2011 Ct. Sup. 2807, 51 CLR 237
No. CV-10-60002336Connecticut Superior Court Judicial District of Ansonia-Milford at Milford
January 11, 2011
MEMORANDUM OF DECISION MOTION TO DISMISS (#101)
MAUREEN J. KEEGAN.
The plaintiff is a Connecticut resident who alleges she suffered physical injury while visiting the Cape Cod Pilgrim Memorial located in Provincetown, Massachusetts on June 22, 2008. The defendant is a Massachusetts corporation who has moved to dismiss the action, arguing that there is a lack of personal jurisdiction and that the doctrine of forum non conveniens applies. The parties did not request an evidentiary hearing, as was the plaintiff’s right under the law of Standard Tallow v. Jowdy, 190 Conn. 48, 53 (1983). The defendant’s motion relies upon an affidavit by its Executive Director, and in her objection to the motion, the plaintiff has filed (1) an affidavit of a Connecticut resident and (2) exhibits consisting of e-mails, e-mail lists of Connecticut residents maintained by the defendant and copies of information maintained on the defendant’s website. For the reasons cited herein, the court denies the motion to dismiss.
“A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction” (Internal quotation marks omitted.) Caruso v. Bridgeport, 285 Conn. 618, 627 (2008). “When a court . . . decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue . . .” (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516 (2007). “If the defendant challenging the court’s CT Page 2808 personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff’s burden to prove the court’s jurisdiction.” Id., at 515.
“When a defendant challenges personal jurisdiction in a motion to dismiss, 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.)Id. at 514-15.
The plaintiff contends that Connecticut has jurisdiction over the defendant because the defendant transacts business in Connecticut and has solicited business in this state. The plaintiff further contends that by operating an “active” website[1] to promote its business prospects in Connecticut, the defendant has a presence here over which the court can exercise jurisdiction. The defendant contends, by way of affidavit, that since October 30, 2006, it has not regularly and systematically solicited business within Connecticut by mail, e-mail or otherwise, nor does it seek visitors from Connecticut to visit and contribute the monument and museum.
General Statutes § 33-929(f)(2) makes foreign corporations subject to suit in Connecticut for causes of action arising “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.” The court finds that the plaintiff has sustained her burden of making a prima facie showing that the defendant’s conduct was sufficient for the court to exercise jurisdiction. The plaintiff submitted the affidavit of Mary-Beth Fedak, a Connecticut resident who attested that she has regularly and systematically received e-mails from the defendant inviting her to attend events at the memorial, and soliciting donations to the association. She further attested to the receipt of this information by other Connecticut residents. As previously noted, the plaintiff submitted exhibits as follows: copies of the e-mails and solicitations received by Ms. Fedak and printed copies of the information contained on the defendant’s website. That information included offers to become a member of the association by paying a fee over an internet payment service. CT Page 2809
“In light of today’s advanced technologies, it is well established that a physical presence in Connecticut is not required to establish long-arm jurisdiction . . . the question is not whether the defendant has physically entered the state, but rather whether the defendant’s method or operation of business amounts to a transaction of business here in Connecticut sufficient for the court to confer long-arm jurisdiction over it.” Comtech 21, LLC v. Broadnax, LLC, Superior Court, judicial district of New Haven, No. cv-085016700, 7/8/10, Licari, J. [50 Conn. L. Rptr. 255]. The court is satisfied, having read all the affidavits and exhibits, that General Statute § 33-929(f)(2) authorizes jurisdiction over the defendant. The court further finds that the principles of due process and fairness are not violated by the exercise of Connecticut jurisdiction over the defendant. By reaching out to Connecticut residents, inviting them to become members of their association and to visit their memorial, it is certainly foreseeable that persons visiting the memorial may sustain personal injuries while on the property and that a negligence claim, and litigation, will arise from such an occurrence. The defendant reasonably could have anticipated being haled into court in Connecticut to defend a similar action. See Thomason v. Chemical Bank, 283 Conn. 281, 297 (1995).
The defendant has also moved to dismiss the action on the grounds of forum non conveniens. “As a common law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice . . . Emphasis on the trial court’s discretion does not, however, overshadow the central principle of the forum non conveniens doctrine that unless the balance is strongly in favor of the defendant[s], the [plaintiffs’] choice of forum should rarely be disturbed . . . Although it would be inappropriate to invoke [a] rigid rule to govern discretion . . . it bears emphasis that invocation of the doctrine of forum non conveniens is a drastic remedy . . . which the trial court must approach with caution and restraint.” (Citations omitted; internal quotation marks omitted.)Durkin v. Intevac, Inc., 258 Conn. 454, 463-64 (2001).
When determining whether a case is appropriate for dismissal under the doctrine of forum non conveniens, Connecticut courts have adopted the following framework: “First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case . . . Second, the court should consider all relevant private interest factors with a strong CT Page 2810 presumption in favor of . . . the plaintiffs’ initial choice of forum . . . Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum . . . Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must . . . ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice.” (Citations omitted; internal quotation marks omitted.)Durkin v. Intevac, Inc., supra, at 466.
“[T]he relevant private interest factors are: (1) the relative ease of access to sources of proof, (2) the availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to a fair trial; and (6) all other practical problems that make the trial of a case easy, expeditious and inexpensive.” Durkin v. Intevac, Inc., supra, at 467.
In its memorandum of law, the defendant argues that several of the private interest factors favor resolution of the matter in Massachusetts. The court disagrees. An analysis of the private interest factors reveals that it would not be unfair for this case to be litigated in Connecticut. Since the defendant, and, presumably its witnesses, are located in nearby Massachusetts, there is little concern that witnesses and evidence will be unavailable, and the costs associated with witness attendance should be relatively modest. While this is a personal injury case, arising out of a slip and fall upon the defendant’s property, it is highly unlikely that some two years after the event, the scene is in the same condition today as it was then. A site visit is thus extremely unlikely to occur. It is also unlikely that the plaintiff would have any difficulties enforcing a Connecticut judgment against the defendant in a Massachusetts court, and there do not appear to be any other obstacles to a fair trial here in Connecticut. Accordingly, the defendant’s motion to dismiss this case on forum non conveniens grounds is denied because none of the private interest factors dictate that Connecticut is an inappropriate forum for the present matter.
For all the foregoing reasons, the motion to dismiss is denied (#101) and the objection to the motion is sustained (#111). CT Page 2811
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