Opinion
No. HHB CV 06 5001713 S
February 14, 2007
MEMORANDUM OF DECISION ON MOTION TO DISMISS (#106)
This matter is before the court concerning the defendant Stephen Croteau's motion to dismiss. The court heard argument at short calendar on December 18, 2006. At that time, the parties agreed that there are no disputed issues of fact as to the motion and an evidentiary hearing was neither requested nor required. After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
On May 24, 2006, the minor plaintiff, Rocco P. Liscio, through his mother, Diane Liscio, filed a two-count complaint against the co-defendants, Stephen Croteau and his father (father). In the plaintiff's complaint, he alleges that, on or about December 29, 2004, Croteau violently assaulted the plaintiff in Plymouth, Connecticut. As a result, the plaintiff allegedly sustained personal injuries. He seeks damages for his injuries, directly from Croteau in the first count, and vicariously from Croteau's father in the second count, based upon General Statutes § 52-572. While the plaintiff resides in Connecticut, Croteau and his father are allegedly residents of New York.
For ease of reference, the court refers to Rocco P. Liscio as the plaintiff.
Both Croteau and his father are allegedly named Stephen Croteau.
Section 52-572(a), in relevant part, provides that "[t]he parent or parents . . . of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause damage to any property or injury to any person . . . shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults."
On November 15, 2006, the father filed a motion to dismiss the second count of the complaint based upon lack of personal jurisdiction. The motion is accompanied by a memorandum of law and by the father's affidavit. The father argues that he is not subject to jurisdiction under General Statutes § 52-59b and that any exercise of personal jurisdiction over him would violate the due process clause of the fourteenth amendment to the Constitution of the United States. Specifically, as to due process, the father argues that he has no minimum contacts with Connecticut.
The plaintiff filed an objection and a memorandum of law in opposition to the motion to dismiss on December 6, 2006. The plaintiff argues that the parent's liability flows from the minor's tort and that the court may exercise longarm jurisdiction over the father pursuant to § 52-59b(a)(2).
II STANDARD OF REVIEW
"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.) Pedro v. Miller, 281 Conn. 112, 116 (2007). "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, 278 Conn. 204, 211, 897 A.2d 71 (2006). "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).
"Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss . . . 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 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." (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 605-06.
III DISCUSSION A CT Page 4397
As to whether a statute authorizes the exercise of jurisdiction over the father, the plaintiff asserts that § 52-59b(a)(2) is the applicable longarm statute. Section 52-59b(a)(2), in relevant part, permits the exercise of jurisdiction over a nonresident individual who "commits a tortious act within the state . . ." The father argues that the plaintiff has failed to allege any facts that the father committed a tortious act inside or outside of Connecticut. In response, the plaintiff argues that § 52-59b(a)(2) confers personal jurisdiction over the father because liability "flows from the minor's tort" and because the father is "jointly and severally liable" for Croteau's alleged commission of a tortious act pursuant to § 52-572. See plaintiff's memorandum, p. 2.In the present case, the plaintiff has not alleged that the father committed any tort, much less a tort within Connecticut. Furthermore, the plaintiff does not allege that the father was aware of or participated in the alleged, tortious act committed by Croteau. The plaintiff had the burden to present facts that would support the court's exercise of personal jurisdiction over the father. See Knipple v. Viking Communications, Ltd., supra, 236 Conn. 607. Because the plaintiff has failed to allege any jurisdictional facts as to the father, he has not sustained his burden. Thus, this court cannot find that § 52-59b(a)(2) authorizes jurisdiction over the father.
Aside from § 52-59b(a)(2), the parties argued about whether longarm jurisdiction was authorized pursuant to § 52-572 during oral arguments on the motion to dismiss. After reviewing Connecticut case law, the court finds no appellate or Superior Court authority interpreting § 52-572 in a manner that would give the court personal jurisdiction over a nonresident defendant in such circumstances. In addition, the plaintiff cites no such authority. Moreover, § 52-572 appears to be plain and unambiguous; see General Statutes § 1-2z; in that it does not provide for longarm jurisdiction.
In comparing § 52-572 with other statutes dealing with nonresident defendants, the court notes that the legislature seems to have been obvious and clear when setting forth the prerequisites for a court to exercise personal jurisdiction over a nonresident defendant. See, e.g., General Statutes §§ 52-570a (creating cause of action against nonresident fiduciary) and 52-61 (providing for service of process on nonresident fiduciary); General Statutes §§ 46b-44 and 46b-46 (requiring actual notice and residency of one party for court to assert personal jurisdiction over nonresident in action for alimony and support). Furthermore, chapter 925 of title 52 of the General Statutes, that contains, inter alia, § 52-572, is labeled "Statutory Rights of Action and Defenses" while chapter 896 of title 52, which contains, inter alia, § 52-59b, is entitled "Civil Process, Service and Time for Return." Therefore, § 52-572 appears only to create a right of action, not longarm jurisdiction.
In a case where the parents had invoked the benefits and protection of the forum state's laws, the California Court of Appeal has found that a court may exercise personal jurisdiction over a nonresident defendant. Jashmid-Negad v. Kessler, 15 Cal.App. 4th 1704, 1707-710, 19 Cal.Rptr.2d 621 (1993). In Jashmid-Negad, a seventeen-year-old freshman attending the University of California attempted to break into the plaintiffs' apartment while intoxicated. See id., 1707. The plaintiffs sued the freshman and his parents, who resided in Connecticut, for, inter alia, imputed negligence under California's parental liability statute. Id.
Similar to General Statutes § 52-572, California Civil Code § 1714.1(a), in relevant part, provides: "Any act of willful misconduct of a minor which results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct . . ."
In determining whether personal jurisdiction could be exercised over the parents, the Court of Appeal stated, "it is reasonable to exercise jurisdiction on the basis of the defendant intentionally causing effects in the state by an omission or act done elsewhere whenever (a) the efforts are of a nature that the State treats as exceptional and subjects to special regulation, or (b) the defendant has, in connection with his causing such effects in the forum state, invoked the benefits and protections of its laws." (Internal quotation marks omitted.) Id., 1708. The court held that, although California's parental liability statute "is silent on jurisdiction, it constitutes special regulation." (Internal quotation marks omitted.) Id., 1709. In addition, the court found that personal jurisdiction could be exercised over the parents in the case because they "invoked the benefits and protection of California law in connection with their son's residency . . . [b]y acquiescing in [their child's] choice of university and paying his tuition." Id.
The plaintiff in this case does not allege any facts to indicate that the father invoked the benefits and protection of Connecticut law. In addition, the plaintiff does not contradict the father's affidavit, which asserts that he has no contacts with Connecticut. Therefore, this court cannot find that the father has invoked the benefits or protection of Connecticut law. See id., 1709.
As part of the plaintiff's argument that the father's responsibility flows from Croteau's conduct, the plaintiff uses the phrase "[b]y allowing his son to come to Connecticut" in his memorandum in opposition to the motion to dismiss, p. 3. Nevertheless, the plaintiff fails to allege any facts to support any notion that the father permitted Croteau to come to Connecticut. Even if the plaintiff had alleged such facts, the father's acquiescence, standing alone, would be insufficient for the court to find that the father invoked the benefits and protection of Connecticut law. See Kulko v. California Superior Court, 436 U.S. 84, 101, 98 S.Ct. 1690, 56 L.Ed.2d 132 ("mere act of sending a child to California . . . connotes no intent to obtain or expectancy of receiving a corresponding benefit in the State that would make fair the assertion of that State's judicial jurisdiction"), reh. denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978).
On the other hand, General Statutes § 52-572 and California Civil Code § 1714.1(a) are similar. Both statutes are silent as to jurisdiction and both seek to protect and to compensate third parties from the willful acts of misconduct by children. See id. and Watson v. Gradzik, 34 Conn.Sup. 7, 10, 373 A.2d 191 (1977). According to the reasoning in Jashmid-Negad, a court could exercise personal jurisdiction if it found that § 52-572 is "special regulation." See Jashmid-Negad v. Kessler, supra, 15 Cal.App. 4th 1708.
However, the Jashmid-Negad court relied, at least in part, on California Civil Code § 410.10 in finding personal jurisdiction over the Connecticut parents. See Jashmid-Negad v. Kessler, supra, 15 Cal.App. 4th 1707 ("a California court may exercise jurisdiction over nonresidents on any basis not inconsistent with the United States or California Constitutions. This section manifests an intent to exercise the broadest possible jurisdiction, limited only by constitutional considerations"). Connecticut does not have a similarly broad longarm jurisdiction statute. No Connecticut court has found longarm jurisdiction based upon a statute's status as "special regulation." This court concludes that neither § 52-59b(a)(2) nor § 52-572 authorizes the exercise of personal jurisdiction over the father.
B
Even if § 52-59b(a)(2) or § 52-572 authorizes the assertion of longarm jurisdiction over the father, this court must also find that the exercise of such jurisdiction comports with the principles of due process. See Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606. The father argues that any exercise of personal jurisdiction over him would violate due process because he lacks minimum contacts with Connecticut. In response, the plaintiff argues that Croteau's alleged, tortious act in the state is sufficient for the court to find minimum contacts between the father and Connecticut.
"The due process clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations." Cashman v. Cashman, 41 Conn.App. 382, 389, 676 A.2d 427 (1996), citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). "The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate [or individual] 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.) Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606 n. 6. "The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. [T]he foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." (Internal quotation marks omitted.) United States Trust Co. v. Bohart, 197 Conn. 34, 41, 495 A.2d 1034 (1985).
"As long as it creates a substantial connection with the forum state, even a single act can support jurisdiction." Cashman v. Cashman, supra, 41 Conn.App. 389. "Whether sufficient minimum contacts exist for a court to have jurisdiction is clearly dependent on the facts of each particular case." Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 52, 459 A.2d 503 (1983). "In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum, and the litigation." (Internal quotation marks omitted.) Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984): "Each defendant's contacts with the forum State must be assessed individually." Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n. 13, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984).
Here, the father lacks the minimum contacts with Connecticut that would make it reasonable for him to travel and defend this action brought by the plaintiff in Connecticut. In the father's affidavit, he states that he lives and works in New York, has never worked a job in Connecticut and does not own property in Connecticut. The plaintiff has not contradicted the affidavit and has not alleged any personal contacts between the father and Connecticut. Instead, the plaintiff argues that the court should find that the father's minimum contacts with Connecticut flow from Croteau's alleged, tortious act within the state.
This argument is unpersuasive because the father's contacts with Connecticut "must be assessed individually." See id. "The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State . . . [I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).
In the present case, Croteau's unilateral activity does not satisfy the requirement of contact between the father and Connecticut. See id. "[J]urisdiction cannot be implied or imputed from one defendant to another." Langenberg v. Sofair, 2006 U.S.Dist. LEXIS 65276 (S.D.N.Y. September 11, 2006), citing Rush v. Savchuk, 444 U.S. 320, 329, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980). Thus, the court cannot find minimum contacts between the father and Connecticut based upon the contacts between Connecticut and Croteau. In addition, it would be fundamentally unfair and unforeseeable to the father to be haled into court in this state for the unilateral activity of Croteau. As discussed above, the father has not purposely availed himself of the benefits and protection of Connecticut's laws. See United States Trust Co. v. Bohart, supra, 197 Conn. 41. The plaintiff's reference to Bucchere v. Brinker International, Inc., 49 Conn.Sup. 441, 891 A.2d 1008 (2005) is unpersuasive. There, a nonresident corporate parent's activities in Connecticut, including furnishing the plaintiffs with employment packets, subjected the corporate parent to jurisdiction here. See id., 446-52.
"The second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice — that is, whether it is reasonable under the circumstances of the particular case . . . The Supreme Court has held that the court must evaluate the following factors as part of this reasonableness analysis: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies." (Internal quotation marks omitted.) Panganiban v. Panganiban, 54 Conn.App. 634, 640, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999).
Thus, the court must also consider whether the exercise of personal jurisdiction here would make the "litigation so gravely difficult and inconvenient that a party unfairly is at a severe disadvantage in comparison to his opponent." (Internal quotation marks omitted.) Burger King Corporation v. Rudzewicz, supra, 471 U.S. 478. In his affidavit, the father sets forth facts showing his complete lack of contact with Connecticut, which is undisputed. Clearly, he would be at a disadvantage in litigating here, in contrast to the plaintiff, who, according to the summons and complaint, is a Connecticut resident. The plaintiff has not presented any facts showing the contrary.
Also, the plaintiff has made no showing to the effect that there is an overriding interest in adjudicating the case against the father in Connecticut, or that relief could not be had against him in New York. The record before the court is insufficient to make findings concerning the interstate judicial system's interest in obtaining the most efficient resolution of the controversy or that requiring the father to defend in Connecticut would have an impact on the shared interest of the states in furthering substantive social policies. See Panganiban v. Panganiban, supra, 54 Conn.App. 640.
Based on the affidavit submitted by the father and the allegations of the complaint, read in a light most favorable to the plaintiff, the court finds that the father's conduct and connections with Connecticut are not such that he should have reasonably anticipated being haled into court here. The exercise of jurisdiction over the father would violate due process.
CONCLUSION
For the foregoing reasons, the defendant father's motion to dismiss is granted.
It is so ordered.
CT Page 4402