Opinion
No. LLI-CV-07-5002795S
April 2, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS #105
The defendants Candace Burgess and Jay Burgess are represented by the same counsel and have filed substantially similar motions to strike on the same grounds. Accordingly, the opinions of the court regarding these motions to strike are substantially similar and address the individual factual situations of each party as necessary.
Before the court is a motion to dismiss for lack of personal jurisdiction, filed by the defendant, Candace Burgess. The plaintiffs, Rose B. Styron, Thomas H. Styron and Paul Cornell, Jr., as executors of the estate of William C. Styron, filed a six-count complaint on October 11, 2007, alleging that the above named defendant, among others, is responsible for the termite damage to their home. The complaint alleges breach of contract, negligence, an action for declaratory judgment, breach of the implied covenant of good faith and fair dealing, violation of the Home Improvement Act and a violation of the Connecticut Unfair Trade Practices Act. The motion seeks to dismiss the plaintiffs' complaint on the grounds that this court lacks personal jurisdiction under General Statutes § 52-59b, Connecticut's longarm statute, and that the exercise of personal jurisdiction would not comport with the requirements of due process.
The allegations of the complaint are as follows. Beginning sometime in 1997, the plaintiffs engaged MasterShield Pest Management Services ("MasterShield") for pest control services. MasterShield is a Connecticut extermination business, and is a division of the defendant, Bug-Eez, Inc. Bug-Eez, Inc. is a Connecticut corporation, also engaged in the business of offering extermination services and has done business under the name MasterShield. The complaint further alleges that Candace Burgess, Jay Burgess and Darrell Burgess are officers of the defendant, Terminators of America, Inc., another exterminator that has done business under the name MasterShield and that Candace Burgess, Jay Burgess and Darrell Burgess have all done business under the name MasterShield. Paragraph nine of the complaint states that "[a]ll of the Defendants herein are collectively referred to hereinafter as MasterShield," before laying out the following allegations.
On or about August 2, 2001, the plaintiffs and MasterShield entered into a contract for the installation and maintenance by MasterShield of a termite interception and baiting system on the plaintiffs' property. MasterShield installed an Exterra Baiting System on August 8, 2001. On August 5, 2002, Jay Burgess mailed a letter to the plaintiffs stating, as alleged in the complaint, that "there did not continue to be activity in the stations" and "[t]herefore, the stations do not require monthly inspection." Upon engaging the services of a general contractor to perform house repairs in August of 2004, the plaintiffs discovered that their house had sustained extensive termite damage. Renovations to the house cost the plaintiffs over $500,000, and involved the replacement of walls, beams, floors, ceiling girders, posts, exterior siding, trim and sills.
The plaintiffs allege that the defendants' failure to prevent such damage constitutes a breach of contract, negligence, a breach of the implied covenant of good faith and fair dealing, a violation of the Home Improvement Act and a violation of the Connecticut Unfair Trade Practices Act. Candace Burgess has filed this motion to dismiss on the grounds that this court lacks personal jurisdiction under General Statutes § 52-59b, Connecticut's longarm statute, and that the exercise of personal jurisdiction would not comport with the requirements of due process. In support of her motion, Candace Burgess has filed a memorandum and attached an affidavit, which states as follows: she is currently a resident of Arkansas; she has not been a resident of the State of Connecticut since approximately January 2004; she does not have regular contacts with the State of Connecticut; she does not conduct business activity in the State of Connecticut; she has not visited the State of Connecticut since approximately September 2006, and has no plans to visit due to her residency in Arkansas; and she was employed by Terminators of America, Inc. and/or MasterShield, but has never personally offered termite extermination services.
The standard of review for a court's decision on a motion to dismiss is well settled. "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . 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). "The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . ." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001); see also Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608, 674 A.2d 426 (1996) (noting that "this court has previously considered the undisputed factual allegations in the complaint as well as the undisputed factual allegations in the various affidavits when adjudicating the motion [to dismiss] where no evidentiary hearing has been held").
"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." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606. "[T]he plaintiff bears the burden of proving the court's jurisdiction." Green v. Simmons, 100 Conn.App. 600, 604, 919 A.2d 482 (2007).
Statutory Requirements
Connecticut's longarm statute, General Statutes § 52-59b, provides, in relevant part: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association . . . who in person or through an agent: (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 . . ." "The phrase `transacts any business' has been construed by our Supreme Court to embrace a single purposeful business transaction . . . In determining whether the defendants' contacts constitute the transaction of business within this state we do not resort to a rigid formula [but] balance considerations of public policy, common sense, and the chronology and geography of the relevant factors." (Citation omitted, internal quotation marks omitted.) Green v. Simmons, supra, 100 Conn.App. 604.
Candace Burgess argues in her memorandum in support of the motion to dismiss that the only allegations against her in the complaint consist of the following paragraph: "Defendant Candace Burgess is an individual residing at 58 Oakcrest Circle, Waterbury, Connecticut 06708. Defendant Candace Burgess was or is the Secretary of Defendant Terminators of America, Inc. Defendant Candace Burgess offers or has offered termite extermination services under the name MasterShield Pest Management Services." She goes on to argue that the plaintiffs have not alleged that she personally committed any tortious conduct and, therefore, the plaintiffs have not "alleged sufficient facts to effectuate personal jurisdiction over [the] defendant Candace Burgess under the applicable long arm statute."
Although not artfully pleaded, reading the complaint in the light most favorable to the nonmoving party, the plaintiff has alleged tortious conduct on the part of Candace Burgess sufficient to withstand a motion to dismiss for lack of personal jurisdiction. As described above, paragraph nine of the complaint states that "[a]ll of the Defendants herein are collectively referred to hereinafter as MasterShield," before laying out the various allegations. The various allegations in the complaint apply to each defendant separately. The plaintiffs allege that MasterShield committed the tortious act in Connecticut and that MasterShield did business in Connecticut. As evidence of this conduct, the plaintiffs point to the affidavit submitted by Candace Burgess, in which she admits residency in Connecticut at the times relevant to the tortious conduct, and also admits being employed by "Terminators of America, Inc. and/or Mastershield." The court finds that the plaintiffs have carried their burden, and jurisdiction can be asserted under § 52-59b.
Due Process Requirement
"As articulated in the seminal case of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed.2d 95 (1945), the constitutional due process standard requires that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . 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, internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 523-24, 923 A.2d 638 (2007).
"For the purposes of this initial inquiry, the Supreme Court of the United States has articulated, and this court has recognized, two types of personal jurisdiction. Either specific jurisdiction or general jurisdiction can satisfy the constitutional requirement of sufficient minimum contacts between the defendant and the forum. A state court will have specific jurisdiction over a nonresident defendant whenever the defendant has purposefully directed [its] activities at residents of the forum . . . and the litigation [has] result[ed] from alleged injuries that arise out of or relate to those activities . . . Alternatively, [e]ven when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum [s]tate, due process is not offended by a [s]tate's subjecting the corporation to its in personam jurisdiction if the defendant has had continuous and systematic general business contacts with the state . . . Whether a given defendant has contacts with the forum state sufficient to satisfy due process is dependent upon the facts of the particular case. Like any standard that requires a determination of reasonableness, the minimum contacts test of International Shoe Co. is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present." (Citations omitted; internal quotation marks omitted.) Id., 524-25.
"Due process demands more, however, than the existence of minimum contacts between the defendant and the forum state. Once minimum contacts have been established, [t]he 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] [w]hile 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 omitted; internal quotation marks omitted.) Id., 525.
According to the affidavit submitted by Candace Burgess, she was a resident of Connecticut at the times relevant to the tortious conduct alleged in the complaint. She also admits to being an employee of "Terminators of America, Inc. and/or Mastershield." These are sufficient minimum contacts to subject her to Connecticut jurisdiction. Given Candace Burgess' connections to Connecticut, she could reasonably expect to be haled into court regarding acts she performed here. Therefore, the court's exercise of jurisdiction is reasonable.
CT Page 5287
Conclusion
The court finds that personal jurisdiction over Candace Burgess is proper, and the motion to dismiss is denied.