Opinion
No. HHD X04 CV-10-6016502 S
April 11, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#102)
On March 10, 2011, the court heard oral argument concerning the defendant Nynas USA, Inc.'s (Nynas USA) motion to dismiss, in which it contends that the court lacks personal jurisdiction. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision.
I
Background
The court summarizes below allegations in the first amended complaint (#131) (complaint) which pertain to Nynas USA. The plaintiffs, Lake Road Trust Ltd. and Lake Road Generating Company, Limited Partnership, allege that they own and operate an electrical power generating plant located in Dayville, Connecticut and Killingly, Connecticut (the Facility). The Facility uses generator step-up transformers to alter generated current for connection to a substation. Electricity is sold through the ISO New England market. The three transformer units at the Facility were built in 2000.
In paragraph 3, the plaintiffs allege that Nynas USA served an apportionment complaint in this matter. The court's docket reflects that the apportionment complaint (#124) was served by defendant Alstom Power, Inc.
They also allege that Nynas USA is a corporation with its principal place of business in Houston, Texas and is incorporated under the laws of Delaware. See complaint, third count, ¶ 8.
In paragraph 16 of the third count, the plaintiffs allege that Nynas USA "manufactured and provided the insulating transformer oil used for the transformers." In paragraph 45, the plaintiffs allege that "Nynas USA is a seller and/or manufacturer of the transformer oil supplied for use in the ABB Powertech transformers that are the subject of this case."
The plaintiffs also allege that, in May 2005, a transformer at the Facility suffered an electrical arcing event which resulted in a Facility-wide power outage and that investigation revealed that the failure was due to contamination in the transformer oil. See complaint, third count, ¶ 19. Further, they allege that, in February 2007, the Facility suffered another transformer failure and that investigation and testing revealed that the events at the Facility were caused by contamination of the transformer oil. See complaint, third count, ¶¶ 25, 28.
The plaintiffs allege that the oil provided was defective and caused damages to them. They allege that Nynas USA is liable to them pursuant to the Connecticut Product Liability Act, General Statutes § 52-572(m) et seq., in that the oil provided was defective; it was negligent in designing and manufacturing the oil; it failed to give adequate warnings and instructions regarding the use of the oil; and it breached the implied warranty of merchantability. See complaint, third count, ¶ 50.
In support of its motion to dismiss, Nynas USA asserts that service of process was improper, since its registered agent is in Delaware and the plaintiffs served this lawsuit on Nynas USA in Texas. Also, Nynas USA contends that personal jurisdiction is lacking since it did not exist until 2003, that it had no contacts with Connecticut upon which the court can exercise personal jurisdiction pursuant to General Statutes § 33-929(f), and any attempted exercise of jurisdiction violates constitutional principles of due process. Among several arguments presented in response, the plaintiffs assert that service of process was properly made on Nynas USA's agent in Texas, and that, by subsequently registering to do business in Connecticut and appointing an agent for service of process in Connecticut, Nynas USA consented to the exercise of jurisdiction in Connecticut.
II
Standard Of Review
"The standard of review for a court's decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010).
Practice Book Section 10-31(a)(2) provides that "[t]he motion to dismiss shall be used to assert . . . lack of jurisdiction over the person . . ." Practice Book § 10-31(a)(5) states that a motion to dismiss shall be used to assert "insufficiency of service of process."
"[The motion to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." See Practice Book § 10-31(a). "[I]f a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction . . . [A] challenge to the jurisdiction of the court presents a question of law . . ." (Citation omitted; internal quotation marks omitted.) Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).
"In view of the dual roles of a motion to dismiss — that is, as a motion to erase and as a plea in abatement — [the Supreme Court] has previously considered the undisputed factual allegations in the complaint as well as the undisputed factual allegations in the various affidavits when adjudicating the motion where no evidentiary hearing has been held." (Footnote omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608, 674 A.2d 426 (1996). Undisputed facts may be established by deposition testimony. See Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
"A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists . . . In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses." (Citation omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
Here, the plaintiffs made an extensive presentation in response to the motion to dismiss, including various exhibits. Concerning the issues which are dispositive of the motion to dismiss, there are no disputed facts. An evidentiary hearing was not required. As discussed below, the court decides the motion on the basis of the allegations in the complaint and on the basis of undisputed evidence.
III
Discussion
A
Service Of Process
The court first addresses Nynas USA's arguments concerning service of process. "It is axiomatic that a court cannot render a judgment without first obtaining personal jurisdiction over the parties. No principle is more universal than that the judgment of a court without jurisdiction is a nullity . . . Furthermore, [a] defect in process . . . implicates personal jurisdiction . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking . . . is jurisdiction over the person . . ." (Citation omitted; internal quotation marks omitted.) Argent Mortgage Co., LLC v. Huertas, 288 Conn. 568, 576, 953 A.2d 868 (2008).
Under Connecticut law, "[w]hen a person upon whom service is to be made is designated by statute, service upon any other person as a purported representative is inadequate." Nelson v. Stop Shop Companies, Inc., 25 Conn.App. 637, 641, 596 A.2d 4, cert. denied, 220 Conn. 924, 598 A.2d 364 (1991).
Nynas USA contends that the plaintiffs did not comply with various subparts of General Statutes § 33-929, which concerns foreign corporations, such as § 33-929(b), which requires service on the corporate secretary. It also argues that service was not made on its registered agent in Delaware, The Corporation Trust Company. See Nynas USA's Exhibit D (certificate of incorporation) and Exhibit E (print-out from Delaware Department of State, Division of Corporations, listing Delaware address for The Corporation Trust Company).
Section 33-929(b) provides, "[a] foreign corporation may be served by any proper officer or other person lawfully empowered to make service by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent annual report if the foreign corporation: (1) Has no registered agent or its registered agent cannot with reasonable diligence be served; (2) has withdrawn from transacting business in this state under section 33-932; or (3) has had its certificate of authority revoked under section 33-936."
General Statutes § 33-929(h) provides, "[t]his section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation." See Talenti v. Morgan Brother Manhattan Storage Co., 113 Conn.App. 845, 856 n. 15, 968 A.2d 933, cert. denied, 292 Conn. 908, 973 A.2d 105 (2009) (citing § 33-929(h); service under § 33-929 "is permissible, but not mandatory").
General Statutes § 52-57(c) provides for alternative persons who may be served in order to effectuate service on a foreign corporation. In relevant part, it provides, "[i]n actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located. In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents . . ." (Emphasis added.)
"[T]he language of § 52-57(c) makes service of process by the means pr[e]scribed in § 33-929 permissive, rather than mandatory . . . A plaintiff may invoke means of service of process set forth in § 33-929 or comply with the requirements of § 52-57." (Citations omitted; emphasis in original; internal quotation marks omitted.) Christiani v. Benefitpoint, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket No. X07 CV 04 4025119 (March 7, 2008, Berger, J.). Since the corporate secretary was not the only person who could be served, that aspect of Nynas USA's argument concerning service of process is unpersuasive.
Nynas USA acknowledges that the plaintiffs served process on CT Corporation in Texas. See Nynas USA's supplemental brief (#107), pp. 2-3. However, it asserts that since its registered agent in Delaware was not served, service was improper.
In response to the motion to dismiss, the plaintiffs provided evidence showing that CT Corporation System of Dallas, Texas (CT Corporation) is a registered agent for service for Nynas USA. Plaintiffs' Exhibit D includes a print-out from the Texas Secretary of State listing that entity as Nynas USA's registered agent. Under the Texas Business Organizations Code (Code) § 5.201(a), each foreign filing entity is required to designate a registered agent, who "is an agent of the entity on whom may be served any process, notice, or demand required or permitted by law to be served on the entity[.]" Code § 5.206(a)(1) provides that among "[t]he only duties of a registered agent are to: . . . receive or accept, and forward to the represented entity at the address most recently provided to the registered agent by the represented entity, or otherwise notify the represented entity at that address regarding, any process, notice, or demand that is served on or received by the registered agent[.]"
Plaintiffs' Exhibit C is an affidavit of service showing that service was made on Amber Carrouth of CT Corporation System in Dallas, Texas on January 22, 2010.
While Nynas USA argues that service on CT Corporation in Texas was insufficient, the undisputed facts show that, pursuant to Texas law, it designated CT Corporation as a registered agent for service of process. In the deposition of Jay Flint, its president and general manager, at which he testified as Nynas USA's corporate representative (plaintiffs' Exhibit B, pages 153-54), he stated that Nynas USA had engaged CT Corporation, but that he was unaware that Nynas USA's subscription for CT Corporation's services, which included registering Nynas USA to do business in Texas, also included designating CT Corporation as a registered agent for service of process. Flint's lack of awareness is immaterial. As a matter of law, Nynas USA listed CT Corporation as an agent for service of process.
"[U]nder [General Statutes § ]52-57(c) the terms `or its general or managing agent or manager' are concomitant terms meaning a person whose position, rank, duties and responsibilities make it reasonably certain that the corporation will be apprised of service made upon that person." Nelson v. Stop Shop Companies, Inc., supra, 25 Conn.App. 642. Under Texas law, CT Corporation's specific duties included receiving and forwarding or otherwise notifying Nynas USA of the service of process.
Accordingly, service on CT Corporation complied with § 52-57(c)'s requirements, by serving an agent whose duties made it reasonably certain that Nynas USA would be apprised of service. In view of this determination, the court need not consider whether the plaintiffs' other efforts at service were sufficient.
Section 52-57(c) does not, by its terms, require that service on the agent occur in Connecticut. See, in contrast, § 52-57(a), which concerns service of process on individuals, and which states that "[e]xcept as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state."
B
Personal Jurisdiction
"[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) Kim v. Magnotta, 249 Conn. 94, 101-02, 733 A.2d 809 (1999). "A nonresident upon whom service has not been had within the state may, however, submit to jurisdiction by consent. This may be given in various ways." Samson v. Bergin, 138 Conn. 306, 309-10, 84 A.2d 273 (1951).
At his November 12, 2010 deposition, as the designated corporate representative of Nynas USA, Flint testified that Nynas USA registered to do business in Connecticut in May 2010. See plaintiff's Exhibit B, Flint deposition, pp. 88-89. He also testified that CT Corporation is Nynas USA's registered agent for service of process in Connecticut. See Flint deposition, p. 90. In its reply brief (#190), pages 13-14, Nynas USA acknowledges that it is registered to do business in Connecticut.
In his October 18, 2010 affidavit (#140), paragraphs 20-21, Flint averred that Nynas had no registered agent and no agent for service in Connecticut. However, as stated above, in his later deposition, he confirmed that CT Corporation is Nynas USA's registered agent for service in Connecticut. Nynas USA's reply did not dispute its corporate representative's testimony.
At oral argument, the court pointed out that the affidavit of Kerstin Balter Collin (#137), provided by Nynas USA, appeared to be incomplete. Nynas USA offered to provide the full document. The plaintiffs objected to the late submission of the full document. On the day after oral argument, Nynas USA provided the full document by letter. In view of its late presentation, the court has not considered the subsequent version of this affidavit.
General Statutes § 33-920(a) provides, in relevant part,: "[a] foreign corporation . . . may not transact business in this state until it obtains a certificate of authority from the Secretary of the State . . ." "General Statutes § 33-926(a) provides that a foreign corporation authorized to transact business in Connecticut must maintain a registered agent." Talenti v. Morgan and Brother Manhattan Storage Company, Inc., supra, 113 Conn.App. 855 n. 12.
"[W]hen a foreign corporation complies with the requisites of General Statutes § 33-920 . . . by obtaining a certificate of authority and complies with the requisites of General Statutes § 33-926 . . . it has consented to the exercise of jurisdiction over it by the courts of this state. Wallenta v. Avis Rent A Car System, Inc., 10 Conn.App. 201, 207-08, 522 A.2d 820 (1987) . . . This consent is effective even though no other basis exists for the exercise of jurisdiction over the corporation . . . Such a corporation has purposely avail[ed] itself of the privilege of conducting activities within [this] [s]tate, thus invoking the benefits and protections of its laws . . . Therefore, when a foreign corporation is authorized to conduct business in this state and has appointed a registered agent, nothing in § 33-929(f) limits the court's exercise of personal jurisdiction over the corporation. See id., 208 (because defendant consented to personal jurisdiction, plaintiff did not have to establish that defendant made itself amenable to suit)." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Talenti v. Morgan and Brother Manhattan Storage Company, Inc., supra, 113 Conn.App. 854-55.
"Consent is a valid form of waiver, and a nonresident may submit to the jurisdiction of the court by consent either before or after initiation of litigation." HLM 2008 Trust v. Orosz, Superior Court, judicial district of Tolland at Rockville, Docket No. TTD CV 09 5004709 (September 29, 2009, Sferrazza, J.).
It is undisputed that Nynas USA registered to do business in Connecticut in 2010 and appointed an agent for service in Connecticut. Accordingly, by operation of law, it has consented to the exercise of jurisdiction over it by Connecticut's courts.
In Wallenta v. Avis Rent A Car System, Inc., supra, 10 Conn.App. 208, after concluding that the defendant had consented to the assertion of jurisdiction, the court stated that "[t]he next question to be resolved is whether the assertion of such personal jurisdiction offends due process." However, in its recent decision in Talenti v. Morgan and Brother Manhattan Storage Company, Inc., supra, 113 Conn.App. 856, after finding that "the defendant has voluntarily consented to the personal jurisdiction of it by the courts of this state," the Appellate Court stated, "[a]s the defendant has consented to jurisdiction, the exercise of jurisdiction by the court does not violate due process. Therefore, the court does not need to undertake an analysis of any constitutional due process issues." Id., n. 14.
Accordingly, as directed by Talenti, which found that, since the defendant consented to jurisdiction, the exercise of jurisdiction does not violate due process, this court undertakes no analysis of constitutional due process issues. Also, under these circumstances, the court need not consider the parties' other arguments concerning the motion to dismiss.
CONCLUSION
Based on the foregoing reasons, Nynas USA, Inc.'s motion to dismiss is denied. It is so ordered.