Opinion
No. CV 03-0475958 S
March 22, 2004
MEMORANDUM OF DECISION
Before the court is the defendant Weatherby, Inc.'s motion to dismiss on the ground that the court lacks personal jurisdiction over said defendant.
On April 2, 2003, the plaintiff, Grid Wholesale, Ltd., filed a six-count complaint against the defendants, Caliber, Inc. and Weatherby, Inc., arising from an alleged breach of a distributor appointment agreement. Grid, a New Zealand corporation, alleges that it entered into a distributor agreement with Caliber, a Connecticut corporation, and Weatherby, a California corporation, which does not have a certificate to transact business in Connecticut. Grid further alleges that the distributor agreement provided, and Caliber represented to Grid, that Grid would be the exclusive distributor of Weatherby rifles in New Zealand Grid also alleges that contrary to the terms of the distributor agreement, Weatherby and Caliber supplied Weatherby rifles to other distributors in New Zealand and shortly thereafter, Caliber and Weatherby unilaterally terminated the distributor agreement.
Grid alleges breach of contract (count one); negligent misrepresentation (count two); reckless misrepresentation (count three); intentional misrepresentation (count four); a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count five); and a violation of General Statutes § 42-133f (count six).
On May 8, 2003, Weatherby filed a motion to dismiss the complaint on the ground that the court does not have personal jurisdiction over it. In support of its motion, Weatherby filed a memorandum of law and a number of exhibits. On June 4, 2003, Grid filed a memorandum of law in opposition to the motion to dismiss and supporting documentation.
"The motion to dismiss shall be used to assert lack of jurisdiction over the person . . ." Practice Book § 10-31(a)(2). "The motion to dismiss admits all facts which are well pleaded, invoices 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 and need not conclusively presume the validity of the allegations of the complaint." (Internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 346-47, 766 A.2d 400 (2001).
Weatherby moves to dismiss the complaint on the ground that the court lacks personal jurisdiction over it because Connecticut's long-arm statute applicable to foreign corporations, General Statutes § 33-929, does not authorize the assertion of jurisdiction. Grid argues in opposition that the court has personal jurisdiction over Weatherby pursuant to § 33-929(e) because Weatherby was transacting business in Connecticut in violation of § 33-920(a).
Section 33-920(a) provides: "A foreign corporation . . . may not transact business in this state until it obtains a certificate of authority from the Secretary of State."
"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 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.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). "If a challenge to the court's personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court's jurisdiction." Id., 607.
To determine whether the court has personal jurisdiction over Weatherby, it must first determine whether the applicable provision of the long-arm statute, § 33-929(e), authorizes jurisdiction over Weatherby. Section § 33-929(e) provides: "Every foreign corporation which transacts business in this state in violation of section 33-920 shall be subject to suit in this state upon any cause of action arising out of such business." Section 33-929(e) "confers local jurisdiction over a foreign corporation on two conditions: the transaction of business in this state, and a cause of action arising out of the transaction of such business." Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 251, 460 A.2d 481 (1983). "[T]he statutory language [of § 33-929(e), formerly § 33-411(b)] mandating `any cause of action arising out of [the transaction of] such business' requires some showing that the present litigation bears some connection with the business conducted by the foreign corporation in this state." Id., 252.
Weatherby argues that § 33-929(e) does not authorize jurisdiction over it because it does not transact business in this state in violation of § 33-920(a). Weatherby, relying on § 33-920(b)(5) and (6), contends that selling products through independent contractors, such as the defendant Caliber, and obtaining orders from Grid through Caliber, which were accepted by Weatherby in California, do not constitute "transacting business" within the meaning of § 33-920(a). Weatherby also argues that this court cannot be said to have personal jurisdiction over it based on contacts it has in Connecticut that are not related to this suit.
The parties do not dispute that Weatherby does not have a certificate of authority to transact business in Connecticut from the secretary of the state.
Weatherby also argues that it is not subject to suit in Connecticut pursuant to § 33-929(f). This subsection of the long-arm statute applies to suits "by a resident of this state or by a person having a usual place of business in this state . . ." General Statutes § 33-929(f). Because Grid is not a resident of this state nor does it have its usual place of business in this state, subsection (f) is inapplicable.
In support of its motion to dismiss, Weatherby submits the follow exhibits: the affidavit of Bradley Ruddell, Weatherby's vice president of sales and marketing; a copy of a sales representative agreement between Weatherby and Caliber; and a copy of the distributor appointment agreement signed by Grid and Caliber. In his affidavit, Ruddell avers the following: Weatherby entered into a number of sales representative agreements with independent contractors who were charged with soliciting orders for Weatherby. With respect to domestic transactions, Weatherby never contracted with an independent contractor in Connecticut. Regarding international transactions, Weatherby entered into a sales representative agreement with Caliber, a Connecticut corporation. The sales representative agreement provided that all orders obtained by Caliber, were "`subject to approval and acceptance by [Weatherby] at [Weatherby's] home office and an order shall be effective only when so approved and accepted. [Weatherby] shall have the right, in its sole discretion, to accept or reject, in whole or in part, any or all orders.'" (Ruddell Affidavit, ¶ 12, quoting Sales Representative Agreement, ¶ B(3)(a).) Caliber subsequently entered into a distributor appointment agreement with Grid, whereby Grid was to act as an authorized sales representative for Weatherby products in New Zealand The distributor agreement was executed by Grid in New Zealand Weatherby was not a signatory to this agreement. The distributor agreement provided that all orders placed by Grid were conditioned on Weatherby's acceptance of the orders in California. Additionally, orders received from Grid originated in New Zealand and not in Connecticut.
Grid argues in opposition that § 33-929(e) authorizes jurisdiction over Weatherby. Grid, characterizing Caliber as Weatherby's agent, argues that the distributor agreement it entered into with Caliber, a Connecticut corporation, for the distribution of Weatherby rifles, constitutes transacting business in this state by Weatherby for purposes of § 33-929(e). Grid also contends, but fails to support with relevant case law, that "Connecticut courts will hold a foreign [c]orporation liable for contracts formed within the state for any [tortious] activity such as misrepresentations where such activity occurred within the state." (Grid's Memorandum of Law in Opposition to Weatherby's Motion to Dismiss, p. 7.) Additionally, in support of its argument that jurisdiction over Weatherby would not offend due process, the second part of the jurisdictional inquiry, Grid contends that Weatherby has sufficient contacts with the state because its firearms are sold in this state. In support of its opposition to the motion to dismiss, Grid submits the sales representative agreement; the distributor agreement; a letter of termination sent by Caliber to Grid; and the affidavit of Zelda Yalartai, legal secretary for Grid's attorney, to which Yalartai attaches printouts from Weatherby's website.
Grid relies on Lombard Bros., supra, 190 Conn. 245, and Decima Research v. Cichetti, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 920454471 (June 4, 1993, Berger, J.) ( 9 Conn. L. Rptr. 255, 8 C.S.C.R. 705), to support its argument that Weatherby was transacting business in Connecticut. Grid's reliance on these cases is misplaced. The portion of the Lombard Bros. decision upon which Grid relies pertains to § 33-929(f) [formerly 33-411(c)] of the long-arm statute. As previously noted, this subsection is inapplicable because § 33-929(f) pertains to suits brought by a resident of this state or by a person having a usual place of business in this state. See footnote 4. Grid's reliance on Decima v. Cichetti, a decision on an application for a prejudgment remedy, is also misplaced because it does not involve an analysis of § 33-929(e).
In Lombard Bros., supra, 190 Conn. 247, the plaintiff, a Connecticut corporation, appealed the granting of a motion to dismiss filed by a New York corporate defendant. By way of background, the plaintiff brought suit against several defendants, including its investment advisor and a securities dealer, alleging fraud, negligence and breach of contract as a result of losses the plaintiff sustained in investments made by the investment advisor in government securities. Id. The investment advisor invested some of the plaintiff's funds with the securities dealer, a New York corporation with an office in New York. Id., 248. Trades between the investment advisor and the securities dealer were executed in New York and confirmation of these transactions was sent to the investment advisor's offices in New York and Avon, Connecticut. Id. The New York securities dealer moved to dismiss the action brought against it on the ground that the court lacked personal jurisdiction over it. Id., 247. The trial court granted the motion to dismiss and the plaintiff appealed. Id.
On appeal, the plaintiff relied on § 33-929(e) [formerly § 33-411(b)] and § 33-929(f) [formerly § 33-411(c)] as the basis for jurisdiction over the defendant. Id., 250-51, 253. In reviewing the plaintiff's claim under § 33-929(e), the court noted that "[t]o establish jurisdiction over the defendant . . . the plaintiff relies on the volume of transactions memorialized by [the] confirmation slips [sent to the investment advisor's office in Avon] and the defendant's other contact points with Connecticut, principally its relationship to other Connecticut customers." Id., 249. The court, relying on federal precedent, held that "the statutory language [of § 33-929(e)] mandating `any cause of action arising out of [the transaction of] such business' requires some showing that the present litigation bears some connection with the business conducted by the foreign corporation in this state." Id., 252. In affirming the trial court's granting of the motion to dismiss, the court noted that the plaintiff "made no showing whatsoever of any relationship between its causes of action and the business otherwise allegedly transacted by the defendant in this state." Id.
As noted by the court in Lombard Bros., two conditions must be met for the court to assert long-arm jurisdiction, pursuant to § 33-929(e), over a foreign corporation: "the transaction of business in this state, and a cause of action arising out of such business." (Emphasis added.) Id., 251. With regard to the first condition, because Weatherby does not have a certificate to transact business in Connecticut, the court must determine whether Weatherby's activities are exempt from the meaning of "transacting business," for purposes of § 33-920(a). Section § 33-920(b) lists a number of activities that do not constitute "transacting business" within the meaning of subsection (a). These exemptions include "selling through independent contractors [and] soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts . . ." General Statutes § 33-920(b)(5) and (6). The court concludes that Weatherby's activities of selling its products through Caliber, an independent contractor, to Grid in New Zealand and soliciting and obtaining orders from Grid, which were accepted in California, do not constitute transacting business in Connecticut. Because Weatherby is not transacting business in Connecticut, the court cannot assert jurisdiction over it pursuant to § 33-929(e).
In the alternative, if the court deems the sale of Weatherby products in the state by "authorized dealers," as constituting transacting business, the court must then determine whether the cause of action brought by Grid "[arises] out of such business," namely, the sale of Weatherby's products in Connecticut. General Statutes § 33-929(e); see also Lombard Bros., Inc. v. General Asset Management Co., supra, CT Page 4280 190 Conn. 252. Clearly the breach of contract action brought by Grid against Weatherby is not related to the sale of Weatherby products in Connecticut, therefore, § 33-929(e) does not authorize personal jurisdiction over Weatherby. Because the statutory requirements for long-arm jurisdiction over Weatherby have not been met, the court need not reach the second part of the jurisdictional analysis: whether the exercise of jurisdiction over Weatherby would violate constitutional principles of due process.
Grid does not allege that Caliber is an authorized dealer of Weatherby products in Connecticut. Moreover, the affidavit submitted by Ruddell, in support of the motion to dismiss, states that Caliber acted as an independent contractor for international transactions. (Ruddell Affidavit, ¶ 9.)
Accordingly, Weatherby's motion to dismiss is granted.
Skolnick, J.