Opinion
No. CV05-5000401-S
November 28, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
This complaint was brought by Ann Lombardi, a resident of East Haven. In this case the plaintiff alleges she was on the premises of Bally's Park Place, a casino in Atlantic City, New Jersey. She further claims she slipped and fell on those premises which were owned by Bally's Park Place, Inc. and her fall and ensuing injuries were the result of the negligence of Bally's Park Place, Inc. Paragraph 4 of the complaint states that "the court has jurisdiction of the claims set forth (in the complaint) pursuant to General Statutes § 33-929(f)(2). That statutory subsection says, in relevant part, that:
"(f) Every foreign corporation shall be subject to suit in this state, by a resident of this state . . . whether or not such foreign corporation is transacting or has transacted business in this state . . . on any cause of action arising . . . (2) 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 there to were accepted within or without the state."
Paragraph 3 of the complaint says that prior to the date of the accident Bally's "repeatedly advertised, solicited, and transacted business within Connecticut." In the complaint this is the basis for the plaintiff's assertion of jurisdiction under the foregoing statute.
Bally's has now filed a motion to dismiss arguing that the court has no personal jurisdiction over Bally's because it cannot rely on the foregoing longarm statute to confer jurisdiction on our courts.
And our court has said that "the burden of poof is on the plaintiff to prove jurisdiction over the person when constructive service is used," Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54 (1983); Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 224 (1980).
The court went on to say that "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 cross examine witnesses," id. p. 56. The necessary implication of this is that when affidavits are submitted by the parties like summary judgment procedure, the jurisdictional issue can be decided on the basis of affidavits if there is no genuine issue as to the material facts on which jurisdiction depends, id., cf. Barde v. Bd. of Trustees, 207 Conn. 59, 62 (1988).
As the defendant notes a two-step process is required to decide a jurisdictional claim involving our so-called longarm statute. The court in Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250 (1983) said:
"Our analysis of the competing claims of the parties (as to jurisdiction) cannot, however, begin with the due process clause (federal constitutional test). Our first inquiry must be whether our longarm statute authorizes the exercise of jurisdiction under the facts of this case. Only if we find the statute to be applicable (state has attempted to assert jurisdiction) do we reach the question whether it would offend due process to assert jurisdiction."
(1)
The court will first examine the defendant's claim that the state longarm statute does not confer jurisdiction over Bally's.
In its motion to dismiss and the first brief submitted by it a Bally's vice president, Lynn Hughes, makes the following assertions:
4. Bally's is organized under the laws of the State of New Jersey with its principal place of business located in Atlantic City, New Jersey, where it operates a hotel and casino.
5. Bally's is not licensed to conduct any business in Connecticut.
6. Bally's has not appointed a statutory agent for service in Connecticut.
7. Bally's does not own or operate any facilities in Connecticut, nor does it have any employees in Connecticut.
8. Bally's does not have any mailing address(es) or telephone listing(s) in Connecticut nor does it maintain any property or bank accounts in Connecticut.
The defendant makes the claim that the plaintiff has not produced, nor can it, "any evidence that Bally's repeatedly solicited or transacted business in Connecticut." The allegations in paragraph 3 of the complaint and "her bald assertion that Bally's repeatedly advertised and solicited and transacted business here, without more, is insufficient to satisfy the requirements of the Longarm Statute." The defendant cites Pitruzello v. Muro, 70 Conn.App. 309, 316-18 (2002) for the proposition that "such vague and ambiguous allegations without more, fail to meet basic pleading requirements, or to establish facts necessary to support a finding of jurisdiction." (Emphasis by this court).
That comment seems to be at odds with an observation made by our court at least when the due process aspect of jurisdiction is before a court. In Standard Tallow the court said at pages 52-53:
When, however, the jurisdictional basis is not clear on the face of the record because service is had under the longarm statutes, additional facts establishing the "minimum contacts" required by due process may need to be shown. It has not been the practice in this state to require these minimum contacts to be made a part of the allegations in the complaint. Because of 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. (Practice Book §§ 10-30, 10-31(2), 10-32). If the defendant challenges the court's jurisdiction, it is then incumbent on the plaintiff to prove the facts establishing the requisite minimum contacts."
The same observation should apply under the first prong of the jurisdictional test, i.e., the reach of the longarm statute as such, anterior to the due process analysis. We are after all a fact pleading not an evidence pleading state.
The plaintiff has indeed responded to the defendant's jurisdictional challenge by submitting affidavits from the plaintiff and her husband which purport to allege "facts" supporting her position that the state statute does confer jurisdiction over the defendant because pursuant to § 33-929(f)(2) the defendant has "repeatedly so solicited business" in our state.
Both the plaintiff and her husband state in their affidavits that
4. (they) regularly receive mail from Bally's at (their) residence address in Connecticut. These mailings consist of brochures and pamphlets regarding Bally's Hotel, Casino, and Spa. These mailings also include information about promotional events and shows at Bally's Park Place.
Both the husband and the plaintiff state in their affidavits that they "began receiving such mailings on or around 1998 and continue to receive such mailings to date." They received "such" mailings for a period of five years before the accident as they say "regularly." Attached to the objection to the motion to dismiss, after the affidavits, are a letter and materials from Bally's; the envelope is dated after the accident that is the subject of this suit but the court regards the statement in the affidavits that "such mailings" were received "to this date" and the attachment of the post-accident mailings as indicative of a claim that the mailings received pre-accident were similar in nature to the ones attached to the objection to the motion to dismiss. The Lombardis state as a result of the mailings they have stayed at Bally's, gambled there and eaten at its restaurants on numerous occasions.
The mailings attached to the objection are a pamphlet extolling the fun and excitement to be experienced at Bally's various attractions; they invite the recipient to enjoy what Bally's has to offer. Phone numbers for contacting the establishment are provided as well as directions on how to get to Bally's. Bally's is presented as a golden opportunity. A menu is provided along with a price list for services at the Bally's spa. An attachment provides for a free overnight stay for a July 2005 weekend.
The defendant, as noted, questions the relevance of the post dated material but does not contest Bally's mailed the materials, or that there were prior mailings to the Lombardis or that the mailings attached to the objection were somehow different from any pre-accident mailings that might have been sent to the Lombardis. The general description the Lombardis give as to the type of mailings they received from Bally's in their affidavit is reflected in the post-accident materials attached to the objection to the motion to dismiss.
(2)
As indicated in Lombardi the first question to be decided when a jurisdictional challenge is addressed to a suit under the longarm statute is whether the state statute is applicable, does the statute itself indicate that the state would permit that jurisdiction be exercised. Under § 33-929(f)(2) does this cause of action arise out of "any business solicited in this state by mail or otherwise." A foreign corporation can be sued in such circumstances only "if the corporation has repeatedly so solicited business."
The case of Thomason v. Chemical Bank, 234 Conn. 281 (1995) defines the intended ambit of our statute: "`a cause of act ion arise(s) . . . out of . . . business in this state' if, at the time the defendant engaged in solicitation in Connecticut, it was reasonably foreseeable that, as a result of that solicitation, the defendant could be sued in Connecticut by a solicited person on a cause of action similar to that now being brought by the plaintiffs," id. page 296. The question then is whether the plaintiff can show that "the defendant could reasonably have anticipated being haled into court here," id.
In applying these very general tests the cases do not seem to analyze the relevance under the statutory definition between advertising in newspaper and other media and general mailings and specific targeted mailings to particular individuals as occurred here and the importance of this distinction to the requirement of repeated solicitation under § 33-929(f)(2).
In other words as noted in Krepata v. Bio-Therapeutic Computers, 1997 Ct.Sup. 8635 (Hartford J.D., Wagner, J.) "Solicitation has been interpreted by our Supreme Court in the context of commercial advertising," referring to Lombardi, supra, also see Thomason v. Chemical Bank, supra, 234 Conn. at pp. 297-99, McFaddin v. National Executive Search, Inc., 354 F.Sup. 1166, 1169 (D.Conn. 1973). Courts at various levels in this regard look at the amount of advertising and how repetitive it has been all for the purpose of determining whether a defendant could reasonably foresee "that Connecticut residents would respond to its various advertisements by (for example) skiing at its facility and, if harmed by the defendant in Connecticut," see O'Brien v. Okemo Mountain, Inc., 17 F.Sup.2d 98, 101 (1998, D.Conn.), cf. Mallon v. Walt Disney World Co., 3:97 CV 01320(RNC), (D.Conn. 1998).
It seems to this court at least that for purposes of the foreseeability analysis there is a difference between examining the amount and type of advertising to determine if as in O'Brien it is foreseeable that some Connecticut resident or residents would respond to such general advertising and whether it is foreseeable to a foreign corporation that an individual Connecticut resident would respond to a direct mailing to that person. Of course in the latter case it would seem to be foreseeable that that particular person, so solicited, would respond to the solicitation if it occurs repeatedly. What on earth does the issue of whether 500 or 1000 such directed mailings were sent to specific individuals besides the plaintiff have to do with the jurisdictional test of foreseeability in a particular plaintiff's case.
Scattered throughout the case law is some recognition of this distinction between types of solicitation — general advertising and direct mailing.
The court in Thomason itself implied that direct solicitation of particular individuals meets the statutory requirement. At 234 Conn. page 296 the court says: "A plaintiff similarly need not show that the defendant solicited his or her business in Connecticut. A plaintiff need only demonstrate that the defendant would reasonably have anticipated being haled into court . . ." If a particular person is, however, solicited, a fortiori, it would seem our statute permits longarm jurisdiction. In Lombard Brothers at 190 Conn. page 297 the court said apart from certain advertisements "there is neither allegation or evidence that the defendant ever expressly solicited business from the plaintiff, from CAM, or from anyone else."
Interestingly a case admittedly involving advertising issues where a motion to dismiss was granted indirectly seems to support this court's position. In Liberty Aircraft v. Atlantic Jet, Inc., 28 C.L.R. 398 (2000, Munro, J.) the court noted that "nothing in the advertisements at issue specifically targeted Connecticut residents for solicitation, nor offered any special service, product, or pricing or other advantage to Connecticut residents. Instead they were advertisements targeting the entire world community (or at least that portion of the world community interested in resale aircraft). Here the direct mailings to the Lombardis certainly targeted them and Mrs. Lombardi claims to have been injured by responding to the solicitation. If foreign corporations should not be surprised if one particular defendant responded to their extensive advertising and then being haled into court when injury occurs (see O'Brien v. Okemo Mountain, Inc., supra), should they be any more surprised that a particular person to whom they have directed mailings to for five years prior to an accident accepts the offer made to him or her? At least to this court the answer should be no. The repeated activity requirement is satisfied once this direct mailing distinction is accepted since it went on for five years.
(3)
The question must then be answered as to whether once the requirements of § 33-929(f)(2) are met the exercise of state jurisdiction comports with the principles of federal due process. Thomason, 234 Conn. at page 299.
As is often the case Am.Jur. succinctly defines the due process test. In 62B Am.Jur.2d "Process," § 186 at pp. 889-90 it says
The modern rule governing the scope of a court's jurisdiction is the so called "minimum contacts test." In a line of cases beginning with International Shoe ( 326 U.S. 310), the United States Supreme Court has defined the parameters of the states' power to compel non-residents to defend suits brought in state courts. Generally, the forum state may exercise jurisdiction over a non-resident defendant where the defendant has had certain minimum contacts with the forum state, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
The so-called "minimum contacts" test has problems of its own, however, especially insofar as it is meant to serve as a guide to lower courts trying to apply it. What criteria apply to determine when certain contacts cross the magic line so as to be labeled minimum contacts? For example what type of advertising in what type of media meets the definition of a "contact" — does the advertising have to be directed in some particular way at state residents, is a quantitative or qualitative analysis applied?
Perhaps in recognition of this the due process standard has been further defined in such a way as to be analogous to tests judges usually apply. In fact it is strikingly similar to the "can I be haled into court" test discussed in the previous section of this decision. Thus in World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1979) the court said
The foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court here . . . The Due Process Clause, by ensuring the "orderly administration of the laws" International Shoe Co. v. Washington, 326 U.S., at 319, gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.
See U.S. Trust Co. v. Barber, 197 Conn. 34, 41 (1985).
For the reasons just discussed in the previous section, given the type of contact by direct mailing for the period of time involved here, this defendant could have reasonably foreseen that it would be haled into our courts.
Interestingly this "foreseeability" test for deciding the due process issue in a general jurisdiction case is analogous to the rule allowing, for due process purposes, a state to exercise "specific jurisdiction" over a non-resident whenever that defendant "has purposefully directed its activities at residents of the forum," Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985). Direct mailings would certainly seem to qualify for purposefully directed activity and this type of solicitation of business seems to satisfy the foreseeability standard. That test for satisfying the "minimum contacts" requirement cannot be used here because as explained in Thomason the federal courts have held that the cause of action must arise out of the defendant's contacts with the forum, that cannot be said here so a general jurisdiction analysis must be used for due process purposes, 234 Conn. at pp. 287-89; also see State ex rel. Circus Circus Reno, Inc. v. Pope, 854 P.2d 461, fn. 4. See Thomason at 234 Conn. pages 287 et seq. for discussion of general and specific jurisdiction distinction in applying a due process analysis.
The motion to dismiss is denied.