Opinion
No. CV08-5030604
December 17, 2009
MEMORANDUM OF DECISION
In this action, the plaintiff Karen Sault alleges that she was injured on August 13, 2007 by a defective awning attached to a camper purchased by her and her husband Howard Sault. The plaintiff is a resident of Connecticut. The injuries occurred while the plaintiff was camping in South Carolina. The plaintiff alleges that the awning was designed, manufactured and assembled by the defendant Dometic Corporation ("Dometic"). The camper was allegedly manufactured by Forest River, Inc. ("Forest River"), an Indiana company, and subsequently sold to the defendant Cheyenne Camping Center Co. ("Cheyenne"), an Iowa company. The plaintiff and her husband purchased the camper from Cheyenne.
Cheyenne has moved to dismiss the action for lack of personal jurisdiction. Cheyenne, a foreign corporation, asserts that the nature of its contacts with Connecticut does not justify the courts of this state exercising jurisdiction over it for purposes of adjudicating the plaintiff's claims. Cheyenne and Forest River have also moved to dismiss the action claiming forum non conveniens on the grounds that Connecticut is not the most appropriate forum to litigate the claims against them. For the foregoing reasons, both motions to dismiss are hereby denied.
"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." (Citations and internal quotation marks omitted.) Knipple v. Viking Communications, 236 Conn. 602, 606 (1996).
When personal jurisdiction is challenged, the plaintiff bears the burden of proving the court's jurisdiction. Id., 607. An evidentiary hearing on both motions to dismiss was held on December 14, 2009. Based on the evidence presented at that heating, I find the following facts.
On January 14, 2007, Howard Sault noticed the subject camper advertised for sale on eBay, an online marketplace for goods and services. The camper had been listed on eBay for Cheyenne by Steve Hink, a subcontractor of Cheyenne. Howard Sault placed a deposit on the camper through eBay. Sault then called Cheyenne by telephone and spoke with a salesperson. After speaking with Sault, Cheyenne, on January 17, 2007, prepared a written sales contract for the purchase of the camper, signed the contract and mailed it to Sault and the plaintiff in Connecticut for their signatures. After signing the sales contract in Connecticut, the Saults mailed Cheyenne a check for the full purchase price of the camper which Cheyenne received on January 24, 2007. Cheyenne then arranged for the delivery of the camper to the Saults in Connecticut by contracting with a third party to make the delivery. Upon delivery of the camper to Connecticut, Howard Sault signed a predelivery inspection form prepared by Cheyenne. Subsequently, on August 13, 2007, while camping in South Carolina, the plaintiff was injured by the awning attached to the camper. The camper has been used by the plaintiff and Howard Sault both in South Carolina and in Connecticut.
Sault and the plaintiff were residing in North Branford, Connecticut at the time of the purchase of the camper. Cheyenne's sole place of business is located in Walcott, Iowa. It has never operated an office, facility or place of business in Connecticut. It is not licensed to conduct business in Connecticut. Cheyenne knew that the Saults lived in Connecticut, knew that the camper was to be delivered to them at their place of residence in Connecticut, and arranged for the delivery of the camper to Connecticut. Neither Howard Sault nor the plaintiff traveled at any time to Iowa in connection with the inspection or purchase of the camper.
I PERSONAL JURISDICTION UNDER CONNECTICUT'S LONG-ARM STATUTES
Jurisdiction over Cheyenne, a foreign corporation, is governed by General Statutes § 33-929. Subsection(f)(3) provides in pertinent part that: "Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, 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: . . . (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 . . ." Subsection (f)(3) of section 33-292 "permissibly extends jurisdiction over a foreign corporation where a cause of action arises out of the corporation's Connecticut related activity of making or distributing goods to be used or consumed in Connecticut." In Re Connecticut Asbestos Litigation, 677 F.Sup. 70, 75 (D.Conn. 1986) (Interpreting General Statutes § 33-411(c)(3), the predecessor to § 33-292(f)(3)).
This subsection of Connecticut's long-arm statute authorizes personal jurisdiction over Cheyenne as a foreign corporation. The plaintiff is a resident of Connecticut and her product liability cause of action against Cheyenne arises out of the distribution by Cheyenne of the camper into Connecticut. The camper was also used in this state by the plaintiff and her husband. Cheyenne should have reasonably expected that it would be used in Connecticut. The camper was knowingly sold by Cheyenne to residents of Connecticut and it was purposefully delivered by Cheyenne into this state. See Simeone v. Federal Press Co., 40 Conn.Sup. 173 (1984) (The knowing shipment of a product into Connecticut in a product liability action confers jurisdiction under General Statutes § 33-411(c)(3)).
II COMPLIANCE WITH THE DUE PROCESS CLAUSE
Cheyenne also contends that its contacts with the State of Connecticut fail to satisfy the minimum contacts requirement of the due process clause.
The due process clause of the Fourteenth Amendment mandates that, in order to subject a defendant who is not present within a state to the jurisdiction of the courts of that state, the defendant must have "certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions' of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The demand of "minimum contacts" extends to corporations as well as individuals. Id., 316-17. Whether "minimum contacts" exist to justify personal jurisdiction over a nonresident defendant depends on the individual circumstances of each case. "Like any standard that requires a determination of reasonableness, the minimum contacts test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present." (Internal quotation marks and citations omitted.) Kulko v. California Superior Court, 436 U.S. 84, 92 (1978). "[A]n essential criterion in all cases is whether the quality and nature of the defendant's activity is such that it is reasonable and fair to require him to conduct his defense in that State." (Internal quotation marks omitted.) Id. See also Frazer v. McGowan, 198 Conn. 243, 249 (1986).
"The due process test for personal jurisdiction has two related components: `the minimum contacts inquiry' and the `reasonableness' inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction." (Citations omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 524 (2007). The United States Supreme Court has recognized two types of personal jurisdiction which can satisfy the constitutional requirement of sufficient minimum contacts between the defendant and the forum: specific jurisdiction and general jurisdiction. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984).
It is specific jurisdiction which provides the minimum contacts necessary to satisfy due process in this case. "A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed [its] activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), and the litigation [has] result[ed] from alleged injuries that arise out of or relate to those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) . . . Burger King Corp. v. Rudzewicz, supra, 471 U.S. 472-73." Cogswell v. American Transit Ins. Co., supra, 282 Conn. 524. The facts clearly establish that Cheyenne, by mailing the sales contract to the Saults in Connecticut, delivering the camper to Connecticut and conducting a predelivery inspection in Connecticut, purposefully directed its activities here. This litigation also involves a product liability claim for injuries which relate to or arise out of Cheyenne's actions in selling and delivering the camper to residents of this state.
"Due process demands more, however, than the existence of minimum contacts between the defendant and the forum state. Once minimum contacts have been established, 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. Therefore while the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (Citations and internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 525.
"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." Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir. 1996). The two components of the due process inquiry, those of minimum contacts and reasonableness, are related and the court must weigh the relative strengths and weaknesses of each in determining whether due process has been satisfied. Id.
Applying those factors to this case, it is reasonable for Cheyenne to defend this product liability action in Connecticut. Connecticut has a strong interest in redressing injuries to its own residents. The plaintiff's interest in obtaining convenient and effective relief is served by suit in Connecticut as this state has jurisdiction over all the defendants and no bar to the plaintiff's assertion here of its product liability claim has been identified by any party. The defendant has not made any claim or presented any evidence showing that it would be difficult or burdensome for it to adjudicate the plaintiff's claims in Connecticut.
In evaluating the interstate judicial system's interest in obtaining the most efficient resolution of the controversy, courts generally consider where witnesses and evidence are likely to be located. Id., 574. While the accident occurred in South Carolina, certain witnesses to the incident reside in Connecticut and the camper and awning are located here. The plaintiff's ongoing medical providers also are located in this state. South Carolina may very well not have personal jurisdiction over Cheyenne as the mere occurrence of an injury in a state by a defective product without more is insufficient to satisfy the minimum contacts requirement of the Due Process Clause. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). Finally, neither party has identified any state interest in furthering substantive social policies which would favor or defeat jurisdiction in Connecticut.
Given that Cheyenne knowingly and purposefully sold and delivered the camper with its attached awning to residents of Connecticut, it does not offend traditional notions of fair play and substantial justice for it to defend in Connecticut a claim that the product it sold was defective and injured the plaintiff who is a resident of this state. See Plant Food Co-op v. Wolfkill Feed and Fertilizer, 633 F.2d 155 (9th Cir. 1980) (Affirmative and voluntary conduct to deliver a product into a state bestows jurisdiction compatible with due process).
III ISSUE OF FORUM NON CONVENIENS
Cheyenne and Forest River also assert that this lawsuit should be dismissed on the grounds that Connecticut is an inconvenient forum in which to litigate the plaintiff's claims. Specifically, Cheyenne asserts that Connecticut is an inappropriate forum for the following reasons: (1) Iowa and South Carolina have a stronger public interest in this matter because the seller of the camper is located in Iowa and the accident occurred in South Carolina and (2) the plaintiff can reinstate without prejudice her action in either Iowa and South Carolina. Forest River asserts that, should the court dismiss the action against Cheyenne for lack of personal jurisdiction, Connecticut would no longer have jurisdiction over all the defendants and would thereby become an inconvenient forum to litigate this action. The plaintiff argues that she has the right to choose the forum for the resolution of this dispute and the balance of private and public interests at stake here does not warrant the court overriding that choice. For the following reasons, the court agrees with the plaintiff.
Cheyenne also argued at the evidentiary hearing that the existence of a forum selection clause selecting Iowa as the appropriate forum for the litigation of claims between the parties compelled dismissal of this action. "The existence of a such a clause does not deprive a trial court of personal jurisdiction over the parties, but presents the question of whether it is reasonable for the court to exercise its jurisdiction in the particular circumstances of the case." Reiner, Reiner Bendett, P.C. v. Cadle Co., 278 Conn. 92, 103 (2006). However, no evidence was submitted at the hearing as to the existence or nature of a forum selection clause between the parties. Accordingly, I am unable to address this claim.
Under the doctrine of forum non conveniens, the court has the discretion to decide "where the trial will best serve the convenience of the parties and the ends of justice." Union Carbide Corporation v. Aetna Casualty Surety Co., 212 Conn 311, 319 (1989). The Connecticut Supreme Court in Picketts v. International Playtex, Inc., 215 Conn. 409 (1990), enunciated the standard that is to be used by the trial court in exercising its discretion. "Emphasis on the trial court's discretion does not, however, overshadow the central principle of the forum non conveniens doctrine that unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Although it would be inappropriate to invoke rigid rule to govern discretion; it bears emphasis that invocation of the doctrine of forum non conveniens is a drastic remedy; which the trial court must approach with caution and restraint. The trial court does not have unchecked discretion to dismiss cases from a plaintiff's chosen forum simply because another forum, in the court's view, may be superior to that chosen by the plaintiff. Although a trial court applying the doctrine of forum non conveniens must walk a delicate line to avoid implicitly sanctioning forum-shopping by either litigant at the expense of the other; it cannot exercise its discretion in order to level the playing field between the parties. The plaintiff's choice of forum, which may well have been chosen precisely because it provides the plaintiff with certain procedural or substantive advantages, should be respected unless equity weighs strongly in favor of the defendant. The overriding inquiry in a forum non conveniens motion is not whether some other forum might be good one, or even a better one than the plaintiff's chosen forum. The question to be answered is whether the plaintiff's chosen forum is itself inappropriate or unfair because of the various private and public interest considerations involved. Accordingly, the trial court, in exercising its structured discretion, should place its thumb firmly on the plaintiff's side of the scale, as a representation of the strong presumption in favor of the plaintiff's chosen forum, before attempting to balance the private and public interest factors relevant to a forum non conveniens motion." (Citations and internal quotation marks omitted.) Id., 500-02.
The four-step process outlined in Gulf Oil Corporation v. Gilbert, 330 U.S. 501 (1947) and in Pain v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C. Cir. 1980) is a "useful frame of reference" in determining whether the chosen forum is inappropriate. Durkin v. Intevac, 258 Conn. 454, 466 (2001). "First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case. Second, the court should consider all relevant private interest factors with a strong presumption in favor of — or, in the present case, a weakened presumption against disturbing — the plaintiffs' initial choice of forum. Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum. Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must . . . ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice." (Internal quotation marks and citations omitted.) Id.
A review of the private and public interests involved in the litigation of this matter indicates that their measure fails to surmount the strong presumption in favor of the plaintiff's choice of forum.
Cheyenne argues that the private interests of the parties' counsel for Iowa or South Carolina as the most appropriate forum because many of the potential witnesses in this case live in those states. Specifically, Cheyenne asserts that employees of the seller live in Iowa and the emergency medical providers and some witnesses to the accident reside in South Carolina. The plaintiff counters that two of most important witnesses, the plaintiff and her husband, live in Connecticut and that the majority of the medical providers who treated the plaintiff for her injuries resulting from the accident are located here. The camper and its awning are also presently located in Connecticut.
The defendant has the burden to persuade the court that the chosen forum is inconvenient to potential witnesses for the defense. Picketts v. International Playtex, Inc., supra, 215 Conn. 509. The defendant has not met that burden. "When a dismissal is premised on the convenience of witnesses, more than a mere allegation to that effect is required. Rather, the defendants must establish, with specificity, inconvenience to witnesses that is sufficiently prejudicial to justify dismissal. A party seeking to transfer a case for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover. The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony. Sufficient information must be included in the affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material." (Citations and internal quotation marks omitted.) Id., 509-10. The defendant has not identified by name any witnesses whom it believes possess testimony material to this action nor has it provided the substance of their expected testimony. The mere assertion that unidentified witnesses are located in other states is not adequate to tip the scales in the defendant's favor on a motion to dismiss for forum non conveniens.
I am also not persuaded that either Iowa or South Carolina possess a significant public interest in the litigation of this case. The one-time sale of a product and the occurrence of an injury by a non-resident, respectively, are not particularly compelling interests.
Finally, it is unclear whether an adequate alternative forum exists with jurisdiction over the plaintiff's claim. As previously noted, South Carolina may lack personal jurisdiction over Cheyenne. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). No evidence has been offered showing that Iowa has jurisdiction over the remaining defendants, Forest River, an Indiana corporation, and Dometic, a Delaware corporation.
In sum, the balance of private and public interests fail in this case to overcome the strong presumption of the appropriateness of the home forum chosen by the plaintiff. Accordingly, Cheyenne's motion to dismiss is hereby denied.
Forest River's claim also fails as this court has determined that it possesses personal jurisdiction over Cheyenne.