Jose Carmen Leon v. Carlos Albarracin (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (102.00)

I. FACTS

The plaintiff, Jose Carmen Leon, brings this action against the defendant, Carlos Albarracin.   In his one-count complaint sounding in breach of contract, the plaintiff alleges the following facts.   The plaintiff is a resident of Stamford, Connecticut, whereas the defendant lives in the Bronx, New York. On October 27, 2004, the parties agreed that the plaintiff would loan the defendant $5,000.   The plaintiff alleges that “[t]his agreement was made in the [c]ity of Stamford, within the Judicial District.”   On the date that the subject agreement was formed, the plaintiff delivered to the defendant a $5,000 check drawn on a Fleet Bank account that was payable to the order of the defendant.   The defendant cashed this check and retained the funds.   Despite the plaintiff's demands, the defendant has failed to pay the amount due on the loan.   Consequently, the plaintiff commenced this case against the defendant.

On December 8, 2010, the defendant filed a timely motion to dismiss this matter.¹  The defendant moves to dismiss on the following grounds:  (1) the court's lack of personal jurisdiction over the defendant;  (2) insufficient service of process;  (3) the court's lack of subject matter jurisdiction and (4) improper venue.   Attached to the defendant's motion are numerous documents indicating that the defendant lives and works in New York state.   In further support of his motion, the defendant also offers his notarized affidavit and an affidavit executed by his wife, Bertina Peralta.   On February 8, 2011, the plaintiff filed a memorandum of law in opposition to the defendant's motion.   The court took this matter on the papers during the September 12, 2011 short calendar.

II. DISCUSSION

“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.)  Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007).  “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.  “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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Citation omitted;  internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

I

PERSONAL JURISDICTION

The defendant first moves to dismiss this action on the ground that the court lacks personal jurisdiction over him.   Specifically, the defendant argues that he is a New York resident who works in the state of New York and that he has not purposefully availed himself of the laws of Connecticut.   The defendant further argues that the plaintiff cannot establish the requirements of the Connecticut longarm statute in order to confer jurisdiction over this matter in a Connecticut court.   In his memorandum of law and supporting affidavits, the defendant contends that the agreement giving rise to the plaintiff's breach of contract claim took place in New York, not Connecticut.   In response, the plaintiff indicates that he can satisfy the requirements of the Connecticut longarm statute and he requests that the court order a hearing to determine the basis of its personal jurisdiction over the defendant.   The plaintiff does admit, however, that the defendant is a resident of New York state.

“If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction.”  Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515.   In this context, “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 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.)  Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).

Connecticut's longarm statute, General Statutes § 52–59b(a), provides in relevant part:  “a court may exercise personal jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association, or over the executor or administrator of such 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;  (4) owns, uses or possesses any real property situated within the state;  or (5) uses a computer, as defined in subdivision (1) of subsection (a) of section 53–451, or a computer network, as defined in subdivision (3) of subsection (a) of said section, located within the state.”

In his memorandum of law in opposition, the plaintiff argues that he can satisfy either subsections (a)(1) or (a)(2) of the longarm statute.   Subsection (a)(1) allows a Connecticut court to exercise personal jurisdiction over a defendant who “[t]ransacts any business within the state ․” Although “[t]he General Statutes do not define what the phrase ‘transacts any business' means in the context of § 52–59b ․ [the Connecticut Supreme Court has] construe[d] the term ‘transacts any business' to embrace a single purposeful business transaction.”  (Citations omitted.)  Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981).  “In determining whether the defendant's contacts constitute the transaction of business within this state, [Connecticut courts] do not resort to a rigid formula [but] balance considerations of public policy, common sense, and the chronology and geography of the relevant factors.”  (Internal quotation marks omitted.)  Solano v. Calegari, 108 Conn.App. 731, 738–39, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008).   Connecticut's appellate courts have held that under certain factual scenarios, the formation of a contract in this state, when coupled with other factors, can constitute the transaction of business under § 52–59b.   See, e.g., Gaudio v. Gaudio, 23 Conn.App. 287, 298–99, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990) (holding that the trial court could exercise personal jurisdiction over an individual who “indicated that he had traveled to Connecticut at least once and that he had reached an oral agreement to purchase the stock of a Connecticut corporation in this state”);  Hart, Nininger & Campbell Associates, Inc. v. Rogers, 16 Conn.App. 619, 624–25, 548 A.2d 758 (1988) (stating that “the trial court did not err in finding in personam jurisdiction ․ under § 52–59b ․ [when] each defendant came to Connecticut to negotiate and sign his individual employment contract”).

The plaintiff alleges that the contract at issue in this case was formed in Stamford, Connecticut.   In contrast, the defendant and his wife attest that all acts pertaining to the subject contract took place in New York. Accordingly, there is a factual dispute regarding precisely what transpired in this state.   “When jurisdiction is not clear on the face of the record ․ additional facts may be required to support the court's exercise of long arm jurisdiction ․ When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction.”  (Citation omitted;  internal quotation marks omitted.)   Kenny v. Banks, supra, 289 Conn. 533.  “When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.”  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).   On the other hand, “the due process requirement of a hearing is required only when issues of facts are disputed.”   (Emphasis in original.)  Weihing v. Dodsworth, 100 Conn.App. 29, 38, 917 A.2d 53 (2007).

Although the plaintiff's allegation that the contract at issue in this case was “made” in the state of Connecticut is extremely bare, it does stand in contrast to the attestations found in the affidavits of the defendant and his wife.   Consequently, there is a genuine dispute about the facts giving rise to the plaintiff's claims.   As the governing Connecticut case law indicates that the court must hold a hearing when there is a dispute involving the facts underlying the court's exercise of personal jurisdiction over an out-of-state defendant, the court should hold a Standard Tallow hearing in which the plaintiff shall have the opportunity to prove the basis of his contention that the defendant transacted business in this state.²  Once the court makes a determination regarding whether the facts in this case could satisfy the requirements of the Connecticut longarm statute, then the court will engage in the due process analysis in order to decide if the court has personal jurisdiction over the defendant.

II

INSUFFICIENT SERVICE OF PROCESS

Although it has been submitted that the court should hold an evidentiary to determine whether it can exercise personal jurisdiction over the defendant, the defendant also offers three additional bases for his motion to dismiss, and these three grounds will now be analyzed.   First the defendant argues that this matter should be dismissed because of insufficient service of process.   Specifically, the defendant contends that because a Connecticut court does not have jurisdiction over him that “ ‘constructive’ service upon the Secretary of State of Connecticut was insufficient” and that this matter should be dismissed because he was not served in accordance with New York state law.   The plaintiff counters that the defendant was properly served in accordance with the Connecticut longarm statute.

Section 52–59b(c) provides in relevant part that “[a]ny nonresident individual ․ over whom a court may exercise personal jurisdiction, as provided in subsection (a) of this section, shall be deemed to have appointed the Secretary of the State as its attorney and to have agreed that any process in any civil action brought against the nonresident individual ․ may be served upon the Secretary of the State and shall have the same validity as if served upon the nonresident individual ․ personally.   The process shall be served by the officer to whom the same is directed upon the Secretary of the State by leaving with or at the office of the Secretary of the State, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address, by registered or certified mail, postage prepaid, return receipt requested, a like true and attested copy with an endorsement thereon of the service upon the Secretary of the State.”   By its plain language, § 52–59b(c) has two requirements:  (1) the plaintiff must serve process on the Secretary of State at least twelve days before the return day and (2) the plaintiff then must mail a copy of the process to the defendant's last known address by registered or certified mail.

According to the return of service, on October 19, 2010, State Marshal Roland E. Mailloux served the office of the Secretary of State with a “verified true and attested copy” of the process from this case.   The return day in this matter is November 9, 2010.   On the day following service of the Secretary of State, October 20, 2010, Marshal Mailloux mailed another copy of the original writ, summons and complaint via certified mail to the defendant at “1116 Tinton Avenue, Bronx, N.Y. 10456–5426.”   In his affidavit, the defendant admits that he currently lives at this address.   Furthermore, on November 12, 2010, the plaintiff filed a supplemental return of service that included a signed copy of the certified mail “green card” indicating that the defendant had received this mailing.   Therefore, it appears that all of the requirements of § 52–59b(c) have been satisfied.   Notably, in his moving papers, the defendant does not actually argue that the plaintiff did not comply with this statute.   The defendant merely argues that he was not served with process in accordance with New York law.   As the plaintiff has satisfied of all of the requirements for serving process on an out-of-state defendant pursuant to § 52–59b(c), the court rejects this argument in support of the defendant's motion to dismiss.

III

SUBJECT MATTER JURISDICTION

Next, the defendant moves to dismiss this matter on the ground that the court lacks subject matter jurisdiction over it.   The defendant argues that because a Connecticut court does not have personal jurisdiction over him that “the courts also lack jurisdiction over the subject matter of [p]laintiff's [c]omplaint.”   Essentially, the defendant contends that the court does not have subject matter jurisdiction over this case for the same reasons that he argued that the court does not have personal jurisdiction over him.   It is the defendant's position that the court cannot exercise subject matter jurisdiction over this case because the defendant believes that all of the facts germane to the cause of action alleged in the plaintiff's complaint occurred in New York, not Connecticut.

This argument has no merit.   The defendant incorrectly conflates the doctrines of subject matter jurisdiction and personal jurisdiction.  “Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.”  (Emphasis added;  internal quotation marks omitted.)  Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 550, 23 A.3d 1176 (2011).   On the other hand, “[j]urisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding.”  Talenti v. Morgan & Brother Manhattan Storage Co., 113 Conn.App. 845, 853–54, 968 A.2d 933, cert. denied, 292 Conn. 908, 973 A.2d 105 (2009).   The Connecticut Superior Court certainly has jurisdiction over the type of case brought by the plaintiff, namely a breach of contract action.   The fact that this court may not have personal jurisdiction over this defendant would not restrict its ability to hear and decide another breach of contract case.   As stated by the Appellate Court, “the inability of ․ [a plaintiff] to take advantage of our long arm statute merely deprives [him] of the opportunity to use that statute to acquire personal jurisdiction over [a defendant] ․ This impediment does not prevent the court from determining the case once personal jurisdiction over the defendant has been obtained by some other means.”  (Emphasis in original.)   Id., 853.   Therefore, the defendant's argument is rejected.

IV

VENUE

Finally, the defendant moves to dismiss this action for improper venue.   The defendant argues that pursuant to General Statutes § 51–345(d),³ this action needs to be brought in the judicial district where the defendant resides because it is a consumer transaction.   As the defendant lives in New York, the defendant contends that venue in Connecticut is not proper and that the court must grant his motion to dismiss.

Section 51–345(d) provides:  “In all actions involving consumer transactions, civil process shall be made returnable to the judicial district where the consumer resides or where the transaction occurred.   For the purposes of this subsection, consumer transaction means a transaction in which a natural person obligates himself to pay for goods sold or leased, services rendered or moneys loaned for personal, family or household purposes.”  (Emphasis added.)   Pursuant to the plain language of § 51–345(d), venue is proper either in the judicial district where the consumer resides or where the transaction occurred.   The plaintiff alleges that the subject loan agreement was made in Stamford.   Consequently, even if the mandates of § 51–345(d) were to apply to this case, the statute has been satisfied so long as venue lies in the judicial district where the transaction at issue occurred.   Moreover, it should be noted that pursuant to General Statutes § 51–345(a)(3)(E), venue is proper in the Stamford–Norwalk judicial district if either the plaintiff or the defendant resides in the city of Stamford.   In his complaint, the plaintiff alleges that he lives in Stamford.   Accordingly, § 51–345(a)(3)(E) provides an additional basis for the conclusion that the plaintiff has not violated Connecticut venue statutes by bringing the present case in this judicial district.   Therefore, this argument is rejected as well.⁴

III. CONCLUSION

For all of the reasons stated above, the court denies the defendant's motion to dismiss with respect to the insufficient service of process, lack of subject matter jurisdiction and improper venue grounds.   Nevertheless, the court will hold a Standard Tallow hearing to determine if the requirements of the Connecticut longarm statute are satisfied such that the court can exercise personal jurisdiction over the defendant.   Counsel for the parties are directed to confer with each other and this district's civil caseflow office so that a hearing date may be assigned promptly.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. The defendant's counsel filed her appearance on November 9, 2010..  FN1. The defendant's counsel filed her appearance on November 9, 2010.

FN2. The plaintiff also argues that he can establish jurisdiction pursuant to subsection (2) of the longarm statute, which indicates that Connecticut can exercise personal jurisdiction when an out-of-state defendant commits a tort in this state.   Given that the plaintiff only alleges that the defendant breached a contract between the parties, it would seem unlikely that this subsection would apply to the present case.   Nevertheless, it is conceivable that the plaintiff could also come forth with evidence demonstrating that the defendant committed a tort in this state..  FN2. The plaintiff also argues that he can establish jurisdiction pursuant to subsection (2) of the longarm statute, which indicates that Connecticut can exercise personal jurisdiction when an out-of-state defendant commits a tort in this state.   Given that the plaintiff only alleges that the defendant breached a contract between the parties, it would seem unlikely that this subsection would apply to the present case.   Nevertheless, it is conceivable that the plaintiff could also come forth with evidence demonstrating that the defendant committed a tort in this state.

FN3. Although the defendant's memorandum of law cites the relevant statute as General Statutes § 51–347b, the correct statute number is § 51–345..  FN3. Although the defendant's memorandum of law cites the relevant statute as General Statutes § 51–347b, the correct statute number is § 51–345.

FN4. Although the majority of the plaintiff's memorandum of law in opposition is dedicated to arguing that the doctrine of forum non conveniens is not a bar to this action, the defendant actually has not moved to dismiss this matter on that ground.   Therefore, it is unnecessary for the court to examine this argument..  FN4. Although the majority of the plaintiff's memorandum of law in opposition is dedicated to arguing that the doctrine of forum non conveniens is not a bar to this action, the defendant actually has not moved to dismiss this matter on that ground.   Therefore, it is unnecessary for the court to examine this argument.

Adams, Taggart D., J.T.R.