Opinion
No. CV99-0151679S
May 19, 2003
MEMORANDUM OF DECISION
On March 15, 1999, the plaintiffs, Jane Doe One and Jane Doe Two, filed a thirty-six-count complaint against the defendants, Stephen Wexler, Roberta Wexler, America Online, Inc., Lisa Oliver and Shannon Oliver. Counts one through seven are brought against Stephen Wexler and counts eight through fourteen are against Roberta Wexler. Counts fifteen through twenty-one are brought against America Online, Inc. (AOL). Counts twenty-two through twenty-nine are brought against Lisa Oliver and counts twenty-three through thirty-six are against her sister, Shannon Oliver. The plaintiffs allege that on June 6, 1997, Lisa Oliver sent an e-mail from the Wexler's home in Virginia via AOL to approximately thirty-one addresses in and around Watertown, Connecticut, including Jane Doe One's place of employment. The e-mail allegedly contained offensive statements about Jane Doe One and was sent to "get even" with the plaintiffs because Jane Doe One purportedly "stole [Lisa Oliver's] man." Complaint ¶ 6.
On March 7, 2000, the Superior Court granted AOL's motion to strike counts fifteen through twenty-one for failure to state a claim upon which relief can be granted. Doe One v. Oliver, Superior Court, judicial district of Waterbury, Docket No. 99 01516798 (March 7, 2000, Pellegrino, J.), aff'd., 68 Conn. App. 902, 792 A.2d 911 (2002).
The plaintiffs have brought eight causes of action against Lisa Oliver including: invasion of privacy, libel per se, negligence per se, violation of state public policy under § 53a-183, recklessness, intentional infliction of emotional distress, negligent infliction of emotional distress, and breach of contract with AOL. On June 3, 1999, Lisa Oliver filed a motion to dismiss counts twenty-two through twenty-nine of the plaintiffs' complaint for lack of personal jurisdiction. Lisa Oliver submitted a memorandum in support of her motion to dismiss. The plaintiffs submitted a memorandum of law in opposition to Lisa Oliver's motion to dismiss on May 3, 2002.
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.) Blumenthal v. Barnes, 261 Conn. 434, 442, 804 A.2d 152 (2002). "It is well established that [i]n 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." (Internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 326, 780 A.2d 98 (2001).
"Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 605, 674 A.2d 426 (1996). "If a challenge to the court's personal jurisdiction is raised by . . . a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction." Id. 607. "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]. 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. 606.
In the present case, Lisa Oliver argues that the applicable state longarm statute does not assert jurisdiction over her because all of the plaintiffs' claims are based on the allegedly defamatory e-mail she sent from Virginia to Connecticut. She further argues that the tort was committed in Virginia because she sent the e-mail from Virginia, which would make General Statutes § 52-59b (a) (3) the applicable longarm statute. It has been held, however, that "[f]alse representations entering Connecticut by wire or mail constitute tortious conduct in Connecticut . . ." Knipple v. Viking Communications, Ltd., supra, 236 Conn. 610; see Oppenheim v. Erwin, Superior Court, judicial district of New Haven, Docket No. 00 0441611 (April 9, 2001, Licari, J.) ( 29 Conn.L.Rptr. 562) (personal jurisdiction is conferred if a complaint alleges that a tort was committed by way of communication sent into Connecticut and received by others and the plaintiff was injured as a result); Braunstein v. Hayes Thynne, P.C., Superior Court, judicial district of Stamford, Docket No. 91 0117928 (February 16, 1993, Nigro, J.) ( 8 Conn.L.Rptr. 369) (tort is committed in Connecticut when fraudulent misrepresentations were mailed into Connecticut). As such, the applicable longarm statute is General Statutes § 52-59b (a) (2), which provides in relevant part: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual . . . who in person or through an agent . . . commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act."
Lisa Oliver argues that because all of the plaintiffs' allegations are based on a defamatory e-mail, the court lacks jurisdiction over her because acts of defamation are specifically excluded from jurisdiction under the longarm statute. While the basis of the plaintiffs' complaint is the e-mail, the plaintiffs have only alleged that the e-mail was libelous in count twenty-three of their complaint. The remaining counts allege invasion of privacy, negligence per se, violation of state public policy under § 53a-183, recklessness, negligent infliction of emotional distress, intentional infliction of emotional distress and breach of contract. These latter allegations are causes of action distinct from any claim of defamation. See Braunstein v. Hayes Thynne, P.C., supra, Superior Court, Docket No. 91 0117928. The plaintiffs have alleged that the e-mail was sent to Jane Doe One's employer and other Connecticut residents. The plaintiffs further allege that they were injured by Lisa Oliver's actions. Because the plaintiffs allege causes of action distinct from defamation and the tort was committed in Connecticut, General Statutes § 52-59b (a) (2) extends its reach over Lisa Oliver.
As to count twenty-three of the plaintiffs' complaint (libel per se), many courts have conferred jurisdiction over a defendant despite the longarm exception to claims of defamation. In an action for libel, the United States Supreme Court found personal jurisdiction where a defendant had little contact with the forum but whose "intentional, and allegedly tortious, actions were expressly aimed at [Connecticut] . . . and [the defendant] knew that the brunt of that injury would be felt by [the plaintiff] in the [state] in which she lives and works . . ." Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In other words, "[a]n individual injured in [Connecticut] need not go to [Virginia] to seek redress from persons who, though remaining in [Virginia], knowingly cause the injury in [Connecticut]." Id. 790.
Similarly, the Connecticut Superior Court has found that despite the applicable longarm statute, "a libel about a resident in Connecticut is tortious conduct in this state . . . [as] it could well be said that the publisher directly inflicts damage on the intangible reputation just as the frequently hypothesized but rarely encountered gunman firing across a state line does on the body." (Emphasis in original; internal quotation marks omitted.) Oppenheim v. Erwin, supra, 29 Conn.L.Rptr. 562. In the present case, the plaintiffs allege that Lisa Oliver sent the e-mail with the intent to cause harm to the plaintiffs in order to get back at Jane Doe One. Therefore, this court has personal jurisdiction over Lisa Oliver as to count twenty-three.
Once it has been established that the longarm statute asserts jurisdiction over a defendant, the "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. In other words, whether Lisa Oliver 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." (Internal quotation marks omitted.) Id. 606 n. 6. "The twin touchstones of due process analysis under the minimum contacts doctrine are foreseeability and fairness. [T]he foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum [state] are such that he should reasonably anticipate being haled into court there." (Internal quotation marks omitted.) United States Trust Co. v. Bohart, 197 Conn. 34, 41, 495 A.2d 1034 (1985).
Lisa Oliver argues that except for the e-mail, she has had no contact with Connecticut and as such, she has not had sufficient minimum contacts with the state to warrant jurisdiction over her. Connecticut has long held, however, that "[a]s long as it creates a substantial connection with the forum state, even a single act can support jurisdiction." Tri-State Tank Corp. v. Higganum Heating, Inc., 45 Conn. App. 798, 803, 699 A.2d 201 (1997). "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 . . ." (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606 n. 6. In the present case, the plaintiffs allege that Lisa Oliver purposefully sent an e-mail into Connecticut as part of a plan to get even with Jane Doe One. The plaintiffs further allege that they were injured as a result of this act. As such, Lisa Oliver had sufficient minimum contacts with Connecticut to reasonably expect to be haled into a Connecticut court. Lisa Oliver's motion to dismiss counts twenty-two through twenty-eight of the plaintiffs' complaint is denied.
COUNT TWENTY-NINE: BREACH OF CONTRACT
Although Lisa Oliver does not specifically address the court's jurisdiction over count twenty-nine (breach of contract), the court may address jurisdiction on its own. "Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention." (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52, 794 A.2d 498 (2002). In the present case, the plaintiffs allege that they were the third-party beneficiaries of the contract between Lisa Oliver and AOL. The court lacks subject matter jurisdiction over this claim because the plaintiffs do not have standing to state a cause of action for breach of contract.
"The absence of standing precludes the existence of a court's subject matter jurisdiction and requires dismissal of the claim . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative, capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy." (Citations omitted; internal quotation marks omitted.) Rapaport Benedict, P.C. v. Stamford, 39 Conn. App. 492, 496-97, 664 A.2d 1193 (1995). The plaintiffs allege that they have standing to state a claim for breach of contract because they were the third-party beneficiaries of the contract between Lisa Oliver and AOL. "[T]he ultimate test to be applied [in determining whether a person has a right of action as a third-party beneficiary] is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third-party [beneficiary] and . . . that intent is to be determined from the terms of the contract read in the light of the circumstances attending its making, including the motives and purposes of the parties . . . [T]he only way a contract could create a direct obligation between a promisor and a third-party beneficiary would have to be . . . because the parties to the contract so intended." (Citation omitted; internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 261, 765 A.2d 505 (2001).
In the present case, the plaintiffs have submitted a copy of the service agreement between AOL and Lisa Oliver, which states that the user may not transmit any harmful or objectionable content. The agreement further states that the user is expressly liable for all activities conducted through the account. There is nothing in the agreement to indicate that the parties intended the recipient or the subject matter of an e-mail to be a third-party beneficiary of the agreement. "[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Rapaport Benedict, P.C. v. Stamford, supra, 39 Conn. App. 497-98. The service agreement expressly indicates that the plaintiffs are not an intended beneficiary. Consequently, the plaintiffs do not have standing to assert a claim for breach of contract. As such, count twenty-nine of the plaintiffs' complaint is dismissed for lack of subject matter jurisdiction.
See Morrison v. America Online, Inc., 153 F. Sup.2d 930, 934 (N.D.Ind. 2001) (where the plaintiff does not allege that she is a party to the agreement between AOL and the defendant and where the service agreement expressly indicates that the plaintiff is not an intended beneficiary, the plaintiff lacks standing to pursue a cause of action for breach of contract).
Dubay, J.