Peter Pan Bus Lines, Inc. v. Adventure's Tours Corp. et al. (2011)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO REARGUE MOTION TO DISMISS # 101

FACTS

The plaintiff, Peter Pan Bus Lines (Peter Pan), initiated this action against the defendants, Adventure's Tours Corporation (Adventure's), a corporation organized under the laws of New York, and Miriam H. Sayegh, the President and CEO of Adventure's, via service of summons and two-count complaint on December 11, 2009.   The complaint alleges that the defendants contracted with the plaintiff to charter several bus trips for the defendants.   The defendants paid for most of the bus trips, but according to the plaintiff they had not paid a total of $7,074 from several different contracts.   The plaintiff seeks to recover this amount, plus interest.

On January 13, 2010, the defendants filed a motion to dismiss, arguing that the court lacks jurisdiction over both defendants because the plaintiff did not adequately plead that the court had longarm jurisdiction pursuant to § 33–929(f).¹  On July 28, 2010, the plaintiff filed a request for leave to file an amended complaint.   On August 5, 2010, the plaintiff filed a memorandum in opposition to the defendants' motion to dismiss essentially stating that the authority relied upon by the defendants was either inapposite or distinguishable, while also arguing that the allegations in his amended complaint were legally sufficient to confer personal jurisdiction over the defendants.

At oral argument, the court intimated that in its view, the plaintiff's jurisdictional allegations in its original complaint were inadequate to confer personal jurisdiction upon the court, and the plaintiff offered to further amend its complaint.²  The defendants objected to this, stating that until it is determined that the court has jurisdiction, the court can take no further action on other motions in the complaint.   The court was initially prepared to consider the plaintiff's amended complaint, but after objection by the defendants confined itself to review of the original complaint.   The court was persuaded that the plaintiff's original complaint was lacking in sufficient jurisdictional allegations to confer personal jurisdiction on the court, and, on August 9, 2010, entered order number 101.86 granting the defendants' motion to dismiss without prejudice, but giving the plaintiff permission to either file its amended complaint, or to further amend its complaint without re-filing another action.

On September 15, 2010, the defendants filed a motion to reargue, which was opposed by the plaintiff on September 22, 2010.   The defendants replied to the plaintiff's opposition on September 23, 2010.   The court granted the defendant's motion to reargue on October 13, 2010.   The plaintiff filed a memorandum of law outlying its argument for confirming the court's initial ruling on October 7, 2011.   This matter was heard on short calendar on October 31, 2011.

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.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted.)  Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009).

“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., 282 Conn. 505, 515, 923 A.2d 638 (2007).   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).

The plaintiff's original complaint contained no jurisdictional allegation other than alleging:  “At all times material and relevant hereto, the Defendant, Adventure's Tours Corp ․ was a New York corporation authorized, and licensed to do business in the State of Connecticut and it maintained a usual place of business at 166 Westport Road, Wilton, Connecticut.”

“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 ․ Thus, once the defendant contest[s] personal jurisdiction ․ it [is] the plaintiff's burden to produce evidence adequate to establish such jurisdiction.”  (Citations omitted;  internal quotation marks omitted.)   Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515–16.

In support of their motion to dismiss, the defendants argue that the office allegedly conferring personal jurisdiction over them cited by the plaintiff is the personal office of the defendant Sayegh, and not an office of the defendant Adventure's Tours Corp. Further, they argue that no business of Adventure's whatsoever was conducted at this office, including any business relating to Adventure's contract with Peter Pan. Supporting these assertions, the defendants attach, among other submissions, affidavits of both principals of Adventure's (Miriam and Carmella Sayegh) stating that all business conducted with Peter Pan was done from Yonkers, New York, and that the alleged Wilton office address is only used for Miriam Sayegh's practice as an attorney.   Additionally, they submit a contract involving Adventure's Tours and Nathan's Famous Hot Dog stand that identifies Adventure's as a New York corporation with a New York address, a letter from Peter Pan to Adventure's in which the Peter Pan representative thanks the Adventure's representative for meeting with him in Yonkers and describing how Peter Pan buses would be chartered to Atlantic City, New Jersey from Yonkers;  invoices from vendors sent to Adventure's New York address, flyers and advertisements describing Peter Pan buses leaving from Yonkers, checks from vendors payable to Adventure's with a listed New York address, and copies of tax returns listed Adventure's New York address.

As noted above, the plaintiff elected to request leave to file an amended complaint rather than oppose the plaintiff's motion to dismiss, or submit any evidence that would tend to show that business of Adventure's was transacted at 166 Westport Road in Wilton.   Likewise, they chose to file a request to file an amended complaint rather than show that the corporation had minimum contacts with the State of Connecticut or otherwise fell within the ambit of the applicable longarm statute under the relevant jurisdictional allegations of the initial complaint.   Given that the burden of proof is on the plaintiff, and that the plaintiff submitted no evidence in support of the exercise of jurisdiction, the court concludes that it rightly granted the defendants' motion to dismiss.

The parties mainly recognize the propriety of this ruling and thus center their arguments around whether the court allowing the plaintiff to amend his complaint in this action was proper.   The defendants argue that since the plaintiff's complaint has been dismissed and the court has determined it lacks jurisdiction, the court can take no further action in this case.   Therefore, the defendants argue, the plaintiff must serve the defendants with process in another action;  the plaintiff cannot re-plead in this action.   The plaintiff takes issue with several technical aspects of the defendants' argument, and also attempts to distinguish cases on which the defendants rely.

“The decision [granting a motion to dismiss] is rendered in the form of a final judgment dismissing the action ․” Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 16–17, 578 A.2d 646 (1990).   The court's initial decision, to dismiss the plaintiff's complaint but allowing it to re-file in the same action, was tantamount to allowing the plaintiff's motion to amend and agreeing with the defendants that the plaintiff's complaint was jurisdictionally insufficient.   This action was incorrect.

“Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction ․ The point has been frequently made.”  Federal Deposit Ins. Corp v. Peabody, N.E., Inc., 239 Conn, 93, 99, 680 A.2d 1321 (1996) (internal quotation marks omitted.)  “[A]s soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made.”  Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (concluding that the trial court should have ruled on the motion to dismiss prior to a motion to amend).   See also, Hamzy v. Chapman, Superior Court, judicial district of Litchfield, Docket No. CV 07 5002675 (January 17, 2008, Pickard, J.) [44 Conn. L. Rptr. 828] (Dismissing plaintiff's complaint for lack of personal jurisdiction and declining to address plaintiff's motion to amend, except for discussion of a statute which stated that parties could amend a defective return date even after the granting of a motion to dismiss).

The court is without jurisdiction after the dismissal of a complaint.   Therefore, the court, once dismissing the complaint, should not have considered the plaintiff's motion to amend.³  Consequently, the order of dismissal, numbered 101.86, is vacated.

CONCLUSION

Because the court lacks personal jurisdiction, the defendants' motion to dismiss # 101 is granted.

Domnarski, J.

FOOTNOTES

FN1. General Statutes § 33–929(f) states:  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 whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follow:  (1) out of any contract made in this state or to be performed in this state;  (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly solicited business, whether the orders or offers relating thereto were accepted within or without the state;  (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;  or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.”In addition to this argument, the defendants also makes the argument that the plaintiff's action must be dismissed as to the defendant Sayegh because she, as an officer of Adventure's, is not liable for the corporation debts of Adventure's.   Furthermore, the defendants also argue that venue in Hartford is improper.   Because it is unnecessary to the disposition of this case, the court will not address these arguments..  FN1. General Statutes § 33–929(f) states:  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 whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follow:  (1) out of any contract made in this state or to be performed in this state;  (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly solicited business, whether the orders or offers relating thereto were accepted within or without the state;  (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;  or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.”In addition to this argument, the defendants also makes the argument that the plaintiff's action must be dismissed as to the defendant Sayegh because she, as an officer of Adventure's, is not liable for the corporation debts of Adventure's.   Furthermore, the defendants also argue that venue in Hartford is improper.   Because it is unnecessary to the disposition of this case, the court will not address these arguments.

FN2. When the plaintiff filed a request for leave to amend its original complaint it attached a copy of the proposed amended complaint that contained jurisdictional allegations not in the original complaint.   The court referenced the proposed amended complaint during the hearing on the defendants' motion to dismiss, but did not rule on its legal sufficiency..  FN2. When the plaintiff filed a request for leave to amend its original complaint it attached a copy of the proposed amended complaint that contained jurisdictional allegations not in the original complaint.   The court referenced the proposed amended complaint during the hearing on the defendants' motion to dismiss, but did not rule on its legal sufficiency.

FN3. The court points out that it does not hold that the plaintiff cannot attempt to cure the jurisdiction defect by re-filing and re-serving process on the defendants.  “[When a motion to dismiss has been granted], only the present action has been terminated and no decision on the merits has been made.   In some instances the plaintiff by amendment may cure the defect and have the case reinstated.   In others, the plaintiff can proceed only by initiating a new action ․ Other procedural avenues being unavailable, General Statutes § 52–592(a) specifically authorizes the plaintiff to commence a new action in the event that the action has been dismissed for want of jurisdiction.”  (Citation omitted;  internal quotations marks omitted.)  Southport Manor Convalescent Center, Inc., v. Foley, 216 Conn. 11, 16–17, 578 A.2d 646 (1990)..  FN3. The court points out that it does not hold that the plaintiff cannot attempt to cure the jurisdiction defect by re-filing and re-serving process on the defendants.  “[When a motion to dismiss has been granted], only the present action has been terminated and no decision on the merits has been made.   In some instances the plaintiff by amendment may cure the defect and have the case reinstated.   In others, the plaintiff can proceed only by initiating a new action ․ Other procedural avenues being unavailable, General Statutes § 52–592(a) specifically authorizes the plaintiff to commence a new action in the event that the action has been dismissed for want of jurisdiction.”  (Citation omitted;  internal quotations marks omitted.)  Southport Manor Convalescent Center, Inc., v. Foley, 216 Conn. 11, 16–17, 578 A.2d 646 (1990).

Domnarski, Edward S., J.