Opinion
No. CV 04 4000332 S
June 21, 2005
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#101)
This matter initially appeared before the court at short calendar on January 31, 2005 concerning the defendants' motion to dismiss (motion). The parties agreed that the court should consider their respective affidavits. Subsequently, the court scheduled an evidentiary hearing. See order dated March 3, 2005. On March 29, 2005 and May 17, 2005, the court held evidentiary hearings in connection with the motion. In addition, the parties submitted memoranda of law.
I Background
The plaintiffs in this matter, Anatol and Shelly M. Horniatko, allege, in a twelve-count complaint, that, at the relevant times, they resided in Simsbury, Connecticut. Defendant River Front Associates, LLC d/b/a Atlantic Inn Resort is a Nevada limited liability company with a place of business located at 8 Crandall Avenue in Westerly, Rhode Island (River Front). River Front does business as Atlantic Inn Resort and has sold interval or time share interests at its resort facility located there. Its manager is defendant Paul Nedovich.
The subjects of this action are the Horniatkos' purchases of interval or time share interests at the Atlantic Inn. They claim that they were deceived by the defendants into purchasing unit interests which were materially different than what was promised to them. They claim breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent misrepresentation and the aiding and abetting thereof, negligent misrepresentation, false advertisement, negligent infliction of emotional distress, unjust enrichment, promissory estoppel, and violation of the Connecticut Unfair Trade Practices Act, § 42-110a et seq. The allegations of the complaint are discussed further below.
In their motion to dismiss, the defendants assert that the court lacks personal jurisdiction over River Front and Nedovich. They also claim that the service of process as to both defendants was insufficient. In addition, they claim that Connecticut is not the proper venue for this action and that it should be dismissed on the ground of forum non conveniens.
II Standard of Review
"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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). "The motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . . and insufficiency of service of process." See Practice Book § 10-31(a).
"When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." Lagassey v. State, 268 Conn. 723, 736-37, 846 A.2d 831 (2004).
III Discussion A Personal Jurisdiction
"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 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." (Footnote omitted and internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). If a challenge to the court's personal jurisdiction is raised by a defendant, the plaintiff bears the burden of proving the court's jurisdiction. See id., 607. If there are contested facts, such as is the case here, the court must hold an evidentiary hearing, as this court did. See id., 608 n. 10.
In opposition to the motion, the Horniatkos argue that General Statute § 52-59b authorizes the assertion of jurisdiction over the defendants. Section 52-59b may be applicable to a foreign limited liability company, even though the statute does not specifically list such as an entity as within its purview. See Nadler v. Grayson Construction Co., Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV02 0190015 S (April 15, 2003, Adams, J.) ( 34 Conn. L. Rptr. 482). The defendants do not dispute § 52-59b's applicability to a limited liability company.
Section 52-59b(a) permits the exercise of jurisdiction over a foreign limited liability company, or an individual, if the cause of action arose from any of various enumerated acts, by the defendant in person, or through an agent, who "(1) [t]ransacts any business within the state; [or] (2) commits a tortious act within the state . . ." "The General Statutes do not define what the phrase 'transacts any business' means in the context of 52-59b." Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). Our Supreme Court has "construed it to embrace a single purposeful business transaction." (Internal quotation marks omitted.) Rosenbilt v. Danaher, 206 Conn. 125, 138, 537 A.2d 145 (1988). In assessing whether a plaintiff's cause of action arose from a defendant's transaction of business in Connecticut, no rigid formula is used; rather, considerations of public policy, common sense, and the chronology and geography of the relevant factors are to be balanced. See Zartolas v. Nisenfeld, supra, 184 Conn. 477.
In their complaint, the Horniatkos assert that they were deceived into purchasing time share interests by false representations concerning the unit which they would occupy. On January 13, 2000, the Horniatkos went to the Rhode Island site for an informational tour and overview with agents of River Front. See complaint, first count, ¶ 9. There, they were interviewed by an agent, servant, or employee of River Front. See complaint, first count, ¶ 10. They allege that, during the course of that interview, representations were made to them concerning the components of the time share interest which was being offered. See complaint, first count, ¶ 11. In addition, they claim that additional representations were made to them, at the Atlantic Inn, in July 2000. See complaint, first count, ¶¶ 15-20. According to Shelly Horniatko, the representations made on the telephone and then in person were false. The Hornaitkos claim that they relied thereon. The Horniatkos entered into two agreements in Rhode Island for the purchase of time share interests, in January 2000, and in July 2000. See Exhibits A and B to the complaint. The Horniatkos incorporate their factual allegations in each of the twelve counts of the complaint.
Here, the defendants claim that, at the relevant times, River Front had no Connecticut office and no sales employees here. They claim that neither it nor any of its representatives suggested or recommended the sale of the vacation time share interest to the plaintiffs in Connecticut. River Front also claims not to have solicited or advertised the sale of the vacation time share interest in this state. Likewise, it claims that it never met with the plaintiffs here, and that any face to face meetings with them occurred in Rhode Island. See affidavit of Paul Nedovich, ¶¶ 4-13. In paragraph 14 of his affidavit, Nedovich averred that, "neither the undersigned nor any other representative of the defendant LLC ever requested that the plaintiffs come to Rhode Island to view the Atlantic Inn Resort." In paragraph 22, he stated that the initial inquiry concerning "the plaintiffs' interest in a time share" occurred "when plaintiffs visited the time share on their own accord."
In his testimony, Anatol Horniatko stated that, in December 1999, and January 2000, prior to agreeing to go to Rhode Island to view the Atlantic Inn property, he and his wife received several phone calls at their Simsbury, Connecticut home, from a woman named Michelle, who was calling on behalf of the Atlantic Inn, requesting them to come there to look at it for the purpose of purchasing a time share interest.
Shelly Horniatko also testified that Atlantic Inn telephoned her and her husband before they agreed to visit the site. In her affidavit, paragraph 6, Mrs. Horniatko stated, "[d]uring these telephone calls, the Defendants, through their agents, stated that they were offering timeshare units for sale that would enable us to secure an annual vacation spot in Misquamicut suitable to our needs for years to come. As set forth in our Complaint, we had been vacationing annually in Misquamicut for years, but, as further set forth in the Complaint, the timeshare unit that they presented to us over the phone was not the same as the one that they delivered. It was not the size that we had been promised or available to us annually."
Mrs. Horniatko also testified that the Atlantic Inn had gotten her and her husband's names from hotels at which they had previously stayed in Rhode Island. They met Nedovich at the Atlantic Inn on the first day they arrived there for a free overnight stay and tour of the resort. Attached to her affidavit is a copy of a letter which she received from the Atlantic Inn, confirming January 13 as the date for the overnight stay.
In his testimony, Nedovich stated that, as its manager, all of River Front's employees reported to him. While he stated that River Front calls prospective purchasers from out of state only after they express an interest, he agreed that Riverfront had employed an office manager named Michelle during the relevant period. He also agreed that the prior owner of the Atlantic Inn property, Barbara Stillman, had provided to his group a list of guests who had stayed there and at another hotel she owned in the area.
The court finds that the evidence reflects that Riverfront solicited the Horniatkos at their Connecticut home for the purpose of interesting them in the time share purchases which are the subjects of this litigation. Thus, it specifically targeted the plaintiffs in Connecticut as objects of its sales efforts.
Thus, the facts alleged here are analogous to those in Cody v. Ward, 954 F.Sup. 43 (D.Conn. 1997), where a nonresident's alleged transmission of fraudulent misrepresentations to a Connecticut resident by telephone and electronic mail for the purpose of inducing him to buy and hold securities rendered the nonresident subject to suit here under General Statute § 52-59b(a)(2) in an action based on the misrepresentations. See id., 954 F.Sup. 44. See also Pro Performance Corporate Services, Inc. v. Goldman, 47 Conn.Sup. 476, 484-86, CT Page 10154 804 A.2d 248 (2002) (same) ( 32 Conn. L. Rptr. 404). Here, in view of the telephone calls to the Horniatkos in Connecticut by River Front, General Statute § 52-59b(a)(2)'s language concerning "commits a tortious act within the state" applies to the tortious acts alleged in the complaint. Since the issue before the court is solely jurisdictional, the court expresses no view on the merits of the Horniatkos' allegations.
As to Nedovich, the court finds that the Horniatkos have sufficiently alleged his personal participation in the events to warrant exercising jurisdiction over him under § 52-59b(a)(2) as well. The term "Manager" is discussed in the statutes governing limited liability companies. Those statutes contain numerous references to it. For example, under the definitional section, General Statutes § 34-101(13) "manager" means "with respect to a limited liability company that has set forth in its articles of organization that it is to be managed by managers, the person designated in accordance with section 34-140." General Statutes § 34-140(c) provides, in pertinent part, that a limited liability company may include in its operating agreement that management of the entity may be "vested in a manager or managers." General Statutes § 34-130(b) provides that, where a limited liability company has vested management in a manager, "every manager is an agent of the limited liability company for the purpose of its business or affairs . . ."
Concerning the liability of managers of limited liability companies, such as Nedovich, to third parties, such as the Horniatkos, § 34-133(a) states that "[e]xcept as provided in subsection (b) of this section [concerning the provision of "professional services" not applicable to the business relationship at issue here] a person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract tort or otherwise or for the acts or omissions of any other member, manager, agent, or employee of the limited liability company." General Statute § 34-134 similarly provides, "[a] member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company . . ."
"It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable." (Footnote omitted.) Kilduff v. Adams, Inc., 219 Conn. 314, 331-32, 593 A.2d 478 (1991). Similarly, "[i]t is also true that an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby." Scribner v. O'Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975). In view of the "corporate-styled liability shield" afforded by the limited liability company structure, see PB Real Estate, Inc. v. DEM II Properties, 50 Conn.App. 741, 742, 719 A.2d 73 (1998), these principles are equally applicable to the manager of a limited liability company.
Here, as discussed above, Nedovich testified that all of River Front's employees report to him. The Horniatkos assert that they met him on the first day they were at the Atlantic Inn in January 2000, on the visit which led to their entering into the first contract. Nedovich signed the Interval Warranty Deed to the Horniatkos, dated July 14, 2000. See Exhibit C to the complaint. Under these circumstances, there are sufficient allegations of Nedovich's personal involvement in the transactions with the Horniatkos to warrant the exercise of jurisdiction over him under § 52-59b(a)(2). Again, the court expresses no view on the merits of the Horniatkos' allegations.
Since the court finds that there is jurisdiction over River Front and Nedovich under § 52-59b(a)(2), it need not consider whether the cause of action arose from either's transaction of business in Connecticut. See § 52-59b(a)(1). Accordingly it turns to the questions of whether the exercise of jurisdiction over the defendants would violate constitutional principles of due process. See Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606.
"The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate defendant that has certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." (Internal quotation marks omitted.) Thomason v. Chemical Bank, 234 Conn. 281, 287, 661 A.2d 595 (1995), citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). As stated above, given their similarities, a limited liability company ought to be treated by law as subject to the same analysis as would a corporation.
"The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. [T]he foreseeabiity 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.) Phoenix Leasing, Inc. v. Kosinski, 47 Conn.App. 650, 654, 707 A.2d 314 (1998).
"Whether sufficient minimum contacts exist for a court to have jurisdiction is clearly dependent on the facts of each particular case. Like any standard that requires a determination of reasonableness, the minimum contacts test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present." (Internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 52, 459 A.2d 503 (1983). "In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum, and the litigation." (Internal quotation marks omitted.) Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). "Each defendant's contacts with the forum State must be assessed individually." Id., 781 n. 13.
Our Supreme Court has noted that a choice of laws provision in an agreement is a factor which is "relevant when weighing a defendant's contacts with a forum." United States Trust Co. v. Bohart, 197 Conn. 34, 42, 495 A.2d 1034 (1985). There, the agreement in that case also designated Connecticut as the selected forum, stating, "the Trustee shall not be required to account in any Court other than one of the Courts of that State." Id., 38. The court stated, "[t]he forum selection portion of paragraph nineteen thus gave the defendants specific notice that any accounting action would be litigated in Connecticut." (Footnote omitted.) Id., 43.
Unlike the agreement in United States Trust Co. v. Bohart, supra, in their initial sales agreement, in January 2000, River Front and the Horniatkos did not agree to a forum selection clause. See Exhibit A to the complaint, ¶ 11, which states only that the agreement shall be governed and construed in accordance with Rhode Island law. Likewise, the Interval Warranty Deed, Exhibit C to the complaint, is expressly subject to various provisions of Rhode Island statutes, but does not contain a forum selection clause. See Phoenix Leasing, Inc. v. Kosinski, supra, 47 Conn.App. 653; Hart, Nininger Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 626, 548 A.2d 758 (1988). Also, the defendants do not contend that the choice of law clause in Exhibit A requires that Rhode Island law govern those claims of the Horniatkos which are grounded in tort. See Betensky v. Opcon Associates, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 421034 (April 15, 1999, Blue, J.) ( 24 Conn. L. Rptr. 327) ("Parties in a tort case are typically unable to negotiate appropriate litigational conditions prior to the time that the cause of action arises").
In view of its specific targeting of its sales effort at the Horniatkos in Connecticut, it was reasonably forseeable for Riverfront to be sued in Connecticut in the event of a dispute. Likewise, in view of his participation in the events, the same forseeabiity applies to Nedovich.
Concerning fairness, the court must also consider whether the exercise of personal jurisdiction here would make the "litigation so gravely difficult and inconvenient that a party unfairly is at a severe disadvantage in comparison to his opponent." (Internal quotation marks omitted.) Burger King Corporation v. Rudzewicz, 471 U.S. 462, 478, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
The defendants have been ably represented by Connecticut counsel throughout the proceedings which have occurred thus far. In addition, Nedovich now spends a substantial amount of time living at his wife's home in Essex, Connecticut. He also testified that he is a plaintiff in another action in Connecticut, Nedovich v. MacLauchlan, Docket No. CV 03 0102958-S, pending in the Superior Court for the judicial district of Middlesex at Middletown. See Exhibit 1. While the Atlantic Inn is located in Rhode Island, it is in close proximity to Connecticut. The record before the court does not reflect what other witnesses' testimony, besides that of the Horniatkos and Nedovich, may be needed. Nothing presented to the court indicates that defending the suit here would make the litigation so difficult or inconvenient that the defendants would be placed at a severe disadvantage.
Under the circumstances, the court has personal jurisdiction over Riverfront and Nedovich. Requiring them to defend here does not offend traditional notions of fair play and substantial justice. The motion to dismiss for lack of personal jurisdiction is denied.
B Service of Process on Defendant Nedovich
"[J]urisdiction over the person, jurisdiction over the subject-matter, and jurisdiction to render the particular judgment are three separate elements of the jurisdiction of a court . . . Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Citation omitted; emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989).
Nedovich contends that the marshal's return reflects that service of process upon him was insufficient since it shows that process was mailed to him at 8 Crandall Avenue in Westerly, Rhode Island. He contends that, at the time of service, his usual place of abode was in New Hampshire.
It is not disputed that River Front's business office is located at the Westerly, Rhode Island address and that Nedovich is River Front's manager. See Nedovich's affidavit, dated August 27, 2004, ¶ 3. The marshal's return, dated July 1, 2004, states that service on Nedovich was made by serving the Secretary of the State in accordance with General Statute § 52-59b, and by mailing process to Nedovich at the Westerly, Rhode Island address.
As to jurisdiction over nonresident individuals, General Statute § 52-59b(c) requires that service be made on the Secretary of the State and "by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State." Thus, the Statute refers to service at the defendant's last-known address, not at his abode.
This court agrees with the several courts which have considered this issue that mailing to a last known address which is a business address, in accordance with the statutory requirements, is sufficient. See Goktepe v. Lawrence, 220 F.R.D. 8, 12 (D. Conn. 2004) (especially true where defendant is being sued in connection with his business activities, which he engaged in from the address to which the summons and complaint were directed). "Where the legislature has intended that service be made to a defendant's residence, it has provided specifically for that procedure. See, for example, General Statutes § 52-57(a), which provides for service of a defendant 'at his usual place of abode.'" Celik v. Dundar, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV95 0142921 S, n. 3. (July 12, 1995, D'Andrea, J.). See also Tek-Motive, Inc. v. AFB, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV93 0349238 (November 12, 1993, Zoarski, J.) (notice delivered to an individual's business address, rather than his residence, is adequate).
In his testimony, Nedovich stated that the Atlantic Inn property is his primary business address. Since service was mailed to the Secretary of the State, and to Nedovich at his last known business address, service on him was made in conformance with General Statute § 52-59b. The motion to dismiss for insufficient service of process as to Nedovich is denied.
C Service of Process on Defendant River Front Associates, LLC, d/b/a Atlantic Inn
The defendants contend that the marshal's return reflects that service on River Front was attempted pursuant to General Statute § 52-59b and that there is no apparent valid statutory basis thereunder for an assertion of jurisdiction against a limited liability company. See defendants' memorandum of law in support of motion to dismiss, p. 20.
General Statute § 52-225, concerning service of process on a foreign limited liability company's statutory agent, provides, in paragraph (d), that "[n]othing contained in this section shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a limited liability company in any other manner permitted by law."
Our Appellate Court has noted the similarity between a corporation and a limited liability company. "The allure of the limited liability company is its unique ability to bring together in a single business organization the best features of all other business forms — properly structured, its owners obtain both a corporate-styled liability shield and the pass-through tax benefits of a partnership." (Internal quotation marks omitted.) PB Real Estate, Inc. v. DEM II Properties, supra, 50 Conn.App. 742. Since our legislature, in § 52-225(d), has stated that a limited liability company may be served "in any other manner permitted by law," the manner by which service over a corporation is permitted is to be considered here as well. See Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 147, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002) (principles of corporate veil piercing are applicable to a limited liability company); Gelinas v. Fuss, Superior Court, judicial district of Windham at Putnam, Docket No. CV03 0070629 (March 19, 2004, Foley, J.) (in view of similarity of the entities, principles of corporate officer liability ought to apply to limited liability company principal).
General Statute § 52-57(c) provides that, in actions against a private corporation, service of process may be made upon a corporation's "general or managing" agent. As discussed above, Nedovich is River Front's manager.
In addition, General Statute § 33-929, concerning service of process on foreign corporations, provides, in paragraph (h), "[t]his section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation."
In view of the similarity between a corporation and a limited liability company, service of process upon a limited liability company's manager, who, is, pursuant to General Statute § 34-130(b), its agent for the purpose of its business or affairs, ought to be treated as the equivalent of serving the general or managing agent of a corporation. As discussed above, Nedovich was so served here.
In addition, the motion and the defendants' memorandum do not address the affidavit of service from an indifferent person, Eric B. Harrison, dated June 18, 2004, in which he states that he served the summons and complaint and exhibits on River Front Associates, LLC on that date, by serving its registered agent, John J. Gentile, Jr., who was authorized to accept service, in Westerly, Rhode Island. The court takes judicial notice of this document, which, like the marshal's return, is present in the court's file. See Connecticut Code of Evidence, §§ 2-1 and 2-2. The facts stated in such an affidavit of service are presumed to be true. See Tax Collector of New Haven v. Stettinger, 79 Conn.App. 823, 825, 832 A.2d 75 (2003). At the hearings, the defendants did not offer evidence to contradict this affidavit of service as to River Front.
General Statute § 34-225(a) provides that service of process may be made on the statutory agent of a limited liability company authorized to transact business in this state. Rhode Island General Laws § 7-16-11(a) states that "[e]ach domestic or foreign registered limited liability company shall have a resident agent for service of process on the limited liability company . . ." including an individual resident. Here, the plaintiffs' argument that they properly served River Front, in accordance with § 34-225(d)'s permissive "any other manner permitted by law" is buttressed by the undisputed fact that, besides serving Nedovich, River Front's manager, they also served Gentile, as River Front's registered agent in Rhode Island.
Under these circumstances, the court finds that River Front was properly served with process. The defendants' motion to dismiss on this ground is denied.
D Forum Non Conveniens
In support of their motion to dismiss based on forum non conveniens, the defendants argue that "considering the need for out of state witnesses, the possibility of the need to view the premises to the action, having a 'forum that is not at home with the state law that must govern the case, rather than having a court in some other forum untangle the problems in conflict of laws, and in law foreign to itself. Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508 (1947) and the availability of an alternate forum, the instant action should be dismissed . . ." See defendants' memorandum of law in support of motion to dismiss, pp. 23-24. The defendants contend that the need to apply foreign law shows that the forum's public interest weighs against having the litigation in Connecticut. See defendants' memorandum of law in support of motion to dismiss, pp. 25-26.
On a motion to dismiss based on forum non conveniens, the defendant hears the burden of demonstrating that the case should be dismissed. See Durkin v. Intevac, Inc., 258 Conn. 454, 469, 782 A.2d 103 (2001). Such a decision is addressed to the trial court's discretion. See id., 463-64. "Emphasis on the trial court's discretion does not, however, overshadow the central principle of the forum non conveniens doctrine that, unless the balance is strongly in favor of the defendant[s], the [plaintiffs'] choice of forum should rarely be disturbed . . . Although it would be inappropriate to invoke [a] rigid rule to govern discretion . . . it bears emphasis that invocation of the doctrine of forum non conveniens is a drastic remedy . . . which the trial court must approach with caution and restraint. The trial court does not have unchecked discretion to dismiss cases from a [plaintiffs'] chosen forum simply because another forum, in the court's view, may be superior to that chosen by the plaintiff[s]." (Internal quotation marks omitted.) Id., 464. "The [plaintiffs'] choice of forum . . . should be respected unless equity weighs strongly in favor of the defendant[s]." (Internal quotation marks omitted.) Id., 464-65.
A four-step process has been mandated for examining forum non conveniens claims. "First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case . . . Second, the court should consider all relevant private factors with a strong presumption in favor of . . . the plaintiffs' initial choice of forum . . . Third, if the balance of private factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum . . . Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must . . . ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice." (Citations omitted and internal quotation marks omitted.) Durkin v. Intevac, Inc., supra, 258 Conn. 466.
The plaintiffs have not questioned Rhode Island as an adequate alternative forum. Our Supreme Court also has listed the relevant private interest factors. They are: "the relative ease of access to sources of proof; (2) the availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the . . . scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to a fair trial; and (6) all other practical problems that make the trial of a case easy, expeditious, and inexpensive." Id., 467. "[N]o single factor should be given undue weight." Id.
The defendants have not met their burden of proof as to the first two of these factors. While, as stated above, the defendants, in their memorandum of law, allude to "the need for out of state witnesses," they have not advised the court who these witnesses are and about what they would testify. "[T]he defendants bear the burden of identifying the key witnesses and establishing generally what their testimony will cover." Id., 472. To meet their burden, they must go beyond mere assertion and "establish who the key witnesses are and that their testimony is material." Id. Thus, the defendants have not met their burden to present a record which enables the court "to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the [plaintiffs'] cause of action and to any potential defenses to the action." (Internal quotation marks omitted.) Id., 468.
In Connecticut, whether to conduct a view of premises is left to the trial court's discretion. "A view of the subject matter in dispute may be taken by the court, in the exercise of a sound discretion, whenever it is necessary or important to a clearer understanding of the issues." (Internal quotation marks omitted.) Castonguay v. Plourde, 46 Conn.App. 251, 262, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997). The defendants have not cited what the rule or practice is in Rhode Island on this subject. Photographs, videotapes, diagrams, schematics, and models may be instructive also. See Durkin v. Intevac, Inc., supra, 258 Conn. 476-77. Clearly, a view of the Atlantic Inn would be more conveniently accomplished if the case were tried in Rhode Island. Our Supreme Court has noted that the opportunity to view the scene may be a factor that favors dismissal. See id., 477.
The fourth factor is the enforceability of a judgment. There is nothing in the record to indicate that a Rhode Island judgment would not be enforceable. The defendants have not argued that this factor militates in their favor. Since the Atlantic Inn is located in Rhode Island, enforceability appears to favor the defendants' position. However, in light of the absence of an evidentiary presentation, the court ascribes little weight to this factor.
The next factor concerns the relative advantages and obstacles to a fair trial. In Durkin v. Intevac, Inc., supra, 258 Conn. 477-78, the court cited, as coming within this factor, the inability to implead third-party defendants. Here, the court has not been advised by the parties that any third-party defendant must be impleaded. Likewise, no other reason was presented which implicates the availability of a fair trial here.
As to the final factor, which includes all other practical problems that make trial easy, expeditious and inexpensive, the defendants have not provided evidence of any problem which would make trial here less easy, less expeditious, or more expensive. As noted, Nedovich, who is River Front's manager, and who also is an individual defendant, already spends substantial time in Connecticut, at his wife's home in Essex, Connecticut.
The strongest factor in the defendants' favor is the convenience of viewing the Atlantic Inn in Rhode Island, which the defendants have not shown to be particularly important here. While that factor, and the enforceability of a Rhode Island judgment appear to be factors in their favor, they have not met their burden as to the first two factors, ease of access to sources of proof and availability of witnesses. The other factors appear to be neutral in impact.
Under these circumstances, the strong presumption in favor of the plaintiffs' initial choice of forum has not been overcome. The private interest factors weigh in favor of the plaintiffs' choice of forum. Therefore, the court need not move to the third step, consideration of public interest factors. See Durkin v. Intevac, Inc., supra, 258 Conn. 466. As a result, the court does not address the issue of the impact of the court's familiarity with the applicable law, which is listed among the public interest factors. See id., 462. Thus, the motion to dismiss on the ground of forum non conveniens is denied.
CONCLUSION
For the foregoing reasons, the defendants' motion to dismiss is denied. It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT