Opinion
No. CV 05-5000921
November 7, 2006.
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#104)
At issue is whether the court should grant the defendant's motion to dismiss for lack of personal jurisdiction.
The plaintiff, Gregory Goddard, filed a single-count complaint on September 1, 2005. The following facts are alleged in the complaint. The plaintiff received multiple mailings from the defendant, Aztar Corporation, at his Connecticut residence enticing him to visit the defendant's Tropicana Casino and Resort in Atlantic City, New Jersey. The plaintiff had received the mailings on multiple occasions before August 19, 2003. On or about August 19, 2003, the plaintiff was staying in a room at the defendant's resort and slipped while exiting the bathtub of his hotel room, and struck his head on the toilet. The plaintiff alleges that the defendant was negligent in allowing the bathtub surface to become slippery upon use and for failing to take reasonably necessary precautions to prevent slipping while exiting the bathtub. Further, the plaintiff alleges that exercise of due care by the defendant would have revealed the unsafe conditions of their hotel's bathtub.
An appearance has also been filed on behalf of Pamela Popielarski as a defendant. Although Popielarski's name appears on the summons, the parties have disagreed as to whether she was named as a defendant or merely as the agent for service for the defendant Aztar Corporation. After discussion of the issue at short calendar on July 24, 2006, the plaintiff filed a withdrawal of his action as to Popielarski. Accordingly, even if Popielarski was originally a defendant, she is no longer a party to this action. All further references to "the defendant" will refer only to Aztar Corporation.
On October 12, 2005, the defendant entered its appearance. On November 10, 2005, the defendant filed a motion to dismiss the plaintiff's cause of action for lack of personal jurisdiction pursuant to Practice Book § 10-30. The defendant states, as grounds for its motion, that the court has no longarm jurisdiction over it and that the exercise of jurisdiction over it would offend constitutional principles of due process. A memorandum of law was attached to the motion to dismiss. On January 17, 2006, the plaintiff filed a memorandum of law in opposition to the motion to dismiss, which included the plaintiff's affidavit concerning the advertisements received from the defendant. The plaintiff filed a second affidavit subsequent to argument at short calendar.
"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.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "Practice Book § 10-31(a) provides in relevant part: [The] motion [to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record." (Internal quotation marks omitted.) Perreira v. Pringle, 255 Conn. 330, 346 n. 10, 766 A.2d 400 (2001).
"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." (Internal quotation marks omitted.) Cox v. Aiken, supra, 278 Conn. 211.
"If a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction." Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607, 674 A.2d 426 (1996).
In its memorandum of law, the defendant argues that this court lacks jurisdiction over it, both under a longarm statute analysis and a constitutional due process analysis. As to the longarm statute analysis, the defendant claims that no advertisements soliciting the plaintiff's business were mailed to the plaintiff prior to the date of his alleged injuries. Additionally, the defendant argues that the plaintiff is the one who bears the burden of proving jurisdiction and the plaintiff has failed to carry his burden by only making vague assertions as to the solicitation that allegedly occurred. As to the constitutional due process analysis, the defendant argues that the plaintiff can point to no actions of the defendant that would lead the defendant to reasonably anticipate being haled into court in Connecticut.
The plaintiff counters by arguing that the longarm statute applies to establish jurisdiction over the defendant because the defendant's advertisements were directed towards the plaintiff for several years prior to the plaintiff's alleged injury. Copies of like advertisements and the plaintiff's affidavit are attached to the plaintiff's objection to the motion to dismiss. The plaintiff argues that the solicitation of his business at his home in Connecticut is enough to give this court longarm jurisdiction over the defendant. Further, on the issue of constitutional due process, the plaintiff argues that the solicitation of business from Connecticut residents is enough to make it reasonably foreseeable to the defendant that it could be haled into a Connecticut court.
A second affidavit has been filed subsequent to the plaintiff's objection to the motion to dismiss, expounding on the plaintiff's assertion that the defendant's solicitations were received at his Connecticut residence over a period of years prior to his alleged injury.
"When a defendant files a motion to dismiss challenging the court's jurisdiction, a two part inquiry is required. 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 secondary obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Internal quotations marks omitted.) Olson v. Accessory Controls Equipment Corp., 54 Conn.App. 506, 514, 735 A.2d 881 (1999), aff'd, 254 Conn. 145, 757 A.2d 14 (2000).
Per the plaintiff's complaint, the defendant is alleged to be a corporation organized and existing under the laws of Delaware and allegedly operates the Tropicana Casino and Resort in New Jersey. Since the defendant is alleged to be a foreign corporation, the longarm statute applicable to the present case is found at Connecticut General Statutes § 33-929(f). It reads, in relevant part: "Every foreign corporation shall be subject to suit in this state . . . on any cause of action arising as follows: . . . (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 . . ." (Emphasis added.) "A foreign corporation may be haled into court in Connecticut only if a plaintiff alleges jurisdictional facts that, if proven, would satisfy one of the provisions of our longarm statute, General Statutes § 33-929(f)." Pitruzello v. Muro, 70 Conn.App. 309, 311, 798 A.2d 469 (2002).
This statute was formerly Connecticut General Statutes § 33-411(b).
In Thomason v. Chemical Bank, 234 Conn. 281, 290-91, 661 A.2d 595 (1995), the Supreme Court was compelled to interpret General Statutes § 33-411 [now § 33-929] to determine the longarm statute's relation to the federal constitutional due process test. The court found that Connecticut's longarm statute "permits the exercise of jurisdiction over only those cases that 'arise out of' a defendant's forum contacts." Id., 290. The court goes on to state that "the statute does not entirely preclude the exercise of 'general' jurisdiction and that the phrase 'arising out of' in the statute . . . does not require a causal connection between the defendant's forum-directed activities and the plaintiffs' lawsuit." Id.
In conclusion, the court found that "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 [plaintiff] . . . [A] plaintiff need not show that, because of the acts of solicitation, the defendant was on notice that it might be sued by the plaintiff himself or herself. A plaintiff similarly need not show that the defendant solicited his or her business in Connecticut. A plaintiff need only demonstrate that the defendant could reasonably have anticipated being haled into court here by some person who had been solicited in Connecticut and that the plaintiff's cause of action is not materially different from an action that might have resulted from that solicitation." (Emphasis in original; internal quotation marks omitted.) Id., 296.
In his complaint, the plaintiff alleges that he had received direct mail advertising from the defendant for a period prior to the date of his alleged injury in the defendant's resort. In addition, the plaintiff included affidavits with his objection to the motion to dismiss attesting to the fact that he received mailings from the defendant on a monthly basis from 1999 to 2005, or approximately seventy-two mailings. The defendant has not responded to the plaintiff's affidavit with any counteraffidavits to disprove the allegation that the defendant had personally solicited the plaintiff's business at his Connecticut residence.
While the statutory interpretation of the Thomason court would not require that the plaintiff demonstrate that his business was personally solicited in Connecticut, the plaintiff in the present case has done so. The plaintiff is only required to demonstrate that his cause of action is not materially different from a cause of action that might be brought by a hypothetical plaintiff that had been solicited by the defendant. The plaintiff has demonstrated in his affidavits that his cause of action was related to the solicitation of his business by the defendant. The plaintiff attests to the fact that he received solicitations from the defendant, he was induced to travel to the defendant's resort as a result of these solicitations, and he was injured at the defendant's resort on that trip. The requirements of the longarm statute hate been met according to the statutory interpretation of the Thomason court. See, e.g., Lombardi v. Bally's Park Place, Inc., Superior Court, judicial district of New Haven, Docket No. CV 05 5000401 (November 28, 2005, Corradino, J.) ( 40 Conn. L. Rptr. 360) (holding that for the purposes of the foreseeability analysis under the longarm statute, plaintiff's evidence of targeted direct mailing to the particular plaintiff in the present lawsuit is sufficient to satisfy jurisdictional requirements); see also Abrams v. Riding High Dude Ranch, Superior Court, judicial district of Fairfield, Docket No. CV 97 0345046 (November 21, 1997, Skolnick, J.) (holding that the defendant's repeated solicitation of Connecticut residents via newspaper advertising and direct mail brochures were enough so that the defendant could have reasonably anticipated being haled into court in Connecticut); but see MacMullen v. Villa Roma Country Club, Superior Court, judicial district of New Haven, Docket No. CV 97 0405070 (December 3, 1998, Fracasse, J.) ( 23 Conn. L. Rptr. 187) (holding that the defendant's solicitation of Connecticut residents was too sporadic to reach the level required by the longarm statute).
"Having determined that jurisdiction may be exercised pursuant to General Statutes § 33-929(f) . . . the court must next determine whether the assertion of personal jurisdiction over the defendant . . . would comport with constitutional requirements of procedural due process . . . It must be determined whether the nonresident defendant corporation 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." (Citation omitted; internal quotation marks omitted.) Deep Creek Fabrics, Inc. v. Colyer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4002792 (July 19, 2005, Lewis, J.T.R.) ( 39 Conn. L. Rptr. 692, 694). "The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate 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.) Thomason v. Chemical Bank, supra, 234 Conn. 287, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). "Once a plaintiff has demonstrated the requisite minimum contacts between the defendant and the forum state, a court is required to continue to the 'reasonableness' stage of the inquiry . . . to assess whether the exercise of jurisdiction comports with 'traditional notions of fair play and substantial justice.' " Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 573 (2d Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 508, 136 L.Ed.2d 398 (1996).
Assuming the same alleged jurisdictional facts on the part of the plaintiff, it would not be a violation of constitutional due process for this court to exercise jurisdiction over the defendant. The defendant has directed solicitations into the state seeking the patronage of the plaintiff at its New Jersey resort on repeated occasions over a lengthy period of time. These contacts with Connecticut are "minimum contacts" under the federal due process standard. As to the reasonableness of this assertion of jurisdiction over the defendant, without any evidence presented by the defendant, the court is left to believe that these contacts were done purposely on the part of the defendant. The plaintiff was allegedly injured after responding to the defendant's repeated solicitations of his business. The plaintiff was engaged in the use of the defendant's facilities in exactly the manner that the defendant anticipated based upon its in-state solicitations. It would not violate any notions of fair play and substantial justice if this court exercised jurisdiction over the defendant corporation in this particular instance. The defendant could reasonably anticipate being haled into court based on the plaintiff accessing its services as relates to the defendant's solicitations. See Abrams v. Riding High Dude Ranch, supra, Superior Court, Docket No. CV 97 0345046 (the court found that the causal relationship between the defendant's solicitation and the plaintiff's lawsuit was sufficient such that traditional notions of fair play and substantial justice were not offended); but see F F Screw Products, Inc. v. Clark Screw Machine Products Co., Superior Court, judicial district of Hartford, Docket No. CV 00 0500360 (December 10, 2002, Berger, J.) ( 33 Conn. L. Rptr. 534) (after holding that the longarm statute gave the court jurisdiction over the defendant, the court found that subjecting the defendant to the court's jurisdiction did violate federal due process standards because the defendant's contacts with Connecticut were too sporadic).
The defendant's motion to dismiss is denied because the exercise of jurisdiction over the defendant would not violate the applicable Connecticut longarm statute nor principles of constitutional due process.