Opinion
No. CV-10-5014085
May 12, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS (No. 111)
FACTS
On February 9, 2011, this case was remanded back to the Superior Court by the United States District Court for Connecticut after the District Court concluded that it lacked subject matter jurisdiction over the matter. Upon remand, the plaintiffs, Dennis and Audra Hyek, filed a five-count amended complaint against the defendants, Field Support Services, Inc. (FSS), Attorney Loretta Susan Slavin (Slavin), Matthew Raynes and Littler Mendelson, P.C., on February 14, 2011. The complaint alleges defamation, negligent misrepresentation, negligence, reckless infliction of emotional distress and violation of the Connecticut Unfair Trade Practices Act. On February 22, 2011, the defendants FSS and Slavin filed a motion to dismiss the complaint as against them on the ground that this court lacks personal jurisdiction over them and, alternatively, for insufficiency of service of process. The motion is accompanied by a memorandum of law. The plaintiffs filed an objection to the motion to dismiss and memorandum of law in support of their objection on February 24, 2011. On March 2, 2011, the plaintiff Audra Hyek moved for permission to withdraw from the case, which was granted by this court on March 21, 2011. Dennis Hyek filed another amended complaint, as the sole plaintiff, on March 2, 2011, while the defendants' motion to dismiss was still pending. Oral argument was heard regarding the motion to dismiss on March 28, 2011.
The latest amended complaint asserts the same grounds for invoking the jurisdiction of this court and thus will not alter this court's analysis.
DISCUSSION
"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 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." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). "In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . 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 . . . 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 651-52.
"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). In this context, "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.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).
In the present case, for reasons set forth herein, the court concludes that the Connecticut long-arm statutes do not authorize the assertion of jurisdiction over either FSS, a foreign corporation, or Slavin, a nonresident individual. Because the statutory requirements have not been met, the court need not address the second inquiry of whether asserting jurisdiction over these defendants would violate their constitutional rights to due process.
Connecticut's long-arm statutes for nonresident individuals and foreign corporations are codified at General Statutes §§ 52-59b and 33-929, respectively. Section 52-59b(a) authorizes a court to exercise personal jurisdiction over a nonresident individual who: "(1) Transacts any business within the state; (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; (3) commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if such person or agent (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; (4) owns, uses or possesses any real property situated within the state; or (5) uses a computer . . . or a computer network . . . located within the state."
Connecticut's long-arm statute was modeled after the New York statute. Sobol Family Partnership v. Cushman Wakefield, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 4003559 (November 1, 2005, Beach, J.) ( 40 Conn. L. Rptr. 214).
New York's Appellate Division, First Department, has reflected on the reasons for the defamation exception. "[T]he Advisory Committee intended to avoid unnecessary inhibitions on freedom of speech or the press. These important civil liberties are entitled to special protections lest procedural burdens shackle them. It did not wish New York to force newspapers published in other states to defend themselves in states where they had no substantial interests, as the New York Times was forced to do in Alabama." Legros v. Irving, 38 A.D.2d 53, 55, 327 N.Y.S.2d 371, 373 (1st Dept. 1971) (referring to New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), which reversed a large Alabama libel judgment against the New York Times based on a pro civil-rights advertisement that it published where jurisdiction was based on limited daily circulation of the New York Times within Alabama).
With respect to foreign corporations, § 33-929(f) authorizes a court to exercise jurisdiction over such corporation "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."
In the present case, the plaintiff asserts four possible bases for jurisdiction over the defendants. The first is that some of the defendants' allegedly slanderous statements were based on an incident that took place in Old Saybrook, Connecticut. It is not alleged, however, nor can it be implied from the complaint, that the defendants committed the tortious act of defamation in Old Saybrook; rather, the events giving rise to the alleged defamation occurred there. Even admitting the allegations of the complaint as true, in ruling upon a motion to dismiss, the court cannot conclude that either defendant committed a tortious act within this state.
The second and fourth bases put forth by the plaintiff for establishing jurisdiction over the defendants concern the defendants publishing defamatory statements about the plaintiff over the internet. As discussed above, the burden is on the plaintiff to prove the court's jurisdiction; he has not submitted any evidence beyond the vague allegations of "Internet Web Site Activities" that would support the finding of personal jurisdiction under any prong of the long-arm statute. Moreover, in a matter of first impression that has been followed subsequently by other Superior Courts, the court in Rios v. Fergusan, 51 Conn.Sup. 212, 978 A.2d 592 (2008) [ 46 Conn. L. Rptr. 731], first noted that "[c]ourts in other jurisdictions . . . when confronted with jurisdictional questions in the context of posting messages upon . . . a list serve or newsgroup, have concluded that the mere posting of messages upon such an open forum by a resident of one state that could be read in a second state was not sufficient to confer jurisdiction upon the latter." (Internal quotation marks omitted.) Id., 220. The court further concluded that "merely placing information on the Internet is not sufficient by itself to [subject] that person to personal jurisdiction in each State in which the information is accessed . . ."
"Otherwise, a person placing information on the Internet would be subject to personal jurisdiction in every State, and the traditional due process principles governing a State's jurisdiction over persons outside of its borders would be subverted . . . Something more than posting and accessibility is needed to indicate that the [defendants] purposefully (albeit electronically) directed [their] activity in a substantial way to the forum state . . . The [defendants] must, through the Internet postings, manifest an intent to target and focus on [Connecticut] readers." (Citation omitted; internal quotation marks omitted.) Id., 221, quoting Young v. New Haven Advocate, 315 F.3d 256, 263 (4th Cir. 2002).
There is no evidence, nor any allegations for that matter, in the present case that would indicate that the defendants posted anything on the internet that was intended to target or focus on Connecticut readers.
The final assertion made by the plaintiff as a basis for jurisdiction over the defendants is under "interstate commerce" in that the defendant FSS "is in the business of transporting employees from Connecticut to work in New York." As indicated in § 33-929, however, jurisdiction exists only if the cause of action arises out of the defendant's business transaction and contacts within the state. Nothing in the complaint or evidence submitted before the court suggests that FSS's transporting of employees from Connecticut to New York is the basis for this law suit. Rather, the case, as extensively briefed by the plaintiff in his memorandum, arises from incidents concerning his wife's employment with FSS and prior discrimination action against FSS, both of which took place exclusively in New York. In addition, FSS has submitted evidence that contradicts the plaintiff's claim, asserting that it has no contacts and has not conducted any transactions in the state of Connecticut. An affidavit by Jerry LeBeau, the vice president of World Technical Services, Inc., the successor company of FSS and former operations manager of FSS, establishes that during the relevant time period, FSS has been an Alaska corporation with its principal place of business in Anchorage, Alaska. Further, FSS did not have any offices in Connecticut. Thus, this basis for jurisdiction fails as well.
Finally, the defendants have submitted two more affidavits that establish that this cause of action does not fall within any other subsection of the state's long-arm statutes. The defendant Slavin submitted her own affidavit, stating that she is a resident of New York who works in New York for Littler Mendelson, a national law firm that happens to have an office in Connecticut. She swears she has never visited that office or worked from that office. She never visited or performed work in Connecticut as part of her representation of FSS and never initiated telephonic or electronic communications from Connecticut and never used a computer or computer system located in Connecticut. She further states that she has not done any business in Connecticut or derived any revenue from goods or services provided in Connecticut and that she has never owned, used or possessed real property in this state or paid Connecticut income taxes. Her assertions are supported by the affidavit of Patricia Reilly, a shareholder of Littler Mendelson who works in the New Haven office. Reilly states in her affidavit that she has worked in the New Haven office since its inception and that Attorney Slavin has never worked in any Littler Mendelson office in Connecticut. Therefore, it is clear from the uncontested facts in these affidavits in support of the defendants' motion to dismiss that the defendant Slavin does not fit within any of the five prongs of § 52-59b(a) and that the defendant FSS does not fit within the four subsections of § 33-929(f).
Because the statutory requirements of §§ 52-59b and 33-929 have not been established, no further inquiry is required; this court lacks personal jurisdiction over both defendants FSS and Slavin. The court need not address the defendants' alternative ground in their motion to dismiss, namely for insufficiency of service of process.
CONCLUSION
Based on the foregoing, the court hereby grants the defendants' motion to dismiss as to the defendants Field Support Services, Inc. and Attorney Loretta Susan Slavin.
CT Page 11533