Opinion
No. CV08-5022561 S
January 16, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #105
In 2003, Marine Innovations, Inc. (Marine Innovations), a Minnesota corporation, installed a 220-foot track and tram system (the track and tram) on the plaintiff's, Carol Gordon's property, located at 51 Lakeview Terrace in Sandy Hook, Connecticut. On or about August 15, 2005, the plaintiff alleges that Marine Innovations, purporting to repossess the track and tram for non-payment, wrongfully entered the plaintiff's private and locked premises, disconnected the circuit breaker to the track and tram and removed it from the premises.
Hereafter "Marine Innovations" refers to Marine Innovations, Inc., a named defendant in this action. Marine Innovations, LLC is a separate entity, referenced later in this decision.
The plaintiff filed a four-count complaint on August 18, 2008, against Marine Innovations, Michael Botzet, Lori Botzet, and Sean Hoff. Michael and Lori Botzet (the defendants), president and vice president of Marine Innovations, were sued in their official and individual capacities. The defendants filed a motion to dismiss for lack of personal jurisdiction, with an attached memorandum in support, on October 31, 2008. The plaintiff filed a motion for a thirty-day extension of time to reply to the motion on November 17, 2008, which was granted by the court, Licari, J., on the same day. The plaintiff submitted her reply brief to the court, which was dated December 31, 2008.
Count one alleges that Marine Innovations, Inc., Michael Botzet, Lori Botzet, and Sean Hoff violated General Statutes §§ 42a-9-501 et seq. or 42-98. Count two alleges that Michael Botzet "directed Marine Innovations, Inc's employees and/or agents to enter plaintiff's private property and take plaintiff's track and tram." Count three mirrors count two, but is against Lori Botzet. Count four alleges violation of General Statutes § 42-110a et. seq.
Hereafter "the defendants" refers only to Michael and Lori Botzet.
Effective October 1, 1989, "Practice Book § [10-31] . . . [has] been amended so that a party who files an untimely memorandum is no longer deemed to consent to the granting of a motion made under [this] section." Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 12-13 n. 1, 578 A.2d 646 (1990). "In the absence of any objection by the defendant on this basis, or any appellate case law making such a filing mandatory, this oversight by the plaintiffs [in not filing a memorandum of law objecting to the defendant's motion to dismiss] is not fatal to their claims." Fennelly v. Norton, 103 Conn.App. 125, 146-47 n. 4, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).
"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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). "Although the filing of an appearance on behalf of a party, in and of itself, does not waive that party's personal jurisdiction claims, `[a]ny defendant wishing to contest the court's jurisdiction, may do so . . . by filing a motion to dismiss within thirty days of the filing of an appearance.' Practice Book § 10-30 . . ." (Citation omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, CT Page 1784 445, 797 A.2d 1081 (2002).
"When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007); Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006); Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). "A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts." (Internal quotation marks omitted.) Rivera v. Meriden, 72 Conn.App. 766, 769, 806 A.2d 585 (2002). "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., supra, 515.
The defendants argue this court lacks personal jurisdiction to sue them in either their official or individual capacity. At the heart of the defendants' argument is the inapplicability of Connecticut's long-arm statute, § 52-59b, which governs the jurisdiction of the courts over non-resident individuals. The plaintiff alleges that the defendants, both in their individual and official capacities directed employees or agents of Marine Innovations to remove the track and tram from her Connecticut property. The defendants contend this act does not give this court jurisdiction under either § 52-59b(a)(1), (3) or (4).
The defendants appear to concede that Connecticut has jurisdiction over Marine Innovations. Despite the fact that Marine Innovations is a Minnesota business with its principal place of business in Connecticut, it transacts business within the state.
General Statutes § 52-59b(a) provides: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association, or over the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, who in person or through an agent: (1) Transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if 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; (4) owns, uses or possesses any real property situated within the state; or (5) uses a computer, as defined in subdivision (1) of subsection (a) of section 53-451, or a computer network, as defined in subdivision (3) of subsection (a) of said section, located within the state."
In regard to § 52-59b(a)(1) which confers jurisdiction on anyone "who in person or through an agent . . . [t]ransacts any business within the state," the defendants argue the plaintiff's allegations fail to demonstrate that they are "in any way personally connected to the State of Connecticut . . . [or] at any time purposefully availed themselves of the benefits and privileges of the State of Connecticut." The plaintiff counters that § 52-59b(a)(1) confers jurisdiction over the defendants and that exercising jurisdiction does not violate the due process rights of the defendants. The plaintiff argues that § 52-59b(a)(1) is applicable because the defendants, as officers of Marine Innovations have transacted business within the state and thus, have availed themselves of the laws of the state of Connecticut. They contend that the defendants "played an active role in the business transactions underlying the plaintiff's causes of action."
Because this court ultimately finds there is personal jurisdiction over the defendants under § 52-59b(a)(1), the court will neither present or address defendants' arguments in regard to the other sub-sections of the statute.
The plaintiff attaches several exhibits to her brief including: evidence that Marine Innovations, LLC is a domestic limited liability company registered in Connecticut by the plaintiff's husband, Alan Gordon; an uncertified copy of a complaint filed in Minnesota by Marine Innovations against Alan Gordon, which alleges that he breached a covenant not to compete and explicitly mentions the track and tram installed on the plaintiff's Connecticut property in Sandy Hook; the answers of Marine Innovations to Alan Gordon's interrogatories in regard to the Minnesota action, in which the defendants are mentioned by name as having knowledge of and communications about the track and tram purchased and installed in Connecticut; and an uncertified copy of a police report, in which Alan Gordon reported the removal of the track and tram to the Newtown police, the report references the communications between the police and the defendants regarding the track and tram.
As further delineated in this decision, Alan Gordon had a business relationship with Marine Innovations and the defendants, to which the tram and track installed on the plaintiff's Connecticut property was an integral part. Alan Gordon apparently registered a LLC under the name "Marine Innovations, LLC" in Connecticut, although Marine Innovations, Inc. and the defendants claim he was never given approval to do so.
"When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotation marks omitted.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008). Further, "when a challenge to the court's jurisdiction is raised by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction." Solano v. Calegari, 108 Conn.App. 731, 737-38, 949 A.2d 1257, cert denied, 289 Conn. 943, 959 A.2d 1010 (2008).
"In order to find jurisdiction over a nonresident defendant, only one of the provisions of § 52-59b needs to be satisfied." (Internal quotation marks omitted.) Mitchell v. Patterson, Superior Court, judicial district of New Haven, Docket No. 4001501 (June 21, 2005, Levin, J.) (39 Conn. L. Rptr. 560, 562). Section 52-59b(a)(1) confers jurisdiction on a non-resident individual "who in person or through an agent [t]ransacts any business within the state." "[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. 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., 71 N.Y.2d 460, 467, 522 N.E.2d 40, 527 N.Y.S.2d 195 (1988) (under New York 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).
In Zartolas v. Nisenfeld, the Connecticut Supreme Court surveyed New York decisions interpreting the term "transacts any business" and in doing so, determined that jurisdiction extended to defendants who executed a warranty deed concerning the sale of real estate located in Connecticut notwithstanding the fact that the deed was executed in Iowa and the defendants never traveled to Connecticut. See 184 Conn. 474-75. The Court reached its decision by noting that New York courts found jurisdiction based upon the following transactions: breach of contract to sell; tax audit by the multi-state tax commission; negotiating the retail purchase of a ring; receiving medical treatment; and execution of a separation agreement. See id.
Therefore, "[t]he phrase `transacts any business' has been construed by our Supreme Court to embrace a single purposeful business transaction . . . In determining whether the defendant's contacts constitute the transaction of business within this state, we do not resort to a rigid formula [but] balance considerations of public policy, common sense, and the chronology and geography of the relevant factors." (Citation omitted; internal quotation marks omitted.) Solano v. Calegari, supra, 108 Conn.App. 738-39. "A court must consider the totality of circumstances when determining the existence of purposeful activity, and may not subject the defendant to jurisdiction based on random, fortuitous, or attenuated contacts." (Internal quotation marks omitted.) Mitchell v. Patterson, supra, 39 Conn. L. Rptr. 564.
"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.) Investment Associates v. Lancia, Superior Court, judicial district of New Haven, Docket No. CV 07 4028746 (May 5, 2008, Robinson, J.) (45 Conn. L. Rptr. 437, 439). Section 52-59b(a)(1) requires a defendant to "project themselves into Connecticut or purposefully avail themselves of the benefits or protections of its laws." Green v. Simmons, 100 Conn.App. 600, 608, 919 A.2d 482 (2007).
After jurisdiction is found under the applicable statute, "[t]he next inquiry focuses on whether the exercise of personal jurisdiction violated principles of constitutional due process. The twin touchstones of due process analysis under the minimal contacts doctrine are foreseeability and fairness. [T]he foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." (Internal quotation marks omitted.) Hart, Nininger Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 625-26, 548 A.2d 758 (1988).
In the present case, the plaintiff alleges that Marine Innovations was paid $28,946 for the track and tram and its installation on her Connecticut property. The plaintiff also alleges that an employee or agent of Marine Innovations, purporting to repossess the track and tram for non-payment, entered her property; disconnected the circuit breaker and ultimately, removed the track and tram from the premises. Counts two and three of the complaint allege that the defendants "directed" an employee or agent of Marine Innovations to do so. Finally, the plaintiff alleges the defendants continue to withhold the track and tram, and retain the $28,946.
This court finds there is jurisdiction over the defendants both in their individual and official capacities. This decision is based upon the allegations in the present complaint, but also upon Marine Innovations' answers to Alan Gordon's interrogatories in the Minnesota action. Marine Innovations' answers to Alan Gordon's interrogatories contain undisputed facts, which may be considered by this court. See Rivera v. Meriden, supra, 72 Conn.App. 769.
The other evidence presented by the plaintiff will not be considered by this court. The evidence presented showing that Alan Gordon registered an LLC called "Marine Innovations, LLC" is inconclusive as Marine Innovations states: "[Alan Gordon] called himself Marine Innovations, LLC NE Distributors illegally. At no times was this approved by our company." Similarly, the Minnesota complaint and the police report filed by Alan Gordon contain disputed facts, which may not be considered in the determination of this motion.
The defendants are officers of Marine Innovations, a company which has transacted business in this state through the sale and installation of the track and tram on the plaintiff's Connecticut property. The plaintiff has produced evidence that the defendants had a business arrangement with the plaintiff's husband, Alan Gordon, which included the installation of the tram and track. Marine Innovations' answers to Alan Gordon's interrogatories in the Minnesota action state: "Marine Innovations, Inc. is a legal corporation that manufactures and installs incline lift systems. Alan Gordon entered into a Sales Agent agreement with the company in or around January of 2003. He also entered into a Non-Compete and Confidentiality agreement for a period of five years. Persons with knowledge include Michael Botzet, Lori Botzet . . . Alan Gordon agreed to purchase a tram system for his wife's home and a demonstration unit to use in his sales. The final price for his tram system was $36,664.20. The final price for his demonstration unit was $10,500. The balance owed to Marine Innovations, Inc. is $20,152.88. This balance was arrived by payments made by Alan Gordon, 4 checks adding up to $20,500 plus a credit of $7,946 for a commission for the one and only sale Alan Gordon made for Marine Innovations, Inc." (Emphasis added.)
Furthermore, Marine Innovations, Inc. responded to an interrogatory, which read: "Identify all persons with knowledge of the facts alleged in the Complaint and any Counterclaims in this action and state in detail . . . the information they possess," in the following manner: "Michael Botzet — information derived from being the first person to make contact with Alan Gordon and attempt to train him to be a competent and responsible sales agent for the company. Also concerning recovery of the tram . . . Lori Botzet — information derived from trying to collect from Alan Gordon and from investigating his contract breaches. Had telephone correspondence with Alan Gordon regarding his responsibilities for payment, his misrepresentations to potential clients, his misrepresentation in both pricing and his personal marketing which was not approved by Marine Innovations, Inc." In addition, "[t]here were many phone conversations taking place between Mike and Alan, Lori and Alan, Mike and Lori . . . Alan would call and hound us about the `status of the system' and we would consistently tell him he will need to pay for it. We were `not' a bank. Lori would also have conversations with Alan questioning his marketing, telling him not to call himself Marine Innovations, LLC, not to price his quotes over our standard retail, not to basically misrepresent us. As the situation worsened, we make it clear to Alan we needed to get paid or we would pursue legal action, get a collection agency involved or worst case take the system out."
The defendants entered into an agreement with Alan Gordon, in which Alan Gordon was to purchase a track and tram from Marine Innovations to be used as a demonstration unit to expand Marine Innovations' and thus, the defendants' business. The sale and installation of the track and tram on the plaintiff's Connecticut property is an act, whose nature and quality demonstrate that the defendants purposely availed themselves of the laws of the State of Connecticut. The defendants were personally involved in the Sales Agent agreement with Alan Gordon and in subsequent conversations regarding their dissatisfaction with Alan Gordon due to his default on payments for the track and tram and his questionable sales techniques. The Minnesota action demonstrates the defendants' dissatisfaction with Alan Gordon and indicates his work for the company posed a threat to Marine Innovations' and therefore, the defendants' profits and reputation. The defendants' business interests in Marine Innovations were personally affected by the Sales agreement with Alan Gordon and his alleged breach thereof. Central to this agreement was the sale and installation of the track and tram on the plaintiff's Connecticut property. This is sufficient to bring the defendants within the ambit of § 52-59b(a)(1).
Because jurisdiction over the defendants is authorized under the long-arm statute, this court must next decide whether conferring jurisdiction violates the due process rights of the defendants. The defendants were officers of a company that sold and installed an expensive piece of equipment to a Connecticut resident on Connecticut land for the purpose of increasing their sales. The defendants were concerned with Alan Gordon and the effect that his actions would have on Marine Innovations' and their own personal business reputation. They actively communicated with Alan Gordon in this regard. Therefore, it is both foreseeable and fair that the defendants could be haled into court in Connecticut.
The defendant's motion to dismiss is denied as there is personal jurisdiction over the defendants.