Opinion
No. CV-04-4001206
May 10, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiffs, Leesure, LLC and Leesure Bay Resort and Convention Center, Inc. (Leesure), initiated this action against Kennedy Funding, Inc. (Kennedy) in connection with disputes arising out of a November 20, 2003 contract to finance a resort development. By complaint dated October 26, 2004, Leesure sought damages for fraudulent inducement, negligent misrepresentation, conversion, breach of contract and Connecticut Unfair Trade Practices Act (CUTPA) violations. Kennedy has now filed a motion to dismiss the complaint on the ground of improper venue, asserting that the forum selection clause in the parties' agreement mandates that venue for disputes must be in the State of New Jersey.
Paragraph 14 of Schedule "B" to the agreement between the parties provides as follows:
"Borrower consents to the jurisdiction of any state or federal court sitting in the State of New Jersey for adjudication of any dispute between the Borrower, their agents, servants and/or employees and [Kennedy] under any theory of law in connection with, out of, or otherwise relating to this Commitment and any related transactions and that venue shall be proper in any such court to the exclusion of the courts in any other state or country. The Borrower further agrees that such designated forum is proper and convenient." (Emphasis added.) The loan commitment sets forth the terms of the agreement between Leesure and Kennedy. Kennedy asserts that the present case has been brought in Connecticut in violation of the choice of forum clause and should be dismissed.
"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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Rayhall v. Akim Co., 263 Conn. 328, 339, 819 A.2d 803 (2003). "The plaintiff [however] bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996). "Venue is not a jurisdictional question but a procedural one . . . Statutory venue requirements simply [confer] a privilege not to be required to attend court at a particular location . . . Accordingly it may be waived by the parties, unlike subject matter jurisdiction, which cannot be conferred by consent." (Citations omitted; internal quotation marks omitted.) Savage v. Aronson, 214 Conn. 256, 263, 571 A.2d 696 (1990).
"The general rule is that a clause conferring jurisdiction in one forum will only be interpreted as excluding jurisdiction elsewhere when it contains specific language to that effect." Post Road Furniture Group, Inc. v. Landmark Merchant Solutions, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 0085820 (November 18, 2004, Moran, J.). "Several Connecticut courts have required that a forum selection clause specify that the chosen forum is the sole forum for litigation between the parties." Id.; see Dan Perkins Chevrolet v. Auto Tell Services, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 36508 (March 17, 1992, Flynn, J.) ( 6 Conn. L. Rptr. 690); Copelco Leasing Corp. v. Fox, Superior Court, judicial district of New Haven, Docket No. 324266 (February 7, 1992, DeMayo, J.) ( 5 Conn. L. Rptr. 8).
"Connecticut case law is clear that the courts will uphold an agreement of the parties to submit to the jurisdiction of a particular tribunal." Phoenix Leasing, Inc. v. Kosinski, 47 Conn.App. 650, 653, 707 A.2d 314 (1998). In Phoenix Leasing, the court recognized that "in commercial transactions, parties often consent to resolve disputes in a particular jurisdiction by incorporating forum selection clauses into their contracts." Id. Furthermore, "[w]hen the court selected is reasonably appropriate, and where there is no indication that the parties had such greatly disproportionate bargaining power that the agreement could be regarded as unconscionable, the tendency is to give effect to such agreements." (Internal quotation marks omitted.) Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 498, 495 A.2d 286 (1985). Our Supreme Court has held that "[a]bsent a showing of fraud or overreaching, such forum clauses will be enforced by the courts." United States Trust Co. v. Bohart, 197 Conn. 34, 42, 495 A.2d 1034 (1985).
In the present matter, the choice of forum clause includes specific and mandatory language identifying the State of New Jersey as the sole forum for resolving all disputes arising under the loan commitment: "[V]enue shall be proper in any such court to the exclusion of the courts in any other state or country . . ." Loan Commitment, Schedule "B," ¶ 14. Moreover, it is apparent from the terms of the loan commitment that both parties intended to form the legally binding contract between them: "Borrower understands that KFI [Kennedy] cannot and would not enter into this commitment without borrower's agreement to the limitation of damages, choice of forum and waiver of trial by jury clauses contained herein." Loan Commitment, Page 6, ¶ 3 (Miscellaneous).
As the parties have unambiguously chosen courts located in the State of New Jersey as the proper venue for their dispute, the motion to dismiss this action on grounds of improper venue is granted.
Jonathan E. Silbert, Judge