Opinion
No. FBTCV106013478
May 3, 2011
MEMORANDUM OF DECISION
On October 12, 2010, the plaintiff, Peter Tyrzna, filed this action against the defendants, Greene Rees Technologies, LLC (Greene Rees) and Alan K. Greene, based on their failure to pay the plaintiff for his legal services. The plaintiff, an Illinois patent lawyer, had previously brought suit against the same defendants in the Circuit Court of Cook County, Illinois, where he obtained a judgment against in his favor after the defendants, both Connecticut residents, failed to appear. The plaintiff now seeks to enforce the judgment of the Illinois court in Connecticut pursuant to General Statutes § 52-607. On November 16, 2010, the defendants filed separate answers, each of which interposed two special defenses, and Greene Rees filed a two-count counterclaim. The first count of the counterclaim alleges a breach of contract based on the plaintiff's mishandling of the defendant's patent application, which resulted in the patent's denial, and for filing the patent in a manner designed to increase the fees owed to the plaintiff. The second count alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b et seq., alleging that the plaintiff acted in bad faith when he deliberately applied for the patent in a manner he knew would create more work for himself and delay the granting of the patent.
General Statutes § 52-607 states: "The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52-604 to 52-609, inclusive, remains unimpaired."
The plaintiff moves to dismiss Greene Rees' counterclaim. "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627, 941 A.2d 266 (2008).
"When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) State v. Marsh McLennan Cos., 286 Conn. 454, 464, 944 A.2d 315 (2008).
I
The plaintiff moves to dismiss the entire counterclaim on the ground that the court lacks personal jurisdiction over him. The plaintiff contends that he is an Illinois resident and that his "actions do not bring him under the provisions of the Connecticut long-arm statute, nor does he have the requisite contacts with this state that would satisfy the requirements of constitutional due process for purposes of personal jurisdiction." The court holds that the plaintiff has consented to personal jurisdiction.
Generally, a court may only exercise personal jurisdiction over a nonresident individual if (1) under the facts of the case, the state's long-arm statute may be asserted as a basis for jurisdiction over the defendant; Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905 (1986); and, (2) the exercise of jurisdiction satisfies the requirements of constitutional due process. Knipple v. Viking Communications, 236 Conn. 602, 605-06, 674 A.2d 426 (1996).
Nevertheless, personal jurisdiction may also be obtained through consent or waiver. Pedro v. Miller, 281 Conn. 112, 120, 914 A.2d 524 (2007); United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985). It is a "well established rule that by filing suit a plaintiff automatically waives any objections he might otherwise have on grounds of personal jurisdiction to counterclaims presented against him in the suit." Sweetheart Plastics, Inc. v. Illinois Tool Works, 286 F.Sup. 62, 65 (N.D.Ill. 1968), citing Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 451, 52 S.Ct. 238, 239, 76 L.Ed. 389 (1932) ("When the [plaintiff] brought the suit . . . it submitted itself to the jurisdiction of the court with respect to all the issues embraced in the suit, including those pertaining to the counterclaim of the defendants"). "The plaintiff having, by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court, there is nothing arbitrary or unreasonable in treating him as being there for all purposes for which justice to the defendant requires his presence. It is the price which the state may exact as the condition of opening its courts to the plaintiff." Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 82 L.Ed. 649 reh. denied, 303 U.S. 666, 58 S.Ct. 640, 82 L.Ed. 1123 (1938); see also General Contracting Trading Co., LLC v. Interpole, Inc., 940 F.2d 20, 24 (1st Cir. 1991) ("[T]he appellant, by initiating its own suit, submitted to the district court's jurisdiction in the prior action"); Dewey Almy Chemical Co. v. Johnson, Drake Piper, Inc., 25 F.Sup. 1021, 1022 (E.D.N.Y. 1939) ("The plaintiff by coming voluntarily into the District Court of this District subjects itself to the Jurisdiction of this Court in respect to all possible grounds of counterclaim"); Global Shipping Trading, Ltd. v. Verkhnesaldincky Metallurgic Co., 892 P.2d 143, 146-47 (Wyo. 1995) (same); Global Fibers, Inc. v. Foster, 207 Ga.App. 1, 2, 427 S.E.2d 3 (1992) (same).
A close analog to the instant action is Nobel Farms, Inc. v. Pasero, 106 Cal.App.4th 654, 130 Cal. Rptr.2d 881 (2003), in which Pasero, a nonresident Mexican attorney, first filed an action in California against Nobel Farms, Inc. for payment of attorneys fees for making an insurance claim on Nobel Farms' behalf for a fire loss sustained in Mexico. Nobel Farms then brought an action in California against Pasero for legal malpractice. Pasero claimed that California lacked personal jurisdiction over him. Id., 656. The California court held that "Pasero availed himself of the benefits of a California court in his earlier attorney fee action against [the plaintiffs]. The instant legal malpractice action filed by plaintiffs against Pasero arises from the same general transaction — Pasero's agreement to render legal services relating to the Mexico fire. Under these facts, we hold that Pasero submitted himself to personal jurisdiction in California by previously filing another action here arising from the same general transaction. A contrary conclusion would senselessly diminish the jurisdictional weight ordinarily accorded to so direct an invocation of the state's benefits and protections." (Citation omitted; internal quotation marks omitted.) Id., 659-60.
Nobel Farms, Inc. v. Pasero also observed that "the Restatement Second of Conflict of Laws similarly recognizes the principle that `[a] state has power to exercise judicial jurisdiction over an individual who brings an action in the state with respect to a claim that arose out of the transaction which is the subject of the action . . .' [Restatement (Second), Conflict of Laws § 34, p. 41 (1988)]. Comment (a) to this section recognizes that it is the plaintiff who brings the action and determines the locale of the suit; thus, it is not unreasonable to subject the plaintiff to at least the same range of jurisdiction as a defendant who makes a general appearance in an action." Nobel Farms v. Pasero, supra, 106 Cal.App.4th 659.
Closer to home, in Allstate Ins. Co. v. Appell, 39 Conn.Sup. 85, 468 A.2d 949 (1983), the plaintiff insurer brought a subrogation action for reimbursement of monies it paid its insured for property damage to her motor vehicle sustained in a collision with the defendant's vehicle. Id., 85-86. The defendant counterclaimed for property damage to her car. Id., 86. The plaintiff moved to dismiss the counterclaim, claiming that the court lacked jurisdiction over its person. The court denied the motion, stating: "The plaintiff, by bringing this action, has invoked the jurisdiction of the court and has, therefore, subjected itself to the court's jurisdiction for the determination of all proceedings deriving from its complaint." Id. The court also stated that: "A counterclaim should be allowed where the matter raised is so connected with the matter in controversy under the original complaint that its consideration by the court is necessary to a full determination of the rights of the parties as to such matter in controversy." (Internal quotation marks omitted. Id., 88; see also Practice Book § 10-10 ("[A]ny defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction . . . which is the subject of the plaintiff's complaint . . .").
Here, the plaintiff brought the present action in Connecticut to enforce a judgment he obtained from an Illinois court. By filing this action the plaintiff has already subjected himself to the jurisdiction of the Connecticut Superior Court, and in doing so, has waived objections based on lack of personal jurisdiction.
The plaintiff argues that it had no alternative but to sue the defendant in Connecticut if it ever was to collect its judgment. The same argument was made by the defendant in Nobel Farms v. Pasero, and rejected by the court. "Even assuming the argument is correct, it merely reinforces our conclusion that Pasero substantially benefitted by his utilization of a California forum to resolve his attorney fee dispute . . . Our holding is limited to claims by plaintiffs arising from the same general transaction as the earlier attorney fee action." Nobel Farms v. Pasero, supra, 106 Cal.App.4th 660.
The court underscores that the dispositive issue is not one involving minimum contacts but, rather, whether, by availing itself of the Connecticut judiciary, the plaintiff has subjected itself to the personal jurisdiction of the Superior Court. The court holds that he has. By filing suit with this court, the plaintiff waived his objection to the court's personal jurisdiction relating to the counterclaims filed by Greene Rees in relation to the same action. The motion to dismiss the Greene Rees' counterclaims because the court lacks of personal jurisdiction is denied.
II
The plaintiff further argues that the second count of Greene Rees' counterclaim, alleging a violation of CUTPA, should be dismissed for lack of subject matter jurisdiction because it was not timely brought.
As a preliminary matter, the court observes that typically a statute of limitations defense "must be specially pleaded and cannot be raised by a [motion to dismiss]." Ross Realty Corp. v. Surkis, 163 Conn. 388, 391, 311 A.2d 74 (1972); see also Practice Book § 10-50. However, "[w]here . . . a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter . . . In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone . . . [U]nder such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised [by the court] at any time, even by the court sua sponte, and may not be waived." (Internal quotation marks omitted.) Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766-67, 628 A.2d 1303 (1993); see also Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10, 22-23, 848 A.2d 418 (2004).
General Statutes § 42-110g(f) prescribes the time within which a CUTPA claim must be brought and provides that an action under CUTPA "may not be brought more than three years after the occurrence of a violation of this chapter." Because CUTPA is a statutory cause of action that did not exist under at common law, the statute of limitations for a CUTPA claim is a limitation on liability itself, making it a substantive and jurisdictional prerequisite. See Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 8-9, 965 A.2d 556 (2009). Accordingly, the motion to dismiss based on the violation of the CUTPA statute of limitations is properly before the court.
Proceeding to the merits of the second count of the counterclaim, the counterclaim alleges the following additional relevant facts. On February 9, 2004 the defendant signed the plaintiff's letter of engagement wherein the plaintiff agreed to represent the defendant. When filing the defendant's patent application, the plaintiff engaged in several acts that make up the basis of the CUTPA claim, including: "the plaintiff insisted on filing the application with 113 different claims despite the objections of the inventor and the recommendation of the U.S. Patent and Trademark Office that an application have no more than 25 claims," "the application filed by the plaintiff consisted of errors and omissions that the plaintiff failed to correct," and "the plaintiff deliberately sought to make the application process more complicated in order to increase fees owed the plaintiff." The plaintiff filed the patent application in the fall of 2004. The defendant fired the plaintiff as its patent attorney in the spring of 2010.
General Statutes § 42-110g(f) states: "An action under this section may not be brought more than three years after the occurrence of a violation of this chapter." Based on the allegations of the second counterclaim, the occurrence of a violation of CUTPA all took place at the time of the filing of the patent application, in 2004. This places the second counterclaim, filed on November 16, 2010, outside the three-year limitations period for CUTPA claims as set forth in General Statutes § 42-110g(f). Accordingly, the court lacks subject matter jurisdiction over the second count of Greene Rees' counterclaim.
CT Page 10595