Opinion
No. AAN CV 07 5004429
January 11, 2008
MEMORANDUM OF DECISION
This decision has been expedited for the benefit of the parties.
Editor's Note: Original copy of this opinion bear the notation "Not for Publication" at the top. The court file, however, has not been sealed.
The plaintiff, Lifecare, Inc., is a Delaware corporation with offices in Connecticut. Lifecare provides work/life services and programs to nearly 1500 employers and their four and one-half million employees across the country. Lifecare's services include: (1) information, resource and referral with respect to making arrangements for childcare and eldercare; (2) counseling and providing resources/referrals regarding health and wellness issues; (3) providing access to specialized networks of financial and legal professionals; (4) providing pre-and post-retirement education and information, as well as access to various successful aging programs and services; (5) supplying concierge services; (6) arranging for access to discount programs; and (7) providing arrangements for "back-up" care for children and adults.
Prior to 2007, Lifecare provided assistance to employees of client companies looking for "back-up" services through a large nationwide network of individuals and businesses across the United States who provide care services. Lifecare did not have contractual arrangements with these providers, and employees had to vet out the referred providers on their own, make all final arrangements and pay all of the costs. Adequate "back-up" care for emergency situations was difficult to locate and vet given the limited time afforded in an emergency situation.
In 2007, Lifecare developed a service that would address these issues, the "Enhanced Back-up Care Model." Lifecare determined that it would select a few national or regional "backup" providers and enter into contractual arrangements with them to ensure quality, create preferred relationships to improve availability, integrate these providers into a Lifecare scheduling system and reduce costs.
In May 2007, the plaintiff solicited the defendant, a Delaware corporation with a Washington, D.C., address, to render "back-up" child care services for the employees of the former's clients in the greater New York City and Washington, D.C., areas when requested to do so by the plaintiff. The contract was made outside of Connecticut, had a three-year term and contained a schedule of fees. The plaintiff was not required to use the defendant's services but was free to use any other provider. Nevertheless, the contract provided that the defendant could not enter into any agreement with a competitor or client of the plaintiff. The parties corresponded with each other, primarily through e-mail, as to various matters related to the contract. Lifecare also marketed its relationship with the defendant. The contract resulted in twenty-six referrals to the defendant in 2007, generating $2,100 in fees for the defendant.
The defendant allegedly breached a provision of the contract prohibiting it from entering into any agreement with a client or competitor of the plaintiff. The plaintiff has sued the defendant in Connecticut Superior Court. The defendant has moved to dismiss the action for lack of personal jurisdiction. The plaintiff argues that Connecticut has jurisdiction pursuant to Connecticut General Statutes § 33-929(e) because the defendant transacted business in Connecticut and this action arises out of such business, and pursuant to Connecticut General Statutes § 33-929(f)(1) because this action arises out of a contract performed in this state.
"It is well established that in 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." (Brackets omitted; internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999). Furthermore, "[t]he 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 and need not conclusively presume the validity of the allegations of the complaint." (Citation omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988). "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.
"A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts] . . . [A]ffidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists . . . In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses . . . When issues of fact are necessary to the determination of a court's jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses." (Citations omitted; internal quotation marks omitted.) Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
When the court heard the motion to dismiss, neither party adduced any evidence. Although the plaintiff did not expressly state that it was waiving its right to present testimony or additional documents, and the defendant did not expressly state that it was waiving its right to claim that the plaintiff had failed to present evidence in support of its claim that the court had jurisdiction, in their respective arguments the parties relied on the facts averred or documents contained in the affidavits previously submitted by the plaintiff.
I
The plaintiff claims that the court has personal jurisdiction over the defendant pursuant to General Statutes § 33-929(e) which 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."
General Statutes § 33-920 provides: "(a) A foreign corporation, other than an insurance, surety or indemnity company, may not transact business in this state until it obtains a certificate of authority from the Secretary of the State. No foreign corporation engaged in the business of a telegraph company, gas, electric, electric distribution or water company, or cemetery corporation, or of any company requiring the right to take and condemn lands or to occupy the public highways of this state, and no foreign telephone company, shall transact in this state the business authorized by its certificate of incorporation or by the laws of the state under which it was organized, unless empowered so to do by some general or special act of this state, except for the purpose of carrying out and renewing contracts existing upon August 1, 1903. No insurance, surety or indemnity company shall transact business in this state until it has procure a license from the Insurance Commissioner in accordance with the provisions of Section 38a-41.
"(b) The following activities, among others do not constitute transacting business within the meaning of subsection (a) of this Section: (1) Maintaining, defending or settling any proceeding; (2) holding meetings of the board of directors or shareholders or carrying on other activities concerning internal corporate affairs; (3) maintaining bank accounts; (4) maintaining offices or agencies for the transfer, exchange and registration of the corporation's own securities or maintaining trustees or depositaries with respect to those securities; (5) selling through independent contractors; (6) 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; (7) creating or acquiring indebtedness, mortgages and security interests in real or personal property; (8) securing or collecting debts or enforcing mortgages and security interests in property securing the debts; (9) owning, without more, real or personal property; (10) conducting an isolated transaction that is completed within thirty days and that is not one in the course of repeated transactions of a like nature; (11) transacting business in interstate commerce."
A foreign corporation authorized to transact business in this state "is subject to the same duties, restrictions, penalties and liabilities imposed on, a domestic corporation of like character." General Statutes § 33-924(b). "Each foreign corporation authorized to transact business in this state shall continuously maintain in this state: (1) A registered office that may be the same as any of its places of business; and (2) a registered agent at such registered office . . ." General Statutes § 33-926(a). "The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process . . ." General Statutes § 33-929(a).
Another statute, General Statutes § 52-59b(a)(1) provides: "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, foreign partnership or foreign voluntary association, or over the executor or administrator of such nonresident individual, foreign partnership or foreign voluntary association, who in person or through an agent: (1) Transacts any business within the state . . ." However, the phrase "transacts any business" in § 52-59b has a broader meaning than the phrase "transacts business in this state" in § 33-929. Ryan v. Cerullo, 282 Conn. 109, 128-29, 918 A.2d 867 (2007); see Alfred M. Best Co., Inc. v. Goldstein, 124 Conn. 597, 1 A.2d 140 (1938). That is, "[t]he term 'transacting business' is not broadly interpreted in Connecticut. Hagar v. Zaidman, 797 F.Sup. 132, 135-36 (D.Conn. 1992); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Sup. 550, 554 (D.Conn. 1968)." Chemical Trading, Inc. v. Manufacture de Produits Chimiques de Tournan, 870 F.Sup. 21, 23 (D.Conn. 1994).
Nonetheless, case law arising under the former is instructive here and is a convenient point of departure. "[A] nonresident individual who has not entered this state physically nevertheless may be subject to jurisdiction in this state under § 52-59b(a)(1) if that individual has invoked the benefits and protection of Connecticut's laws by virtue of his or her purposeful Connecticut related activity . . ." (Internal quotation marks omitted.) Ryan v. Cerullo, supra, 282 Conn. 120. "In determining whether [the defendant's] contacts constitute the transaction of business within the state, we do not apply a rigid formula but balance considerations of public policy, common sense, and the chronology and geography of the relevant factors." Gaudio v. Gaudio, 23 Conn.App. 287, 298, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).
The reverse is not true. See Zartolas v. Nisenfeld, 184 Conn. 471, 476 n. 4, 440 A.2d 179 (1981).
Here, the defendant did not transact business in Connecticut. It did not initiate the relationship; Burger King Corp. v. Rudzewicz, 471 U.S. 462, 480, 487, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). H. Lewis Packaging, LLC v. Spectrum Plastics, Inc., 296 F.Sup.2d 234, 239-40 (D.Conn. 2003); never set foot within the state; Lane v. Hopfeld, 160 Conn. 53, 61, 273 A.2d 721 (1970); but more importantly, rendered services, albeit at the behest of the plaintiff, of a uniquely parochial nature — "back-up" child care — to third persons in two other jurisdictions pursuant to a contract with the plaintiff made out of state, for which the plaintiff paid the defendant about $2,100. Other than communications between the parties in the nature of e-mails, which are of little consequence; Debuhr v. Bove Industries, Inc., United States District Court, Docket No. 051160 JTM (D.Kan. August 30, 2005); there was little else except, more significantly, a Connecticut choice of law in the contract. See Burger King Corp. v. Rudzewicz, supra, 471 U.S. 482. The court sees little significance to the acts of the plaintiff publicizing or marketing its relationship with the defendant, even though the defendant provided the plaintiff with its logo in connection with such marketing and had the right of prior review and approval to the extent the plaintiff developed any printed material detailing the defendant's services. This is especially so since under the contract the plaintiff was not required to use the defendant's services but could use any other provider it wished, and the defendant was forbidden under the contract to "have any contact with any Client Organization" of the plaintiff. The marketing was for the benefit of the plaintiff, enabling it to claim that it provided complete "Lifecare" services throughout the entire country. "[T]he plaintiff may not transform or 'bootstrap' its own activities in this state into acts by nonresident defendant[ ]." Bross Utilities Service Corp. v. Aboubshait, 489 F.Sup. 1366, 1371 (D.Conn. 1980), aff'd, 646 F.2d 559 (2d Cir. 1980), cited with approval in Ryan v. Cerullo, supra, 282 Conn. 124 n. 15; Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 252, 460 A.2d 481 (1983) and Zartolas v. Nisenfeld, 184 Conn. 471, 476-77 n. 4, 440 A.2d 179 (1981). Any possible benefit to the defendant could only have been extremely remote.
In sum, the acts of the defendant hardly amount to "invok[ing] the benefits and protection of Connecticut's laws by virtue of . . . purposeful Connecticut related activity." Ryan v. Cerullo, supra, 282 Conn. 120.
This case is a far cry from H. Lewis Packaging, LLC v. Spectrum Plastics, Inc., United States District Court, Docket No. 3:02CV2259 (PCD) (D.Conn., April 11, 2003), on which the plaintiff relies. There, the plaintiff, a Connecticut corporation, pursuant to an oral contract made in Connecticut, solicited and referred Connecticut (though predominantly out-of-state) customers to the defendant, a California corporation. Plaintiff's performance accounted for $18 million in sales, with orders forwarded through plaintiff's Connecticut office to the defendant. Sales to Connecticut customers amounted to more than $200,000. In addition, the defendant provided business cards bearing its name identifying the plaintiff's incorporator, Weinstein, as its account executive located at a regional office in Connecticut and listed Connecticut telephone numbers. Here, the plaintiff solicited the defendant who rendered services entirely outside of Connecticut to third persons. Also, the defendant earned only $2,100 for the plaintiff's referrals.
The plaintiff asserts that the defendant "transacted business in Connecticut when it sent invoices to Connecticut and received and cashed a check originating from Connecticut. These transactions are no different then [sic] the transactions in Bucchere v. Brinker International, Inc., 49 Conn.Sup. 441[, 891 A.2d 1008] (2005) where the court denied a motion to dismiss based on lack of personal jurisdiction and underscored that because the defendant sent paychecks to the plaintiffs in Connecticut it transacted business in Connecticut." This case is not at all analogous to Bucchere, supra, 49 Conn.Sup. 441. In Bucchere, the plaintiffs, restaurant workers, sued the defendant, a Delaware corporation, essentially alleging that the defendant improperly took a "tip credit" out of their minimum wage, in violation of Connecticut law. The court found that there was an employment relationship between the plaintiffs and the defendant. Such a relationship entails a host of obligations and usually contacts in the jurisdiction in which the employee is directed to render services for the employer, as well as substantial interests of that jurisdiction in the employment relationship. See In re Goettman v. North Fork Valley Restaurant, Supreme Court of Colorado, Docket No. 075A167 (Colo. December 17, 2007) ("the exercise of personal jurisdiction in this case is reasonable because the employment relationship between the employee and [the foreign corporation] forms the basis of the activity 'purposefully directed' by [the corporation] at the residents of this state."); Runnels v. TMSI Contractors, Inc., 764 F.2d 417 (5th Cir. 1985).
The Bucchere court does not appear to have expressly found jurisdiction under General Statutes § 33-929(e) but under subsection (f) of that statute. Bucchere v. Brinker International, Inc., supra, 49 Conn.Sup. 446-48, 451-52.
The plaintiff claims that in Adler v. Snoddy, Superior Court, judicial district of Fairfield, Docket No. CV 02 0399008 (October 7, 2003, Doherty, J.), "the court found personal jurisdiction over the defendant corporation where the plaintiff alleged that [the] corporation regularly transacted business in Connecticut by telephoning or sending electronic mail messages to the plaintiff [in] the state with instructions regarding the sale of securities and regularly sent invoices to Connecticut in order to collect fees." In fact, in Adler, the court found jurisdiction over the defendant corporation pursuant to General Statutes § 33-929(f)(4) — "tortious conduct in this state" — because the plaintiff alleged that a corporation, which had its principal place of business in Connecticut, was the alter ego of the defendant corporation and that the defendant corporation "participated in the fraud by transmitting the fraudulent electronic mail messages to [the plaintiff] in Connecticut." Adler v. Snoddy, supra, Superior Court, Docket No. CV 02 0399008. The facts in Adler bear no similarity to those here.
In Bilco Co. v. Carey Precast Concrete Co., Superior Court, judicial district of New Haven, Docket No. 0405960 (June 19, 1998, Levin, J.) ( 22 Conn. L. Rptr. 309), the defendant Ohio corporation entered into a contract with the plaintiff, a Connecticut corporation, that provided that the plaintiff would license to the defendant the nonexclusive right to use all of the plaintiff's knowledge pertaining to the sale, manufacture and installation of basement doors, for which the defendant would pay the plaintiff royalties. Significantly, the Connecticut plaintiff shipped goods to the defendant pursuant to the agreement. At rock bottom, the purchase and sale of the doors was the reason for the business transaction between the parties. In addition, the plaintiff performed the following functions in Connecticut pursuant to the parties' agreements:
"(1) it held dealer meetings; (2) it determined monthly sales quotas for the defendant; (3) it administered leases to the defendant, (4) it advertised for its licensees, including the defendant; (5) it paid out reimbursement claims to the defendant; (6) it sent a monthly newsletter to the defendant . . . [(7)] it engaged in regular business conversations via telephone, fax and regular correspondence with the defendant." Bilco v. Carey Precast Concrete, Co., supra, 22 Conn. L. Rptr. 311. Here, the plaintiff contacted the defendant and directed that it render child care services to others in New York or Washington, D.C., for which the plaintiff would compensate the defendant. The defendant in Bilco engaged in "purposeful Connecticut activity." Ryan v. Cerullo, supra, 282 Conn. 120. The defendant here did not.
In Zartolas v. Nisenfeld, supra, 184 Conn. 474, the Connecticut Supreme Court stated "that in enacting § 52-59b, the legislature used New York Civil Practice Law § 302 (McKinney 1980-81 Sup.) as a model . . . We therefore find pertinent the judicial interpretation given to that New York statute." (Citations omitted.) Accordingly, this court finds significant that in New York, "where the services contracted for are to be performed outside of New York, the mere fact that a party to the contract is a New York domiciliary does not suffice to invoke the court's jurisdiction pursuant to CPLR 302(a)(1) (see Finesurgic v. Davis, 148 AD2d 414, 415 [528 N.Y.S.2d 568] [1989], lv dismissed in part, denied in part 74 N.Y.2d 781." Atlantic Veal Lamb, Inc. v. Silliker, Inc., 11 Misc.3d 1072A, 816 N.Y.S.2d 693 (2006). While here there is something more than the defendant's contracting with a Connecticut domiciliary, there is not much more. Rather, this case more closely resembles those cases in which a Connecticut resident retains an out of state entity to render professional services out of state. See Ryan v. Cerullo, supra, 282 Conn. 109; Rosenblit v. Danaher, 206 Conn. 125, 537 A.2d 145 (1988). In both of those cases, the defendants were found to have not transacted business in Connecticut.
The court finds that the defendant did not transact any business in Connecticut under § 52-59b. A fortiori, it did not transact business here pursuant to General Statutes § 33-929(e). Ryan v. Cerullo, supra, 282 Conn. 128-29.
II CT Page 667
The plaintiff also argues that this court has personal jurisdiction over the defendant pursuant to General Statutes § 33-929(f)(1) which provides: "Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract . . . to be performed in this state." The defendant does not deny that the plaintiff is a resident of this state.
But see Hartford Fire Ins. Co. v. Hartford, 3 Conn. 15, 24-25 (1819), holding that a corporation "resides nowhere." Notwithstanding that venerable case, "[i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended." Kron v. Thelen, 178 Conn. 189, 192, 423 A.2d 857 (1979).
What is now § 33-929(f)(1) was formerly codified as General Statutes § 33-411(c)(1). What the Connecticut Supreme Court said about the former statute is therefore directly relevant here. "[I]t is important to describe the general analytic framework within which § 33-411(c) operates. Unlike § 33-411(b), this subsection confers jurisdiction over designated causes of action without regard to whether a foreign corporation transacts business in Connecticut and without regard to a causal connection between the plaintiff's cause of action and the defendant's presence in this state. We read this language as requiring inquiry not only into the various elements of the plaintiff's cause of action, spelled out in the various subparts of subsection (c), but also into the totality of contacts which the defendant may have with the forum. The totality of a defendant's contacts may include activities which, because of the applicability of one of the exclusionary provisos of § 33-397 [now § 33-920], do not constitute 'transacting business' in this state. Factors excluded by § 33-397, such as ownership of property in this state and solicitation of business here, may nonetheless be relevant in determining whether the defendant has sufficient minimum contacts with Connecticut, has sufficiently availed himself of the privilege of conducting activities here, to make it fair and just to require the defendant to defend an action in this forum. Under subsection (c), consistent with the constitutional demands of due process, it is the totality of the defendant's conduct and connection with this state that must be considered, on a case-by-case basis, to determine whether the defendant could reasonably have anticipated being haled into court here. World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 92, 97-98, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 459 A.2d 503 (1983); see 1 Restatement (Second), Judgments § 5, comment b." Lombard Bros., Inc. v. General Asset Management Co., supra, 190 Conn. 253-55. Thus, Lombard Bros. ultimately requires the trial court to conflate the text of the statute with the requirements of due process.
General Statutes § 33-411(c)(1) was repealed in 1994 by 1994 Public Acts No. 94-186 § 214, recodified as General Statutes § 33-929(e)(1) in 1994 Public Acts No. 94-186 § 193 and recodified as § 33-929(f)(1) in Public Acts No. 97-246.
General Statutes (Rev. 1983) § 33-411(b), provided: "Every foreign corporation which transacts business in this state in violation of Section 33-395 or 33-396 shall be subject to suit in this state upon any cause of action arising out of such business."
General Statutes § 33-397 has been recodified as General Statutes § 33-920. Section 33-920 provides: "(a) A foreign corporation, other than an insurance, surety or indemnity company, may not transact business in this state until it obtains a certificate of authority from the Secretary of the State. No foreign corporation engaged in the business of a telegraph company, gas, electric, electric distribution or water company, or cemetery corporation, or of any company requiring the right to take and condemn lands or to occupy the public highways of this state, and no foreign telephone company, shall transact in this state the business authorized by its certificate of incorporation or by the laws of the state under which it was organized, unless empowered so to do by some general or special act of this state, except for the purpose of carrying out and renewing contracts existing upon August 1, 1903. No insurance, surety or indemnity company shall transact business in this state until it has procured a license from the Insurance Commissioner in accordance with the provisions of Section 38a-41.
"(b) The following activities, among others do not constitute transacting business within the meaning of subsection (a) of this section: (1) Maintaining, defending or settling any proceeding; (2) holding meetings of the board of directors or shareholders or carrying on other activities concerning internal corporate affairs; (3) maintaining bank accounts; (4) maintaining offices or agencies for the transfer, exchange and registration of the corporation's own securities or maintaining trustees or depositaries with respect to those securities; (5) selling through independent contractors; (6) 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; (7) creating or acquiring indebtedness, mortgages and security interests in real or personal property; (8) securing or collecting debts or enforcing mortgages and security interests in property securing the debts; (9) owning, without more, real or personal property; (10) conducting an isolated transaction that is completed within thirty days and that is not one in the course of repeated transactions of a like nature; (11) transacting business in interstate commerce.
"(c) The list of activities in subsection (b) of this section is not exhaustive."
1 Restatement (Second), Judgments § 5, comment b, states in part: "It remains generally necessary that the defendant's course of conduct have implicated him in activities in the state that seeks to exercise jurisdiction in an action determining his obligations."
Connecticut trial and federal district courts have often held that "[t]he phrase 'to be performed in this state' does not require performance in this state by the party over whom jurisdiction is sought." Resource Systems Group, Inc. v. Internetcash Corp., Superior Court judicial district of Stamford-Norwalk at Stamford, Docket No. CV 00 0181480 (June 12, 2001, Lewis, J.T.R.), and cases cited therein; see also BCH America, Inc. v. Deko International Co., Ltd., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 4008327 (January 26, 2007, Nadeau, J.); Elstein Elstein, P.C. v. Trafficcast, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 05 4011761 (May 24, 2006 Gilardi, J.) ( 41 Conn. L. Rptr. 388, 389-90). Thus, the plaintiff's performance alone may serve as the starting point, but not the end point, of analysis under § 33-929(f)(1).
As the defendant observes, some federal judges in the District of Connecticut have held that "[w]henever a plaintiff has sought to rely on its own performance of the contract in Connecticut to satisfy the long-arm statute, the courts have found jurisdiction only where (1) the contract expressly contemplated or required performance in Connecticut; or (2) the plaintiff had actually performed its obligations in Connecticut and such performance was the most substantial part of the obligations to be performed under the contract." (Emphasis in original.) General Star Indemnity Co. v. Anheuser-Busch Companies, Inc., United States District Court, Docket No. 3:97 CV 2542 (EBB) (D.Conn. August 24, 1998), aff'd, 199 F.3d 1322 (2d Cir. 1999); accord, Aurand v. Contemporary Marketing, Inc., United States District Court, Docket No. 3:05 CV 1053 (JCH) (D.Conn. December 20, 2005); Gulf Underwriters Ins. Co. v. Hurd Ins. Agency, United States District Court, Docket No. 3:03CV 1277 (SRU) (D.Conn. December 16, 2004); cf. Debuhr v. Bove Industries, Inc., supra, United States District Court, Docket No. 051160 JTM (D.Kan. August 30, 2005) (jurisdiction could not be predicated on Kansas Statutes Ann. § 60-308(b), providing for jurisdiction based on entering into a contract to be performed in Kansas, where the "key elements" of the contract occurred outside of Kansas). The defendant relies on these requirements and argues that the contract did not contemplate or require plaintiff's performance in Connecticut and that plaintiff's performance was not the most substantial part of the obligations to be performed under the contract.
The court finds that the plaintiff has proven, for purposes of this motion, that it performed its obligations under the contract in Connecticut. However, the only performance rendered by the plaintiff was (1) notifying the defendant of the names of client organizations whose employees might be requesting "back-up" child care, (2) providing the defendant with any printed materials that detailed the latter's services for its prior review, if any such materials were developed, and (3) paying the defendant $2,100 for its out-of-state services. The plaintiff was not required by the contract to do much else, including retaining the defendant.
Moreover, the only evidence as to whether the parties' contract expressly contemplated or required performance in Connecticut is that the contract identified the plaintiff as having a Westport, Connecticut, address. Even assuming that this is sufficient to satisfy the first tier of the federal courts' test; see Matter of Tillery, 571 F.2d 1361, 1364 (5th Cir. 1978) (business address listed in contract presumably was party's principal place of business); the court finds that the plaintiff's performance was not the most substantial part of the obligations to be performed under the contract. Rather, the most substantial part of the obligations to be performed was the defendant's providing "back-up" child care, and this it did, as requested, in the New York City and Washington, D.C., areas. Even if the requirements impressed by the federal cases are not necessarily mandated by § 33-929(f)(1), the court finds, for the reasons discussed in Part I, that the defendant lacks sufficient minimum contacts with Connecticut so as to have "sufficiently availed [itself] of the privilege of conducting activities here, to make it fair and just to require the defendant to defend an action in this forum." Lombard Bros., Inc. v. General Asset Management Co., supra, 190 Conn. 254-55.
This assumption is all the more hazardous here because the plaintiff received requests for "back-up" child care through its call center. Although the evidence before the court is that the plaintiff's call center, referred to in the parties' agreement and through which the plaintiff received requests for back-up child care, was located in Connecticut, there is no evidence that the defendant knew this when it contracted with the plaintiff. Call centers are often located out-of-state or in foreign locations. See, e.g., U.S. v. Payment Processing Center, LLC, United States District Court, Docket No. 06 0725 (E.D.Pa. October 18, 2006); Federal Trade Commission v. Debt Solutions, Inc., United States District Court, Docket No. C06 298JLR (W.D.Wash. August 7, 2006); People v. Telehublink Corp., 301 App.Div.2d 1006, 1007, 756 N.Y.S.2d 285, 287 (2003); Hotels.Com, L.P. v. Canales, 195 S.W.3d 147, 149 (Tex.App. 2006).
In the cases relied on by the plaintiff, the plaintiff's performance was the most substantial part of the obligations to be performed under the contract. In Resource Systems Group, Inc. v. Internetcash Corp., supra, Superior Court, Docket No. CV 00 0181480, "the plaintiff and the defendant or its agents or servants entered into a recruiting services agreement . . . at [the] plaintiff's place of business in Connecticut whereby the plaintiff was to provide executive search services to the defendant." (Internal quotation marks omitted.) The purpose of those services directly impacted the defendant's operations at its place of business. Here, it was the defendant that provided services at the request of the plaintiff, services entirely performed for the direct benefit of third persons outside of Connecticut. That the plaintiff's requests were in turn prompted by requests made to its call center does not materially add to the defendant's contacts with Connecticut where the evidence does not disclose that the defendant played an active role in bringing about those requests.
This fact also distinguishes Thornton Company, Inc. v. Pennsak, Inc., Superior Court, judicial district of New Britain, Docket No. CV 98 0490607 (November 20, 1998, Robinson, J.) ( 23 Conn. L. Rptr. 532). There, the defendant Pennsylvania corporation contracted in Connecticut with the plaintiff Connecticut corporation to act as its broker to purchase polyethylene for the defendant. Although the defendant never came to Connecticut, it issued a purchase order from its Pennsylvania plant to the plaintiff's Southington, Connecticut, office. The plaintiff confirmed the purchase order with the defendant, and from its Southington, Connecticut, office, set about locating conforming goods from among the available suppliers throughout the United States. Once the plaintiff, from its Connecticut location, located the requisite goods, it purchased them and arranged to have them shipped to the defendant. The plaintiff, also from its Connecticut office, confirmed the weight of the goods, and followed the goods through their delivery. The goods were shipped from the manufacturer in Louisiana to the defendant in Pennsylvania. The defendant accepted the delivered goods. The court, analyzing the statutory and constitutional requirements needed for jurisdiction distinctly, not only found that the plaintiff had performed its obligations in Connecticut, but found that because the defendant had engaged in nine previous transaction of a similar nature with the plaintiff, it had sufficient contacts with Connecticut for a finding of jurisdiction. Thus, in Thornton Company, Inc. v. Pennsak, Inc., supra, 532, the transaction, and the jurisdictional contacts, ran in a direction opposite to that here: the out-of-state defendant caused a Connecticut corporation to render services from Connecticut, resulting in the defendant acquiring goods in its jurisdiction, for which the defendant had agreed to pay. See also Advanced Claims Service v. Franco Enterprises, Superior Court, judicial district of Fairfield, Docket No. CV 00 0374548 (October 13, 2000, Melville, J.) (defendant retained plaintiff to provide investigatory services for defendant in Connecticut).
BCH America, Inc. v. Deko International Co., Ltd., supra, Superior Court, Docket No. CV 06 4008327, cited by the plaintiff, is similar to Thornton Company, Inc. v. Pennsak, Inc., supra, 23 Conn. L. Rptr. 532. In BCH America, Inc., the court, amidst disputed evidence, found that the out-of-state defendant contracted with the plaintiff, knowing it to be a Connecticut corporation, to procure ascorbic acid for the defendant, and had done so several times previously. "In particular, defendant deliberately reached out to the plaintiff in Connecticut, seeking to purchase ascorbic acid." Id. The court further found that the contract was made in Connecticut. The contract also was, or was to be, performed in Connecticut within the meaning of § 33-929(f)(1). The plaintiff procured the ascorbic acid for the defendant in a third state. The defendant refused to pick up or pay for the product. The court held that it had personal jurisdiction over the defendant pursuant to General Statutes § 33-929(f)(1).
"[W]ith respect to interstate contractual obligations, [the United States Supreme Court has] emphasized that parties who reach out beyond one state and create continuing relationships and obligations with citizens of another state are subject to regulation and sanctions in the other State for the consequences of their activities." (Internal quotation marks omitted.) Burger King Corp. v. Rudzewicz, supra, 471 U.S. 473. Contrary to the situation in BCH America, Inc. v. Deko International Co., Ltd., supra, Superior Court, Docket No. CV 06 4008327, here it was the plaintiff who did the reaching, and the defendant who rendered the desired services out of state. Employing the standard dictated by Lombard Bros., Inc v. General Asset Management Co., supra, 190 Conn. 253-55, the court finds that, notwithstanding the plaintiff's performance of the contract in Connecticut, and considering the nature of that performance, the defendant has insufficient contacts with this state for the assertion of jurisdiction pursuant to General Statutes § 33-929(f)(1).
The defendant's motion to dismiss is granted.