Peter Pan Bus Lines, Inc. v. Adventure's Tours Corp. et al. (2012)

RULING ON PLAINTIFF'S MOTION FOR RECONSIDERATION # 121

The plaintiff moves the court to reconsider the court's decision, on reargument, which granted the defendant's motion to dismiss, # 101, without leave to re-file in the same action.   The court will construe the motion as a motion for reargument.   The ground advanced in this motion is that the wording of the court's decision led the plaintiff to believe that it did not consider affidavits and other evidence appended to the defendants' objection to the plaintiff's motion to dismiss, # 105.   After careful consideration, the court declines to change its ruling and the motion is denied.

The court considered the affidavits during the initial hearing on the motion to dismiss.   As the court understands that there may have been an issue with service of the transcript on the plaintiff's attorney, the relevant portion will be reproduced below.   To wit, see Transcript, August 9, 2010, p. 24–25, and 29–36.

THE COURT:  It sounds to me like this is a long-arm jurisdiction case.

ATTY. FULLER:  Well, I think that's right, your Honor.

THE COURT:  Did you plead it?

ATTY. FULLER:  We—the pleadings indicate that they are diverse parties.

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THE COURT:  Attorney Fuller, I—did—do you claim jurisdiction under the long-arm statute?   And if so—

ATTY. FULLER:  It's not specifically pled in the complaint.

THE COURT:  Okay. Well, then I—generally, when you do that, you kind of have to allege that they had contacts with the State of Connecticut, the tort occurred, the contract was made.

My point is, when you're going to invoke the jurisdiction of the Court, when it's not clear of the record that—on the record that the Court has jurisdiction, you have to plead it to put the party on notice.

* * * *

ATTY. FULLER:  Yes, I—I agree with that your Honor, absolutely.

There's—I don't—you know I will concede that there is no specific allegation along the terms of the elements.

THE COURT:  Well you have to—you have to give the elements that you're claiming.

ATTY. FULLER:  What I foresee is a—is a further amendment, your Honor—

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THE COURT:  The original complaint, you allege that they are a New York corporation, that they have a place of business at 166 Westport Road in Wilton.   That's what you allege.

ATTY. FULLER:  That's the original allegation, correct.

THE COURT:  Yes. So if—Attorney Sayegh, with regard to that allegation, you would claim that—well, what exactly did you say in your motion regarding that, by way of affidavits or other information?

ATTY. SAYEGH:  Adventure's Tours does not have an office at 166 Westport Road. I'm an attorney, licensed in this state for over 21 years.   That is my office address, solely my office address.   It has nothing to do with running the operations for the corporation, Adventure's Tours, nothing.

[Attorney Sayegh points to her affidavits supporting this]

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THE COURT:  Okay. So you raise—your affidavit gives rise to the claim that the Adventure Tours does not do business in the State of Connecticut and does not have an office in the State of Connecticut.

ATTY. SAYEGH:  No, your Honor.   I have office in the State of Connecticut.

* * * *

THE COURT:  Okay. Thank you.   Attorney Fuller, what information do you bring to my attention in your objection to counteract that?

ATTY. FULLER:  Your Honor, the most straightforward information is contained in affidavits that are appended to the objection, in which three separate employees, or people that are related to the plaintiff, have offered, by way of testimony, that they negotiated the terms of the contract with Ms. Sayegh, as an officer of the company.

In addition to that they detailed that all of the—many communications that they had, dealings with the business and the—and the running of the business and things like making payments on behalf of the business, dealing with an officer of the corporation, were done by sending them to either the physical address, the fax machine or the e-mail in Connecticut, at Ms. Sayegh's office in Connecticut.

There's another affiant—

THE COURT:  Wait a second.   Again, I've got to focus on the allegations that you claim.   And again, I—am correct, that the only allegation which would give rise to jurisdiction in the original complaint is the allegation that you—that you—that—your claim that Adventure had a place of business at 166 Westport Road? Is there anything else?

I mean we're talking about a contract.   You haven't pled contracts formed in the State of Connecticut or anything like that.   I just want to make sure.

ATTY. FULLER:  That's correct.

THE COURT:  So your only allegation is that they have a place of business.

ATTY. FULLER:  That's correct.

THE COURT:  All right.   So—and now you're going to point me to the affidavits that you say support the—that that place of business is in Wilton.   I'm going to find that with your objection.

ATTY. FULLER:  Well, directing—it would be Exhibit B your Honor, which is the affidavit of Frank Farrow.

* * * *

ATTY. FULLER:  In paragraph 6 of that affidavit, your Honor, the affiant directly addresses the negotiations of a contract, formation of a contract, which is the underlying basis of the action.

THE COURT:  All right.   So the telephone calls to Westport, is that what you're saying?

ATTY. FULLER:  That's correct, your Honor.

THE COURT:  And what other affidavit information do you wish to provide regarding that?

ATTY. FULLER:  Exhibit—

THE COURT:  Regarding the place of business.

ATTY. FULLER:  Yes. Exhibit C.

* * * *

THE COURT:  I have the affidavit of Carl Lajeunesse in front of me.

ATTY. FULLER:  In paragraph 3 of that affidavit, your Honor, the affiant details, again, like the other affiant that detailed, which is that all negotiations of the contract and business terms were negotiated directly with the defendant, as an officer, somebody conducting business on behalf of—the defendant corporation.

* * * *

THE COURT:  Any other evidence, Attorney Fuller?

ATTY. FULLER:  Those are the most direct I wish to point out.

THE COURT:  Now my question to you is, in your memorandum, did you cite to me—the focus of the Court at this time is on the issues of place of business and what constitutes a place of business.

Have you furnished to me any law that indicates the residence of an officer who conducts business for the corporation equates to place of business for the corporation?

ATTY. FULLER:  No. And I—

THE COURT:  And I don't know the answer to that.

ATTY. FULLER:  My commentary to that is I didn't, because I didn't—I don't think that—it would be a more minimum contact.   It's the fact that there was business conducted, whether it's an officer or somebody else.   I—I didn't brief it.

THE COURT:  Yes. The difficulty you have is, you really haven't set forth in your allegations in the original complaint the proper form to established jurisdiction under the long-arm statute.

ATTY. FULLER:  I understand that.

THE COURT:  Do you?

ATTY. FULLER:  I do.

THE COURT:  Good. Then I'm going to grant the motion to dismiss because you have failed to plead requisite allegations to establish the long-arm statute.   I'm going to grant that motion to dismiss, without prejudice to you refiling an amended complaint, where, if you wish, you may set forth those allegations and the statutory criteria which you claim establish jurisdiction.

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As mentioned, when the defendant moved to reargue the motion in the first instance, the defendant took issue with the court giving the plaintiff an opportunity to re-plead in the same action.   The plaintiff filed an opposition to this reargument, explaining why in its view allowing the plaintiff to re-file in the same action was proper, and it also touched on the sufficiency of the proposed amended complaint.   The plaintiff, however, never argued that the original complaint was sufficient or briefed the issue of why the submitted affidavits were sufficient to establish long-arm jurisdiction under the original complaint.   Further, the plaintiff made no suggestion that the court's initial ruling on this ground was improper.

“The purpose of a reargument is ․ to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts ․ It also may be used to address ․ claims of law that the [movant] claimed were not addressed by the court ․ [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple ․” (Internal quotation marks omitted.)  Gibbs v. Spinner, 103 Conn.App. 502, 507, 930 A.2d 53 (2007).   The affidavits do not change the fact that jurisdiction under the longarm statute was not adequately pled in the original complaint.   To the extent that the court inadvertently intimated it did not consider all evidence before it in deciding the motion to dismiss it apologizes, but such an error, if any, does not provide a valid reason to reconsider its prior ruling, since all the submitted evidence was considered.

For the foregoing reasons, this motion to reargue is denied.

Domnarski, J.

Domnarski, Edward S., J.