Opinion
No. CV 07 5006980
June 12, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS [#111]
FACTS
On November 13, 2007, the plaintiff, Roger Corriveau, filed an eight-count complaint against the defendants, Raymond Corriveau and Doris Corriveau. In his complaint, the plaintiff alleges the following facts. The plaintiff is a resident of Colchester, Connecticut, and the defendants are both residents of Criemora, Virginia. On September 9, 2005, the plaintiff signed a power of attorney granting fiduciary authority for the plaintiff to Raymond Corriveau, the plaintiff's son, for the purpose of assisting the plaintiff in handling his financial affairs. The defendants subsequently mishandled the plaintiff's funds and used the plaintiff's name to open revolving lines of credit which were used to purchase goods and services for their own use.
On February 17, 2009, the defendants filed a motion to dismiss the plaintiff's complaint on the ground that the court lacked subject matter jurisdiction over the action, or pursuant to the doctrine of forum non conveniens. The defendants submitted a memorandum of law in support of their motion. On March 4, 2009, the plaintiff filed a memorandum of law in opposition.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "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 . . . In this regard, 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." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
I SUBJECT MATTER JURISDICTION
The defendants argue that this court lacks subject matter jurisdiction over the plaintiff's action because the Virginia civil courts have exclusive jurisdiction over the claim. The plaintiff counters that this court is one of general jurisdiction, and therefore, it has subject matter jurisdiction over the present case.
"[T]he Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter." (Internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 215, 796 A.2d 1141 (2002). "There is a well-established rule that where several courts have concurrent jurisdiction of the same offense, or equal or nearly equal power and authority over a case . . . the court which first acquires jurisdiction of the prosecution generally retains it to the exclusion of the others." State v. Bell, 21 Conn.Sup. 246, 250, 154 A.2d 142 (1959), cert. granted, 24 Conn.Sup. 94, 186 A.2d 805 (1962).
In the present case, the defendants contend that this court does not have the authority to adjudicate this dispute because it involves residents of Virginia, property located in Virginia, actions that occurred exclusively within Virginia and the interpretation of documents created in Virginia. The defendants cite Virginia Code § 16.1-77 for the proposition that Virginia civil courts have exclusive jurisdiction over the present case. Virginia Code § 16.1-77 provides in relevant part: "[E]ach general district court shall have, within the limits of the territory it serves, civil jurisdiction as follows . . . Exclusive original jurisdiction of any claim to specific personal property or to any debt, fine or other money, or to damages for breach of contract or for injury done to property, real or personal, or for any injury to the person that would be recoverable by action at law or suit in equity . . ." This statute, however, only serves to define jurisdictional limits within the Virginia courts. The fact that the plaintiff may also have brought this action in a Virginia court does not strip this court of subject matter jurisdiction over his claim. Therefore, the defendants' motion to dismiss the plaintiff's complaint pursuant to subject matter jurisdiction is denied.
II FORUM NON CONVENIENS
The defendants argue that if the court determines that it has subject matter jurisdiction over the present case, it should dismiss the action pursuant to the doctrine of forum non conveniens because Virginia is the most appropriate forum. The plaintiff counters that the defendants have failed to meet the heavy burden of persuasion required to disturb the plaintiff's choice of forum under the doctrine 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." (Internal quotation marks omitted.) Durkin v. Intevac, Inc., 258 Conn. 454, 463-64, 782 A.2d 103 (2001). "Courts invoke the doctrine of forum non conveniens with caution, and only in exceptional circumstances that demonstrate both inconvenience and hardship." Sabino v. Ruffolo, 19 Conn.App. 402, 406, 562 A.2d 1134 (1989). Our Supreme Court has emphasized that "invocation of the doctrine of forum non conveniens is a drastic remedy . . . which the trial court must approach with caution and restraint." (Citation omitted; internal quotation marks omitted.) Picketts v. International Playtex, Inc., 215 Conn. 490, 501, 576 A.2d 518 (1990). Therefore, it was determined that "the overriding inquiry in a forum non conveniens [analysis] is not whether some other forum might be a good one, or even a better one than the plaintiff's chosen forum. The question to be answered is whether [the] plaintiff's chosen forum is itself inappropriate or unfair because of the various private and public interest considerations involved . . . Accordingly, the trial court, in exercising its structured discretion, should place its thumb firmly on the plaintiff's side of the scale, as a representation of the strong presumption in favor of the plaintiff's chosen forum, before attempting to balance the private and public interest factors relevant to a forum non conveniens motion." (Citation omitted; internal quotation marks omitted.) Id., 501-02. Furthermore, "[t]he defendant challenging the propriety of the chosen forum bears the burden of demonstrating the presumption in favor of the plaintiff's choice should be disturbed." Mason v. Budin, Superior Court, judicial district of Hartford, Docket No. CV 05 4012570 (January 6, 2006, Keller, J.).
"In adopting the rationale set forth by the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), our Supreme Court has stated that the following private interest factors must be considered when determining whether to apply the doctrine of forum non conveniens: `(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 fair trial; and (6) all other practical problems that make trial of a case easy, expeditious and inexpensive.' Durkin v. Intevac, Inc., supra, 258 Conn. 467. If the balance of private interest factors is equal, the court must then consider public interest factors. Id., 466. Those public interest factors as set forth in Gulf Oil Corp v. Gilbert, supra, 508-09, include the following considerations: `[A]dministrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.'
"With these principles in mind, we turn to what our Supreme Court has termed a `useful frame of reference for the law of Connecticut' in analyzing claims of forum non conveniens . . . Durkin v. Intevac, Inc., supra, 258 Conn. 466. `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 presumption in favor of or, in the [appropriate circumstances], a weakened presumption against disturbing 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.' . . . Id. Temlock v. Temlock, 95 Conn.App. 505, 514-16, 898 A.2d 209, cert. denied, 279 Conn. 910, 902 A.2d 1070 (2006). "The burden of persuasion on this motion is on the movants . . . If the movant fails to meet this burden with respect to an earlier step in the four-step process, the court need not address later steps." (Citation omitted.) Ensign-Bickford Industries, Inc. v. Great American Ins. Co., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0076590S (May 16, 2002, Sferrazza, J.) ( 32 Conn. L. Rptr. 173, 174).
A
The first step in the court's analysis is to determine whether the courts of Virginia provide an adequate alternative forum. "First the defendant must be amenable to process in the other jurisdiction . . . Ordinarily, if a defendant is amenable to process, then the court can end its inquiry and make a finding that there is an adequate alternative forum." (Citation omitted.) Miller v. United Technologies Corp., 40 Conn.Sup. 457, 461, 515 A.2d 390 (1986), rev'd on other grounds, 233 Conn. 732, 660 A.2d 810 (1995). In the present case, both defendants are residents of Virginia, and therefore, the courts of Virginia provide an adequate alternative forum.
B
The second step in the court's analysis is a consideration of the relevant private interest factors alleged by the defendants. The first private interest factor alleged by the defendants is that essential records and witnesses are located in Virginia. "The defendants . . . [bear] the burden of persuasion that the chosen forum is inconvenient to potential witnesses for the defense . . . When a dismissal is premised on the convenience of witnesses, more than a mere allegation to that effect is required . . . Rather, the defendant[s] must establish, with specificity, inconvenience to witnesses that is sufficiently prejudicial to justify dismissal . . ." A party seeking to transfer a case . . . for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover . . . The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony . . . Sufficient information must be included in the affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material." (Citations omitted, internal quotation marks omitted.) Picketts v. International Playtex, Inc., supra, 215 Conn. 509-10. Moreover, "[j]ust as [j]et travel and satellite communications have significantly altered the meaning of non conveniens . . . so too has the advent of the videotaped deposition greatly transformed the meaning of compulsory process in a forum non conveniens calculus. [V]ideotaped depositions frequently make corporeal transportation of foreign witnesses unnecessary." (Citations omitted, internal quotation marks omitted.) Id., 511.
In the present case, the defendants indicate that several of their essential witnesses, including the plaintiff's counsel in Virginia, bank personnel, physicians, a pharmacist, and vendors of several vehicles the plaintiff purchased for the children, are located in Virginia. The defendants have not, however, supplied the court with affidavits containing specific information identifying their witnesses, explaining why their testimony is material and indicating why their ability to appear at trial would be prejudicially inconvenient. "The mere assertion that such evidence is irretrievably located . . . [out of state] is . . . not adequate to tip the scales in the defendants' favor on a motion to dismiss for forum non conveniens." (Citations omitted, internal quotation marks omitted.) Picketts v. International Playtex, Inc., supra, 215 Conn. 510.
The next private interest factor alleged by the defendants is that another action will be necessary in a Virginia court to enforce a potential judgment obtained here. "The full faith and credit clause of the United States constitution provides in relevant part that `Full Faith and Credit shall be given in each State to the . . . judicial Proceedings of every other State. U.S. Const., art IV, § 1." Business Alliance Capital Corp. v. Fuselier, 88 Conn.App. 731, 736, 871 A.2d 1051 (2005). Pursuant to the Virginia Code, "[e]very court of this Commonwealth shall give such records of courts not of this Commonwealth the full faith and credit given to them in the courts of the jurisdiction from whence they come." Virginia Code § 8.01-389. This court has both personal jurisdiction and subject matter jurisdiction over the present case. As a result, any judgment rendered here will be given full faith and credit by the Virginia courts.
The final private interest factor alleged by the defendants is that there are many obstacles to a fair trial in Connecticut because both defendants are disabled and there are insufficient funds for an extended stay here or to transport themselves and their witnesses here. There is evidence, however, that the defendants have previously availed themselves of the Connecticut courts. Pursuant to the affidavit of Dennis Corriveau, the plaintiff's other son, provided by the plaintiff, Raymond Corriveau filed an application in the Colchester Probate Court in September 2007 to have himself appointed as the plaintiff's conservator after the plaintiff revoked his power of attorney. The affidavit also indicates that both defendants made trips from Virginia for two hearings related to that matter. Moreover, the defendants have not provided any evidence indicating the extent of the defendants' disabilities.
The defendants bear the burden of providing the court with a "firm evidentiary basis" to conclude "that the balance of private interest factors [shift] sufficiently in favor of the defendants to warrant a forum non conveniens dismissal." Picketts v. International Playtex, Inc., supra, 215 Conn. 512. Based on the foregoing, this court concludes that the defendants have failed to meet their burden of demonstrating that their private interests sufficiently outweigh the plaintiff's private interests to support a dismissal pursuant to the doctrine of forum non conveniens.
C
With the private interest favors favoring the plaintiff's choice of forum, this court does not need to look at the public interest factors to determine the appropriate forum. See Ensign-Bickford Industries, Inc. v. Great American Ins. Co., supra, 32 Conn. L. Rptr. 174. In the present case, however, even if the private interest factors were equal, the defendants have still failed to demonstrate that the public interest factors weigh heavily in their favor. The defendants first argue that a relevant public interest factor warranting a dismissal pursuant to the doctrine of forum non conveniens is that this court would be required to interpret Virginia law. Our Supreme Court has noted, however, that "it is well established that considerations arising out of conflicts of law are not dispositive for the purpose of dismissals for forum non conveniens . . . `[T]he mere fact that the court is called upon to determine and apply foreign law does not present a legal problem of the sort which would justify the dismissal of a case otherwise properly before [it].' . . . Connecticut courts are quite capable of applying foreign law when required to do so and it would be improper to invoke the doctrine of forum non conveniens solely to avoid a choice of law analysis." (Citations omitted). Picketts v. International Playtex, Inc., supra, 215 Conn. 508.
The defendants also argue that Virginia has a strong preference for the case to be litigated in its own local forums. While the power of attorney was granted to Raymond Corriveau while the plaintiff was a resident of Virginia, Connecticut also has an interest in the matter because the plaintiff is now, and for some time relevant to this case, a resident of this state. Moreover, pursuant to Dennis Corriveau's affidavit, both defendants lived in Connecticut during the summer of 2007, during which time they were acting under the plaintiff's power of attorney and allegedly using the plaintiff's funds to pay for their own expenses, constituting a significant part of the conversion for which the plaintiff brings this action. As a result, the defendants have also failed to show that the public interest factors weigh towards disturbing the strong presumption in favor of the plaintiff's choice of forum.
Therefore, the defendants have not demonstrated that this court should dismiss the present case pursuant to the doctrine of forum non conveniens.
CONCLUSION
Based on the foregoing, the court hereby denies the defendants' motion to dismiss the plaintiff's complaint.