted; emphasis in original; internal quotation marks omitted.) Vertrue, Inc. v. Meshkin, 429 F.Sup.2d 479, 490 (D.Conn. 2006).
In considering the allegations in this case in light of the nature and quality of the nonresident defendants' contacts with Connecticut and the Connecticut-based plaintiffs, and mindful that a single business transaction may be sufficient to assert personal jurisdiction over a nonresident defendant, the court finds that the complaint lacks the requisite showing that any of the six nonresident Merrill Lynch defendants engaged in purposeful business transactions in Connecticut that rise to the level that would subject them to the court's jurisdiction pursuant to § 52-59b(a)(1) of the long-arm statute.
§ 52-59b(a)(2) of the Long-Arm Statute
Pursuant to the second subsection of the long-arm statute, § 52-59b(a)(2), "a court may exercise personal jurisdiction over any nonresident individual who in person or through an agent . . . commits a tortious act within the state . . ." The plaintiffs allege that the nonresident defendants committed fraud, as well as negligent and fraudulent misrepresentations in Connecticut. Specifically, the misrepresentations occurred during direct calls with the plaintiffs, in calls with the Merrill Lynch agent for numerous plaintiffs, and in material authored and created by the nonresident defendants, which the plaintiffs contend were intentionally disseminated to the plaintiffs in Connecticut.
"Several Connecticut courts have held that a nonresident `commits a tortious act within the state' for purposes of § 52-59b(a)(2) by sending a communication whose content may be considered tortious directly into Connecticut. See, e.g., Horniatko v. River Front Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV 04 4000332 (June 21, 2005, Shapiro, J.) ( 39 Conn. L. Rptr. 566) (allegation that defendants made solicitation telephone calls to plaintiffs in Connecticut satisfies § 52-59[a][2]); Doe One v. Oliver, Superior Court, judicial district of Waterbury, Docket No. CV 99 0151679 (May 19, 2003, Dubay, J.) ( 34 Conn. L. Rptr. 634) (allegation that a defendant sent e-mail containing offensive statements to recipients in Connecticut satisfies § 52-59b[a][2]); Oppenheim v. Erwin, Superior Court, judicial district of New Haven, Docket No. CV 00 0441611 (April 10, 2001, Licari, J.) ( 29 Conn. L. Rptr. 562) (allegation defendants sent threatening letter to plaintiff in Connecticut satisfies § 52-59b[a][2]) . . .
"In Knipple v. Viking Communications Ltd., 236 Conn. 602, 610, 674 A.2d 426 (1996), the Supreme Court held that `[f]alse representations entering Connecticut by wire or mail constitute tortious conduct in Connecticut under [General Statutes] § 33-411(c)(4), now General Statutes § 33-929(f)(4).' Although in that case the court was addressing the issue of personal jurisdiction under General Statutes § 33-411(c)(4), it cited with approval David v. Weitzman, 677 F.Sup. 95, 98 (D.Conn. 1987), in which the District Court held that the transmission of fraudulent misrepresentations into Connecticut by mail or telephone was tortious conduct in Connecticut sufficient to establish personal jurisdiction under Connecticut's long-arm [statutes], §§ 33-411(c)(4) and 52-59b(a)(2) . . . The Supreme Court's citation of David v. Weitzman, supra, 95, indicates that it would probably construe § 52-59b(a)(2) the same way that it has construed § 33-411(c)(4)." (Citations omitted; internal quotation marks omitted.) Rios v. Fergusan, 51 Conn.Sup. 212, 218, 978 A.2d 592 (2008) [ 46 Conn. L. Rptr. 731].
In Cody v. Ward, 954 F.Sup. 43, 45 (D.Conn. 1997). the plaintiff purchased shares of stock in reliance on materially false and misleading statements made by the nonresident defendant. The nonresident defendant disseminated this materially false information through four telephone conversations with the plaintiff, and fifteen electronic messages directed at the plaintiff's personal computer. In holding that it had jurisdiction over the nonresident defendant, the court observed that "[m]any states assert jurisdiction over a nonresident when, as in this case, oral and written misrepresentations are directed specifically to the forum," and stated that "[i]nterpreting Connecticut's long arm statute to reach this type of intentional tort is consistent with the statute's remedial purpose of providing Connecticut residents with a convenient forum to seek redress for losses they suffer here as a result of a nonresident's tortious actions [and such an] interpretation . . . is also consistent with Connecticut's traditional adherence to the doctrine that tort cases are governed by the law of the place of injury." Id., 46. Accordingly, the court held that the "nonresident's transmission of fraudulent misrepresentations to a Connecticut resident by telephone and electronic mail for the purpose of inducing him to buy and hold securities renders the nonresident subject to suit in Connecticut in an action based on the misrepresentations" subjected the defendant to the jurisdiction of the Connecticut courts. Id., 44.
Thus, "it is well established that false or fraudulent misrepresentations transmitted to Connecticut by mail, wire or telephone constitute tortious conduct in Connecticut sufficient to establish personal jurisdiction under Connecticut's long-arm statute . . . Moreover, Connecticut federal district courts have consistently held that it is proper to assert personal jurisdiction, pursuant to 52-59b(a)(2), over a nonresident defendant who transmits fraudulent representations to a Connecticut resident for the purpose of inducing that resident to act." (Citations omitted; internal quotations omitted.) Vertrue, Inc. v. Meshkin, supra, 429 F.Sup.2d 492. "However, [in cases in] which out-of-state communications have formed the basis for tortious conduct in Connecticut, the telephone calls or written correspondence have been sent to and received by the plaintiff in Connecticut." Swain v. American Capital Strategies Ltd., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 030103924 (August 4, 2004, Quinn, J.).
In Swain v. American Capital Strategies, Ltd., the court addressed the jurisdictional consequences of a plaintiff's phone call from Connecticut to a defendant in another jurisdiction. The court stated that "the plaintiff . . . placed his call from Connecticut to [the defendant's] headquarters in Maryland . . . in order to participate telephonically in the Board meeting . . . The plaintiff's actions in Connecticut cannot form the basis for finding jurisdiction over nonresident defendants under Section 33-929(f) . . . Under these circumstances, [the defendant] committed no act either in Connecticut or directed towards Connecticut that would support jurisdiction over it . . ." (Internal quotation marks omitted.) Id. The court went on to state that, "one phone call, initiated by the plaintiff . . . to the defendant in Maryland, does not constitute the transaction of business in Connecticut. To hold otherwise would subject an individual to a lawsuit in any state simply because a plaintiff places a telephone call to that individual from a totally random location." Id.
In the present case, the plaintiffs' complaint alleges that the nonresident Merrill Lynch defendants in New York knowingly transmitted fraudulent misrepresentations to Merrill Lynch brokers in Connecticut with the intent that the plaintiffs rely on these misrepresentations. Specifically, the complaint alleges that the nonresident defendant Constable, knowing that the ARS market was failing, collaborated with the nonresident defendant Conery, a research analyst, to produce false and materially misleading information. Additionally, the complaint alleges that both Conery and Constable disseminated this materially misleading information to the plaintiffs in Connecticut in the context of a telephone call. The complaint further alleges that Conery's notes show that he was privy to non-public information provided by the ARS desk that the ARS markets were failing five days before Merrill Lynch "pulled the plug" on its ARS business. Further, Conery wrote in an article that ARS continued to be "attractive" investments and that Merrill Lynch "continue[d] to be impressed by the auction market's resiliency in the face of challenging times. [Merrill Lynch] recommends that investors focus on what made the auction market great to begin with, conservative and understandable credits and traditional product structure."
Additionally, the complaint alleges that in November 2007, the nonresident defendant Brewer participated in a telephone call between the defendant Schweizer (Merrill broker based in Connecticut) and the plaintiff Dime Bank. During that call, the plaintiffs allege that Schweizer and Brewer falsely reassured Dime Bank executives of the liquidity of their ARS investments and the overall market for ARS. Brewer's affidavit states that this call was initiated by the defendant Schweizer from Connecticut, and that Brewer answered the call from his New York office, and simply responded to questions posed.
Additionally, all of the affidavits state that any phone calls that the nonresident defendants participated in were calls that were initiated by Merrill Lynch financial advisors calling into the New York office.
With respect to the telephone call that the nonresident defendant Brewer participated in as a nexus for jurisdiction, the court finds the reasoning in Swain persuasive, and finds that the call initiated by the plaintiffs cannot form a basis for jurisdiction over Brewer. Moreover, although the complaint alleges that the "defendants" transmitted fraudulent misrepresentations into Connecticut, the allegations specifically allege that "Merrill Lynch" continued to recommend ARS investments in its publications, and that it was the Connecticut-based defendants Schweizer and Mahar who were the Merrill Lynch employees responsible for touting ARS to the plaintiff banks in Connecticut.
With respect to the nonresident defendants Brewer, Tomney, Sin and Raymond, the complaint merely states that they prepared presentation materials used during 2006 and 2007 in which the "defendants" represented that "Merrill Lynch is strongly committed to the auction market securities marketplace, acting as the lead dealer on 703 issues and participating in close to 822 additional issues" and that "Merrill Lynch is aware of only 13 issuers which have experienced failed auctions since 1984 with only 1 of those experiencing a failed auction since 1993." The plaintiffs claim that this language furthered the false impression that the overall liquidity and strength of the ARS market was enhanced by Merrill Lynch's commitment to ARS. As to Tomney, Sin and Raymond, besides a paragraph in the complaint identifying each as a Merrill Lynch broker in New York, the allegation as to these three nonresident defendants is limited to a single reference of each being involved in an unspecified manner in the preparation of the materials.
The court finds that the mere allegation that the presentation materials state that they were prepared by Merrill Lynch's Auction Trading Desk in New York, including the nonresident defendants Brewer, Tomney, Sin and Raymond, is an insufficient basis to establish jurisdiction over them in Connecticut pursuant to § 52-59b(a)(2) of the long-arm statute. With respect to the particular misrepresentations made to the plaintiffs, the complaint alleges that the defendants made these representations during presentations and phone calls from 2006 through 2008. Similar to the allegations regarding Merrill Lynch's employees' knowledge of a failing ARS market, many of the allegations regarding the defendants' specific fraudulent misrepresentations to the plaintiffs do not include the nonresident defendants. These allegations are based on communications with the Merrill Lynch defendants Schweizer and Mahar, who are not a part of this motion, and who are not contesting jurisdiction. Moreover, numerous allegations refer to misrepresentations made during presentations by the defendants Schweizer and Mahar or by "Merrill Lynch employees."
Thus, although the complaint makes allegations as to the knowledge and behavior of certain nonresident defendants, the complaint fails to tie those allegations to acts done within Connecticut by those same nonresident defendants. A significant amount of the allegations refer to internal communications evidencing Merrill Lynch employees' knowledge of a failing ARS market. However, these broad allegations fail to relate to any actions taken specifically by the nonresident defendants in the state of Connecticut. Without such a nexus, this court cannot exercise jurisdiction over the nonresident defendants Brewer, Tomney, Sin and Raymond.
The complaint, however, does contain sufficient factually specific allegations implicating the nonresident defendants Constable and Conery, as both played integral roles in the alleged scheme to defraud the plaintiffs. As previously stated, the complaint alleges that on a December 12, 2007 call, both Constable and Conery misrepresented the state of the ARS market and Merrill Lynch's position on the sustainability of the ARS market. Conery falsely stated that the pressure on the ARS market since August, combined with the purportedly seasonal year-end spike in rates, "have made things that were already attractive even more attractive and that the closed-end funds ARS sector is the conservative's conservative investment." On the call, the nonresident defendant Constable stated that "we are working with research to provide the best ideas and to give assurance as the solidity and ongoing endurance of some terrific markets" and further stated that ARS "should be considered a great cash management gathering tool." At the time, it is alleged that Constable and Conery knew that the ARS market was failing and that Merrill Lynch was looking to leave the market entirely in the near future. Without the active roles played by Constable and Conery, the alleged fraud in connection with the ARS market could not have perpetrated upon the plaintiffs. Accordingly, the court finds that the complaint contains sufficient allegations of tortious conduct in Connecticut to establish personal jurisdiction over the nonresident defendants Constable and Conery, pursuant to § 52-59b(a)(2) of the long-arm statute.
§ 52-59b(a)(3) of the Long-Arm Statute
Pursuant to the third subsection of the long-arm statute, § 52-59b(a)(3), "a court may exercise personal jurisdiction over any nonresident individual who in person or through an agent . . . 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, 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 . . ."
In their memorandum in support, the plaintiffs fail to point to any specific set of facts to support a finding that the court has jurisdiction over the nonresident defendants pursuant to § 52-59b(a)(3). The plaintiffs merely state "to the extent that some of the nonresident defendants' tortious conduct occurred outside of Connecticut, the facts asserted in the complaint clearly support the exercise of jurisdiction over [the] nonresident defendants in connection with those acts." Even if the court were to find that the plaintiffs sufficiently alleged tortious conduct occurring outside the state that caused injury inside the state, the plaintiffs failed to plead sufficient facts to support a finding that any of the individual nonresident defendants either regularly solicited business, or engaged in any other persistent course of conduct, or derived substantial revenue from goods used or consumed or services rendered, in the state.
The plaintiffs argue that as a result of the fraudulent misrepresentations, Merrill Lynch generated significant fees, and that the nonresident defendants themselves derived substantial revenue from their business dealing with the plaintiffs in the form of incentives received through those sales. "Although this court never has been required to determine the meaning of `derives substantial revenue from interstate or international commerce' for purposes of § 52-59b(a)(3)(B), New York courts have concluded, in interpreting their identically worded long-arm statute, that the `substantial revenue' requirement is designed to narrow the long-arm reach to preclude the exercise of jurisdiction over nondomiciliaries who might cause direct, foreseeable injury within the [s]tate but whose business operations are of a local character . . . Put differently, `substantial revenue' means enough revenue to indicate a commercial impact in the forum, such that a defendant fairly could have expected to be hauled into court there . . .
"Because of the indefinite nature of the `substantial revenue' requirement, the determination of whether that jurisdictional threshold has been met in any particular case necessarily will require a careful review of the relevant facts and frequently will entail an evaluation of both the total amount of revenue involved and the percentage of annual income that that revenue represents. Compare Founding Church of Scientology of Washington, D.C. v. Verlag, 536 F.2d 429, 432-33 (D.C. Cir. 1976) (1 percent of magazine's gross revenue, or $26,000, constituted `substantial revenue' on basis of low unit price of magazines) with Murdock v. Arenson International USA, Inc., 157 App.Div.2d 110, 113-14, 554 N.Y.S.2d 887 (1990) (0.05 percent of corporate defendant's total sales, totaling $9000, did not satisfy `substantial revenue' requirement)." (Citations omitted; internal quotation marks omitted.) Ryan v. Cerullo, 282 Conn. 109, 124-25, 918 A.2d 867 (2007).
Specifically, the plaintiffs allege that Merrill Lynch "generated significant fees from underwriting new issuances of ARS, earning $130 million from 2001 through 2008" and that "for 2006-2007 alone, Merrill Lynch reported approximately $90 million in profits from its ARS business." The complaint, however, fails to allege that the nonresident defendants themselves derived substantial revenue from any alleged fraud in Connecticut. Simply because their employer Merrill Lynch may have generated substantial revenue from its contacts with Connecticut, among other states, it does not follow that the individual nonresident defendants themselves derived substantial income from any business dealings with the Connecticut plaintiffs.
Further, although the plaintiffs argue that the nonresident defendants derived substantial revenue from their business dealing with the plaintiffs in the form of incentives received through those sales, the complaint actually states that Merrill Lynch "awarded financial incentives to its financial advisors who sold ARS to Merrill Lynch clients during the second half of 2007." These incentives took the form of enhanced production credits awarded to financial advisors in connection with investments in ARS made by clients. Thus, while the complaint alleges that Merrill Lynch financial advisors were rewarded with incentives for the sale of ARS, the complaint does not allege that any of the nonresident defendants were financial advisors that benefited from this incentives program. As such, because the plaintiffs have failed to show that the individual nonresident defendants derived substantial revenue from their business with the plaintiffs, the court cannot find that it has jurisdiction over them pursuant to § 52-59b(a)(3) of the long-arm statute.
Due Process Analysis
"As articulated in the seminal case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed.2d 95 (1945), the 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 . . . 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 . . . Alternatively, [e]ven when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum [s]tate, due process is not offended by a [s]tate's subjecting the corporation to its in personam jurisdiction if the defendant has had continuous and systematic general business contacts with the state . . . Whether a given defendant has contacts with the forum state sufficient to satisfy due process is dependent upon the facts of the particular case. Like any standard that requires a determination of reasonableness, the minimum contacts test of International Shoe Co. is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present . . .
"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 . . . [Therefore] [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." (Citations omitted; internal quotation marks omitted.) Styron v. Burgess, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002795 (April 2, 2008, Pickard, J.).
"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 . . . Alternatively, [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. Whether a given defendant has contacts with the forum state sufficient to satisfy due process is dependent upon the facts of the particular case." (Citations omitted; emphasis in original; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 524.
In light of the facts and circumstances of the present case, the court's jurisdiction over the nonresident defendants Constable and Conery does not offend notions of due process.
Service of Process
Alternatively, the defendants Constable, Conery, Sin and Raymond argue that the complaint should be dismissed as to them because of the plaintiffs' failure to serve process on them. Proper service of process is a prerequisite to a court's exercise of in personam jurisdiction over a party. Tarnopol v. Connecticut Sitting Council, 212 Conn. 157, 166, 561 A.2d 931 (1989); see also Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003) (stating that one who is not served with process does not have the status of a party to the proceeding, and that a court does not have jurisdiction over persons who have not been made parties).
"There are many methods of serving process on a nonresident defendant. [Section] § 52-57a provides the basis for jurisdiction over nonresident defendants. `A person domiciled in or subject to the jurisdiction of the courts of this state . . . may be served with process without the state, in the same manner as service is made within the state . . .' General Statutes § 52-57a. When service is authorized to be made outside Connecticut, the same methods of service may be used as those which are lawful within this state . . . [This includes] (1) personal service, by actual manual delivery to the defendant himself or (2) abode service, by leaving a copy of the process at the defendant's usual place of abode . . . If process is correctly served in a manner prescribed by § 52-57a, the Connecticut court has personal jurisdiction over a nonresident defendant in an action brought under the long-arm statute . . .
"Section 52-59b(c) provides an alternate method of serving process on a nonresident defendant. Section 52-59b(c) states in pertinent part: `Any nonresident individual . . . over whom a court may exercise jurisdiction, as provided in subsection (a), shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual . . . personally.' . . . It is clear that § 52-59b(c) provides only one of many methods of giving notice [to nonresident defendants] and is not exclusive . . . [Section] 52-59b(c) establishes that suits under the long-arm statute are commenced against nonresident individuals by service upon the Secretary of State's office and by mailing a copy with endorsement to the last-known address of the nonresident . . ." (Citations omitted; internal quotation marks omitted.) Reeves v. Battle, Superior Court, judicial district of New London at Norwich, Docket No. 117847 (August 19, 1999, Mihalakos, J.).
"In Hartley v. Vitiello, 113 Conn. 74, 154 A. 255 (1931), in which [the Supreme Court] considered whether a nonresident, who had been sued for allegedly causing a motor vehicle accident had been properly served under the long arm statute, we stated that it is reasonable probability of notice, not actual notice, which is the test . . . The requirement that the copy be mailed to the defendant at his `last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it. Unless the defendant has departed for parts unknown, it means his actual address; if he has disappeared it means his last address so far as it is reasonably possible to ascertain it. This address the plaintiff must learn at his peril and only if the copy is mailed to it is there a compliance with the statute . . . Interpreted in the sense which the legislature intended, our statute, if complied with, will certainly bring about a reasonable probability of actual notice of the pendency of the action to the defendant." (Internal quotation marks omitted.) Cadlerock Joint Venture II, LP v. Milazzo, 287 Conn. 379, 949 A.2d 450 (2008).
"The requirement that the copy be mailed to the defendant at his `last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it." D'Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 171, 455 A.2d 833 (1983). Stated in other terms, "before concluding that the defendant cannot be located, a plaintiff must take reasonable steps to identify the defendant's whereabouts . . . If a defendant's address is unknown, a plaintiff may serve process in a manner that makes it `reasonably certain to reach the addressee.'" Carillo v. Hagerty, 2005 WL 3543732 (D.Conn. 2005).
In Updike, Kelly Spellacy, P.C. v. Beckett, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 04 97890 (March 6, 2002, Aurigemma, J.) ( 31 Conn. L. Rptr. 500), the court addressed the issue of service of process on a nonresident defendant at his "last known address." In Updike, the plaintiff submitted an affidavit stating that "prior to commencing the action, [the plaintiff] reviewed a personal questionnaire completed by [the defendant] during its representation of him and determined what address [the defendant] had directed materials be sent to him. During the course of its representation of [the defendant] . . . all materials were sent to this address and, if [the defendant] was not located at this address, the person with whom he lived at that address . . . would forward the materials to the defendant." The plaintiff's affidavit further averred that "its investigation revealed that [the person with whom the defendant lived with at that address] still reside[d] [there]." The court held that based on the plaintiff's affidavit, it was not necessary for the plaintiff to conduct an additional search and that service of process on the defendant at the "last known address" according to the plaintiff's records was sufficient.
In the present case, the returns of service for the defendants Constable, Conery, Sin and Raymond indicate that the plaintiffs mailed process for them to Merrill Lynch. However, none of these defendants had worked at that address, or for Merrill Lynch, for an extended time prior to such mail service. These defendants argue that the plaintiffs neglected to take the most basic steps to identify their whereabouts, and as such, the plaintiffs' attempt to serve them by mail at their former place of employment is defective. The affidavit submitted by the plaintiffs' attorney states the following: The attorney "undertook a search for the home addresses of the nonresident defendants and concluded that, given, the size of New York and the probability that such persons may commute from New York State, New Jersey, or Connecticut (at least), it would be difficult if not impossible to obtain the correct home addresses for all [n]onresident [d]efendants. Further, an online search of brokerage licensure records was conducted to find the business addresses for the nonresident defendants. The brokerage licensure records listed the New York City Merrill Lynch headquarters as the last-known business address for the nonresident defendants. An individual at Merrill Lynch's New York office signed on behalf of all nonresident defendants and accepted service."
Unlike the plaintiff in Updike, the plaintiffs in the present case did not have an ongoing relationship with the nonresident defendants, and they were not aware that any mail sent to a given address would be forwarded to these defendants. That being the case, the court finds that a more detailed search was warranted in the present case. Although the court agrees with the plaintiffs in that a Merrill Lynch employee working out of their New York office could reside in one of several states, this possibility, standing alone, does not relieve the plaintiffs from undertaking a more diligent search for the nonresident defendants' home address. This is so especially in light of the fact that the plaintiffs were aware that these defendants were not employed by Merrill Lynch at the time they mailed the summons and complaint.
Based on the above, the court finds that the plaintiffs did not use reasonable efforts to ascertain the "last known addresses" of the defendants Constable, Conery, Sin and Raymond. Accordingly, pursuant to § 52-59b, service of process was ineffective.
Conclusion
The motion to dismiss for lack of personal jurisdiction is granted as to nonresident defendants James Brewer, Robert Tomney, Derek Sin and Keith Raymond.
The motion to dismiss for lack of personal jurisdiction is denied as to nonresident defendants Frances Constable and Kevin Conery.
The motion to dismiss for lack of proper service is granted as to Frances Constable, Kevin Conery, Derek Sin and Keith Raymond.
SO ORDERED