Brian Banning et al. v. Re/Max at the Lake kka (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 105)

FACTS

The plaintiffs, Brian and Phyllis Banning, commenced this action by service of writ, summons, and complaint on January 4, 2013.   There are eight total defendants, but the present motion involves only three:  David C. Fox, Greg R. Morgan, and Re/Max at the Lake k/k/a Executive at the Lake (Re/Max).   They will be referred to collectively as the defendants.   The defendants filed an appearance on February 13, 2013.   The plaintiffs filed a three-count complaint on February 4, 2013, alleging fraud and breach of fiduciary duty and requesting the court to reform mortgages on two properties owned by the plaintiffs.   Pursuant to a request to revise, the plaintiffs filed a revised complaint on June 28, 2013.

On August 28, 2013, the plaintiffs filed a nine-count substituted complaint.   The defendants filed a motion for extension of time to respond to the substituted complaint (# 128), pending resolution of the present motion, which was granted by the court, Blue, J. That said, the defendants oral argument at short calendar addressed the allegations of the substituted complaint.   The defendants' attorney stated that the plaintiffs were “claiming that there was some type of conspiracy and fraud among the different defendants.”   FTR:  10/28/13 at 9:41:30.   Civil conspiracy is the cause of action alleged in count two of the substituted complaint against the defendants, but appears nowhere in the original complaint.   Although the present motion was filed on March 14, 2013, well before the substituted complaint was filed, the substituted complaint shall be treated as the operative complaint.

The present action arises from the purchase of two properties in North Carolina.   In the substituted complaint, the plaintiffs allege the following relevant facts.   The plaintiffs are residents of Connecticut, maintaining a principal residence in West Haven.   Re/Max is a North Carolina corporation with an office in Mooresville, North Carolina.   At all relevant times, Morgan and Fox were real estate agents in Mooresville, North Carolina, and were employees and/or agents of Re/Max.   While employed by Re/Max, Fox and Morgan represented the plaintiffs as real estate agents in connection with the purchase of two properties in Statesville, North Carolina (the properties).   In the course of their representation of the plaintiffs, the defendants regularly sent information to the plaintiffs at their Connecticut address.   In their capacity as real estate agents, Fox and Morgan made misrepresentations about the value of the properties, as well as misrepresentations of the properties' potential to generate rental income.   As a result, the properties were apprised higher than actual market value.   The plaintiffs relied on these misrepresentations to their detriment, the plaintiffs overpaid for the properties, and the plaintiffs thereby suffered economic harm.

The substituted complaint contains eight counts.   Counts one, two, five, and seven are all directed at the defendants.   Count one alleges civil conspiracy, count two alleges fraud, count five alleges breach of fiduciary, and count seven seeks mortgage reformation.   The defendants filed the present motion to dismiss on March 14, 2013, together with a memorandum of law and exhibits, on the grounds of lack of personal jurisdiction over all of them and insufficient service of process on Fox. The plaintiffs filed their objection to the defendants' motion on May 8, 2013, together with a memorandum of law and exhibits.   The defendants replied to the plaintiffs' objection on October 24, 2013, and the plaintiffs' filed a surreply on November 4, 2013.   The matter was heard at short calendar on October 28, 2013.¹

DISCUSSION

“Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.”  Practice Book § 10–30.  “The grounds which may be asserted in this motion [include] ․ lack of jurisdiction over the person ․ and ․ insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985).  “In ruling upon whether a complaint survives a motion to dismiss, 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 ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”   (Internal quotation marks omitted).  Oliphant v. Commissioner of Correction, 274 Conn. 563, 568, 877 A.2d 761 (2005).  “[A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.”  Golodner v. Women's Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826, 917 A.2d 959 (2007).

“A ruling on a motion to dismiss is neither a ruling on the merits of the action ․ nor a test of whether the complaint states a cause of action ․ Motions to dismiss are granted solely on jurisdictional grounds.”  (Citations omitted;  internal quotation marks omitted.)  Villager Pond, Inc. v. Darien, 54 Conn.App. 178, 182, 734 A.2d 1031 (1999).  “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.”   Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515–16, 923 A.2d 638 (2007).  “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.”  Id., 515.

I. PERSONAL JURISDICTION

The defendant's first challenge is to the court's personal jurisdiction.   The defendants argue that this court may not exercise jurisdiction over them, as nonresidents of Connecticut and a foreign corporation, because to do so would violate both the relevant Connecticut longarm statutes and federal constitutional due process.   The plaintiffs disagree and argue that the defendants are subject to a number of provisions of the longarm statutes and that exercise of jurisdiction over each of the defendants would not violate due process.   Additional jurisdictional facts, allegations, and arguments made by both parties will be set forth as necessary.

It is well settled law that a Connecticut court may exercise personal jurisdiction over an out-of-state defendant if authorized by an applicable longarm statute.   Such an exercise of jurisdiction is, however, tempered by the limits of the due process clause of the fourteenth amendment.  “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 longarm statute authorizes the assertion of jurisdiction over the [defendant].”  (Internal quotation marks omitted.)  Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996).  “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.”  Id. “[The court need] not reach [the due process inquiry if the court] lacked jurisdiction over the defendants under the applicable longarm statutes.”  Ryan v. Cerullo, 282 Conn. 109, 117 n.12, 918 A.2d 867 (2007).  “As long as it creates a substantial connection with the forum state, even a single act can support jurisdiction.”   Panganiban v. Panganiban, 54 Conn.App. 634, 639, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999).

A. Jurisdiction Under the Longarm Statutes

The present motion involves both nonresident individuals and a foreign corporation.   The applicable longarm statute conferring jurisdiction over nonresident individuals is General Statutes § 52–59b.  Section 52–59b(a) provides in relevant part:  “[A] court may exercise personal jurisdiction over any nonresident individual ․ who in person or through an agent:  (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act;  [or] (3) commits a tortious act outside the state causing injury to person or property within the state ․ 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 applicable longarm statute conferring jurisdiction over foreign corporations is General Statutes § 33–929.  Section 33–929(f) provides in relevant part:  “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 and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows:  (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state ․ 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.”

With respect to Fox and Morgan, the plaintiffs contend in their objection to the defendants' motion that the court has jurisdiction pursuant to §§ 52–59b(a)(2) and (a)(3).   The plaintiffs argue that Fox and Morgan regularly sent information regarding real estate investments to the plaintiffs in Connecticut.   In support of their argument, the plaintiffs submitted, inter alia, the affidavit of Brian F. Banning (the Banning affidavit).   With respect to Fox, the plaintiffs allege in the Banning affidavit that Fox made misrepresentations telephonically about the properties' potential for rental income, that the plaintiffs relied on these misrepresentations, and that the plaintiffs were ultimately unable to generate rental income as represented by Fox. With respect to Morgan, the plaintiffs allege in the Banning affidavit that Morgan regularly called the plaintiffs in Connecticut, that Morgan regularly sent documents to the plaintiffs via facsimile and email relating to properties in North Carolina, that Morgan represented to the plaintiffs that the properties were good investments, that Morgan made representations over the telephone regarding the value of the properties that turned out to be false, and that the plaintiffs relied on these misrepresentations and were thereby injured.   The plaintiffs submit that jurisdiction lies pursuant to § 52–59b(a)(2) when defendants transmit tortious communications into Connecticut.   The plaintiffs argue that the alleged misrepresentations made by Fox and Morgan were tortious and that they were made for the common purpose of generating higher fees and commissions.   Further, the plaintiffs argue that although Fox and Morgan were not in Connecticut, Fox and Morgan engaged in a “persistent course of conduct” that injured the plaintiffs in Connecticut, and therefore jurisdiction lies pursuant to § 52–59b(a)(3).

Fox and Morgan concede that transmission of fraudulent statements into Connecticut may satisfy § 52–59b(a)(2), but argue that the tortious statements must be sent to and received by the plaintiffs in Connecticut.   Fox and Morgan argue that because the plaintiffs have not proven that the phone calls were both sent to and received by the plaintiffs in Connecticut, they have failed to sustain their burden.   Furthermore, the defendants argue that because none of the evidence presented by the plaintiffs demonstrates the content of Fox and Morgan's communications, none of the evidence submitted by the plaintiffs establishes that any of the communications sent to the plaintiffs were in fact tortious.   Therefore, the defendants argue that the court lacks jurisdiction under § 52–59b(a)(2).   Moreover, the defendants argue that in attempting to exercise jurisdiction under § 52–59b(a)(3), the plaintiffs have failed to establish that Fox and Morgan's allegedly tortious conduct injured the plaintiffs in Connecticut.   Because the properties are located in North Carolina, the defendants argue that Connecticut is not the location of the plaintiffs' injury, and therefore jurisdiction does not lie pursuant to § 52–59b(a)(3).

With respect to Re/Max, the plaintiffs argue in their objection to the defendants' motion to dismiss that the court has jurisdiction pursuant to § 33–929(f)(2).   The plaintiffs argue that Re/Max, through its agents Fox and Morgan, sent communications to the plaintiffs in Connecticut.   The plaintiffs argue that these communications constitute “business solicited” in Connecticut for purposes of that section.   Furthermore, the plaintiffs argue in their surreply that Re/Max is subject to jurisdiction pursuant to § 33–929(f)(4) because Re/Max, through its agents, committed a tort within Connecticut.

Sections 52–59b(a)(2) and (a)(3), as well as § 33–929(f)(4), all authorize the court to exercise jurisdiction over an out-of state defendant that has engaged in tortious conduct.   The Connecticut Supreme Court has held that “[f]alse representations entering Connecticut by wire or mail constitute tortious conduct in Connecticut under [§ 33–929(f)(4) ] ․ because the alleged misrepresentations ․ would have been made by way of communications sent to and received by [the plaintiff] from the [out-of-state] defendants in Connecticut.”  Knipple v. Viking Communications Ltd., supra, 236 Conn. 610–11.   This reasoning has been extended to cases involving § 52–59b.   “Although in [Knipple ] the court was addressing the issue of personal jurisdiction under [§ 33–929(f)(4) ], it cited with approval David v. Weitzman, 677 F.Sup. 95, 98 (D.Conn.1987), in which the District Court held that the transmission of fraudulent misrepresentations into Connecticut by mail or telephone was ‘tortious conduct in Connecticut sufficient to establish personal jurisdiction under Connecticut's longarm statute, §§ [33–929(f)(4) ] and 52–59b(a)(2).’  “ (Emphasis in original.)  Pro Performance Corporate Services, Inc. v. Goldman, 47 Conn.Sup. 476, 484, 804 A.2d 248 (2002).  “Even where the sole contact of the defendants with Connecticut is to send fraudulent misrepresentations into Connecticut by mail and telephone, personal jurisdiction over the tortfeasors under Conn. Gen.Stat. § 52–59b(a)(2) has been found.”   Center Capital Corp. v. Hall, Superior Court, judicial district of Hartford, Docket No. CV–92–0452084–S (June 9, 1993, Dorsey, J.T.R.) (9 Conn. L. Rptr. 265, 267).

1. Applicability of § 52–59b to Fox

The plaintiffs first contend that longarm jurisdiction is proper as to Fox pursuant to § 52–59b(a)(3).   In order to exercise jurisdiction over Fox under § 52–59b(a)(3), the plaintiffs' burden is to present evidence which will establish that Fox committed a tort outside of Connecticut, that the tort caused injury to the plaintiffs in Connecticut, and that Fox either “(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 ․” General Statutes § 52–59b(a)(3).   The plaintiffs argue that Fox's numerous communications sent to the plaintiffs, some of which were tortious, constitute a “persistent course of conduct” for purposes of the statute.

The plaintiffs produced the following evidence of Fox's allegedly tortious conduct.   In the Banning affidavit, the plaintiffs allege the following facts:  Fox regularly sent information regarding the properties to the plaintiffs in Connecticut;  Fox made misrepresentations about the potential for rental income, the plaintiffs relied on these misrepresentations, and the plaintiffs were injured because they were unable to generate rental income as represented by Fox;  and Fox sent these misrepresentations through email, facsimile, and the mail.   The plaintiffs also submitted Federal Express receipts for documents they argue were sent to Connecticut by Fox. However, the receipt that pertains to Fox clearly shows that Fox was the recipient of the package, not the sender.   The sender was Brian Banning.   See Pls.' Ex. B. Thus, the issue is whether the plaintiffs' allegations in the Banning affidavit and substituted complaint provide sufficient evidence for purposes of the present motion.

When evaluating jurisdiction under § 52–59b(a)(3), “[t]he threshold question is whether any injury to [the plaintiff] occurred in Connecticut.”   Harris v. Wells, 832 F.Sup. 31, 35 (D.Conn.1993).  “Connecticut has adopted the ‘critical events' test to determine where a plaintiff's injury occurred.”   Id. “[The] critical events test [was created] to determine the situs of the injury resulting from the tortious act [under § 52–59b(a)(3) ].”  (Internal quotation marks omitted.)  Connecticut Artcraft Corp. v. Smith, 574 F.Sup. 626, 629 (D.Conn.1983).  “In evaluating the ‘critical events' for the purposes of jurisdiction, it has been held that the plaintiff's residence or domicile within a state, in and of itself, is not a sufficient predicate for the exercise of jurisdiction in that state.   The determinative factor for jurisdiction is evidence of direct economic injury to the plaintiff within the state.”  Id., 629–30.

The critical events of the present case occurred in North Carolina.   The present case is analogous to Bross Utilities Services Corp. v. Aboubshait, 489 F.Sup. 1366 (D.Conn.1980), aff'd, 646 F.2d 559 (2d Cir.1980).   In that case, the plaintiff, a Connecticut utility provider, entered into a joint venture with the Saudi Arabian defendants.   The parties agreed to construct electrical transmission and distribution systems in Saudi Arabia.   The plaintiff performed its part of the contracts, but alleged that it never received its share of the profit.   The plaintiff filed suit in the United States District Court for the District of Connecticut, seeking to impose jurisdiction over several of the individual defendants under, inter alia, § 52–59b(a)(3).   The court held that it lacked jurisdiction over the defendants.   The court stated that “[t]he critical events in this case—such as the defendants' appropriation of the plaintiff's workers and equipment, their failure to infuse the joint venture with promised working capital and their refusal to permit [the plaintiff's] accountants to inspect the books of the joint venture—all appear to have taken place in Saudi Arabia ․ [T]he profits which the plaintiff is suing to recover would have been derived from business in Saudi Arabia, not Connecticut.   The plaintiff alleges that it was deprived of such profits by the defendants' wrongdoings in Saudi Arabia, rather than Connecticut.”  (Internal quotation marks omitted.)  Id., 1375.

In the present ease, the properties that would have generated rental income for the plaintiffs are in North Carolina.   Any lost profits from rental income would have been derived in North Carolina by virtue of the properties' location.   The situs of the injury to the plaintiffs is North Carolina, not Connecticut.   The fact that the plaintiffs reside in Connecticut is not determinative.  “[T]he plaintiff's residence or domicile within a state, in and of itself, is not a sufficient predicate for the exercise of jurisdiction in that state.”  Connecticut Artcraft Corp. v. Smith, supra, 574 F.Sup. 629–30.   Because the critical events in the present case took place in North Carolina, Fox is not subject to the court's personal jurisdiction under § 52–59b(a)(3).

The plaintiffs next contend that longarm jurisdiction is proper as to Fox pursuant to § 52–59b(a)(2).   As stated above, the plaintiff's only evidence pertaining to Fox are the allegations of the Banning affidavit and the substituted complaint.   The plaintiffs allege in the Banning affidavit and the substituted complaint that Fox contacted the plaintiffs in Connecticut, made misrepresentations as to both the value of the properties and their potential to general rental income, the plaintiffs relied on said misrepresentations, and the plaintiffs were injured as a result.   Fox submitted an affidavit which does not dispute these jurisdictional facts.   Instead, Fox alleges facts pertaining to his contacts with Connecticut.   For instance, he states that he is not and never was licensed in Connecticut, that he has never sold real estate in Connecticut, that he maintains no offices or bank accounts in Connecticut, that he does not advertise, market, or solicit business in Connecticut, and that he does not otherwise maintain contacts with Connecticut.   Therefore, because the parties did not conduct an evidentiary hearing,² determination of the court's jurisdiction over Fox will be based upon competing affidavits.   “Ordinarily, the plaintiff would have to make only a prima facie showing that jurisdiction is proper.   When ․ an evidentiary hearing has been conducted, the plaintiff's burden increases such that he must prove jurisdictional facts by a preponderance of the evidence.”  Milne v. Catuogno Court Reporting Services, Inc., 239 F.Sup.2d 195, 198 (D.Conn.2002).  “[W]hen the determination is based exclusively on pleadings and affidavits without the benefit of an evidentiary hearing, plaintiff must establish a prima facie showing of personal jurisdiction ․ The allegations set forth in plaintiff's pleadings and affidavits must be construed favorably to plaintiff and all doubts resolved in plaintiff's favor.”  (Citations omitted;  emphasis added.)  H. Lewis Packaging, LLC v. Spectrum Plastics, Inc., 296 F.Sup.2d 234, 237–38 (D.Conn.2003).

The plaintiffs' burden is thus to establish a prima facie case of fraud on the part of Fox through the allegations in the Banning affidavit and the substituted complaint.   To carry their burden, however, the plaintiffs must rely on “affidavits that contain undisputed facts.”  (Emphasis added.)   Golodner v. Women's Center of Southeastern Connecticut, Inc., supra, 281 Conn. 826.   The plaintiffs have sustained this burden.

The case Olson v. Accessory Controls & Equipment Corp., 54 Conn.App. 506, 735 A.2d 881 (1999), aff'd, 254 Conn. 145, 757 A.2d 14 (2000), is instructive to the present case.  Olson involved a claim for the tort of negligent misrepresentation.   The plaintiff was employed as an engineering technician by Accessory Controls.   The plaintiff alleged he was approached by representatives of a French company named Teleflex, which had recently acquired an ownership interest in Accessory Controls.   The representatives asked the plaintiff to disclose information about the propriety of Accessory Control's storage and disposal of toxic and hazardous waste.   The plaintiff alleged he was promised that his disclosure would remain confidential.   Thereafter, the plaintiff alleged that the information he provided was communicated to Accessory Control's senior managers, who subsequently commenced a campaign of retaliation against the plaintiff.   Ultimately, the plaintiff was terminated.   The plaintiff sued both Accessory Controls and Teleflex, with the claims against Teleflex sounding in negligent misrepresentation.   Teleflex filed a motion to dismiss on the ground of personal jurisdiction.   The plaintiff “submitted no affidavits or supporting material”;  Id., 513;  but only “rel [ied] on the conclusory allegations in his complaint to establish jurisdiction.”  Id. The motion was granted by the trial court.

Although the Appellate Court agreed that the trial court lacked personal jurisdiction over Teleflex, it also commented on the plaintiff's ability to make a prima facie showing of personal jurisdiction relying solely on the allegations of his complaint.   The Appellate Court agreed with the trial court's determination that the plaintiff, in his complaint, “had at least initially set forth the necessary [allegations] of jurisdictional fact that would allow the trial court to establish personal jurisdiction over Teleflex ․” (Internal quotation marks omitted.)  Id. Specifically, the court stated:  “We agree with the trial court that the necessary jurisdictional fact, i.e., a communication by [Teleflex's agents] of the information supplied by the plaintiff to Accessory Controls management following a promise of confidentiality, is only hinted at [by the plaintiff].   Nevertheless, we recognize that [w]hen a [trial] 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.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 516.   The court thus recognized that a plaintiff could conceivably establish personal jurisdiction over an out-of-state tortfeasor by properly alleging a prima facie case of the relevant tort.

That said, the court affirmed the trial court's determination that it lacked jurisdiction over Teleflex because Teleflex's agents filed affidavits to the court which “denied that any such communications took place.”  Id., 516.   Specifically, Teleflex's agents “both claimed that any allegations made to them by the plaintiff regarding the improper disposal of hazardous waste were not communicated to Accessory Controls prior to the plaintiff's termination.”   Id. The court further noted that “the plaintiff has not submitted any counter affidavits refuting those claims ․ he relies solely on the [conclusory] allegations contained in his complaint and has submitted no further evidence to establish the necessary jurisdictional basis for his claim against Teleflex.”  Id., 517.   In other words, Teleflex disputed the “necessary jurisdictional fact” alleged by the plaintiff.   Therefore, the allegations of the plaintiff's complaint were not undisputed, as is required for purposes of establishing jurisdiction.

In the present case, the necessary jurisdictional facts for purposes of the plaintiffs' prima facie case of fraud are that Fox made a false representation of fact, Fox knew the representation was untrue, Fox made the misrepresentation to induce the plaintiffs to act upon it, and the plaintiffs did act upon it to their detriment.   See Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010) (“The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury”).  (Internal quotation marks omitted.)   The plaintiffs have adequately made these fundamental allegations, and these allegations have not been disputed by Fox. Like in the defendants in Olson, Fox submitted an affidavit in support of the motion to dismiss.   Unlike the defendants in Olson, however, Fox does not dispute the plaintiffs' allegations that he engaged in tortious conduct.   Instead, Fox simply stated facts demonstrating the dearth of his contacts with Connecticut.   While these statements are relevant to the court's analysis of Fox's minimum contacts under due process, see infra, they do not dispute the plaintiffs' allegations.³

In consideration of the standard of review, which requires that the court take “all facts well pleaded ․”;  Golodner v. Women's Center of Southeastern Connecticut, Inc., supra, 281 Conn. 826;  “constru[e] them in a manner most favorable to the pleader”;  Oliphant v. Commissioner of Correction, supra, 274 Conn. 568;  and resolve “all doubts ․ in plaintiff's favor”;  H. Lewis Packaging, LLC v. Spectrum Plastics, Inc., supra, 296 F.Sup.2d 240;  Fox is subject to the court's jurisdiction under § 52–59b(a)(2).⁴

2. Applicability of § 52–59b to Morgan

As with Fox, the plaintiffs argue that §§ 52–59b(a)(2) and (a)(3) permit the court to exercise jurisdiction over Morgan.   The plaintiffs produced the following evidence with respect to Morgan.   The plaintiffs submitted an image of an email inbox which displays emails sent from Morgan.   Most of the email subjects read “listings from your agent,” although there are some with specific subjects such as “[D]avidson house” and “[M]c[L]aughlin house.”   See Pls.' Ex. A. The plaintiffs also submitted the text of the “[D]avidson house” email.   In this email, Morgan represents to the plaintiffs that the house “might be a damn good deal, as there is nothing in this town for less than $100k.”   Pls.' Ex. A. The plaintiffs submitted several Federal Express receipts, similar to those sent to Fox. See Pls.' Ex. B. The plaintiffs also produced copies of the purchase and sale contracts for the properties, both of which are signed by Morgan as the “buyer's agent.”   See Pls.' Ex. C. Finally, the plaintiffs' submitted the Banning affidavit, which states the following regarding Morgan:  Morgan would regularly send emails to the plaintiff's identifying investment properties in North Carolina;  Morgan would regularly call the plaintiffs to discuss properties;  Morgan would regularly email, fax, and mail material to the plaintiffs;  Morgan made representations regarding the value of investment properties;  and Morgan sent the contracts in Exhibit C to the plaintiffs for execution.

As with Fox, jurisdiction does not lie under § 52–59(a)(3) with Morgan.   Because § 52–59(a)(3) requires the plaintiffs to prove that Morgan committed a tort outside Connecticut causing them injury within the state, and because the “critical events” in the present case occurred in North Carolina and not Connecticut, Morgan is not subject to the court's personal jurisdiction under this provision.

The plaintiffs next contend that longarm jurisdiction is proper as to Morgan pursuant to § 52–59b(a)(2).   Morgan submitted an affidavit and averred, much like Fox, facts which illustrate his paucity of contacts with Connecticut.   For example, Morgan stated that he only visited Connecticut once en route to Rhode Island in 2008, he is not and was never licensed in Connecticut, he never sold, advertised, or marketed real estate in Connecticut, he has no bank accounts in Connecticut, and he does not have other contacts with Connecticut.   He also recalled occurrences over the course of his representation of the plaintiffs, such as the fact that the plaintiffs traveled to North Carolina to view properties with him and that the plaintiffs communicated with him via email, telephone, and facsimile.   Just like Fox, however, Morgan does not dispute the key jurisdictional facts concerning a prima facie case for fraud.   Unlike the defendants in Olson, who were accused of making negligent communications and thereby committing negligent misrepresentation and “denied that any such communications took place”;  Olson v. Accessory Controls & Equipment Corp., supra, 54 Conn.App. 516;  Morgan did not dispute the plaintiff's allegations that he made a factual misrepresentation, which was known to him to be untrue, and that the plaintiffs relied on said misrepresentations.   Accordingly, Morgan is subject to the court's longarm jurisdiction under § 52–59b(a)(2).

3. Applicability of § 33–929(f) to Re/Max

“A foreign corporation may be haled into court in Connecticut only if a plaintiff alleges jurisdictional facts that, if proven, would satisfy one of the provisions of our longarm statute.”  Pitruzello v. Muro, 70 Conn.App. 309, 311, 798 A.2d 469 (2002).   The plaintiffs argue that Re/Max is subject to the court's personal jurisdiction under § 33–929(f)(2) and (f)(4).   The plaintiff's point to the conduct and contacts of its agents, Fox and Morgan, and argue that this subjects Re/Max to jurisdiction under the statute.   Turning first to § 33–929(f)(2), the plaintiffs' burden is to present evidence which will establish that Re/Max solicited business in Connecticut.

“For purposes of [§ 33–929(f)(2) ], a plaintiff's cause of action aris [es] ․ out of ․ business solicited in this state if, 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.”  (Internal quotation marks omitted.)   Thomason v. Chemical Bank, 234 Conn. 281, 296, 661 A.2d 595 (1995).  “[A] plaintiff need not show that, because of the acts of solicitation, the defendant was on notice that it might be sued by the plaintiff himself or herself.   A plaintiff similarly need not show that the defendant solicited his or her business in Connecticut.   A plaintiff need only demonstrate that the defendant could reasonably have anticipated being haled into court here by some person who had been solicited in Connecticut and that the plaintiff's cause of action is not materially different from an action that might have resulted directly from that solicitation.”  (Emphasis in original.)  Id.

Re/Max submitted an affidavit of Cynthia Sikorski, one of its corporate officers.   Like Morgan and Fox, Sikorski avers that Re/Max does not have and never had any offices or bank accounts in Connecticut, that it does not and never has advertised or marketed properties in Connecticut or nationally, and that it does not and never has derived any substantial revenue from Connecticut residents.   The plaintiffs do not challenge these averments.   Based on these undisputed facts and the plaintiffs' dearth of evidence, the plaintiffs have not sustained their burden with respect to Re/Max under § 33–929(f)(2).   The present case is readily distinguishable from a number of cases where jurisdiction was held to lie under § 33–929(f)(2).   For example, in Thomason v. Chemical Bank, jurisdiction was held proper over a trustee bank that had no offices in Connecticut.   The court noted that the defendant “conducts a substantial credit card business here, regularly solicits general banking business here and holds title (as mortgagee) to a substantial amount of real property in Fairfield county.”  Thomason v. Chemical Bank, supra, 234 Conn. 300.   The court concluded that the defendants “reasonably could foresee that, by advertising here, providing credit cards and taking mortgages from Connecticut residents, it would develop customer relationships that would lead to a wide range of banking business with those customers.”  Id., 298.   In contrast, it is undisputed that Re/Max neither regularly conducts business nor holds title to property, as mortgagor or mortgagee, in Connecticut.

The case Hagar v. Zaidman, 797 F.Sup. 132 (D.Conn.1992), is instructive to the “solicits business” issue.   In Hagar, the court held that it was without jurisdiction over the defendant, a California corporation that entered into an agreement to buy copyrights and licenses from the plaintiff.   The defendant's agent traveled to Connecticut for three days to negotiate contractual terms and placed “some 95 phone and fax transmissions ․ to Plaintiffs in Connecticut ․” Id., 136.   The court held that these contacts were insufficient to establish jurisdiction over the corporate defendant.   The court stated that the plaintiffs failed to support “the proposition that [ninety-five] telephone conversations or fax transmissions in connection with contract negotiations constitute solicitation of business pursuant to [§ 33–929(f)(2) ] ․ Whatever the content of the discussions between [the defendant's agent and the plaintiff] in Connecticut, they represent too tenuous a contact to subject [the corporate defendant] to suit under [§ 33–929(f)(2) ].”  Id., 137.   In the present case, neither of the agents of Re/Max, Morgan and Fox, ever entered Connecticut to provide services to the plaintiffs.   Additionally, there is no evidence of the quantity of phone calls made, let alone ninety-five.   The plaintiffs have “offer[ed] no support for the proposition that the telephone conversations or fax transmissions ․ constitute solicitation of business pursuant to [§ 33–929(f)(2) ].”  Id. The plaintiffs have failed to establish that it was reasonably foreseeable to Re/Max that it could be sued in Connecticut, and therefore the court lacks personal jurisdiction over Re/Max pursuant to § 33–929(f)(2).

Turning next to § 33–929(f)(4), the plaintiff's burden is to present evidence which will establish that Re/Max committed a tort within Connecticut.  “Section 33–929(f)(4) ․ requires that the alleged tortious conduct be committed within Connecticut for jurisdiction to exist ․ It is not enough that the consequences of the defendants' acts impact a plaintiff in Connecticut;  the tortious conduct must be directly and expressly targeted at the forum state to support jurisdiction over a foreign corporation.”   (Citations omitted.)  Swain v. American Capital Strategies, Ltd., Superior Court, judicial district of Middlesex, Complex Litigation Docket, Docket No. X04–CV–03–0103924–S (August 4, 2004, Quinn, J.).  “[General Statutes § 33–929(f)(4) ] is concerned only with the place where the tortious conduct occurred.   It requires tortious conduct in this state.”  (Emphasis in original;  internal quotation marks omitted.)  Bross Utilities Services Corp. v. Aboubshait, supra, 489 F.Sup. 1373.  “[I]n Knipple, and in other cases in which out-of-state communications have formed the basis for the tortious conduct in Connecticut, the telephone calls or written correspondence have been sent to and received by the plaintiff in Connecticut.”  (Emphasis in original.)  Swain v. American Capital Strategies, Ltd, supra, Superior Court, Docket No. X04–CV–03–0103924–S.

As with Fox and Morgan, Sikorski's affidavit deals with Re/Max's contacts with Connecticut.   They do not dispute that a tort was committed by Re/Max's agents.   Because there is no dispute as to the plaintiffs' allegations, the plaintiffs have sustained their burden and, accordingly, Re/Max is subject to the court's longarm jurisdiction pursuant to § 33–929(f)(4).

For all of the foregoing reasons, the court may exercise personal jurisdiction over the defendants under the longarm statute.  “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.)  Knipple v. Viking Communications, Ltd, supra, 236 Conn. 606.   Having evaluated the applicability of the longarm statutes, the court must next evaluate whether the exercise of jurisdiction over the defendants would offend federal due process.

B. Jurisdiction Under the Due Process Clause

“The federal due process clause permits state courts to exercise in personam jurisdiction over a nonresident corporate [or individual] defendant that has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”   Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606 n.6. Thus, due process requires the court to both determine the defendants' minimum contacts with Connecticut and to evaluate the fairness of exercising jurisdiction.   With respect to minimum contacts, “[e]ither ‘specific’ jurisdiction or ‘general’ jurisdiction can satisfy the constitutional requirement of sufficient minimum contacts between the defendant and the forum.”  Thomason v. Chemical Bank, supra, 234 Conn. 287–88.

“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 ․” (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 288, citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).  “The purposeful availment requirement is satisfied if the defendant's contacts with the forum proximately result from actions by the defendant himself that create a substantial connection with the forum such that he should reasonably anticipate being haled into court there.”  (Internal quotation marks omitted.)  Cody v. Ward, 954 F.Sup. 43, 46–47 (D.Conn.1997), quoting Burger King Corp. v. Rudzewicz, supra, 474–75.  “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 ․” (Internal quotation marks omitted.)  Burger King Corp. v. Rudzewicz, supra, 475.

“Even 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 when there are sufficient contacts between the State and the foreign corporation.”   (Emphasis omitted, footnote omitted.)  Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).  “When a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum, the State has been said to be exercising general jurisdiction over the defendant.”  (Internal quotation marks omitted.)   Id., n.9. General jurisdiction is thus properly exercised when “the defendant has had continuous and systematic general business contacts with the state.”  Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606 n.6.

In addition to the minimum contacts requirement, “[m]aintenance of the suit in the forum state cannot offend traditional notions of fair play and substantial justice.”  (Internal quotation marks omitted.)  Hagar v. Zaidman, supra, 797 F.Sup. 134, quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).   Courts apply a five factor analysis to determine whether the exercise of jurisdiction comports with traditional fair play and substantial justice.  “[T]he reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of several factors.   A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief.   It must also weigh in its determination the interstate judicial system's interest in obtaining the most efficient resolution of controversies;  and the shared interest of the several States in furthering fundamental substantive social policies.”   (Internal quotation marks omitted.)  Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).

A. Minimum Contacts

The court is without general jurisdiction over the defendants.   Re/Max is a North Carolina corporation with its principal place of business in Mooresville, North Carolina.   It sells real estate through agents who are licensed in North Carolina.   It does not and never has advertised or marketed in Connecticut and it never had an office or bank account in Connecticut.   Neither Morgan nor Fox are licensed in Connecticut and neither maintain any practice in Connecticut.   In fact, according to Morgan's undisputed affidavit, he has only been in Connecticut once in 2008 to purchase gas en route to Rhode Island.

The case Wylie v. Sapphire Beach Resort and Marina, Superior Court, judicial district of Litchfield, Docket No. CV–95–0067304–S (August 4, 1995, Moran, J.) (15 Conn. L. Rptr. 188), is instructive to the issue of general jurisdiction.   That case involved a plaintiff seeking damages for personal injuries sustained while at the defendant's vacation resort in the U.S. Virgin Islands.   In deciding the defendant's motion to dismiss, the court stated that “the defendant's contacts with [Connecticut] are three newspaper advertisements over a one year period, approximately seven hundred Connecticut residents who vacationed at the defendant resort in 1994 and sixty-six Connecticut travel agents who booked the defendant resort over the last two years.”  Id., 190.   Notwithstanding these contacts, the court held that “[t]hese activities do not show that the defendant has been carrying on in [Connecticut] a continuous and systematic, but limited, part of its general business.”  (Internal quotation marks omitted.)  Id. These contacts are more substantial than those of the defendants in the present case, who undisputedly do not, inter alia, advertise in Connecticut newspapers, sell Connecticut real estate, or solicit business in Connecticut.   Further, and unlike the defendant in Wylie, which benefitted from the services of sixty-six Connecticut travel agents, Re/Max does not use Connecticut real estate agents and Fox and Morgan are not and have never been licensed Connecticut agents.   Based on the evidence before the court, none of the defendants have systematic or continuous contacts of any sort with the state of Connecticut.

The court is also without specific jurisdiction over the defendants.   The plaintiffs have not established that the defendants have “purposefully availed [themselves] of the benefits and protections” of Connecticut's laws.   See Burger King Corp. v. Rudzewicz, supra, 471 U.S. 482.   In fact, the real estate contracts presented by the plaintiffs show otherwise.   With respect to contracts establishing specific performance, in Burger King Corp., the Supreme Court held that the defendant purposefully availed himself of the benefits and protections of Florida's laws “by entering into contracts expressly providing that those laws would govern franchise disputes.”  Id. While the contracts in the present case do not contain a similar choice of law provision, both contracts are on standard forms drafted by the North Carolina Association of Realtors.   Also, at the end of each contract, the North Carolina Association of Realtors and the North Carolina Bar Association provide a disclaimer, and advise the signatory “[i]f you do not understand this form or feel that it does not provide for your legal needs, you should consult a North Carolina real estate attorney before you sign it.”   See Pls.' Ex. C. Based on this, it is very unlikely that the defendants “should reasonably [have] anticipate[d] being haled into court”;  Burger King Corp. v. Rudzewicz, supra, 471 U.S. 474;  in Connecticut as a result of a dispute over the properties.

Because the defendants do not maintain systematic and continuous contacts with Connecticut, and because the plaintiffs have not proven that the defendants have purposefully availed themselves of the protections of Connecticut's laws, the defendants lack the minimum contacts necessary to cloak the court with personal jurisdiction.

B. Traditional Notions of Fair Play and Substantial Justice

Finally, “[o]nce it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice.”  (Internal quotation marks omitted.)  Burger King Corp. v. Rudzewicz, supra, 471 U.S. 476.   Courts utilize the following five factors to ascertain the fairness of jurisdiction:  (1) the burden on the defendants;  (2) the forum state's interest in adjudicating the dispute;  (3) the plaintiff's interest in obtaining convenient and effective relief (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies;  and (5) the shared interest of the several states in furthering fundamental substantive social policies.  World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).   While the plaintiffs have the burden of proof with respect to the court's jurisdiction, under the “fairness” test of the due process inquiry “[t]he burden is on the defendant to prove a compelling case that personal jurisdiction is unreasonable under the circumstances.”   Broadcast Marketing International, Ltd. v. Prosource Sales & Marketing, Inc., 345 F.Sup.2d 1053, 1063 (D.Conn.2004).   See also Metropolitan Life Ins. Co. v. Robertson–Ceco Corp., 84 F.3d 560, 568, cert. denied, 519 U.S. 1006, 117 S.Ct. 508, 136 L.Ed.2d 398 (2d Cir.1996) (“While 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” (internal quotation marks omitted)).

The defendants have made a compelling case that litigating this case in Connecticut as opposed to North Carolina would be unfair.   With respect to the first factor, the defendants argue that requiring them to travel to Connecticut to litigate would be costly, time consuming, and burdensome.   The plaintiffs argue that requiring them to travel to North Carolina would likewise be burdensome.   However, the defendants argue that the plaintiffs' argument is undercut by the fact that the plaintiffs own some fifteen properties in North Carolina, manage those properties, and travel to North Carolina frequently.   The plaintiffs do not dispute this.

With respect to the second factor—the forum state's interest in adjudicating the dispute—the defendants acknowledge Connecticut's interest in protecting its residents from fraud and other tortious conduct.   That said, the defendants correctly point out that the present case involves misconduct in connection with the sale of North Carolina property by North Carolinian real estate agents.   The defendants argue that North Carolina's interest in regulating and, to the extent misconduct occurred, disciplining its real estate professionals, outweighs Connecticut's interest in simply providing a forum.

With respect to the third factor—the plaintiff's interest in obtaining convenient and effective relief—the defendants essentially argue that it would not be any less convenient for the plaintiffs to litigate in North Carolina than Connecticut because of their substantial contact with North Carolina.   This argument is unpersuasive because the plaintiffs are residents of Connecticut and maintain their principal residence here.   More persuasive, however, is the defendants' argument regarding the fourth factor, the interstate judicial system's interest in obtaining the efficient administration of justice.   As the defendants correctly note, “[i]n evaluating this factor, courts generally consider where witnesses and evidence are likely to be located.”  Metropolitan Life Ins. Co. v. Robertson–Ceco Corp., supra, 84 F.3d 574.   The defendants argue that the majority of witnesses, with the exception of the plaintiffs, are located in North Carolina.   The plaintiffs do not dispute this.

The final factor is the shared interest of the several states in furthering fundamental substantive social policies.   The defendants echo their argument from the second factor, which is that North Carolina has a stronger incentive to enforce its laws and regulate and discipline its real estate agents.   While it is unclear that this is a “fundamental substantive social polic[y]”;  World–Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. 292;  of North Carolina, this is a reasonable argument.

There are certainly arguments to be made both ways.   Based on the facts, the balance falls in favor of the defendants.   Adjudicating the present case would require the majority of the parties to travel to Connecticut from North Carolina, even though the property and most of the witnesses are in North Carolina.   Connecticut certainly has an interest in providing a forum for its aggrieved citizens, but the defendants correctly note that North Carolina also has a strong interest in providing a forum for aggrieved citizens, as well as a strong interest in preventing tortious business conduct within its real estate industry.   Accordingly, traditional notions of fair play and substantial justice compel the court to find that personal jurisdiction over the defendants is lacking.

Because the defendants lack minimum contacts with Connecticut and because the exercise of jurisdiction would be unfair to the defendants, the motion to dismiss shall be granted.

II. INSUFFICIENT SERVICE OF PROCESS

The final issue before the court is a separate dispute regarding the propriety of the court's exercise of jurisdiction over Fox. Fox states that the plaintiffs attempted to constructively serve process on him, but argues that he never received the plaintiffs' writ, summons, and complaint.   Fox states that service of process was sent to him at 2487 Brawley School Road, Apt. B, in Mooresville, North Carolina, but that he has not lived at this address for over two years.   Because it is the plaintiffs' duty to serve process to the “last-known address” of a defendant when engaging in constructive service, and because the plaintiffs did not send process to Fox's “last-known address,” Fox argues that jurisdiction over him is improper due to insufficient service of process.

“Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․” (Internal quotation marks omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011).  “[T]he Superior Court ․ may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court's exercise of personal jurisdiction.”  Kim v. Magnotta, 249 Conn. 94, 101–02, 733 A.2d 809 (1999).  “[A]n action commenced by ․ improper service must be dismissed.”  (Internal quotation marks omitted.)  Jimenez v. DeRosa, 109 Conn.App. 332, 338, 951 A.2d 632 (2008).  “One who is not served with process does not have the status of a party to the proceeding ․ A court has no jurisdiction over persons who have not been made parties to the action before it.”  (Internal quotation marks omitted.)  Security Ins. Co. of Hartford v. Lumbermens Mutual Casualty Co., 264 Conn. 688, 722, 826 A.2d 107 (2003).

Constructive service of process over nonresident individuals is governed by General Statutes § 52–59b(c).  Section 52–59b(c) provides in relevant part:  “Any nonresident individual ․ over whom a court may exercise personal jurisdiction, as provided in subsection (a) ․ 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 State and shall have the same validity as if served upon the nonresident individual ․ personally.   The process shall be served ․ by leaving with or at the office of the Secretary of the State ․ a true and attested copy thereof, and by sending to the defendant at the defendant's last-known address ․ a like true and attested copy ․” “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.”   Leon v. Albarrachin, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–10–6007223–S (September 27, 2011, Adams, J.T.R.).

“[W]hen a particular method of serving process is set forth by statute, that method must be followed ․ Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction ․ The jurisdiction that is found lacking .. . is jurisdiction over the person ․” (Emphasis added;  internal quotation marks omitted.)   Morgan v. Hartford Hospital, supra, 301 Conn. 400.   Because insufficient service of process implicates personal jurisdiction, “the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used.”  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983).

In the present case, the plaintiffs have failed to produce any evidence that 2487 Brawley School Road, Apt. B, in Mooresville, North Carolina was Fox's “last-known address.”   The plaintiffs did not so much as address this issue in either their initial objection to the motion to dismiss or their surreply.   Moreover, in cases involving identical “last-known address” language in General Statutes § 52–62(c),⁵ the longarm statute governing jurisdiction over nonresident defendants in cases involving the negligent operation of a motor vehicle, the Supreme Court of Connecticut has held:  “[t]he requirement that the copy be mailed to the defendant at his ‘last-known address' does not mean the last address known to the plaintiff but does mean the last address of the defendant so far as it is known, that is, by those who under the ordinary circumstances of life would know it.   Unless the defendant has departed for parts unknown, it means his actual address;  if he has disappeared it means his last address so far as it is reasonably possible to ascertain it.   This address the plaintiff must learn at his peril, and only if the copy is mailed to it is there a compliance with the statute.”  Hartley v. Vitiello, 113 Conn. 74, 80, 154 A. 255 (1931).   The plaintiffs have not argued that 2487 Brawley School Road, Apt. B, in Mooresville, North Carolina was Fox's “last-known address” under this standard.   Because the plaintiffs have not established that they served process on Fox's “last-known address,” the motion to dismiss as to Fox is granted for insufficient service of process.

Conclusion

For the foregoing reasons, the court grants the defendants' motion to dismiss on the ground of personal jurisdiction.   Although the defendants are subject to longarm jurisdiction, they all lack the minimum contacts necessary for the court to exercise jurisdiction under the due process clause.   Exercising jurisdiction over them would also be unfair under due process.   Further, the court grants the motion to dismiss Fox on the ground of insufficient service of process because the plaintiffs have failed to prove that they sent process to Fox's “last-known address.”

Brian T. Fischer, J.

FOOTNOTES

FN1. At short calendar, the court granted the plaintiffs one week to respond to the defendants' reply to the plaintiffs' objection.   This is why the plaintiffs' surreply was filed after short calendar..  FN1. At short calendar, the court granted the plaintiffs one week to respond to the defendants' reply to the plaintiffs' objection.   This is why the plaintiffs' surreply was filed after short calendar.

FN2. The necessity of an evidentiary hearing in cases such as the present case has been given considerable judicial treatment.   Recently, the Supreme Court of Connecticut held:  “[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.”  Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).   See also Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004) (“[w]hen 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”).  (Internal quotation marks omitted.)   The Supreme Court also recognized that such an evidentiary hearing is only required “at the request of either party.”  Knipple v. Viking Communications, Ltd., supra, 236 Conn. 608 n.10. In the present case neither party has requested a hearing.   Therefore, the court shall decide the issues before it without conducting an evidentiary hearing..  FN2. The necessity of an evidentiary hearing in cases such as the present case has been given considerable judicial treatment.   Recently, the Supreme Court of Connecticut held:  “[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts.”  Conboy v. State, 292 Conn. 642, 652, 974 A.2d 669 (2009).   See also Gordon v. H.N.S. Management Co., 272 Conn. 81, 92, 861 A.2d 1160 (2004) (“[w]hen 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”).  (Internal quotation marks omitted.)   The Supreme Court also recognized that such an evidentiary hearing is only required “at the request of either party.”  Knipple v. Viking Communications, Ltd., supra, 236 Conn. 608 n.10. In the present case neither party has requested a hearing.   Therefore, the court shall decide the issues before it without conducting an evidentiary hearing.

FN3. Further, there is no such denial in any of the defendants' briefs in support of the present motion.   The chief arguments in the briefs are that the plaintiffs did not meet their burden of proof, that the contacts between them and Connecticut are weak, and that the evidence does not establish that a tort was committed.   The closest to a denial of the plaintiffs' allegations appears in a footnote on page thirteen of the defendants' memorandum in support of their motion.   This footnote reads “[t]he defendant Fox in no way admits that plaintiffs' allegations of wrongdoing and injury in their complaint are truthful.”   Not admitting a fact is not the same as an unequivocal denial, such as occurred in Olson..  FN3. Further, there is no such denial in any of the defendants' briefs in support of the present motion.   The chief arguments in the briefs are that the plaintiffs did not meet their burden of proof, that the contacts between them and Connecticut are weak, and that the evidence does not establish that a tort was committed.   The closest to a denial of the plaintiffs' allegations appears in a footnote on page thirteen of the defendants' memorandum in support of their motion.   This footnote reads “[t]he defendant Fox in no way admits that plaintiffs' allegations of wrongdoing and injury in their complaint are truthful.”   Not admitting a fact is not the same as an unequivocal denial, such as occurred in Olson.

FN4. It is true that “[t]he court need not view affidavits containing self-serving and unsubstantiated allegations as persuasive.”   Erlich v. Forest Land Corp., Superior Court, judicial district of New Haven, Docket No. CV–01–0453266–S (January 6, 2003, Celotto, J.T.R.) (33 Conn. L. Rptr. 592, 594 n.1), accord Wilson v. Host Marriott Corp., Superior Court, judicial district of Ansonia–Milford, Docket No. CV–05–5000115–S (March 10, 2006, Hartmere, J.).   That said, Fox had ample opportunity to create a disputed factual issue by simply denying that he committed a tort.   He did not.   Therefore, the plaintiffs' allegations remain undisputed and are sufficient for purposes of the longarm statue..  FN4. It is true that “[t]he court need not view affidavits containing self-serving and unsubstantiated allegations as persuasive.”   Erlich v. Forest Land Corp., Superior Court, judicial district of New Haven, Docket No. CV–01–0453266–S (January 6, 2003, Celotto, J.T.R.) (33 Conn. L. Rptr. 592, 594 n.1), accord Wilson v. Host Marriott Corp., Superior Court, judicial district of Ansonia–Milford, Docket No. CV–05–5000115–S (March 10, 2006, Hartmere, J.).   That said, Fox had ample opportunity to create a disputed factual issue by simply denying that he committed a tort.   He did not.   Therefore, the plaintiffs' allegations remain undisputed and are sufficient for purposes of the longarm statue.

FN5. Section 52–62(c) provides in relevant part:  “Process in such a civil action against a nonresident shall be served ․ upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner ․ a true and attested copy thereof, and by sending to the defendant ․ a like true and attested copy ․ at his last-known address.”.  FN5. Section 52–62(c) provides in relevant part:  “Process in such a civil action against a nonresident shall be served ․ upon the Commissioner of Motor Vehicles by leaving with or at the office of the commissioner ․ a true and attested copy thereof, and by sending to the defendant ․ a like true and attested copy ․ at his last-known address.”

Fischer, Brian T., J.