Opinion
No. CV 04 4001135
June 14, 2005
MEMORANDUM OF DECISION RE #101 MOTION TO DISMISS
On December 17, 2004, the plaintiff, Philip B. Mayer Jr., filed a complaint against Fort Hays State University (FHSU) at the Superior Court in Putnam, Connecticut, in the judicial district of Windham. This action arises out of injuries and losses allegedly sustained as a result of a breach of contract. The plaintiff, a student at the defendant University, alleges that FHSU is in breach of contract for altering requirements to earn a "Master's of Interdisciplinary Studies" degree after the plaintiff began his course of study. The plaintiff served FHSU at its office located at 600 Park Avenue, Hays, Kansas.
On January 21, 2005, FHSU filed a motion to dismiss for (1) lack of subject matter jurisdiction; (2) insufficiency of process; and (3) lack of personal jurisdiction. On February 1, 2005, the plaintiff filed a memorandum in opposition.
DISCUSSION
It is well-settled that "[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). The grounds which may be asserted in [a motion to dismiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) improper venue; (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 10-31.
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 774, 826 A.2d 138 (2003). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised. The parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent . . . Ordinarily, a challenge to the court's jurisdiction is raised by the filing of a motion to dismiss. However, [w]henever a lack of jurisdiction to entertain a particular proceeding comes to a court's notice, the court can dismiss the proceeding upon its own motion." (Citations omitted; internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192-93, 676 A.2d 831 (1996).
The defendant FHSU moves to dismiss the plaintiff's complaint on the grounds that the court lacks jurisdiction over the subject matter of the present action based on the doctrine of sovereign immunity and because the plaintiff failed to exhaust administrative remedies. FHSU further argues that there is insufficiency of process because the plaintiff did not serve the Kansas Secretary of State as statutorily required when bringing an action against the State of Kansas or one of its agencies. FHSU also maintains that the court lacks jurisdiction over it because the plaintiff has failed to allege facts that would satisfy the Connecticut long-arm statute. The plaintiff counters that the court has subject matter and personal jurisdiction over FHSU and that the insufficiency of process was a "harmless error" that does not warrant dismissal of the action.
As a preliminary matter, the court must consider whether Connecticut or Kansas law applies to the present action. The Connecticut Supreme Court has "abandoned the ancient lex loci contractus approach to choice of law, which looked primarily to the law of the state in which the contract was made. In its place, [the court] adopted the `most significant relationship' approach of the Restatement (Second) of Conflict of Laws, for analyzing choice of law issues involving contacts . . . The starting point under the `most significant relationship' approach is § 188 of the Restatement (Second) of the Conflict of Laws, which provides in relevant part: `(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.' . . . [T]he Restatement (Second) [of Conflict of Laws], which is applicable to all substantive areas, sets forth seven overarching considerations in determining which state has the `most significant relationship': `(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.'" (Citations omitted; internal quotation marks omitted.) Interface Flooring Systems, Inc. v. Aetna Casualty and Surety Company, 261 Conn. 601, 608-9, 804 A.2d 201 (2002).
Furthermore, the Connecticut Supreme Court has stated that "[s]ection 188(2) [of the Restatement (Second) of Conflict of Laws] lists five contacts to be considered in applying the principles set forth in § 6 to a contract dispute: `(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties.' "(Internal quotation marks omitted.) Id., 609. The court also explained that in adopting the Restatement approach it created "a presumption in favor of the application of the law of the state where the bulk of the contracting transactions took place." (Internal quotation marks omitted.) Id., 609-10.
In the present case, after considering the aforementioned factors, Kansas has "the most significant relationship" to the plaintiff's claim. The plaintiff has alleged that he began the program of study at FHSU while he resided in Kansas; therefore, the initial contract entered into between the parties, in which the plaintiff was accepted and enrolled in FHSU, occurred and was negotiated in Kansas. Most of the performance of the contract also took place in Kansas because four out of seven of the requirements the plaintiff successfully completed were fulfilled while he resided in Kansas. Additionally, Kansas is the location of the subject matter of the contract as the plaintiff contracted with FHSU to receive a master's degree, which would occur in Kansas. Lastly, The plaintiff was domiciled in Kansas during the majority of the performance of the contract and the defendant's place of business and all of its professors are in Kansas. As such, the court will apply Kansas law because the State of Kansas has the "most significant relationship" to the present cause of action in that the "the bulk of the contracting transactions took place" in that state. See id.
"[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) St. George v. Gordon, 264 Conn. 538, 548, 825 A.2d 90 (2003). The Kansas Supreme Court has acknowledged its state's fundamental sovereign immunity by explaining that "[s]overeign immunity is also considered to be inherent, existing prior to the ratification of the Constitution." Purvis v. Williams, 276 Kan. 182, 193, 73 P.3d 740 (2003). Moreover, the doctrine of sovereign immunity extends to state agencies, including state educational institutions. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 9 P.3d 1251 (2000) (holding that the Kansas State Board of Regents and Wichita State University are entitled to sovereign immunity). Kansas courts have established three ways that state immunity may be relinquished: (1) where the state has consented to suit; (2) where the application of Ex parte Young, for parties seeking injunctive relief, is appropriate; or (3) where Congress has abrogated the state's immunity. Purvis v. Williams, 276 Kan. 182, 194, 73 P.3d 740 (2003).
K.S.A. § 77-602 provides in relevant part: "(k) `State agency' means any officer, department, bureau, division, board, authority, agency, commission or institution of this state which is authorized by law to administer, enforce or interpret any law of this state but does not include any political or taxing subdivision of the state, or any agency thereof, or the judicial or legislative branch of state government.
See also Gaskill v. Fort Hays State University, 31 Kan.App.2d 544, 547, 70 P.3d 693 (2003), specifically indicating that "FHSU, along with the other state educational institutions, are state agencies."
In the present case, the defendant is a state educational institution pursuant to K.S.A. § 76-711(a). Here, the plaintiff has not alleged any facts indicating that the defendant has waived its immunity by consenting to suit, nor has he alleged that Congress revoked said immunity or that he is seeking injunctive relief. The court, therefore, lacks subject matter jurisdiction because FHSU, as a state agency, can assert the doctrine of sovereign immunity.
K.S.A. § 76-711 provides in relevant part: "(a) `State educational institution' means the university of Kansas, Kansas state university of agriculture and applied science, Wichita state university, Emporia state university, Pittsburg state university, and Fort Hays state university."
Moreover, the Connecticut Supreme Court has held that "because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the plaintiff['s] claim." (Internal quotation marks omitted.) Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 812 A.2d. 725 (2003). The State of Kansas has a statutory scheme in place for individuals seeking to bring an action against a state agency. The Kansas Act for Judicial Enforcement of Agency Actions (KJRA), K.S.A. § 77-601 et seq., "is the exclusive remedy for review of agency actions unless the agency is specifically exempted by statute." Westboro Baptist Church, Inc. v. Patton, 32 Kan.App.2d 941, 943, 93 P.3d 718 (2004). Kansas courts have explained that "[t]he KJRA applies to `all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions of this act.'" Gaskill v. Fort Hays State University, 31 Kan.App.2d 544, 545, 547, 70 P.3d 693 (2003). Furthermore, "[t]he KJRA favors administrative rather than legal resolutions of problems. To this end, the KJRA mandates that administrative remedies be exhausted prior to the filing of a petition for judicial review." Heiland v. Dunnick, 270 Kan. 663, 672, 19 P.3d 103 (2001). See K.S.A. 77-612.
Section 77-612 provides "A person may file a petition for judicial review under this act only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review, but: (a) A petitioner for judicial review of a rule or regulation need not have participated in the rulemaking proceeding upon which that rule and regulation is based, or have petitioned for its amendment or repeal; (b) a petitioner for judicial review need not exhaust administrative remedies to the extent that this act or any other statute states that exhaustion is not required; and (c) a petitioner for judicial review need not seek reconsideration unless a statute makes the filing of a petition for reconsideration a prerequisite for seeking judicial review."
In Gaskill v. Fort Hays State University, the court ruled that the KJRA was a professor's only remedy for his breach of contract claim against FHSU. Id. Similarly, the plaintiff in the present action must exhaust his administrative remedies and adhere to the procedures delineated in the KJRA in order to seek court review of his contract claim. The plaintiff has not alleged facts indicating that he has followed KJRA procedures and exhausted his administrative remedies. As such, the court lacks subject matter jurisdiction because the plaintiff must file a petition for judicial review under the KJRA after exhausting his administrative remedies.
The plaintiff has not alleged that FHSU has rendered a decision refusing to issue him a "Master's of Interdisciplinary Studies" degree.
For the foregoing reasons, the court grants the defendant's motion to dismiss because the court lacks subject matter jurisdiction pursuant to the doctrine of sovereign immunity and the plaintiff's failure to exhaust his administrative remedies.
Riley, J.