LTD v. ABB PTY LTD (2011)

MEMORANDUM OF DECISION ON MOTIONS TO DISMISS (# # 114, 116)

On February 10, 2011, the court heard oral argument concerning the defendants Nynas Naphthenics, AB (Naphthenics) and Nynas AB's motions to dismiss, in which they contend that the court lacks personal jurisdiction over them.   After considering the parties' written submissions and oral arguments, the court issues this memorandum of decision.

I

Background

The court summarizes below allegations in the complaint which pertain to Naphthenics and Nynas AB. The plaintiffs, Lake Road Trust Ltd. and Lake Road Generating Company, Limited Partnership, allege that they own and operate an electrical power generating plant located in Dayville, Connecticut and Killingly, Connecticut (the Facility).   The Facility uses generator step-up transformers to alter generated current for connection to a substation.   Electricity is sold through the ISO New England market.   The three transformer units at the Facility were built in 2000.

They also allege that Naphthenics is a company incorporated under the laws of Sweden, with its principal place of business in Stockholm, Sweden.   Further, they allege that, in January 2008, Naphthenics merged into its parent company, AB Nynas Petroleum, which changed its name to Nynas AB in March 2008.   See complaint, fourth count, ¶ 7.

In paragraph 14 of the fourth count, the plaintiffs allege that Naphthenics “manufactured and provided the insulating transformer oil used for the transformers.”   In paragraph 49, the plaintiffs allege that Naphthenics “is a seller and/or manufacturer of the transformer oil supplied for use in the ABB Powertech transformers that are the subject of this case.”

In May 2005, a transformer at the Facility suffered an electrical arcing event which resulted in a Facility-wide power outage.   Investigation revealed that the failure was due to contamination in the transformer oil.   See complaint, fourth count, ¶ 17.

In February 2007, the Facility suffered another transformer failure.   Investigation and testing revealed that the events at the Facility were caused by contamination of the transformer oil.   See complaint, fourth count, ¶ 27.

The plaintiffs allege that the oil provided was defective and caused damages to them.   They allege that Naphthenics is liable to them pursuant to the Connecticut Product Liability Act, General Statutes § 52–572(m), in that the oil provided was defective;  it was negligent in designing and manufacturing the oil;  it failed to give adequate warnings and instructions regarding the use of the oil;  and it breached the implied warranty of merchantability.   See complaint, fourth count, ¶ 53.

As to Nynas AB, the plaintiffs allege that it is the successor-in-interest to Naphthenics, and, as such, is liable for the acts and/or omissions of Naphthenics and the resulting property damage.   See complaint, fifth count, ¶ 55.

In support of its motion to dismiss, Naphthenics contends that personal jurisdiction over Naphthenics is lacking since it is no longer in existence.   In addition, Naphthenics asserts that, since it no longer exists, the plaintiffs' numerous attempts at service of process on it failed to comply with the requirements of General Statutes § 33–929(b) and the Hague Convention.   Nynas AB also argues that the plaintiffs' attempts at service of process on it also failed to comply with the requirements of General Statutes § 33–929(b) and the Hague Convention.

Both Naphthenics and Nynas AB contend that they had no contacts with Connecticut upon which the court can exercise personal jurisdiction pursuant to General Statutes § 33–929(f) and any attempted exercise of jurisdiction over them violates constitutional principles of due process.

II

Standard Of Review

“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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  (Internal quotation marks omitted.)  Gold v. Rowland, 296 Conn. 186, 200–01, 994 A.2d 106 (2010).

Practice Book Section 10–31(a)(2) provides that “[t]he motion to dismiss shall be used to assert ․ lack of jurisdiction over the person ․” “[The motion to dismiss] shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”   See Practice Book § 10–31(a).  “[I]f 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 ․ [A] challenge to the jurisdiction of the court presents a question of law ․” (Citation omitted;  internal quotation marks omitted.)  Ryan v. Cerullo, 282 Conn. 109, 118, 918 A.2d 867 (2007).

“In view of the dual roles of a motion to dismiss—that is, as a motion to erase and as a plea in abatement—[the Supreme 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 where no evidentiary hearing has been held.”  (Footnote omitted.)  Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608, 674 A.2d 426 (1996).

“A motion to dismiss may ․ raise issues of fact and would, therefore, require a ․ hearing [to determine the facts] ․ [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists ․ In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”   (Citation omitted;  internal quotation marks omitted.)  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983) (Standard Tallow ).

Here, the plaintiffs made an extensive presentation in response to the motions to dismiss, including various exhibits.   Concerning the motions to dismiss, there are no disputed facts.   An evidentiary hearing was not required.   As discussed below, the court decides the motion on the basis of the allegations in the complaint and on the basis of undisputed affidavits and evidence.¹

III

DiscussionAService Of Process

The court first addresses Nynas AB's arguments concerning service of process.²  Nynas AB contends that, pursuant to General Statutes § 33–929(b),³ the plaintiffs were required to serve process on its corporate secretary.   It also asserts that civil process shall not be served outside the United States in violation of the Hague Convention, citing General Statutes § 52–59d(a).⁴

Nynas AB does not contest the fact that, in February 2010, pursuant to the Hague Convention, the plaintiffs served Dan Daggenfelt, its chief financial officer.   See plaintiffs' Exhibit D (certificate from Swedish Ministry of Justice);  Nynas AB memorandum of law (# 115), p. 12.

General Statutes § 33–929(h) provides, “[t]his section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation.”  General Statutes § 52–57(c) provides for alternative persons who may be served in order to effectuate service on a foreign corporation.   In relevant part, it provides, “[i]n actions against a private corporation, service of process shall be made either upon the president, the vice president, an assistant vice president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, the assistant cashier, the teller or the assistant teller or its general or managing agent or manager or upon any director resident in this state, or the person in charge of the business of the corporation or upon any person who is at the time of service in charge of the office of the corporation in the town in which its principal office or place of business is located.   In actions against a private corporation established under the laws of any other state, any foreign country or the United States, service of process may be made upon any of the aforesaid officers or agents ․” (Emphasis added.)

“[T]he language of § 52–57(c) makes service of process by the means pr [e]scribed in § 33–929 permissive, rather than mandatory ․ A plaintiff may invoke means of service of process set forth in § 33–929 or comply with the requirements of § 52–57.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)   Christiani v. Benefitpoint, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket at Hartford, Docket No. X07 CV 04 4025119 (March 7, 2008, Berger, J.).

Nynas AB does not argue that its chief financial officer was not a proper person to serve pursuant to § 52–57(c).  See Nelson v. Stop & Shop Companies, Inc., 25 Conn.App. 637, 641, 596 A.2d 4 (1992) (individual served did not have sufficient authority to be qualified to receive service of process).   Since the corporate secretary was not the only person who could be served, Nynas AB's argument concerning service of process is unpersuasive.

B

Personal Jurisdiction

“When a defendant challenges personal jurisdiction in a motion to dismiss, the court must undertake a two part inquiry to determine the propriety of its exercising such jurisdiction over the defendant.   The trial court must first decide whether the applicable state longarm 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.)  Cogswell v. American Transit Insurance Co., 282 Conn. 505, 514–15, 923 A.2d 638 (2007).   Thus, the court must determine first whether the longarm statute, General Statutes § 33–929(f), properly applies to the movants.

1. Longarm Statute

Section 33–929(f)(3), which concerns service of process on foreign corporations, provides, “[e]very 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:  ․ 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 ․” ⁵ See Thomason v. Chemical Bank, 234 Conn. 281, 296, 661 A.2d 595 (1995) (plaintiff need only demonstrate reasonable forseeability).

For the purposes of adjudicating the motion to dismiss, the court takes the facts to be those alleged in the complaint since the movants' affidavits and evidence, submitted in support of their motions, do not address them and do not raise issues of fact which require a hearing to determine the facts.   See Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 56.

The movants submitted the affidavits of Kerstin Balter Collin, an employee of Nynas AB. She avers that Naphthenics was a fomer subsidiary of Nynas AB, which was merged into Nynas AB in 2008, and that Nynas AB is a Swedish corporation.   “Nynas AB is a specialized oil applications company that produces insulating, process and base oils in addition to bitumen products.”   See Collin affidavit submitted in support of Nynas AB's motion, ¶ 4.   As to both companies, she avers that they have not been registered to transact business in and did not transact business in Connecticut.   However, she notes that, in 2002, Naphthenics sold a certain amount of oil to Gemma Power Systems LLC, a U.S. company with an address in Connecticut.   See Collin affidavit submitted in support of Naphthenics' motion, ¶ 6.

As to Naphthenics and Nynas AB, she states that they lacked a local agent for service of process in Connecticut, made no contracts here, did not solicit business here, had no property or employees here, did not advertise here, did not warrant or service facilities here, did not sell or market products here,⁶ had no office or bank account here, had not been involved in litigation here, did not hold meetings here, and did not maintain active websites which would allow interaction with Connecticut or residents thereof.   Nynas AB has a passive group website, which includes company information, and allows for downloading of general company and product information.

These assertions in Collin's affidavits do not address the complaint's allegations, discussed above, which state that Naphthenics manufactured and provided the insulating transformer oil used in the ABB Powertech transformers which are the subject of this case.   For the purpose of adjudicating the motions, in the absence of an affidavit or evidence which refutes these allegations, the court is required to take the facts to be as alleged.

In addition, in opposition to Naphthenics' motion, the plaintiffs provided an article from Naphthenics Magazine, apparently printed from Nynas AB's website, in which a Naphthenics business development assistant is quoted concerning production of Naphthenics' products at a Texas refinery, which was able to start full-scale production in 2004, for distribution throughout the United States, and in Canada and Mexico.   See plaintiffs' Exhibit C (# 186).   In particular, it is noted that “[a] smaller amount is sent for interim storage to our depot in New Jersey, to increase the level of service in the northeastern parts of the USA.” Obviously, Connecticut is located in the northeastern United States.

The Supreme Court, in Thomason v. Chemical Bank, supra, 234 Conn. 292, stated that § 33–929's predecessor, § 33–411, was to be broadly interpreted.   While § 33–929(f) “requires that the cause of action arise out of a defendant's contacts with this state, it does not require that the cause of action and the contacts be causally connected.” ⁷  Id. There, the statute permitted the exercise of jurisdiction “even if the trustee bank's solicitation in this state was neither the but-for cause nor the proximate cause of the plaintiffs' injuries.”  Id. The cause of action arose out of business solicited in this state since, “at the time the defendant engaged in solicitation in Connecticut, it was reasonably foreseeable that, as a result of that solicitation, the defendant could be sued in Connecticut by a solicited person on a cause of action similar to that now being brought by the plaintiffs.”  Thomason v. Chemical Bank, supra, 234 Conn. 296.

“It is of no moment that the trustee bank's acts of solicitation in Connecticut substantially postdate the creation of the particular trust that is the subject of this lawsuit.   The relevant inquiry under the statute is not whether the trustee bank could have foreseen its amenability to suit in Connecticut by the plaintiffs when it accepted the settlor's business, but whether it could have foreseen its amenability to suit in Connecticut by persons raising claims similar to those of the plaintiffs when it solicited those persons' business in Connecticut.   Jurisdiction may be exercised pursuant to [§ 33–929] even though the defendant was not reasonably able to foresee the exercise of such jurisdiction at the time that it engaged in the activities that make it subject to the statute.”  Thomason v. Chemical Bank, supra, 234 Conn 299.

Here, the facts show that Naphthenics supplied the oil in question;  that it made a sale to a Connecticut company in 2002;  and, as of 2004, it distributed its products throughout the United States, with a smaller amount sent to a New Jersey depot to serve the northeastern United States.  “[I]t clearly did so with the reasonable expectation that that product would be marketed throughout the United States, and thus that it would reach and be used or consumed in the State of Connecticut.”   Goldstein v. Nutrition Now, Inc., Superior Court, Complex Litigation Docket, judicial district of Waterbury, Docket No. CV 96 0150429 (August 11, 1999, Sheldon, J.).   See Kernan v. Kurz–Hastings, Inc., 175 F.3d 236, 239, 242 (2d Cir.1999) (applying New York longarm statute;  court concluded that the manufacturer did attempt to serve the New York market).

Naphthenics could have foreseen its amenability to suit in Connecticut by persons raising claims similar to those of the plaintiffs when it sought to serve the market for the northeastern United States, even though it may not have been reasonably able to foresee the exercise of such jurisdiction at the time that it engaged in the manufacture and provision of the oil used in the transformers at the Facility.   See Thomason v. Chemical Bank, supra, 234 Conn 299.   Thus, the facts show that Naphthenics' manufacturing and provision of the oil at issue, combined with its effort to serve the northeastern United States, including Connecticut, would be within the reach of General Statutes § 33–929(f)(3), since the plaintiffs' cause of action arises “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[.]”  See General Statutes § 33–929(f)(3).

However, as noted above, the movants' affidavit shows that Naphthenics no longer exists, as it was merged into Nynas AB in 2008.   Contrary to their arguments, the plaintiffs have not submitted evidence which creates an issue of fact on this subject.   First, the deposition testimony of Jay Flint, president and general manager of Nynas USA, Inc., another subsidiary, does not support the plaintiffs' argument.   At page 96, he testified that the Houston, Texas office is a regional sales office of the Nynas Group, just for its naphthenics ⁸ activity, not that it was a sales office for Naphthenics, the company.

At pages 145–47, Flint testified that he had no knowledge about another article from Naphthenics Magagzine, which discusses a specialty white oil for the adhesive industry developed by Naphthenics and a Greenwich, Connecticut company, CK Witco.   See Flint deposition, Exhibit 9 (# 185).   Rather than provide evidence that Naphthenics continued to operate after being merged into Nynas AB in 2008, this article is undated.

Second, the fact that the Safety Data Sheet, Exhibit A to the affidavit of Edmund F. Feloni, submitted by the plaintiffs, contains a fax date in March 2000 provides no evidence that Naphthenics continued to operate after the merger in 2008.   Third, the fact that the Hague Convention Service of Process signature of Dan Daggenfelt states that he signed following “fusion” of Naphthenics, supports the defendants' argument that merger occurred.

Similarly unavailing is the plaintiffs' argument that all of the Nynas entities act as a single corporate entity.   Without citation to any authority, the plaintiffs contend that the contacts with Connecticut for all the Nynas entities must be analyzed in the aggregate for personal jurisdiction purposes.   This is akin to a piercing the corporate veil argument.   See plaintiffs' opposition to Naphthenics' motion to dismiss (# 182), pp. 2–5.

Since this claim is not properly supported by citations and analysis, it is inadequately briefed.   Accordingly, the court treats it as abandoned.   See Hartford/Windsor Healthcare Properties, LLC v. Hartford, 298 Conn. 191, 194 n.4, 3 A.3d 56 (2010).⁹

Pursuant to General Statutes § 33–820(a), which concerns the effect of merger of corporate entities, “[w]hen a merger becomes effective:  (1)[t]he corporation or other entity that is designated in the certificate of merger as the survivor continues or comes into existence, as the case may be;  (2)[t]he separate existence of every corporation or other entity that is merged into the survivor ceases;  [and] (3) [a]ll liabilities of each corporation or other entity that is merged into the survivor are vested in the survivor [.]”  (Emphasis added.) ¹⁰  Thus, “[b]y virtue of [the] merger, [Nynas AB], as the surviving corporation, acquired all the liabilities of [Naphthenics] and the separate existence of [Naphthenics] ceased.”  Ferrato v. Webster Bank, 67 Conn.App. 588, 589 n.1, 789 A.2d 472, cert. denied, 259 Conn. 930, 793 A.2d 1084 (2002).

Neither the movants nor the plaintiffs suggest that Swedish law governs or differs from Connecticut law on this point.  “The assumption of a dissolved corporation's liabilities by the surviving corporation in a merger is ․ a staple of corporation law everywhere.”  Betensky v. Opcon Associates, Inc., 46 Conn.Sup. 110, 113, 738 A.2d 1171 (1999).   Accordingly, since Nynas AB assumed Naphthenics' liabilities, it follows that the longarm statute, § 33–929(f)(3), which, but for the merger, would have reached Naphthenics, reaches Nynas AB as its successor.   However, since Naphthenics' separate existence ceased, it may not be sued here and the court lacks personal jurisdiction over it.

In view of this determination, the court need not address the plaintiffs' arguments concerning the applicability of other subparts of § 33–929(f).

2. Due Process

Having determined that the statutory threshold is met as to Nynas AB, the court next addresses whether the exercise of jurisdiction over it would violate constitutional principles of due process.   See Cogswell v. American Transit Insurance Co., supra, 282 Conn. 515.

“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 ․

‘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 State, due process is not offended by a State'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 ․ 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;  emphasis in original;  internal quotation marks omitted.)  Cogswell v. American Transit Insurance Co., supra, 282 Conn. 524–25.

The court first considers whether the test for specific jurisdiction has been met.  “[A]s long as it creates a substantial connection with the forum state, even a single act can support jurisdiction.  McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).”  (Internal quotation marks omitted.)  Panganiban v. Panganiban, 54 Conn.App. 634, 639, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999).

“The United States Supreme Court has noted that the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State.   Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there ․ In defining when it is that a potential defendant should ‘reasonably anticipate’ out-of-state litigation, the [Supreme] Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U.S. 235, 253 [78 S.Ct. 1228, 2 L.Ed.2d 1283] (1958):  ‘The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.   The application of that rule will vary with the quality and nature of the defendant's activity, but it 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.’   This ‘purposeful availment’ requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts ․ or of the ‘unilateral activity of another party or a third person’ ․” (Citation omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Insurance Co., supra, 282 Conn. 529–30.

“In the context of ‘specific’ jurisdiction, although the United States Supreme Court has required the plaintiff's cause of action to ‘arise out of or relate to’ the defendant's forum-directed activities, that court has not articulated a standard for what constitutes ‘arising out of.’  ․ The lower federal courts have held, however, that because of the requirement that the cause of action ‘arise out of the defendant's contacts with the forum, specific jurisdiction may not be exercised without some causal connection between the defendant's contacts with the forum and the existence of the plaintiff's lawsuit.”   (Citations omitted;  internal quotation marks omitted.)  Thomason v. Chemical Bank, supra, 234 Conn 288–89.

Here, as discussed above, the alleged facts show that Naphthenics manufactured and provided the transformer oil which is at issue, but that the transformer units at the Facility were built in 2000.¹¹  No contacts with Connecticut by Naphthenics in 2000 have been shown.   Concerning the existence of the plaintiffs' lawsuit, all that the plaintiffs have shown is that Naphthenics manufactured and provided the oil used in the transformers, without any activities directed at Connecticut by Napthenics at the time.

As to the existence of their lawsuit, which arises out of the provision of the transformer oil in 2000, the plaintiffs have not shown a causal connection between any activities by Naphthenics purposefully directed at residents of the forum and the alleged injuries.   See Cogswell v. American Transit Insurance Co., supra, 282 Conn. 524.   The necessary causal connection between Naphthenics' contacts with Connecticut and the plaintiffs' cause of action has not been shown.   The court lacks specific jurisdiction over Nynas AB even though it is the successor to Naphthenics.

Next, the court turns to an assessment as to whether it has general jurisdiction, based on continuous and systematic general business contacts with the state.   It is undisputed that neither Naphthenics nor Nynas AB has a place of business in Connecticut and that they have never been licensed to do business here.   See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

The record shows only a single sale by Naphthenics to a Connecticut company in 2002.   The existence of the New Jersey depot, as of 2004, to serve the northeastern United States, apparently did not result in continuous and systematic general business contacts with Connecticut.   The court lacks general jurisdiction over Nynas AB. See Cogswell v. American Transit Insurance Co., supra, 282 Conn. 524.

Since the court has determined, based on lack of minimum contacts, that due process requirements are not met, it lacks personal jurisdiction over Nynas AB. Accordingly, it need not consider the second stage of the due process inquiry, concerning whether assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice.   See Cogswell v. American Transit Insurance Co., supra, 282 Conn. 525.

C

Jurisdictional Discovery

In their memoranda in opposition to the motions to dismiss (# 176, 182), the plaintiffs state that, if the court deems that factual issues exist regarding the jurisdictional and service issues, they must be afforded an opportunity to conduct discovery and conduct a Standard Tallow evidentiary hearing.   The movants assert that the request for such discovery made in the plaintiffs' opposing papers is unwarranted.

As explained above, there are no disputed factual issues which bear on the court's adjudication of the issues raised concerning personal jurisdiction, including concerning service of process.   As explained above, a Standard Tallow hearing is not required.

In addition, the history of this matter indicates that the plaintiffs served discovery requests on Naphthenics and on Nynas AB more than three months after the filing of the motions to dismiss and did not diligently pursue them.   The motions to dismiss were filed on April 7, 2010.   The plaintiffs then sought an extension of time to June 7, 2010 to object (# # 119, 120).   On June 7, 2010, the plaintiffs moved to postpone argument for six months, until December 7, 2010, in order to conduct jurisdictional discovery in the interim.   See # 127.   The movants' objection thereto was overruled by the court (Riley, J.).   See # 130.10.

The plaintiffs did not serve their discovery requests until July 15, 2010.   See # # 139, 140.   The movants filed objections to these discovery requests.   See # # 139, 140.   Not until three months later, November 18, 2010, did the plaintiffs file a motion to compel the movants to respond to their discovery requests.   By order dated January 3, 2011 (# 153), the motion was denied, without prejudice.   Therein, the court noted that the plaintiffs' motion did not even mention the objections to their discovery requests.   Subsequently, the movants filed requests for adjudication concerning the motions to dismiss and oral argument was scheduled for February 10, 2011.   The oral argument did not occur until more than two months after the December 7, 2010 date to which the plaintiffs sought to postpone oral argument to conduct jurisdictional discovery.

Thus, the record shows that the plaintiffs previously sought time to conduct jurisdictional discovery, but did not diligently pursue it.   They are not entitled to another opportunity to conduct jurisdictional discovery.

In addition, at oral argument, the movants contended that the plaintiffs' responses to their motions to dismiss were untimely, having been filed after June 7, 2010, the date to which the plaintiffs' sought time to object.   See # # 119, 120.

Review of the court's docket shows that the issue of jurisdictional discovery delayed the plaintiffs' responses to the motions to dismiss.   After the movants filed their requests for adjudication, the court promptly issued a scheduling order (# 162), in which the plaintiffs were ordered to file their objections to the motions to dismiss by February 4, 2011, more than five days before oral argument was scheduled.   See Practice Book § 10–31(b).  The plaintiffs' opposing papers were timely filed in response to the court's order.   See # # 176, 182.

The movants have not claimed that they were prejudiced as a result of the date of the filing of the plaintiffs' opposing papers.  “The design of the rules of practice is both to facilitate business and to advance justice;  they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”  (Internal quotation marks omitted.)  Bayer v. Showmotion, Inc., 292 Conn. 381, 390, 973 A.2d 1229 (2009).   Here, the plaintiffs' opposing papers were not untimely.

CONCLUSION

Based on the foregoing reasons, Nynas Naphthenics AB's and Nynas AB's motions to dismiss for lack of personal jurisdiction are granted.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. See discussion below concerning jurisdictional discovery..  FN1. See discussion below concerning jurisdictional discovery.

FN2. As discussed below in part B, the court concludes that it lacks personal jurisdiction over Naphthenics.   Accordingly, it need not address Naphthenics' argument concerning service of process..  FN2. As discussed below in part B, the court concludes that it lacks personal jurisdiction over Naphthenics.   Accordingly, it need not address Naphthenics' argument concerning service of process.

FN3. Section 33–929(b) provides, “[a] foreign corporation may be served by any proper officer or other person lawfully empowered to make service by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent annual report if the foreign corporation:  (1) Has no registered agent or its registered agent cannot with reasonable diligence be served;  (2) has withdrawn from transacting business in this state under section 33–932;  or (3) has had its certificate of authority revoked under section 33–936.”.  FN3. Section 33–929(b) provides, “[a] foreign corporation may be served by any proper officer or other person lawfully empowered to make service by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent annual report if the foreign corporation:  (1) Has no registered agent or its registered agent cannot with reasonable diligence be served;  (2) has withdrawn from transacting business in this state under section 33–932;  or (3) has had its certificate of authority revoked under section 33–936.”

FN4. Section 52–59d(a) provides, “[n]otwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including without limitation, the Hague Convention on Service of Process Abroad.”.  FN4. Section 52–59d(a) provides, “[n]otwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including without limitation, the Hague Convention on Service of Process Abroad.”

FN5. The movants contend that General Statutes § 33–929(f) is the applicable longarm statute..  FN5. The movants contend that General Statutes § 33–929(f) is the applicable longarm statute.

FN6. As noted above, she states that Naphthenics made one sale in Connecticut, but avers that it did not regularly sale or market its products here.   See Collin affidavit submitted in support of Naphthenics' motion, ¶ 15..  FN6. As noted above, she states that Naphthenics made one sale in Connecticut, but avers that it did not regularly sale or market its products here.   See Collin affidavit submitted in support of Naphthenics' motion, ¶ 15.

FN7. As discussed below in the context of due process, the federal courts' interpretation of the phrase ‘arising out of’ in the constitutional context to require a causal connection between the defendant's actions and the litigation differs from the Supreme Court's interpretation of the comparable phrase in the longarm statute;  that the “cause of action [arise]” out of a defendant's forum contacts.   See Thomason v. Chemical Bank, supra, 234 Conn. 290..  FN7. As discussed below in the context of due process, the federal courts' interpretation of the phrase ‘arising out of’ in the constitutional context to require a causal connection between the defendant's actions and the litigation differs from the Supreme Court's interpretation of the comparable phrase in the longarm statute;  that the “cause of action [arise]” out of a defendant's forum contacts.   See Thomason v. Chemical Bank, supra, 234 Conn. 290.

FN8. Webster's Third New International Dictionary (Webster's), page 1502, defines “naphthenic,” an adjective, as meaning “of, relating to, containing, or being a naphthene.”   Naphthene, a noun, is defined as any of a series of saturated cyclic hydrocarbons, which occur in various kinds of petroleum, in shale, and in tar oil.   See Webster's, p. 1502..  FN8. Webster's Third New International Dictionary (Webster's), page 1502, defines “naphthenic,” an adjective, as meaning “of, relating to, containing, or being a naphthene.”   Naphthene, a noun, is defined as any of a series of saturated cyclic hydrocarbons, which occur in various kinds of petroleum, in shale, and in tar oil.   See Webster's, p. 1502.

FN9. At oral argument, the plaintiffs offered to brief this issue further.   They already had an opportunity to brief the issue properly, as they raised it themselves.   There is no reason to afford them another opportunity to do so..  FN9. At oral argument, the plaintiffs offered to brief this issue further.   They already had an opportunity to brief the issue properly, as they raised it themselves.   There is no reason to afford them another opportunity to do so.

FN10. Exhibit B to Naphthenics' motion to dismiss, a certificate from the Swedish Companies Registration Office, states that Naphthenics was registered as a limited liability company.  General Statutes § 34–197(6), which pertains to the effect of merger of limited liability companies, similarly provides, “[t]he survivor shall be responsible and liable for all liabilities and obligations of each of the limited liability companies or other entities that were merged or consolidated ․”.  FN10. Exhibit B to Naphthenics' motion to dismiss, a certificate from the Swedish Companies Registration Office, states that Naphthenics was registered as a limited liability company.  General Statutes § 34–197(6), which pertains to the effect of merger of limited liability companies, similarly provides, “[t]he survivor shall be responsible and liable for all liabilities and obligations of each of the limited liability companies or other entities that were merged or consolidated ․”

FN11. Plaintiffs' references to Flint's deposition testimony, concerning Nynas USA, Inc.'s Connecticut customers and concerning Nynas USA, Inc. now being registered to do business here and having an agent for service of process, are unavailing.   He testified about Nynas USA, Inc.'s recently developed contacts with Connecticut.   They post-date the events in question and are not causally connected to the plaintiffs' cause of action.   Also, no basis has been shown to impute those activities to Nynas AB..  FN11. Plaintiffs' references to Flint's deposition testimony, concerning Nynas USA, Inc.'s Connecticut customers and concerning Nynas USA, Inc. now being registered to do business here and having an agent for service of process, are unavailing.   He testified about Nynas USA, Inc.'s recently developed contacts with Connecticut.   They post-date the events in question and are not causally connected to the plaintiffs' cause of action.   Also, no basis has been shown to impute those activities to Nynas AB.

Shapiro, Robert B., J.