Summary
noting that a foreign corporation "transact business in Connecticut where its state sales were not an isolated transaction of modest proportions, but rather an indication that Connecticut was an important market for its product"
Summary of this case from Marlin Firearms, Co. v. Wild W. Guns, LLCOpinion
No. CV07-4024835S
December 7, 2007
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#102)
The defendants, the Metropolitan Boston Hockey League (MBHL), Marc Foland and Charles Nielson, file a motion to dismiss this action brought by the plaintiff, Frank Ruocco, on the grounds of insufficiency of service of process and lack of personal jurisdiction over all three defendants. For reasons more fully set forth in this decision, this court denies the motion because service of process was sufficient and the court has personal jurisdiction over all three defendants.
On March 22, 2007, the plaintiff, Frank Ruocco, commenced this action by service of process on the defendants, MBHL, Marc Foland and Charles M. Nielson (the individual defendants). The action arises out of the MBHL's imposition of a lifetime ban on the plaintiff from participating in, and attending, all MBHL sanctioned events. In the four-count complaint, the plaintiff alleges that, while he was a coach of his son's MBHL youth hockey team, known as the Connecticut Wolves, the MBHL issued the ban due to an altercation between the plaintiff and a parent from another team that occurred on January 28, 2007, in North Branford, CT.
In the first count, the plaintiff alleges that the defendants committed an intentional tort by imposing sanctions against him without proper notice; and without providing him with a proper opportunity to present a defense. In the second count, the plaintiff alleges that the defendants committed libel/slander against him by making statements to others about his "criminal behavior" and "criminal character." In the third count, the plaintiff alleges that the defendants engaged in a conspiracy to carry out the foregoing acts against him. In the fourth count, the plaintiff asks for injunctive relief.
On March 29, 2007, the defendants filed an appearance. On April 25, 2007, the defendants filed a motion to dismiss, pursuant to Practice Book § 10-31(a)(2) on the ground that the court lacks personal jurisdiction over all of them under the applicable longarm statutes and that service of process on the individual defendants was insufficient. They submitted a memorandum of law in support of the motion. On September 6, 2007, the plaintiff filed a memorandum in opposition to the defendants' motion to dismiss. The defendants filed a reply to the plaintiff's memorandum on September 19, 2007, in which they add the argument that their motion should be granted due to insufficiency of service of process upon the MBHL. The court heard oral arguments on the defendants' motion, the plaintiff's opposition and to the defendants' reply on September 24, 2007.
Practice Book § 10-31 provides in relevant part: "(a) The motion to dismiss shall be used to assert . . . (2) lack of jurisdiction over the person . . ."
"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 . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
I THE LONGARM STATUTE IN CONNECTICUT
"When a defendant challenges personal jurisdiction [under a long-arm statute] 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.) Id., 514-15. "Only if [the Court] find[s] the statute to be applicable [does it] reach the question whether it would offend due process to assert jurisdiction." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 54 Conn.App. 506, 514, 735 A.2d 881 (1999), aff'd on other grounds, 254 Conn. 145, 757 A.2d 14 (2000). "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 . . . Thus, once the defendant contested personal jurisdiction in the present case, it was the plaintiff's burden to produce evidence adequate to establish such jurisdiction." (Citation omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515-16.
A. The LongArm Statute as Applied to the MBHL
The defendants contend that the court does not have jurisdiction over the MBHL under either General Statutes §§ 33-929(e) or 33-929(f). General Statutes § 33-929(e) states: "Every foreign corporation which transacts business in this state in violation of section 33-920 shall be subject to suit in this state upon any cause of action arising out of such business." The relevant portion of General Statutes § 33-920(a) states, "[a] foreign corporation, other than an insurance, surety or indemnity company, may not transact business in this state until it obtains a certificate of authority from the Secretary of the State."
It is clear from the record that the MBHL did not acquire a certificate of authority to transact business in Connecticut. Nevertheless, the defendants argue that the MBHL was not required to obtain the certificate because its business activities in Connecticut are conducted in the course of interstate commerce, and it therefore falls under a statutory exception to § 33-920(a) that is recognized in § 33-920(b)(11). This provision states, "[t]he following activities, among others, do not constitute transacting business within the meaning of subsection (a) of this section . . . (11) transacting business in interstate commerce." General Statutes § 33-920(b)(11). As a basis for their assertion that the MBHL participates in interstate commerce, the defendants explain that the league consists of teams in five different states, and every team pays the league a $300 fee.
This court concludes that the defendants are reading § 33-920(b)(11) incorrectly. When properly understood, "this section [formerly General Statutes § 33-397(b)(8), now § 33-920(b)(11)] has been interpreted to mean that a foreign corporation shall not be considered to be transacting business in this state solely because it carries on in this state one or more of the enumerated activities [in General Statutes § 33-920(b)]. This does not exclude a finding that a foreign corporation transacts business in this state if its other activities lead to that conclusion . . . Thus, the fact that [a corporation] engages in interstate commerce does not necessarily eliminate the possibility that the [corporation] transacts business in Connecticut if other factors are considered." (Citation omitted, internal quotation marks omitted.) CT Page 21040 Decima Research v. Cichetti, Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 92 0454471, (June 4, 1993, Berger, J.) [ 9 Conn. L. Rptr. 255]; see also Hill v. W.R. Grace Co., 42 Conn.Sup. 25, 31, 598 A.2d 1107 (1991) [ 4 Conn. L. Rptr. 495]; Connecticut Tool Mfg. Co. v. Bowsteel Distributors, Inc., 24 Conn.Sup. 290, 296, 190 A.2d 236 (1963).
Since § 33-920(b)(11) does not bestow blanket immunity on the MBHL, the next step is to "determine whether [the corporation] transacted business in this state without authorization to do so as required by § 33-920(a), and, if so, [the court] then must determine whether the plaintiff's claim against [the corporation] arose out of such business." Ryan v. Cerullo, 282 Conn. 109, 128, 918 A.2d 867 (2007). The MBHL is clearly not certified to transact business in Connecticut. As a result, it would be in violation of § 33-920(a) if both of the other requirements of the analysis are met.
There is no set formula for determining whether a corporation transacts business in Connecticut. Nevertheless, "[i]t is well established that the question of whether a foreign corporation is transacting business so as to require a certificate of authority must be determined on the complete factual picture presented in each case . . . The situs of the contract, the presence of corporate offices and agents in Connecticut, and the extent of the business activities in Connecticut have been identified as relevant factors in resolving this question." (Citation omitted; internal quotation marks omitted.) Wagner Wagner Auto Sales, Inc. v. Tarro, 93 Conn.App. 376, 381-82, 889 A.2d 875 (2006), appeal dismissed, 281 Conn. 64, 914 A.2d 523 (2007). "The term transacting business is not broadly interpreted in Connecticut . . ." (Internal quotation marks omitted.) Goudis v. American Currency Trading Corp., 233 F.Sup.2d 330, 334 (D.Conn. 2002). Nevertheless, "[u]nder § 33-411(b) [the predecessor to § 33-929(e)], a defendant may be held to have transacted business in the forum even though it is not licensed in Connecticut, nor maintains any office, real estate, bank account, telephone listing, representation or agent in the state." Teleco Oilfield Services, Inc. v. Skandia Ins. Co., 656 F.Sup. 753, 758 n. 6 (D.Conn. 1987).
In this case, both individual defendants submitted affidavits in support of the MBHL's motion to dismiss in which, they state, in relevant part that: (1) the MBHL is a non-profit corporation that exists under the laws of Massachusetts; (2) the MBHL does not file a tax return in Connecticut; (3) the MBHL has no offices in Connecticut; (4) the MBHL neither owns nor rents property in Connecticut; (5) the MBHL retains no paid employees in Connecticut; (6) the MBHL does not advertise in Connecticut; (7) two out of the ten-member organizations, each composed of hockey teams, are in Connecticut; (8) each member organization pays a $300 fee to the MBHL; (9) for the 2006-2007 season, Massachusetts was home to forty-three teams, Connecticut was home to nine teams, and three other states were home to twelve teams; (10) 14 percent of the league players were on the Connecticut teams; (12) 14 percent of team fees collected by the MBHL came from Connecticut; (13) 13 percent of the games were played in Connecticut; (14) the MBHL has a three-member executive committee, two of whom are the individual defendants and reside in Massachusetts; and (15) the meetings addressing the incident involving the plaintiff were held in Auburn, Massachusetts.
The plaintiff, in his complaint and affidavit, states in relevant part: (1) the MBHL collects fees and charges from Connecticut teams, and thus conducts trade and commercial activities in the state; (2) the MBHL administers the games played, including those that are played in Connecticut; (3) one or more members of the MBHL's executive committee, namely Daniel McCarthy (who is not a party to the action), reside in Connecticut; (4) the MBHL requires all member teams to submit registration and operational documents and rosters, which enables the league to provide the teams with administrative and other services in exchange for fees; and (5) part of the allure of the MBHL is that it affords its players with the opportunity to play teams from outside of their home state, which enhances the players' experiences and provides them an opportunity to develop their skill levels at a faster rate due to the heightened competition.
Despite the absence of MBHL offices or property in Connecticut, this court concludes that the league does transact business in the state. One of the MBHL's three executive committee members is a Connecticut resident. The league oversees the 14 percent of its business interests that are located in Connecticut. And, MBHL communicates on regular basis with its Connecticut teams. It also appears from the evidence that the MBHL, through the individual defendants, makes policy, sends emails and notices, and makes calls to Connecticut teams.
In Chemical Specialties Sales Corp-Industrial Division v. Basic, Inc., 296 F.Sup. 1106 (D.Conn. 1968), the Federal District Court "held that a foreign corporation was transacting business in Connecticut where its state sales were not `an isolated transaction of modest proportions,' but rather an indication that Connecticut was an `important market for its product.'" Eutectic Corp. v. Curtis Noll Corp., 342 F.Sup. 761, 763 (D.Conn. 1972).
Similarly, Connecticut is clearly an important market to the MBHL since state residents and fees constitute 14 percent of the league's totals. This fact, along with all of the factors listed by the plaintiff above, support the notion that the league is transacting business in Connecticut.
Having concluded that the defendant does, in fact, transact business in Connecticut, the next step is to determine whether the plaintiff's claim arises out of business that the MBHL transacts in Connecticut. "A cause of action arises out of the transaction of business where the litigation bears some connection with the business conducted by the foreign corporation in this state . . . In determining whether a cause of action arises out of a defendants' transaction of business, a court balances considerations of public policy, common sense, and the chronology and geography of the relevant factors." (Citations omitted, internal quotation marks omitted.) Aurand v. Contemporary Marketing, Inc., United States District Court, Docket No. 1053 (D.Conn. December 20, 2005); see also Hill v. W.R. Grace Co., supra 42 Conn.Sup. 32.
After the MBHL executive committee conducted two meetings, possibly involving input from the executive committee member who is a Connecticut resident, the league banned the plaintiff, who is also a Connecticut resident. The ban stemmed from an altercation that occurred at a Connecticut rink during an MBHL scheduled game between a Connecticut team and a New York team. The MBHL's decision responded to the actions of the coach of one of its Connecticut member teams, and is tied to its administration of its business. These factors outweigh the fact that the two meetings were held in Massachusetts. Therefore, this court concludes that the court has personal jurisdiction over the MBHL under § 33-929(e).
There are many facts in dispute. For example, in his complaint, the plaintiff alleges that the defendants administered, directed and controlled the hiring and paying of referees and other on and off ice officials. In his affidavit, Foland partially refutes these allegations by stating that the MBHL has no paid employees who reside in Connecticut. In his affidavit, the plaintiff attests that the MBHL regularly solicits business in Connecticut by offering to charter, register and enroll teams in the state. The plaintiff claims that the league's teams are effectively league advertisements for business in Connecticut. On the other hand Foland attests that the MBHL does not advertise in this state. The parties also dispute whether the actions of the parties created a contract between the Connecticut teams and the MBHL. "Where the facts necessary to determine jurisdiction are disputed, due process requires that a trial-like hearing be held, [at the request of either party] in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 54 Conn.App. 506, 517, 735 A.2d 881 (1999); see also Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983). "[H]owever, [the] Supreme Court explained that such an evidentiary hearing need only be held at the request of either party." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 54 Conn.App. 506, 517 n. 2, 735 A.2d 881 (1999). In this case, neither party has requested a hearing and the court has determined that it can decide the motion based upon the undisputed facts.
B. The LongArm Statute Inquiry as Applied to Foland and Nielson
General Statutes § 52-59b is the longarm statute that generally applies to nonresident individuals. The individual defendants first assert that none of the subsections of § 52-59b(a) apply to them as officers acting on behalf of a corporation. They cite Whalley Glass Co. v. Nielson Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV00 0176028 (May 18, 2001, Hickey, J.) and Shafik v. Andria, Superior Court, judicial district of New Britain, Docket No. CV 06 5001472 (June 1, 2007, Shapiro, J.) as support for their contention that they are shielded from liability based on their status. In those cases, the court determined that it did not have personal jurisdiction over nonresident officers who only have contacts with the state in their capacities as corporate officers.
General Statutes § 52-59b(a) provides in relevant part: "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 . . . 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."
"The appellate courts in Connecticut have not yet ruled on the viability of [the fiduciary shield] doctrine, and there is a split of authority in the Superior Court." Memberworks, Inc. v. Heartland Direct, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 03 0197372 (September 27, 2004, Lewis, J.) [ 38 Conn. L. Rptr. 24]. "[A] number of Superior Court cases have held that exercise of jurisdiction over a nonresident is improper if based only on acts undertaken as an agent of another entity. If Acme Corporation sends a salesman to exotic lands to transact business for Acme, it has been said to be unfair for the salesman, rather than Acme, to be haled back to answer in a court in the exotic locale." Sobol Family Partnership v. Cushman Wakefield, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 4003559 (November 1, 2005, Beach, J.) [ 40 Conn. L. Rptr. 214].
"The trend, however, is to the contrary . . . The more recent cases question whether there is a sensible rationale for the doctrine." Id. As the court noted in one such case, "[o]ur long-arm statute . . . § 52-59b, was modeled on a statute enacted in New York . . . Thus, that state's analysis of its long-arm statute is very relevant. In 1988, the New York Court of Appeals rejected the doctrine in Kreutter v. McFadden Oil Corp., [ 71 N.Y.2d 460, 527 N.Y.S.2d 195,] 522 N.E.2d 40 (N.Y. 1988). Kreutter notes that the fiduciary shield doctrine `is based on the notion that it is unfair to subject a corporate employee personally to suit in a foreign jurisdiction when his only contacts with that jurisdiction have been undertaken on behalf of his corporate employer.' [ Id., 44.] The Court of Appeals further notes that: `[n]othing in the statute's language or the legislative history relating to it suggests that the Legislature intended to accord any special treatment to fiduciaries acting on behalf of a corporation or to insulate them from long-arm jurisdiction for acts performed in a corporate capacity.'" Id., 46.
"The case also states that the rule is `not necessary as a matter of fairness.' [ Id.] `The equitable concerns which motivated development of the doctrine are amply protected by constitutional due process requisites which guarantee that jurisdiction over a nonresident will be sustained only when the demand for his presence is reasonable and consistent with notions of fair play and substantial justice.' Id. Kreutter also notes that the fiduciary shield doctrine is undesirable `as a matter of public policy.' [ Id.] The case states that the doctrine unfairly prejudices `plaintiffs who seek relief against defendants conducting affairs in this State.' Id. `That the application of this purportedly equitable rule has required the courts to develop so many exceptions to it to avoid inequitable results suggests that the foundation of the rule is unsound, or at a minimum, that the rule is unworkable.' [ Id., 47]." (Citation omitted.) Memberworks, Inc. v. Heartland Direct, Inc., supra, Superior Court, Docket No. 030197372.
Accordingly, in Memberworks, Inc., the court concluded that "the fiduciary shield doctrine is not available to the individual defendant to defeat this court's personal jurisdiction." Id., 26. See also Sobol Family Partnership v. Cushman Wakefield, Inc., supra, Superior Court, Docket No. X04 CV 044003559 (court agreed with "those decisions that reject the fiduciary shield doctrine as an absolute bar").
In Under Par Associates, L.L.C. v. Wash Depot A., Inc., the court (Blue, J.) [ 31 Conn. L. Rptr. 20] noted, " Kreutter is important not only for its lucid policy analysis but because it interprets the very New York long arm statute that the Connecticut legislature used as a model for the text of § 52-59b. Zartolas v. Nisenfeld, [ 184 Conn. 471, 474, 440 A.2d 179 (1981)]. The judicial interpretation given to the New York statute by New York's highest court is, consequently, especially pertinent. Id. Kruetter's analysis and authority leads this court to conclude that the `fiduciary shield' doctrine finds no place in the text or underlying policy of § 52-59." 47 Conn.Sup. 319, 793 A.2d 300 (2001). This reasoning is persuasive authority for the proposition that the fiduciary shield doctrine should not shield the individual defendants in the instant case.
Because this court concludes that the individual defendants are not protected by the fiduciary shield doctrine, the court must determine whether any subsection of § 52-59b(a) applies. The first question is whether the individual defendants transact any business within Connecticut.
As our Supreme Court has noted, "[for purposes of § 52-59b(a)(1) . . . although the term `[t]ransacts any business' is not defined by statute, we previously have construed the term to embrace a single purposeful business transaction." (Internal quotation marks omitted.) Ryan v. Cerullo, supra, 282 Conn. 119. "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.) Mitchell v. Patterson, judicial district of New Haven, Docket No. CV 04 4001501 (June 21, 2005, Levin, J.) [ 39 Conn. L. Rptr. 560] "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 . . ." (Internal quotation marks omitted.) Ryan v. Cerullo, supra, 282 Conn. 120.
Since the MBHL transacted business in Connecticut, any acts that the individual defendants committed in their roles as executive committee members that are connected to the litigation are properly considered by the court. The plaintiff has presented evidence that the individual defendants were key participants in the decision making process that resulted in the league's decision to ban him from league sponsored events. Furthermore, they communicated with Connecticut residents about administrative issues such as game schedules, team dues, rosters and other duties needed to maintain Connecticut teams. And, to enforce their ban on the plaintiff, the individual defendants had to relay their decision to Connecticut residents. Additionally, in an email, they announced their plans to visit rinks in Connecticut associated with MBHL events. Such administrative duties are at the heart of the business the MBHL conducts in Connecticut, and were purposeful and directly related to the MBHL's transaction of business in Connecticut.
II. THE DUE PROCESS INQUIRY
Having determined that the court may exercise jurisdiction over the defendants pursuant to § 33-929 and § 52-59b, the court must decide whether the exercise of jurisdiction over the defendants violates federal constitutional principles of due process. Cogswell v. American Transit Ins. Co., supra, 282 Conn. 514-15. "The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate [or individual] 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.) Ryan v. Cerullo, supra, 282 Conn. 117 n. 12.
"The due process test for personal jurisdiction has two related components: the minimum contacts inquiry and the reasonableness inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 524. "[W]hile the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (Internal quotation marks omitted.) Id., 525. "The [United States] Supreme Court has held that the court must evaluate the following factors as part of this reasonableness analysis: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies." (Internal quotation marks omitted.) Panganiban v. Panganiban, 54 Conn.App. 634, 640, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999).
A. Due Process as Applied to the MBHL
The MBHL argues it lacks sufficient minimum contacts with Connecticut. (See facts attested by the individual defendants in their affidavits.) In opposition, the plaintiff argues that the defendants' activities including scheduling games, dues collection and oversight of more than 150 Connecticut players, add up to sufficient actions and activities and therefore establishes that the league has minimum contacts with Connecticut.
As our Supreme Court has explained in regard to the minimum contacts requirement, "[t]he application of that rule 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 State, thus invoking the benefits and protections of its laws. This purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts . . . or of the unilateral activity of another party or a third person . . ." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra 282 Conn. 530.
In Frazer v. McGowan, 198 Conn. 243, 502 A.2d 905 (1986), the court looked at whether the defendant, a Rhode Island hospital, solicited business in Connecticut. After the court decided that the requirements of the longarm statute were satisfied, the court reviewed the record and determined that the hospital's contacts with Connecticut satisfied the requirements of due process, despite the fact that the hospital did not have any treatment facilities in this state, was not registered to do business here and was not licensed by the state health department. As to the minimum contacts prong, the court specifically noted that "[t]he hospital purposely affiliated itself with a number of Connecticut doctors who were likely to refer Connecticut patients for admission. It solicited in this state by maintaining a listing in the yellow pages of the New London, Connecticut telephone directory . . . As a result of the totality of the hospital's connections with, and proximity to, Connecticut, 35.3 percent of the patients discharged during a twelve month period were Connecticut residents . . . The fact that the defendant hospital itself maintained no physical presence in Connecticut does not mean that it did not purposefully direct its activities toward residents of this state." Id., 253.
Regarding the reasonableness prong, the court in Frazer noted that, "[b]ecause the hospital is located so close to Connecticut, defending a law suit in this state imposes no undue burden on it. Indeed, just as it was natural for the hospital to avail itself of the services of physicians with offices in nearby sections of Connecticut, so it was natural for the hospital to anticipate that it might be haled into court in Connecticut to defend its medical competence in treating that portion of its market that is in Connecticut . . . In the light of the totality of the circumstances, we conclude that the exercise of jurisdiction over the hospital by Connecticut courts is neither unfair or unjust." (Citations omitted.) Id., 253-54.
In contrast, in Cogswell v. American Transit Ins. Co., supra, 282 Conn. 530, the court concluded that "[t]he purposeful availment required to satisfy due process concerns is absent in the present case. The only acts that the defendant [insurance company] directed at this state were in response to [its insured] filing a claim with the defendant . . . As the United States Supreme Court has explained . . . in order for personal jurisdiction to lie, the defendant must create the significant connection with the forum state . . . There was no evidence before the trial court that, before receiving the claim from [its insured], the defendant had engaged in any behavior so as to invoke the benefits and privileges of Connecticut law. It did not solicit business, maintain offices, own property or otherwise need to conduct its insurance business in Connecticut." (Citation omitted; emphasis in original.) Therefore, the court in Cogswell concluded that "the defendant's limited, responsive contact with [the insured] was insufficient to establish specific jurisdiction in accordance with the mandates of due process." Id., 532.
In this case, the evidence establishes that the MBHL's contacts with Connecticut satisfy the requirements of due process despite the fact that the league does not have an office or registration in the state. Just as the Rhode Island hospital in Frazer affiliated itself with a number of Connecticut doctors, so too does the MBHL affiliate itself with a significant number of Connecticut teams. A significant percentage of the MBHL's players are Connecticut residents, just as a significant percentage of the hospital's patients were from Connecticut. While there is no evidence that the MBHL had a telephone listing in Connecticut, one of its executive committee members is a resident. The league also directs its activities into Connecticut by regularly contacting its Connecticut teams via telephone or email to pass on information about schedules and administrative duties, and collecting fees from Connecticut teams in return for its services. As a result of its frequent activities in Connecticut, the MBHL could expect be haled before a Connecticut court for disputes arising out of actions from its business with state teams and affiliated residents.
In addition, there is little in the record to support the notion that allowing a Connecticut court to hear the suit would violate traditional notions of fair play and substantial justice. The defendants argue that forcing the "cash poor" nonprofit corporation to travel and defend against a suit in Connecticut would be unfair. In Frazer, the court held that Rhode Island hospital's proximity to Connecticut meant there was no undue burden on it to be tried in a Connecticut court. Likewise, because the MBHL is also located in a state bordering Connecticut, a trial in Connecticut would not pose an undue burden of travel on the league. The factors favoring trial in Connecticut outweigh those against it.
As stated by the court in another case regarding the burden requiring a defendant to travel between Massachusetts and Connecticut: "There is nothing . . . that demonstrates an undue burden . . . by requiring [the defendant] to travel to Connecticut. To the contrary, the defendant is located in Pittsfield, Massachusetts which is proximately located to this forum." Goldstar Medical Services, Inc. v. Berkshire Healthcare Systems, Inc., Superior Court, judicial district of Hartford, Docket No. CV 04 4006087, (October 25, 2005, Tanzer, J.).
This case involves MBHL's response to an incident that occurred in Connecticut and involved a Connecticut resident. The ban on the plaintiff will have its impact primarily in Connecticut, where a majority of his son's games are played. While Massachusetts may also have an interest in trying the case because the MBHL is registered there, corporations are often sued outside of their home states for their conduct in other jurisdictions. By conducting a substantial portion of its business in the state, the league could reasonably expect that it would have to defend its practices in this state's courts. Requiring the MBHL to defend itself in a Connecticut court does not violate principles of due process.
B. Due Process as Applied to Foland and Nielson
The individual defendants argue that they lack the minimum contacts with Connecticut necessary for them to be required to defend themselves in this state. In their affidavits, they state, in relevant part that: (1) They are residents of Massachusetts; (2) they are employed in Massachusetts and none of their work occurs in Connecticut; (3) neither of them has an office, nor owns or rents any real property in Connecticut; (4) neither of them solicits any business in Connecticut; and (5) it would be unfair for either of them, as volunteers for a nonprofit organization, to be expected to drive to Connecticut to defend themselves against a lawsuit (Foland claims he would have to drive 120 miles, and Nielson claims he would have to drive 70 miles).
In his complaint and affidavit, the plaintiff states, in relevant part that: (1) Both Foland and Nielson were very active and involved in the day to day operations of the league, making policy, sending emails and making repeated telephone calls to member teams within Connecticut; and (2) the MBHL was the alter ego of both of the individual defendants.
The individual defendants fail to acknowledge that the consideration of their contacts with Connecticut includes a consideration of their activities as corporate officers. They fulfill their regular administrative duties by providing many services for Connecticut teams. Their activities on behalf of the MBHL are sufficient to comply with the minimum contacts requirement. Furthermore, it would not be unreasonable to require them to appear in this state. The drive from Massachusetts is a factor in their favor, but it is not enough to overcome the factors in favor of requiring them to appear before a Connecticut court. The due process rights of the individual defendants would not be violated by holding the trial in Connecticut.
III THE INSUFFICIENCY OF SERVICE OF PROCESS ARGUMENTS
"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." (Emphasis in original; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, 554 A.2d 728 (1989). "One who is not served with process does not have the status of a party to the proceeding . . . A court has no jurisdiction over persons who have not been made parties to the action before it." (Internal quotation marks omitted.) Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003). "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." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607 n. 9, 674 A.2d 426 (1996).
A. Insufficiency of Service of Process as Applied to the MBHL
The MBHL argues that it was not properly served with process. It did not, however, raise this argument until it filed its reply on September 19, 2007. This date is more than five months after the MBHL filed appearance on March 29, 2007. Practice Book § 10-30 states, "[a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." "The rule specifically and unambiguously provides that any claim of lack of jurisdiction over the person as a result of an insufficiency of service of process is waived unless it is raised by a motion to dismiss filed within thirty days [of the date of the moving party's appearance] . . . Thus, thirty-one days after the filing of an appearance . . . a party is deemed to have submitted to the jurisdiction of the court. Any claim of insufficiency of process is waived if not sooner raised." Pitchell v. Hartford, 247 Conn. 422, 433, 722 A.2d 797 (1999). The MBHL did not raise the argument in a timely manner and thus waived its right to do so.
B. Insufficiency of Service of Process as Applied to Foland and Nielson
The affidavit of service in this case indicates that a Massachusetts officer served process on each of the individual defendants at residences located in Massachusetts, and mailed a copy to each of them at the same addresses. The individual defendants do not claim that they did not live at addresses listed in the affidavit, that they did not receive the process, or that the individual who served them was not authorized to do so. Instead, they argue that they were not properly served because the plaintiff did not comply with the provisions of General Statutes § 52-59b(c), which, they argue, provides that nonresident individuals can only be served via service of process on the Connecticut Secretary of State.
General Statutes § 52-59b(c), states, in relevant part: "Any nonresident individual . . . over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual . . . personally. The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, 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."
In opposition, the plaintiff argues the individual defendants were served properly in compliance with General Statutes § 52-57a. Section 52-57a(a) states that, "(a) person domiciled in or subject to the jurisdiction of the courts of this state . . . may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction."
In their reply, the individual defendants argue § 52-57a only governs service of process over "(1) a person domiciled in the State of Connecticut, or (2) a person subject to the jurisdiction of this state." They claim that because Connecticut does not have longarm jurisdiction over them, the plaintiff cannot rely on this statute.
According to our caselaw, "§ 52-59b(c) is not the exclusive method for service of process on an out-of state defendant and . . . if process is correctly served in a manner prescribed by § 52-57a, the Connecticut court has personal jurisdiction over a nonresident defendant in an action brought under the long-arm statute." (Internal quotation marks omitted.) Gomez v. King, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4001863, (September 29, 2005, Nash-Sequino, J.) [ 40 Conn. L. Rptr. 57]; see also Reeves v. Battle, Superior Court, judicial district of New London at Norwich, Docket No. CV 99 117847, (August 19, 1999, Mihalakos, J.).
Here, the court has already determined that the applicable longarm statute reaches the individual defendants. In Connecticut, service upon individuals is governed by General Statutes § 52-57(a), which states, "[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." Accordingly, because it is undisputed that Foland and Nielson lived at the addresses where they were served, and that they were served by an individual duly empowered to execute service of process, the plaintiff properly served process on them.
IV. CONCLUSION
In conclusion, this court has personal jurisdiction over all three defendants under the applicable longarm statutes. The exercise of jurisdiction over them will not violate the constitutional principles of due process. Process was sufficiently served on the individual defendants, and MBHL waived its opportunity to contest the sufficiency of service. Accordingly, this court denies the defendants' motion to dismiss.