Opinion
Civil Action No. 3:99 CV 870.
September 14, 2000.
RULING ON MOTIONS TO DISMISS
The plaintiff, Linda Szollosy, filed this diversity action on behalf of her minor son, Charles Dean Szollosy, against defendants Hyatt Corporation, Hyatt Hotels Corporation, and Hyatt Britannia Corporation Ltd. ("the Hyatt Defendants"), and against defendants Watersports Administration, Inc. and Red Sail Cayman Ltd. ("the Red Sail Defendants"). The plaintiff claims that the Hyatt Defendants are liable for negligence and breach of warranty arising from a jet ski accident at the Hyatt Regency Grand Cayman Resort Villas ("the Hyatt Regency") in the Cayman Islands, which is affiliated with the Hyatt Defendants. She also claims that the Red Sail Defendants are liable for negligence, strict products liability, and breach of warranty, pursuant to the Connecticut Product Liability Act, Conn. Gen. Stat. §§ 52-572met seq., arising from the same accident. The plaintiff seeks compensatory and punitive damages, and costs and attorney's fees.
The plaintiff is a citizen of Connecticut; Hyatt Corporation and Hyatt Hotels Corporation are citizens of Delaware and Illinois; Hyatt Britannia Corporation Ltd. and Red Sail Cayman Ltd. are citizens of the Cayman Islands; and Water Administration, Inc. is a citizen of Delaware and California.
Hyatt Hotels Corporation, Hyatt Britannia Corporation Ltd., and Watersports Administration, Inc. moved to dismiss for lack of personal jurisdiction. Red Sail Cayman Ltd. also moved to dismiss for lack of personal jurisdiction and on the ground of forum non conveniens.
Defendant Hyatt Corporation does not join the motions to dismiss.
For the reasons set forth below, the motions to dismiss are GRANTED as to Hyatt Hotels Corporation, and DENIED as to Hyatt Britannia Corporation Ltd., Watersports Administration, Inc., and Red Sail Cayman Ltd.
Defendant Hyatt Hotels Corporation is dismissed from this action by agreement of the parties. See infra Part II A.
I. Background
According to the plaintiffs complaint, on September 7, 1998, plaintiff Linda Szollosy, her husband Charles Szollosy, and their son, Charles Dean Szollosy, were registered guests at the Hyatt Regency. At noon that day, they arrived at Rum Point, a beach area affiliated with the Hyatt Regency. Charles Dean Szollosy and his father waded into the ocean near several jet skis and other vessels and recreational equipment owned or operated by the Red Sail Defendants, which were available for rent by guests of the Hyatt Regency. Charles Szollosy placed his son on one of the jet skis, which then propelled forward unexpectedly and struck a breakwater. Charles Dean Szollosy was propelled over the handlebars of the jet ski and struck the breakwater. As a result of the accident, he suffered permanent disabling injuries.
II. Discussion
A. Motion to Dismiss
"On a motion to dismiss for lack of personal jurisdiction, it is the plaintiff who bears the burden of showing that the court has jurisdiction over the defendant." Hardy v. Ford Motor Car, 20 F. Supp.2d 339, 341 (D. Conn. 1998); See also Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566-67 (2d Cir. 1996). The parties in this case have completed discovery on issues relating to personal jurisdiction, and the defendants have challenged the sufficiency of evidence underlying the plaintiffs allegations of jurisdiction. Accordingly, the plaintiff bears the burden of showing with "actual proof that the court has jurisdiction over the defendant." Ensign-Bickford Co. v. ICI Explosives USA, Inc., 817 F. Supp. 1018, 1023 n. 7, 1026 (D. Conn. 1993). "To survive the motion, the plaintiff must make a prima facie showing through affidavits and other evidence that the defendant's conduct was sufficient for the court to exercise personal jurisdiction. After discovery, a plaintiff must submit an averment of facts that, if credited by the trier, would suffice to establish jurisdiction over the defendant." Hardy, 20 F. Supp. 2d at 341 (internal quotation marks and citations omitted). "Regardless of the controverting evidence put forth by the defendant, the court must resolve all doubts in the plaintiffs favor." United States Surgical Corp. v. Imagyn Med. Tech., Inc., 25 F. Supp.2d 40, 44 (D. Conn. 1998).
"The amenability of a foreign corporation to suit in a federal court in a diversity action is determined in accordance with the law of the state where the court sits, with `federal law' entering the picture only for the purpose of deciding whether a state's assertion of jurisdiction contravenes a constitutional guarantee." Metropolitan Life Ins. Co., 84 F.3d at 567 see also Jazini v. Nissan Motor Co., 148 F.3d 181, 183-84 (2d Cir. 1998).
[I]n resolving questions of personal jurisdiction in a diversity action, a district court must determine conduct a two-part inquiry. First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state's laws; and second it must assess whether the court's assertion of jurisdiction under these laws comports with the requirements of due process.Metropolitan Life Ins. Co., 84 F.3d at 567.
As indicated, four defendants in this case have moved for dismissal: Hyatt Hotels Corporation, Hyatt Britannia Corporation Ltd., Watersports Administration, Inc., and Red Sail Cayman Ltd. The plaintiff opposes the motions to dismiss as to all of these defendants except Hyatt Hotels Corporation see Pl.'s Mem. Opp'n Mots. Dismiss ("Pl.'s Mem.") at 1 n. 1. In ruling on the motions to dismiss, therefore, the Court must consider the application of Conn. Gen. Stat. § 33-929(f)(2) only as to the three remaining defendants: Hyatt Britannia Corporation Ltd., Watersports Administration, Inc., and Red Sail Cayman Ltd.
As set forth below in greater detail, Hyatt Britannia Corporation Ltd. is a Cayman Islands corporation that manages all aspects of the Hyatt Regency on behalf of the hotel's owner, Cayman Hotel Golf Club Partnership, a Canadian limited partnership. Red Sail Cayman Ltd. is also a Cayman Islands corporation. It is one of four "Red Sail Sports" businesses operating in Aruba, the Bahamas, Grand Cayman, and Hawaii that offer a variety of watersports activities. Red Sail Cayman Ltd. owned the jet ski that allegedly injured Charles Dean Szollosy at Rum Point. Finally, Watersports Administration, Inc. is a California company closely affiliated with the Red Sail Sports businesses. It provides administrative services for the Red Sail Sports businesses, including marketing and advertising on behalf of Red Sail Cayman Ltd.
1. Connecticut's Long-Arm Statute
Connecticut's long-arm statute provides, in relevant part, that:
[e]very foreign corporation shall be subject to suit in [Connecticut], by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business. whether the orders or offers relating thereto were accepted within or without the state; (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.
Conn. Gen. Stat. § 33-929(f) (emphasis added).
The plaintiffs claims in this case arise out of the moving defendants' allegedly extensive advertising and marketing in Connecticut. The plaintiff argues that these defendants solicited business in Connecticut, which renders them subject to personal jurisdiction in Connecticut pursuant to Conn. Gen. Stat. § 33-929(f)(2) See Compl. ¶¶ 7, 12, 15.
The parties agree that, because the plaintiffs claims arise out of the defendants' repeated solicitation of business in Connecticut, Conn. Gen. Stat § 33-920 does not provide an alternate statutory basis for personal jurisdiction in this case.
In opposing jurisdiction, Watersports Administration, Inc. ("WSA") denies that it repeatedly solicited business in Connecticut. It offers affidavit evidence indicating that it is not a Connecticut corporation and is not licensed to do business in Connecticut. Nor does it directly conduct business in Connecticut; solicit, market or advertise business in Connecticut; conduct any sales or provide any services in Connecticut; or maintain office space, employees or agents, or bank accounts in Connecticut.
Like WSA, Hyatt Britannia Corporation Ltd. ("Hyatt Britannia") and Red Sail Cayman Ltd. ("Red Sail Cayman") deny that they repeatedly solicited business in Connecticut. The parties agree that Hyatt Britannia and Red Sail Cayman are Cayman Islands corporations. Hyatt Britannia offers an affidavit in support of its contention that it is not licensed to conduct business in Connecticut; does not maintain an office or employees or an agent in Connecticut; and does not own real estate in Connecticut. Red Sail Cayman offers similar affidavits, in addition to alleging that the plaintiff and her family did not travel to the Cayman Islands or the Hyatt Regency for any reason having to do with Red Sail Cayman, and that the plaintiff had not heard of Red Sail Cayman prior to the jet ski accident.
The plaintiff argues that these three defendants "engaged in a major advertising campaign in Connecticut in order to induce Connecticut residents . . . to visit their facilities in the Cayman Islands." Pl.'s Mem. at 16. The plaintiff offers affidavits and other evidence in support of her contention, such as advertising and promotional materials, which indicate that the defendants "advertised through a variety of print media, such as magazines, pamphlets, and brochures — all of which are distributed to Connecticut residents on a daily basis through travel agencies, bookstores, and dive shops." Id. at 17. The plaintiff also presents evidence that WSA and Red Sail Cayman mail promotional materials throughout the United States, including to Connecticut travel agencies, and that they maintain customer lists for advertising purposes, which lists include Connecticut residents. See id. at 7-9, 18. Each of the defendants also allegedly solicited Connecticut residents through the Internet, by creating, purchasing, and maintaining "interactive" web sites that allow consumers in Connecticut to purchase services from their homes. See id. at 16-17.
For a discussion of various types of web sites, see Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999).
The Court considers the application of Conn. Gen. Stat. § 33-929 (f)(2) to each of the three remaining defendants.
a. Hyatt Britannia
The plaintiff presents evidence that Hyatt Britannia, a wholly owned subsidiary of defendant Hyatt Corporation, is responsible for managing the Hyatt Regency. See id. at 10. Pursuant to Hyatt Britannia's management agreement with the Cayman Hotel Golf Club Partnership (the owner of the Hyatt Regency), Hyatt Britannia has the "sole and exclusive right to manage and operate" the Hyatt Regency, and is responsible for "all phases of promotion and publicity," as well as all "advertising, publicity, and public relations services," relating to the hotel. See Pl.'s Reply Mem. Opp'n Mots. Dismiss ("Pl.'s Reply") Ex. B, ¶¶ 3.1, 7.2.
In addition, as Hyatt Britannia conceded at the hearing on the motions to dismiss, it pays Hyatt Corporation to advertise the Hyatt Regency as part of Hyatt Corporation's national advertising campaign. Hyatt Britannia pays for the advertising with funds supplied by the hotel's owners. Furthermore, while Hyatt Britannia does not maintain its own web site, it does not dispute that Hyatt Corporation's web site provides information about the Hyatt Regency, including access to an email address and a toll-free telephone number through which reservations can be made at the hotel. The plaintiff contends that Hyatt Britannia specifically targeted Connecticut residents in its advertising and solicitation efforts, through the web site and other information distributed to Connecticut travel agents. Consequently, as a result of Hyatt Corporation's national advertising campaign and its web site, Hyatt Britannia directly benefited from increased occupancy rates and other sales at the Hyatt Regency. See, e.g., Def. Hyatt Britannia Corporation Ltd.'s Obj'ns Resps. Pl.'s Second Set of Interrogs. Reqs. Produc. Docs. (indicating that Hyatt Britannia derives income from a restaurant, a bar, and a grill located at Rum Point).
Hyatt Corporation's national advertising campaign includes, for example, printed advertisements in publications such as Travel Weekly magazine. See Pl.'s Mem. at 10.
As set forth on the record at the hearing on the motions to dismiss, Hyatt Britannia indicates that the occupancy rate that the Hyatt Regency is, on average, approximately ninety percent.
Hyatt Britannia responds by contending that it is merely an agent of the Hyatt Regency's owners, and that all advertising and services it provides concerning the Hyatt Regency are on behalf of the hotel's owner. Hyatt Britannia similarly argues that Hyatt Corporation never acted as its agent when advertising the Hyatt Regency; but acted as an agent of the Hyatt Regency's owner when advertising the hotel. As a result, Hyatt Britannia claims that it did not solicit or advertise its services in Connecticut and that any advertising by Hyatt Corporation for the hotel which was directed at or reached Connecticut was not on behalf of Hyatt Britannia but was for the benefit of the owner. On this basis, Hyatt Britannia contends that it is not subject to personal jurisdiction in Connecticut. See generally Def. Hyatt Britannia Ltd.'s Reply Br.
The Court concludes that Hyatt Britannia solicited business sufficiently in Connecticut to subject it to Connecticut's jurisdictional statute. Based on the evidence presented by the plaintiff, as well as Hyatt Britannia's admissions, the Court concludes that Hyatt Britannia is not insulated from jurisdiction on the basis that it operates only on behalf of the owner of the resort. Hyatt Britannia is responsible for all aspects of the Hyatt Regency's business, including substantial advertising conducted through Hyatt Corporation that is directed at Connecticut residents in various electronic and printed forms. The fact that Hyatt Britannia does not receive the profits directly from its successful operation of the hotel does not insulate it from jurisdiction. Nor is the fact that Hyatt Britannia worked through or in coordination wits defendant Hyatt Corporation to solicit business repeatedly from Connecticut customers sufficient to defeat jurisdiction of Hyatt Britannia. See, e.g., Pavia v. Club Med., Inc., No. CIVA3:97CV808(AWT), 1998 WL 229912, at *4 (D. Conn. Mar. 30, 1998) (finding jurisdiction of defendants working together to solicit Connecticut customers); DeLuca v. Holiday Inns, Inc., No. CV91-0393342S, 1993 WL 512432, at *5-7 (Conn.Super.Ct. Dec. 3, 1993) (quotingDauplaise v. Holiday Inns, Inc., No. 2:91 CV 00093, slip op. (D. Conn. Oct. 8, 1992)). Hyatt Britannia is subject to jurisdiction in Connecticut based on the mutually beneficial relationship — the "organizational network" — that it has established with Hyatt Corporation and various Connecticut travel agencies. See DeLuca, 1993 WL 512432, at *5-7 As a result of its in-state travel agency promotions and brochure circulation, as well as its availability to Connecticut customers over the Internet, the network "is likely to prompt a significant number of Connecticut residents to utilize the services that it offers." Id. The evidence presented at the hearing on the motions to dismiss that many Connecticut residents in the past have utilized Hyatt Britannia's services by staying at the Hyatt Regency further supports this conclusion. Accordingly, based on the totality of evidence presented by the plaintiff, see Id. at *8, the Court concludes that Hyatt Britannia is subject to jurisdiction in Connecticut under Conn. Gen. Stat. § 33-929(f)(2).
Because WSA and Red Sail Cayman are such closely affiliated companies, the Court considers the application of Conn. Gen. Stat. § 33-929(f)(2) to each of these defendants in one subsection of this opinion. The Court does not, however, aggregate WSA's and Red Sail Cayman's contacts with Connecticut. See Rush v. Savchuk, 444 U.S. 320, 332 (1980).
The plaintiff presents evidence that WSA provides administrative services to three or four "Red Sail Sports" businesses, including Red Sail Cayman. WSA also provides advertising and marketing services for Red Sail Cayman and the other Red Sail Sports businesses. See Pl.'s Mem. at 5. The plaintiff also presents evidence that WSA and Red Sail Cayman are indistinguishable entities, operating together with the three other Red Sail Sports businesses under the "Red Sail Sports" name from a single address in San Francisco, California. See id. In addition, the plaintiff presents evidence that Red Sail Cayman, as part of Red Sail Sports, maintains an "interactive" web site through WSA. The web site offers a toll-free telephone number and an email address, through which Connecticut residents are able to obtain more information and make reservations for Red Sail Cayman's services. See id. at 6.
The legal relationship among the four Red Sail Sports businesses, and the legal relationship between the Red Sail Sports businesses and WSA, are not clearly defined in the record before the Court. However, it appears that the Red Sail Sports businesses exist and operate exclusively as licensees of WSA. See infra pp. 12-13.
As part of its advertising and marketing efforts through WSA, the plaintiff contends that Red Sail Sports encourages Connecticut residents to visit Red Sail Cayman's facilities and use its services. See id. at 7. WSA concedes that it sends postcards and promotional materials to Connecticut customers, travel agents, tourist boards, dive shops, and other travel related individuals and businesses on behalf of Red Sail Cayman and the other Red Sail Sports businesses. Prior to the incident giving rise to this case, WSA sent advertising material to Charles Szollosy on behalf of Red Sail Sports. See id. at 18. WSA also sends bulk email messages and circulated newsletters throughout the United States on behalf of Red Sail Sports. It also advertises on behalf of the Red Sail Sports businesses, including Red Sail Sports, in national publications such as Skin Diver magazine, which are available in Connecticut In addition, there is no dispute that Red Sail Sports maintains mailing lists and client lists for solicitation purposes, which include Connecticut residents. Finally, the plaintiff presents evidence that Red Sail Sports has received email inquiries from Connecticut residents through its web site operated by WSA. See generally id. at 7-9, 17-18.
Although it is unclear from the plaintiffs memorandum the extent of what was sent to Mr. Szollosy prior to his family's trip to the Cayman Islands, it appears that Christine Mainelli, a Watersports Consultant for Red Sail Sports, sent a promotional letter to Mr. Szollosy in Connecticut prior to his trip. See Pl.'s Mem. Ex. A. At the hearing on the motions to dismiss, counsel for WSA was unable to determine whether this letter was targeted at Mr. Szollosy or was part of a national bulk mailing that included Connecticut residents.
Although WSA does not dispute the administrative services it provides for Red Sail Cayman under the Red Sail Sports name, WSA points out that it is a separate entity from Red Sail Cayman. WSA also contends that it does not advertise or solicit on its own behalf, and consequently does not fall within the terms of Conn. Gen. Stat. § 33-929(f)(2). In addition, although WSA admits that it has an economic interest in Red Sail Cayman, it maintains that it advertises on behalf of Red Sail Cayman but does not solicit on behalf of Red Sail Cayman.
At the hearing on the motions to dismiss, WSA attempted to distinguish "advertising" from "solicitation" on the ground that advertising entails mass marketing while solicitation entails individualized transactions. It contended that solicitation, but not advertising, falls within the terms of Conn. Gen. Stat. § 33-929 (f)(2) However, the defendant offers no direct authority for such a distinction.
Red Sail Cayman similarly argues that it is a separately owned entity from WSA, and therefore that it would be unconstitutional for the Court to aggregate its Connecticut contacts with WSA's Connecticut contacts. It also contends that the Red Sail Sports web site is passive and cannot be used directly to purchase Red Sail Cayman's services. In addition, Red Sail Cayman claims that the mailing lists and client lists should not be considered by the Court because (1) they are compiled in response to general inquiries, received by visitors to the web site, concerning all four of the Red Sail Sports businesses and not just Red Sail Cayman; (2) the mailings are sent to individuals following their vacations; and (3) Red Sail Cayman, as part of Red Sail Sports, does not receive any additonal business as a result of these lists. See Reply Br. Def. Red Sail Sports (Cayman), Ltd. The only solicitations of Mr. Szollosy, according to Red Sail Cayman, occurred (1) in response to his inquiries about Red Sail Cayman, or (2) after the filing of this lawsuit, in which case those solicitations may not be considered by the Court in this case. See Metropolitan Life Ins. Co., 84 F.3d at 569, see also Reply Br. Def. Red Sail Sports (Cayman), Ltd. Finally, Red Sail Cayman argues that the fact Connecticut travel agents, dive shops, and other similar businesses distributed Red Sail Sports brochures and information to Connecticut residents is not, without more, determinative of personal jurisdiction over Red Sail Cayman; national advertising alone is not sufficient to establish a basis for personal jurisdiction. See Reply Br. Def Red Sail Sports (Cayman), Ltd.
The constitutionality of this Court exercising personal jurisdiction over the defendants is addressed in the next section of this ruling.
The Court concludes, however, that WSA and Red Sail Cayman each solicited business sufficiently in Connecticut to bring them within Connecticut's jurisdictional statute. Contrary to WSA's contention that it merely advertises, but does not solicit, on behalf of Red Sail Cayman, the plaintiff presents evidence that WSA is responsible for most, if not all, of Red Sail Cayman's administrative responsibilities.See Pl.'s Reply at 4. Red Sail Cayman also exists only as a result of a license supplied by WSA. See id. at 5 Further, the plaintiff presents evidence that the two entities function as one company under the Red Sail Sports name. See e.g., Pl.'s Mem. at 5 Exs. AS, B. Accordingly, because WSA is involved in the administration of Red Sail Cayman and is responsible for its existence and success, WSA is not like a typical national advertising company with numerous clients. WSA cannot escape jurisdiction on the basis of its conjoined relationship with Red Sail Cayman; it cannot insulate itself from jurisdiction by showing that the operations of the business are carried out by its licensee when it is so involved in the administration, advertising, and, ultimately, the success of the licensee Cf., e.g., McFaddin v. National Executive Search, Inc., 354 F. Supp. 1166, 1167-68 (D. Conn 1973) (involving jurisdiction of a franchisor that provides advertising and other administrative services for its franchisee). Nor, like Hyatt Britannia, can Red Sail Cayman escape jurisdiction based on its hiring of WSA to provide certain administrative and advertising services. See e.g., Whelen Eng'g Co. v. Tomar Elecs., Inc., 672 F. Supp. 659, 663-64 (D. Conn. 1987) (involving jurisdiction over a company that employs the services of a national marketing and distribution company, with the knowledge and belief that one of its covered territories was Connecticut); See also Pavia, 1998 WL 229912, at *4; DeLuca, 1993 WL 512432, at *5.4
The evidence presented by the plaintiff further supports the Court's conclusion that WSA and Red Sail Cayman solicited business sufficiently in Connecticut to bring them within the terms of Connecticut's jurisdictional statute. Like Hyatt Britannia, WSA and Red Sail Cayman, acting together under the Red Sail Sports name, have engaged in a national marketing and advertising campaign involving in-state travel agency promotions and brochure circulation that is likely to prompt a significant number of Connecticut residents to utilize its services and visit its facilities. See Pavia, 1998 WL 229912, at *4; DeLuca, 1993 WL 512432, at *5, 7. Red Sail Sports also hosts an interactive web site, the Court concludes, through which Connecticut customers can obtain information and make reservations for Red Sail Cayman's services. Cf. Inset Sys. Inc. v. Instruction Set, Inc., 937 F. Supp. 161, 164 (D. Conn. 1996) (holding that advertising via the Internet is sufficiently repetitive solicitation to satisfy jurisdiction in a patent infringement case concerning ownership of a web site title); Mink, 190 F.3d at 336 (looking to the nature and quality of the commercial activity conducted over the Internet). Also, as indicated, the plaintiff presents evidence that Red Sail Cayman, as part of Red Sail Sports, receives and responds to email inquiries from Connecticut residents, and maintains client lists and mailing lists that include Connecticut residents. See Whelen Eng'g Co., 672 F. Supp at 663-64. Although Red Sail Cayman urges the Court not to consider these lists, because (1) they are compiled in response to general inquiries concerning all four of the Red Sail Sports businesses, (2) mailings generally are sent to individuals following their vacations, and (3) Red Sail Cayman, as part of Red Sail Sports, does not receive any additional business as a result of these lists, the plaintiff presents evidence that Charles Szollosy received at least one promotional letter from Red Sail Sports prior to his family's trip to the Hyatt Regency. Moreover, this evidence is relevant to the issue of solicitation. Accordingly, based on the totality of evidence presented by the plaintiff, the Court concludes that WSA and Red Sail Cayman are subject to jurisdiction in Connecticut under Conn. Gen. Stat. § 33-929(f)(2).
The defendants deny that their web site is interactive; they contend that it is "passive" and serves only to provide general information concerning Red Sail Sports. See Reply Br. Def Red Sail Sports (Cayman), Ltd. Part VI. Having reviewed the plaintiffs evidence, including a printout of the Red Sail Sports web site and WSA's and Red Sail Cayman's responses to the plaintiffs interrogatories, and resolving all doubts in favor of the plaintiff, the Court concludes for the purposes of determining jurisdiction that the web site is interactive.See Pl.'s Mem. Exs. A.7, C, D; cf. Mink, 190 F.3d at 336-37 n. 1.
Contrary to the defendants' contentions, plaintiff presents evidence that the defendants used their web site to communicate with Connecticut residents; the plaintiff does not rely only on the national and international character of the Internet to establish jurisdiction in Connecticut. Cf. Edberg v. Neogen Corp., 17 F. Supp.2d 104, 113 (D. Conn. 1998); E-Data Corp. v. Micropatent Corp., 989 F. Supp. 173, 176-77 (D. Conn. 1997).
Although a single promotional letter might not be sufficient to subject a defendant to personal jurisdiction under Conn. Gen. Stat. § 33-929(f)(2), the Court considers the letter in this case as one factor among many in concluding that WSA and Red Sail Sports are subject to personal jurisdiction in Connecticut.
2. Due Process
The court must next determine whether the statutory reach of the long arm statute violates constitutional due process. Under the due process standard, a nonresident must have 'minimum contacts' with the forum state. To have these minimum contacts, a defendant must purposefully avail himself of the privileges and benefits of the forum state. . . . [T]he defendant's conduct and connection with the forum state should be such that he should reasonably anticipate being haled into court there.United States Surgical Corp., 25 F. Supp. at 44-45 (internal quotation marks and citations omitted). Due process requires that the defendant be given "fair warning" that its activities in a state may subject it to suit there. See Metropolitan Life Ins. Co., 84 F.3d at 567.
In addition to minimum contacts, "the court must consider these contacts in light of other factors to determine whether the assertion of personal jurisdiction would comport with 'traditional notions of fair play and substantial justice.'" Ensign-Bickford Co., 817 F. Supp. at 1030;see also Metropolitan Life Ins. Co., 84 F 3d at 568. As part of its "reasonableness" analysis, the Court must consider:
(1) the burden that the exercise of jurisdiction will impose on the defendant;
(2) the interests of justice 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.Metropolitan Life Ins. Co., 84 F.3d at 568.
In this case, WSA contends that it will be burdensome and offensive to traditional notions of fair play and substantial justice for it to defend this case in Connecticut because it has no property, office space, or employees or agents in Connecticut. Nor are many of the potential witnesses found in Connecticut; they are in the Cayman Islands, which will result in great expense to WSA. WSA also contends that the minimum contacts analysis is complicated by the plaintiffs apparent aggregation of the defendants' contacts with Connecticut, which cannot serve to establish jurisdiction. See Rush, 444 U.S. at 332.
Hyatt Britannia also contends that it has not purposefully availed itself of the privileges and benefits of Connecticut law, based on the fact that it has no office, employee, property, bank account, telephone listing, or agent in Connecticut. Nor does it solicit business in Connecticut. Like WSA, Hyatt Britannia also maintains that it will be extremely burdensome for it to proceed with this case in Connecticut. Similarly, Red Sail Cayman contends that it has not purposefully availed itself of the privileges and benefits of Connecticut law, that it would be unduly burdensome for a Cayman Islands corporation to defend a suit in Connecticut, and that the plaintiff may not aggregate the defendants' minimum contacts with Connecticut as a basis of jurisdiction.
However, based on the evidence presented in this case concerning the defendants' active solicitation of business in Connecticut. the Court concludes "that the plaintiff has made a prima facie showing that the exercise of jurisdiction in this case is consistent with due process. The acts of [each] defendant" set forth in the preceding section of this ruling "represent sufficient minimum contacts with Connecticut such that [each] defendant could be said to have purposefully availed [itself] of the privileges of conducting activities in the forum state." Pavia, 1998 WL 229912, at *4 (internal quotation marks and alterations omitted). Based on the totality of each defendant's conduct in connection with this case, including patterns of advertising, sales promotion, and Internet communication directed at Connecticut, each defendant could reasonably have "anticipated a viable and growing sales market in Connecticut," thus supporting the Court's conclusion that each defendant knew its goods or services would enter Connecticut. See Whelen Eng'g Co., 672 F. Supp. at 664. The fact that the defendants maintained no physical presence in Connecticut does not mean that they did not purposefully avail themselves of the jurisdiction or that this Court's exercise of jurisdiction of the defendants would be unjust, unfair, or unreasonable. See DeLuca, 1993 WL 512432, at *8. Moreover, there is no risk that the Connecticut jurisdictional statute is being applied in this case "towards the four corners of the United States, and indeed the world." McFaddin, 354 F. Supp. at 1170.
B. Forum Non Conveniens
Defendant Red Sail Cayman alternatively moves for dismissal on the basis of forum non conveniens.
"The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). "The forum non conveniens determination is committed to the sound discretion of the trial court," and the Supreme Court's forum non conveniens decisions emphasize the need for flexibility in making such determinations. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 257 (1981). Although a "plaintiffs choice of forum should rarely be disturbed," id. at 241, a court may dismiss a case based on certain private and public interest factors tipping strongly in favor of the defendant. See id., 330 U.S. at 508.
The private factors a court must consider include access to proof, availability of compulsory process for attendance of unwilling witnesses, the cost of obtaining attendance of witnesses, the possibility of viewing the premises if appropriate, and other practical problems that make trial of a case easy, expeditious, and inexpensive, such as the enforceability of a judgment. See Gilbert, 330 U.S. at 508. The public interest factors include the administrative difficulties of court congestion, interests of the local forum, and the avoidance of problems involving conflicts of law and application of foreign law. See id. at 508-09. A mere showing that the substantive law of the alternate available forum is Jess favorable to the plaintiffs than the law of the present forum does not, by itself, preclude dismissal based on forum non conveniens. See Reyno, 454 U.S. at 247.
In this case, as to the private interest factors, Red Sail Cayman contends that the sources of proof, including the actual jet ski involved in the accident, are located in the Cayman Islands. It also argues that the witnesses, except for the Szollosys, are located outside Connecticut and are not subject to compulsory process in Connecticut. In addition, it contends that the cost of bringing witnesses and evidence to Connecticut would be unduly burdensome, and that viewing the scene of the accident would be impossible if the case were tried here.
As to the public interest factors, Red Sail Cayman maintains that this case is likely to be heard sooner in the Cayman Islands courts it also contends that the Cayman Islands has a significant interest in hearing this case because of its strong interest in tourism. Finally, this court would have to apply Cayman Islands law if it were to retain jurisdiction of the case.
The Court concludes, however, based on the affidavits presented by the plaintiff, that the principal witnesses in this case, Charles Dean Szollosy and his father, are located in Connecticut, as are several of the physicians who have treated plaintiff Charles Dean Szollosy since the accident. See Pl.'s Mem. Ex. A. It is also far more efficient to proceed in Connecticut than in the Cayman Islands, given their relatively remote and inaccessible location in the "middle of the Caribbean Sea." The plaintiff further maintains that hearing the case in the Cayman Islands would create a significant financial burden of traveling to the Cayman Islands, and of retaining counsel and producing American witnesses there. The Court accepts these contentions based on the sworn affidavits presented by the plaintiff See id. Finally, Connecticut has a strong interest addressing injuries to its citizens caused b\ defendants who have purposefully conducted or solicited business in Connecticut, and Red Sail Cayman presents no evidence that the need to apply foreign law in this case is sufficient grounds for dismissing this action.
Accordingly, the Court concludes that the private and public interest factors in this case do not tip strongly in favor of the defendant. The Court therefore declines to exercise its discretion to relinquish jurisdiction of this case.
III. Conclusion
For the reasons set forth above, the motions to dismiss as to Hyatt Britannia Corporation Ltd. and Red Sail Cayman Ltd. [Documents #16, 20] are DENIED. The remaining motion to dismiss [Document #12] is GRANTED IN PART, as to Hyatt Hotels Corporation, and DENIED IN PART, as to Watersports Administration, Inc. The remaining defendants in this case are Hyatt Corporation, Hyatt Britannia Corporation Ltd., Watersports Administration, Inc., and Red Sail Cayman Ltd.