2005 Ct. Sup. 7529, 39 CLR 195
No. CV 04 0085304Connecticut Superior Court Judicial District of Ansonia-Milford at Milford
April 27, 2005
MEMORANDUM OF DECISION RE MOTION TO DISMISS
MORAN, JUDGE.
The defendant, Ann Gavin (Gavin), moves to dismiss the application for prejudgment remedy for lack of personal jurisdiction. The issue is whether the court has jurisdiction over Gavin pursuant to General Statutes § 52-59b, Connecticut long-arm statute.
The plaintiff, Haynes Construction Company (Haynes), is a Connecticut corporation with a principal place of business in Seymour, Connecticut. The defendant, FAMM Steel, Inc. (FAMM), is a New Hampshire corporation with a principal place of business in Rindge, New Hampshire. The defendant Gavin is a New Hampshire resident and is the president of FAMM. This case arises out of a written subcontract with Haynes whereby FAMM agreed to furnish labor and equipment for the construction of a school in Meriden, Connecticut.
Gavin argues that the court lacks personal jurisdiction under the fiduciary shield doctrine because Gavin’s only contact with Connecticut was in her corporate capacity on behalf of FAMM. Gavin also contends that even if the court rejects the fiduciary shield doctrine, she does not have minimum contacts with Connecticut to satisfy § 52-59b.
Haynes opposes dismissal because based on Gavin’s continuous and persistent conduct as well as her visits to Connecticut, she “transacted” business within the meaning of § 52-59b(a)(1). Furthermore, Haynes contends that Gavin is subject to the court’s personal jurisdiction pursuant to § 52-59b(a)(3) because she committed the torts of fraudulent and negligent misrepresentation.
A motion to dismiss properly tests whether a court lacks personal jurisdiction. Practice Bock § 10-31(a)(2); see als Dyous v. Psychiatric Security Review Board, 264 Conn. 766, 773, CT Page 7530 826 A.2d 138 (2003). In ruling on a motion to dismiss, the court will construe the facts alleged and implied from the complaint “in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 433, 829 A.2d 801 (2003).
As a preliminary matter, the court notes that the burden of proving jurisdiction is on the plaintiff because the attack on the court’s personal jurisdiction is made by a nonresident individual. Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607, 674 A.2d 426 (1996).
The court’s first inquiry is “whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant].” Id., 606. Connecticut’s long-arm statute, §52-59b, authorizes personal jurisdiction over nonresident defendants. Section 52-59b(a)(1) states, in relevant part, that “a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent . . transacts any business within the state . . .” (Emphasis added.) The term “transacts any business” has been construed to mean “a single purposeful business transaction.” Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). “A purposeful business transaction is one in which the defendant has engaged in some form of affirmative conduct allowing or promoting the transaction of business within the forum state.” (Internal quotation marks omitted.) Memberworks, Inc. v. Heartland Direct, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 03 0197372 (September 27, 2004, Lewis, J.) (38 Conn. L. Rptr. 24, 26).
In determining whether Gavin transacted business in Connecticut, the court does not resort to a rigid formula but rather “balances considerations of public policy, common sense, and the chronology and geography of the relevant factors.”Zartolas v Nisenfeld, supra, 184 Conn. 477.
At the evidentiary hearing held on June 22, 2004, the plaintiff offered the testimony of Robyn Dowsey (Dowsey), who was employed by Haynes as the project manager for the construction project at the school in Meriden, Connecticut (project). Dowsey testified that she regularly communicated with Gavin and that when these communications took place, Dowsey was located in Connecticut. Gavin traveled to the project site in Connecticut on at least four occasions in furtherance of the project. On one occasion, CT Page 7531 Gavin attended a social event in Connecticut related to the school. For purposes of this motion to dismiss, the evidence shows that Gavin “transacted business” in Connecticut by regularly communicating with Haynes’ project manager, visiting the project site in Connecticut on multiple occasions and making repeated contacts with Dowsey in Connecticut. Therefore, Gavin is subject to personal jurisdiction in Connecticut pursuant to § 52-59b.
While the court acknowledges the defendant’s reliance on the fiduciary shield doctrine,[1] the court nevertheless finds that the doctrine does not defeat the court’s personal jurisdiction. This court espouses the reasoning of Under Par Associates v. Wash Depot A., Inc., 47 Conn.Sup. 319, 325-26, 793 A.2d 300 (2001) (31 Conn. L. Rptr. 20), in which the court held that the fiduciary shield doctrine, initially a substantive requirement of New York law, finds no support in the Connecticut long-arm statute. See also Memberworks, Inc. v. Heartland Direct, supra,
38 Conn. L. Rptr. 25-26. Furthermore, as a matter of public policy, this doctrine unfairly prejudices “plaintiffs who seek relief against defendants conducting affairs in [Connecticut].” (Internal quotation marks omitted.) Under Par Associates v. Wash Depot A., Inc., supra, 47 Conn.Sup. 326.
As noted, the plaintiff also argues that Gavin is subject to personal jurisdiction pursuant to § 52-59b(a)(3) for committing the torts of fraudulent and negligent misrepresentation. Because the court has found that Gavin is subject to personal jurisdiction pursuant to § 52-59b(a)(1), the court only briefly discusses the plaintiff’s argument as to § 52-59b(a)(3). Section 52-59b(a)(3) states, in relevant part, that “a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent . . . 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 . . .” “It is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable.” Kilduff v. Adams, Inc., 219 Conn. 314, 331-32, 593 A.2d 478 (1991); see also Scnibner v. O’Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975) (officer who commits tort, irrespective of whether done on behalf of corporation, is liable to injured third persons). Here, the complaint alleges that Gavin made false representations regarding CT Page 7532 payments to the plaintiff’s laborers, subcontractors and suppliers. These false representations are supported by the affidavit submitted by Paul Haynes, President of Haynes Construction Company. Likewise, the project manager testified that Gavin made such representations. These allegations, coupled with the court’s earlier conclusion that Gavin transacted business in Connecticut would also confer personal jurisdiction pursuant to § 52-59b(a)(3).
Having determined that § 52-59b is satisfied, the court’s second inquiry is whether the exercise of personal jurisdiction over Gavin would violate constitutional principles of due process. Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606. The two-part due process test is whether “(1) the nonresident party has created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state, and (2) the exercise of jurisdiction based on those minimum contacts would not offend traditional notions of fair play and substantial justice.” Panganiban v. Panganiban, 54 Conn.App. 634, 639, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999). In determining whether the exercise of jurisdiction would offend traditional notions of fair play and substantial justice, “the defendant’s conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there.” (Internal quotation marks omitted.) United States Trust Co. v. Hobart, 197 Conn. 34, 41, 495 A.2d 1034 (1985). Given Gavin’s purposeful and continuous conduct related to the project with Haynes and her visits to Connecticut in furtherance of that project, she should reasonably anticipate being haled into court here. Under these circumstances, the court’s exercise of jurisdiction based on Gavin’s sufficient contacts with Connecticut is consistent with due process and would not offend traditional notions of fair play and substantial justice. See International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
For the foregoing reasons, the motion to dismiss is denied.
MORAN, J.
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