Yates v. United Car Rentals, Inc.

Full title: CHRISTOPHER YATES ET AL. v. UNITED CAR RENTALS, INC. ET AL

Court: Connecticut Superior Court Judicial District of Fairfield at Bridgeport

Date published: May 8, 2008

2008 Ct. Sup. 7669 (Conn. Super. Ct. 2008)

45 CLR 518

Opinion

No. CV 07 5010375 S

May 8, 2008

MEMORANDUM OF DECISION RE MOTION TO DISMISS

RICHARD E. ARNOLD, JUDGE.

The defendants have filed a motion to dismiss alleging the court lacks personal jurisdiction over the defendants. The matter arises from a bicycle accident in California where the plaintiff, Charles Yates, allegedly struck a chatterbar on the side of a roadway, causing him to be thrown to the ground, thereby sustaining personal injuries.¹ The chatterbar was allegedly sold by the defendants, which the defendants claim are foreign corporations.² The defendants argue that pursuant to General Statutes § 33-929(f), this matter does not arise out of (1) a contract made in this state or performed in this state; (2) any business solicited by the defendants in this state by mail or otherwise; (3) the production, manufacturing or distribution of goods by the defendants with the expectation that the goods would be used in this state; or (4) tortious conduct in this state. Moreover, the defendants argue that the plaintiffs cannot bring an action in Connecticut because the plaintiffs are not residents of this state, and nor is there any evidence that the plaintiffs transact business in this state. Finally, the defendants argue that it would violate the reasonableness principles of due process to subject the defendants to this lawsuit in Connecticut.

1 A "chatterbar" is described by the plaintiffs as a "raised speed bump made of plastic that is designed to be permanently attached to the roadway."

2 The plaintiffs allege the defendants violated the Connecticut Products Liability Act. Plaintiff, Leslie Yates also brings claims for bystander emotional distress and loss of consortium.

The plaintiffs, in opposition, argue there is no dispute the defendants maintain their corporate headquarters in Connecticut, and both defendants have registered with the Connecticut Secretary of State to conduct business in the state. The defendants, as well, have authorized an agent in Connecticut for the purposes of their consenting to service of process. Therefore, the plaintiffs argue that the defendants, by these actions, have already consented to jurisdiction in Connecticut by seeking authorization to do business in Connecticut pursuant to General Statutes § 33-920³ and authorizing an agent for service of process pursuant to General Statutes § 33-929.

3 Sec. 33-920 states in relevant part as follows:

(a) 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 . . .

(b) The following activities, among others, do not constitute transacting business within the meaning of subsection (a) of this section: (1) Maintaining, defending or settling any proceeding; (2) holding meetings of the board of directors or shareholders or carrying on other activities concerning internal corporate affairs; (3) maintaining bank accounts; (4) maintaining offices or agencies for the transfer, exchange and registration of the corporation's own securities or maintaining trustees or depositories with respect to those securities; (5) selling through independent contractors; (6) soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts; (7) creating or acquiring indebtedness, mortgages and security interests in real or personal property: (8) securing or collecting debts or enforcing mortgages and security interests in property securing the debts; (9) owning, without more, real or personal property; (10) conducting an isolated transaction that is completed within thirty days and that is not one in the course of repeated transactions of a like nature; (11) transacting business in interstate commerce.

(c)The list of activities in subsection (b) of this section is not exhaustive.

I Standard of Review CT Page 7670

The standard of review for a court's decision on a motion to dismiss is well-settled. A motion to dismiss tests 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. Cox v. Aiken, 278 Conn. 204, 211, 897 A.2d 71 (2006). "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.) Id. "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . ." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001). "[I]n the establishment of facts pertaining to personal jurisdiction, it is the plaintiff who bears the burden of proof." Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983).

In analyzing personal jurisdiction, the court is also mindful of certain well-settled principles. When a defendant challenges personal jurisdiction 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.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996); see also Thomason v. Chemical Bank, 234 Conn. 281, 286, 661 A.2d 595 (1995); Frazer v. McGowan, 198 Conn. 243, 246, 502 A.2d 905 (1986).

Based on the facts in the record,⁴ this court must determine: first, whether General Statutes § 33-929 properly applies to the defendants; and second, if the statutory threshold is met, whether the defendants have the requisite minimum contacts with this state sufficient to satisfy constitutional due process concerns. Cogswell v. American Transit Ins. Co., supra, 282 Conn. 514-15. The court addresses first, the statutory questions and second, if necessary, the constitutional questions because "[i]t is axiomatic that courts do not engage in constitutional analysis if a non-constitutional basis upon which to resolve an issue exists." Id. at 516-17; Shelton v. Statewide Grievance Committee, 277 Conn. 99, 107, 890 A.2d 104 (2006).

4 The hearing held by the court consisted of legal argument only.

Therefore, the court must begin by examining the defendants' statutory claim to determine whether the jurisdictional issue can be resolved without addressing the constitutional issue. Cogswell v. American Transit Ins. Co. supra, 282 Conn. 516-17; see also, State v. McCahill, 261 Conn. 492, 501, 811 A.2d 667 (2002).

II Discussion

The plaintiffs argue that a foreign corporation consents to the jurisdiction of the Connecticut courts by seeking authorization to do business in the state pursuant to General Statutes § 33-920 and § 33-929. There is no dispute that the defendants have each registered with the Connecticut Secretary of State to conduct business in Connecticut (§ 33-920) and each has authorized an agent in Connecticut for the purposes of their consenting to service (§ 33-929). In support of their objection to the motion to dismiss, the plaintiffs primarily rely on the decision in Wallenta v. Avis Rent A Car System, Inc., 10 Conn.App. 201, 207-08, 522 A.2d 820 (1987) (plaintiff's allegation that the defendant was licensed to do business in this state was sufficient to show that this state had authorized the assertion of jurisdiction over the defendant and that the defendant had consented to that assertion of jurisdiction).

The defendants argue that they are foreign corporations and this act does not arise out of any elements set forth in General Statutes § 33-929(f) which reads as follows.

(f) 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 defendants argue that none of the foregoing elements set forth in § 33-929(f) have been met. The bicycle accident was in California and was allegedly caused by goods sold by the defendants to the City of Sunnydale, California. It does not arise out of a contract made in this state or performed in this state, any business solicited in this state by mail or otherwise or the production, manufacturing or distribution of goods by the defendants with the reasonable expectation that the goods would be used in this state. Additionally, the present matter does not arise out of any tortious conduct by the defendants in this state. The fact that the corporate headquarters are located in Connecticut is not enough to affect personal jurisdiction. The defendants also argue that the court lacks personal jurisdiction because the plaintiffs are not residents of Connecticut and do not have a usual place of business in this state.

Section 33-929(f) does not apply when the foreign corporation is authorized to conduct business in this state and has appointed an agent to accept service of process for it in Connecticut. Wallenta v. Avis Rent A Car System, Inc., 10 Conn.App. 201, 206-08, 522 A.2d 820 (1987). "Unlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver." United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985). "When a foreign corporation authorizes an agent or public official to accept service of process in actions brought against it, the corporation consents to the exercise by the state of judicial jurisdiction over it as to all causes of action to which the authority of the agent or official extends. This consent is effective even though no other basis exists for the exercise of jurisdiction over the corporation." 1 Restatement (Second), Conflict of Laws § 44, comment (a). Wallenta v. Avis Rent A Car System, Inc., supra, 207-08. "Therefore, when a foreign corporation is authorized to conduct business here and has appointed a registered agent, nothing in § 33-929(f) limits the court's exercise of personal jurisdiction over the corporation." Id. Instead, "[t]he allegation that the defendant [is] licensed to do business in this state [is] sufficient to show that this state [has] authorized the assertion of jurisdiction over the defendant, and that the defendant [has] consented to that assertion of jurisdiction. Id., 208." Fudge v. Alliant Food Service, Superior Court, judicial district of Hartford at Hartford No. CV 01 0812056 S (Jul. 12, 2002, Peck, J.) 32 Conn. L. Rptr. 539, quoting Wallenta v. Avis Rent A Car System, Inc., supra, 208.

The defendants argue that Wallenta v. Avis Rent A Car System, Inc., supra, 10 Conn.App. 201, is not applicable as that decision analyzed personal jurisdiction under General Statutes § 33-411, which was repealed effective January 1, 1997. The defendants also cite several cases which they contend stand for the proposition that merely registering with the secretary of the state and naming an agent for service of process does not constitute consent to jurisdiction. See Mednet, MPC Corp. v. Spectera, Inc., United States District Court, Docket No. 3:95cv2723 (AHN) (D.Conn. Mar. 11, 1997) (court provided no analysis or case law regarding defendant's appointment of agent for service of process as conferring personal jurisdiction over defendant); Delvecchio v. Dayton Hudson Corp., Superior Court, judicial district of New Haven at New Haven, Docket No. 430408 (Feb. 22, 2000, Blue, J.) [26 Conn. L. Rptr. 458] (fact that defendant was authorized to do business in state was considered to be irrelevant to court's decision).

In the present case, it is undisputed that the defendant is authorized to conduct business in this state and has an appointed agent for service of process in this state. The decision in Wallenta v. Avis Rent A Car System, Inc., supra, 10 Conn.App. 201, is therefore controlling. This court also relies, on the opinion in Fudge v. Alliant Food Service, supra, Superior Court, judicial district of Hartford at Hartford No. CV 01 0812056 5 (Jul. 12, 2002, Peck, J.) 32 Conn. L. Rptr. 539 and with the opinions of other Connecticut Superior Court judges specifically citing Wallenta v. Avis Rent A Car System, Inc., supra, 10 Conn.App. 201, and whose interpretations are consistent with this court's interpretation. See, e.g., Advanced Technology Enterprises Corp. v. Surecomp Services, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 175787 (November 8, 2000, Karazin, J.) (28 Conn. L. Rptr. 549) (holding that because the defendant registered to do business in the state, it consented to jurisdiction in state); Wender v. Trading Cove Associates, Superior Court, judicial district of New London at New London, Docket No. 549346 (May 21, 1999, Martin, J.) (stating that when a defendant has a certificate of authority it has consented to jurisdiction); Granger v. Marriott Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 398893 (October 28, 1993, Sullivan, J.) (denying motion to dismiss because foreign defendant was authorized to do business in state and had appointed agent for service in state); Xerox Corp. v. Axel Johnson Energy Development, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 125804 (April 2, 1993, Lewis, J.) (8 Conn. L. Rptr. 551) (finding personal jurisdiction over corporation because it had certificate of authority); Daddio v. Holiday Inns, Superior Court, judicial district of New Haven, Docket No. 336126 (March 8, 1993, Hadden, J.) [8 Conn. L. Rptr. 749] (finding that court had jurisdiction because defendant had certificate of authority to conduct business in state and had appointed agent for service in state).

The court notes that the decisions in Fudge v. Alliant Food Service, supra, Superior Court, judicial district of Hartford at Hartford No. CV 01 0812056 S (Jul. 12, 2002, Peck, J.) and Wender v. Trading Cove Associates, supra, Superior Court, judicial district of New London at New London, Docket No. 549346 (May 21, 1999, Martin, J.) analyzed the impact of Wallenta v. Avis Rent A Car System, Inc., 10 Conn.App. 201, 206-08, in the context of General Statutes § 33-929(f) and § 33-290. These decisions were rendered subsequent to the repeal of General Statutes § 33-411. As the defendants have consented to the jurisdiction, the exercise of jurisdiction by the court does not violate due process. Therefore, the court does not need to undertake an analysis of the constitutional due process claims. See Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516-17; Shelton v. Statewide Grievance Committee, supra, 277 Conn. 107; State v. McCahill, supra, 261 Conn. 501.

Accordingly, for the reasons stated herein, the motion to dismiss is hereby denied.