Opinion
No. LLI CV-10-6003567S
February 16, 2011
MEMORANDUM OF DECISION
The issue is whether the court should grant the defendant's motion to dismiss on the ground that the court lacks personal jurisdiction over the defendant?
FACTS
On November 19, 2010, the plaintiff, Martin Wilson, filed a complaint against the defendant, Home Depot U.S.A., Inc. (Home Depot), alleging negligence as a result of injuries sustained at a Home Depot store in Fishkill, New York while in the course of his employment with the defendant and CRST International, Inc. (CRST). On December 23, 2010, the defendant filed the present motion to dismiss along with a supporting memorandum of law and an affidavit. The defendant moves to dismiss the plaintiff's entire complaint on the ground that the court lacks personal jurisdiction over the defendant because (1) the allegations in the complaint fail to satisfy the standards of Connecticut's longarm statute, General Statutes § 33-929(f); and (2) the complaint fails to comply with General Statutes § 52-46a as it was not filed with the court at least six (6) days before the return date. On February 7, 2011, the plaintiff filed an objection to the motion to dismiss. The matter was heard at the February 7, 2011 civil short calendar.
DISCUSSION
I. LEGAL STANDARD
"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." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). Practice Book § 10-31(a) states: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."
"When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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 . . . In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . other types of undisputed evidence . . . and/or public records of which judicial notice may be taken . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint . . . Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . or other evidence, the trial court may dismiss the action without further proceedings . . . If, however, the defendant submits either no proof to rebut the plaintiffs jurisdictional allegations . . . or only evidence that fails to call those allegations into question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
II. ANALYSIS
Where the defendant is a foreign corporation, "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 longarm 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.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008). In the present case, the defendant is a Delaware corporation with a principal place of business in Atlanta, Georgia, and thus, a foreign corporation. "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." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007).
Thus, the court must first determine whether Connecticut's longarm statute, General Statutes § 33-929(f), authorizes this court to assert personal jurisdiction over the defendant as a foreign corporation. General Statutes § 33-929(f) provides: "Every foreign corporation shall be subject to suit in this state, 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."
The defendant argues that the court is unable to assert personal jurisdiction over it because none of the statutory requirements of the longarm statute are met. According to the defendant, there is no contract at issue, the plaintiff's claims do not arise out of the production, manufacture or distribution of goods, and there are no allegations of tortious conduct occurring in Connecticut, only in New York. Thus, General Statutes § 33-929(f)(1), (3) and (4) are inapplicable. The defendant also contends that General Statutes § 33-929(f)(2), which provides for jurisdiction on a cause of action arising "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," is inapplicable. According to the defendant, the plaintiff's cause of action does not arise out of any business solicited in Connecticut by the defendant and the complaint does not allege such. Rather, the complaint specifically alleges that the plaintiff was injured in the defendant's Fishkill, New York store while in the course of his employment with the defendant and CRST. Thus, the plaintiff was not in the New York store as a result of any solicitation by the defendant.
The defendant relies on the Connecticut Supreme Court's explanation in Thomason v. Chemical Bank, 234 Conn. 281, 296, 661 A.2d 595 (1995): "[A] plaintiff's `cause of action aris[es] . . . out of . . . business solicited in this state' if, at the time the defendant engaged in solicitation in Connecticut, it was reasonably foreseeable that, as a result of that solicitation, the defendant could be sued in Connecticut by a solicited person on a cause of action similar to that now being brought by the plaintiffs." The defendant also relies on Delvecchio v. Dayton Hudson Corp., Superior Court, judicial district of New Haven, Docket No. 430408 (February 23, 2000, Blue, J.) [ 26 Conn. L. Rptr. 458], for the proposition that there is no nexus, direct or indirect, between any solicitations of business by the defendant and the alleged negligence claimed by the plaintiff. The defendant contends that Delvecchio supports its argument that it was unforeseeable to the defendant that, as a result of its solicitations of Connecticut consumers, the defendant would be sued in Connecticut by a solicited person on a cause of action alleging injury in a New York store by a plaintiff who was injured while in the course of employment in the New York store.
The plaintiff objects arguing that General Statutes § 33-929(f) authorizes personal jurisdiction over the defendant based on the fact that the defendant contracted with CRST for the plaintiff to perform substantial duties within Connecticut. The plaintiff asserts that it can be inferred from the allegations in the complaint that the defendant contemplated and required the plaintiff to perform substantial duties in Connecticut. The plaintiff relies on Coen v. Bell Atlantic Systems Leasing International, Inc., 813 F.Sup. 929 (D.Conn. 1990), for the proposition that a defendant is subject to jurisdiction in Connecticut where the contract contemplated and required the plaintiff to perform substantial duties in the state. The plaintiff also cites Goldberg v. Goodwill Industries, Superior Court, judicial district of Hartford, Docket No. CV 05 4009642 (January 3, 2006, Keller, J.), noting that the court in that case found that the foreign corporation was subject to jurisdiction in Connecticut where it had formed a contract with the plaintiff requiring him to perform duties in Connecticut. Finally, the plaintiff states that "well established precedent" does not require that the defendant be the party engaged in the commission of the contractual obligation within Connecticut in order to be within the state's jurisdiction.
There is no dispute between the parties that General Statutes § 33-929(f)(3) and (4) do not authorize jurisdiction over the defendant as the plaintiff's claims do not arise out of the production, manufacture or distribution of goods, and there are no allegations of tortious conduct occurring in Connecticut, only in New York. Furthermore, the plaintiff does not contend, as anticipated by the defendant, that jurisdiction is proper based on the defendant's solicitation of business in Connecticut pursuant to General Statutes § 33-929(f)(2). Rather, the plaintiff appears to contend only that jurisdiction over the defendant is proper pursuant to General Statutes § 33-929(f)(1), which authorizes jurisdiction where the cause of action arises "[o]ut of any contract made in this state or to be performed in this state." In fact, during oral argument, the plaintiff asserted that the basis for personal jurisdiction was the contractual relationship between the parties. Specifically, the plaintiff argued that jurisdiction was proper because the defendant contracted with CRST to bring the plaintiff from Connecticut to New York for employment. According to the plaintiff, CRST has an office in Bloomfield, Connecticut and therefore, the defendant had to know that it would get an employee from Connecticut.
"The language of the current [General Statutes] § 33-929(f)(1), is the same as its predecessor . . . [General Statutes] § 33-411(c)(1) was replaced in 1994 by P.A. 94-186 § 214. It was later recodified in 1994 as [General Statutes] § 33-929(e)(i) and in 1997 recodified by P.A. 97-246 to [General Statutes] § 33-929(f)(1) . . . [General Statutes § 33-929(f)(1)] confers jurisdiction over designated causes of action without regard to whether a foreign corporation transacts business in Connecticut and without regard to a causal connection between the plaintiff's cause of action and the defendant's presence in this state. [The court] read[s] this language as requiring inquiry not only into the various elements of the plaintiff's cause of action . . . but also to the totality of contacts which the defendant may have with the forum . . . The operative phrase in [General Statutes] § 33-929(f)(1) `out of any contract made in this state or to be performed in this state' is not addressed to either the plaintiff's performance or the defendant's performance . . . The language of § 33-929(f)(1) does not expressly require contemplated performance in this state by the party over whom jurisdiction is sought: . . . There is no indication . . . that the Connecticut legislature intended that the language `to be performed in this state' should be given a limited construction to require performance in this state by the party over whom jurisdiction is sought . . . Most trial court decisions support the above conclusion . . . No Connecticut appellate court has decided whether a plaintiff's substantial performance of a contract in the forum state confers longarm jurisdiction over a foreign corporate defendant. Judges of the Superior Court have held that General Statutes § 33-929 (formerly § 33-411) does not expressly require contemplated performance in this state by parties over whom jurisdiction is sought . . . There is no indication that the Connecticut legislature intended that the language `to be performed in this state' should be given a limited construction to require performance in this state by the party over whom jurisdiction is sought . . . [P]erformance may be measured solely by the plaintiff's performance." (Citations omitted; internal quotation marks omitted.) SDA Laboratories, Inc. v. Hogil Pharmaceutical Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 08 5008828 (January 8, 2010, Tierney, J.T.R.).
"Whenever a plaintiff has sought to rely on its own performance of the contract in Connecticut to satisfy the longarm statute, [General Statutes] § 33-929(f)(1), jurisdiction may be found only if (1) the contract expressly contemplated or required performance in Connecticut; or (2) the plaintiff had actually performed its obligations in Connecticut and such performance was the most substantial part of the obligations to be performed under the contract. This rule finds support in Connecticut federal court decisions. A contract that is `to be performed in this state,' for the purposes of the longarm statute need not explicitly require performance in Connecticut neither must the performance be that of the party over whom jurisdiction is sought . . . If, however, jurisdiction is based solely on the plaintiff's performance there must be a showing either that (1) the contract expressly contemplated performance in Connecticut or (2) the plaintiff performed a substantial part of its obligations in Connecticut." (Citation omitted; internal quotation marks omitted.) SDA Laboratories, Inc. v. Hogil Pharmaceutical Corp., supra, Superior Court, Docket No. CV 08 5008828.
"[T]he plaintiff bears the burden of establishing an adequate factual basis for personal jurisdiction over the defendants." Hart, Nininger and Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 624, 548 A.2d 758, 762 (1988). In the present case, the plaintiff has not alleged that he entered into any contract with the defendant in Connecticut, that an alleged contract contemplated performance in Connecticut, or that he performed any contractual obligations, let alone substantial obligations, in Connecticut. Rather, the complaint alleges only that the plaintiff was injured at the defendant's premises in New York while in the course of his employment with the defendant and with CRST. Moreover, the plaintiff has not alleged that CRST formed a contract with the defendant in Connecticut to which the plaintiff was a party or that any alleged contract made by CRST on his behalf contemplated performance in Connecticut. The defendant submitted the affidavit of Benjamin C. Jensen, the defendant's counsel, attesting that CRST is a corporation organized under the law of the State of Iowa with a principal place of business in that state. Attached to the affidavit and thus, duly authenticated, is a printout from the Iowa Secretary of State's website indicating the above information. At oral argument, the plaintiff represented that CRST has an office in Bloomfield, Connecticut. However, the plaintiff did not allege this in the complaint or provide affidavits or other evidence in support of his argument.
Furthermore, the present case is factually distinguishable from Goldberg v. Goodwill Industries, supra, Superior Court, Docket No. CV 05 4009642, on which the plaintiff relies. In that case, personal jurisdiction was found "based upon an employment agreement which [the plaintiff] claims was executed in Connecticut and required the regular performance of duties within Connecticut." Id. Specifically, "the employment agreement is alleged to have been partially executed in Connecticut. Plaintiff asserts that he was provided an original of the employment agreement already signed by the defendant . . . that he reviewed it with his Connecticut counsel, signed it in Connecticut and returned it to the defendant . . . Second, plaintiff claims the employment agreement was meant to encompass and has required the plaintiff to perform significant duties within Connecticut. The plaintiff, throughout his tenure . . . was present in Connecticut to supervise and manage [the defendant's] operations, and to negotiate and fulfill service contracts with agencies and business located throughout Connecticut." Id. Based on those allegations, the court found that "[t]he plaintiffs allegations . . . state clearly that [the defendant] contemplated and required the plaintiff to perform substantial duties in Connecticut." Id. In the present case, the plaintiff has not alleged any facts similar to those in Goldberg.
The plaintiff has not met his burden of establishing personal jurisdiction over the defendant under General Statutes § 33-929(f). Therefore the motion to dismiss is granted. As such, it is unnecessary for the court to reach the defendant's argument concerning the plaintiff's lack of compliance with General Statutes § 52-46a.