Summary
stating that personal jurisdiction over a limited liability partnership was governed by Conn. Gen. Stat. § 52–59b
Summary of this case from Friedman v. Bloomberg LPOpinion
No. FST CV 10-5013382S
November 15, 2010
Memorandum of Decision on Motion to Dismiss (No. 102)
This is a civil action brought by Mr. Bennett Harris, a resident of Wilton, Connecticut against the homeowners' association of Sunset Beach Villa, a residential condominium in Captiva, Florida, the president of that condominium association, and the Florida law firm which represented the condominium association in a lawsuit against Mr. Harris in a Florida state court to collect condominium charges associated with a unit at Sunset Beach Villa owned by Mr. Harris. The complaint in this action seeks loss of value, emotional distress and defamation damages, compensatory and punitive, for "harassment, aggravation, annoyance, hassle, torment, and blackmail" for the defendants' alleged failure to provide information as to the exact dates of the alleged arrearages of condominium charges, their failure to accept an amount tendered by the plaintiff in full satisfaction of the claim which he believed in good faith to be the amount owed, and the defendants' alleged unjustified addition of excessive fines and legal charges to the amount of unpaid condominium charges. The defendants have appeared by counsel and have filed a joint motion to dismiss this Connecticut case for lack of in personam jurisdiction.
The court makes the following findings of fact based on the allegations of the complaint and the uncontested affidavits filed by each of the defendants.
1. Sunset Beach Villa Condominium Association, Inc. (The "Association") is a Florida nonprofit corporation in good standing which is the condominium association for Sunset Beach Villa condominium located in Captiva, Florida where the plaintiff Stephen Harris is a unit owner.
2. The Association does not produce, manufacture, or produce goods.
3. The Association does not maintain any offices in Connecticut, does not transact any business in Connecticut and has not entered into any contracts in Connecticut.
4. The Association does not have any employees who maintain offices in Connecticut.
5. The Association does not advertise or solicit business in Connecticut, and does not derive any revenue from Connecticut activities.
6. The Association does not derive any substantial revenue from interstate or international commerce which it would expect to have consequences in Connecticut.
7. The Association does not own, use or possess any real property in Connecticut. 8. The Association does not use or maintain a computer or computer network in Connecticut.
9. The Association has never retained legal counsel in Connecticut to initiate legal proceedings of any sort against the plaintiff Benjamin Harris.
10 No one from the Association has traveled to Connecticut to meet or otherwise speak with the plaintiff Benjamin Harris.
11. The Florida lawsuit which is the subject of this action was initiated in the County Court of the Twentieth Judicial Circuit in and for Lee County Florida and concerns property located in Captiva, Florida. The court infers from the allegations of the complaint and plaintiff's Objection to Motion to Dismiss and the exhibits attached thereto that service of process in the Florida lawsuit was made by mailing process by United States Postal Service certified mail return receipt requested, sent to Mr. Harris' address at 20 Black Alder Lane, Wilton, CT 06897, for which he signed a receipt on the Postal service delivery record.
12. Defendant Stephen Bethea is the president of the Association. He is a resident of Atlanta, Georgia. He is a physician, but is not licensed to and has never practiced medicine in Connecticut.
13. Dr. Bethea does not advertise in Connecticut or derive any revenue from medical services rendered in Connecticut.
14. Dr. Bethea has not conducted any other business in Connecticut and does not derive any substantial revenue from interstate or international commerce, nor does he maintain a computer or computer network as defined in Conn Gen. Stat. § 53-451 in Connecticut.
15. Dr. Bethea has not traveled to Connecticut to meet or otherwise speak with the plaintiff, Bennett Harris.
16. Dr. Bethea has personally never retained counsel in Connecticut to pursue any legal proceedings against the plaintiff Bennett Harris.
17. The defendant the Pavese Law Firm is a registered fictitious trade name of a law firm operated by the Florida limited liability partnership of Pavese, Haverfield, Dalton, Harrison, and Jensen LLP (the "Law Firm") with offices in Fort Myers, Cape Coral and West Palm Beach, Florida.
18. The defendant Law Firm does not maintain any offices in Connecticut nor does it transact any business in Connecticut. None of its attorneys are admitted to practice law in Connecticut, nor do they practice law in Connecticut.
19. None of the partners or employees of the defendant Law Firm maintain a business office in Connecticut, or own, use or possess any real property in Connecticut.
20. The defendant Law Firm does not advertise in Connecticut or derive any revenue from legal services rendered in Connecticut. Nor does it derive any substantial revenue from interstate or international commerce which it would expect to have consequences in Connecticut.
21. The defendant Law Firm does not use or maintain a computer, or computer network, as defined in Conn. Gen. Stat. § 53-451, in Connecticut.
22. No one from the defendant Law Firm has traveled to Connecticut to meet or otherwise speak with the plaintiff, Bennett Harris.
"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 long-arm statute authorizes 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." (Brackets in original; internal quotation mark omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606 (1996). In establishing which party has the burden of proof with respect to the issue of personal jurisdiction, the Supreme Court has drawn a distinction based on the method of service of process employed. "The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return. There should be no presumption of the truth of the plaintiff's allegations of the additional facts necessary to confer jurisdiction." (Internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53, 459 A.2d 503 (1983). Thus, "the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used." Since all three defendants in this Connecticut action were served in Florida by a Florida process server, the burden of proving personal jurisdiction over them in this Connecticut court rests with the plaintiff.
Turning to the first prong of the test, the statute governing long-arm jurisdiction over the individual defendant Dr. Stephen Bethea and the defendant limited liability partnership, the Law Firm, is Conn. Gen. Stat. § 52-59b which permits a Connecticut court to exercise personal jurisdiction over a nonresident individual or a foreign partnership 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 . . . 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 and derives substantial revenue from interstate or international commerce; (4) owns, uses or possesses any real property situated within this state; or (5) uses a computer . . . or computer network located within the state.
There is absolutely no allegation in the complaint, nor any fact presented by affidavit which would show that Dr. Bethea individually or the Law Firm partnership performed any act or owns or uses any property in Connecticut which would subject him or it to personal jurisdiction here under subdivisions (1), (2), (4) or (5) of the statute. And even if some act of Dr. Bethea or the Law Firm performed in Florida in connection with the bringing or maintaining of the Florida lawsuit against Mr. Harris could somehow be construed as tortious conduct, of which there is no indication, there is absolutely no claim or evidence of any of the conditions of subsections (3)(A) or (3)(B) which would elevate that act to a jurisdiction-enabling status. In fact the court has specifically found that those conditions are not present.
There is no personal jurisdiction shown over Dr. Bethea or the Law firm under § 52-59b. Jurisdiction over the defendant Association, a Florida nonprofit corporation, is governed by Conn. Gen. Stat § 33-1219(f) which allows personal jurisdiction of a Connecticut court over a foreign nonstock corporation on any cause of action arising:
(1) out of any contract made in this state or to be performed in this state; (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly solicited business, whether the orders or offers relating thereto were accepted within or without the state; (3) out of the production, manufacture, or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used and consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.
The plaintiff has failed to meet his burden of alleging or showing the presence or applicability of any of the facts or conditions of § 33-1219(f) which would subject the defendant Association to in personam jurisdiction in Connecticut. The court's findings of fact specifically negate all those factors.
Having found no jurisdiction over the defendants under the applicable Connecticut statutes, it is unnecessary to reach the second prong of the jurisdictional test subjecting statutory jurisdiction to a due process analysis. Nonetheless, as an alternate ground of decision, the court holds that subjecting these three Florida defendants to Connecticut jurisdiction under the allegations of the complaint and the undisputed facts recited above would deprive the defendants of due process of law under the Fourteenth Amendment to the United States Constitution. The due process test first articulated in International Shoe Company v. Washington, 326 U.S. 310 (1945) has two related components: the "minimum contacts" inquiry and the "reasonableness" inquiry. Cogswell v. American Transit Insurance Company, 282 Conn. 505, 524 (2007). The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction. This test is satisfied if the defendant has personally directed its activities at residents of the forum, or has had continuous and systematic general business contacts within the state. Id. Once minimum contacts have been established, the 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. Id. 525. In this case the minimum contacts requirement is not satisfied and it is therefore unnecessary to look into traditional notions of fair play and substantial justice. In the context of plaintiff's claims about defendant's conduct in bringing and prosecuting against him the Florida lawsuit to collect condominium charges, the only fact even remotely connecting the defendants with Connecticut is that they, or at least one of them, caused plaintiff Bennett Harris to be served with Florida process presumably under the Florida long-arm statute, by mailing the process from Florida to him at his address in Wilton, Connecticut. This falls far short of the minimum contacts needed for personal jurisdiction in Connecticut. It is not a personal direction of activities at Connecticut resident or part of a systematic general business contacts of the defendants within Connecticut. It is a single isolated act of mailing legal process into a state pursuant to state law to subject the recipient to jurisdiction within the state where the entire transaction occurred and the property at issue was located. Due process of law would be offended if these defendants under these circumstances were subjected against their will to the jurisdiction of this court.
For these reasons the motion to dismiss is granted for lack of in personam jurisdiction over the defendants. Judgment of dismissal is entered against the plaintiff.