Opinion
HHDCV166073025
06-30-2017
Lyle Group, LLC v. The Paull Allergy & Asthma Clinic, P.A
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is the motion to dismiss filed by the defendant, The Paull Allergy & Asthma Clinic, P.A., in this action filed by the plaintiff, Lyle Group, LLC, which allegedly provided employee recruiting services for the defendant. The defendant moves to dismiss the action for lack of personal jurisdiction.
The plaintiff's claims arise from an alleged contract between the parties for personnel recruitment services in 2015, and the plaintiff alleges the following facts in its complaint. The plaintiff is a staffing firm organized under Connecticut law that works to place physician assistants in open positions. In April 2015, the defendant reached out to the plaintiff seeking assistance in finding a [physician] assistant. At all times, the defendant knew that if it hired a candidate referred by the plaintiff, it would owe a $12,000 contingent fee. In August 2015, the plaintiff recommended a candidate and provided the defendant with a copy of the candidate's curriculum vitae. On or about November 5, 2015, the plaintiff learned that the candidate it referred had been hired by the defendant, but the defendant has refused to pay the agreed-upon fee. The plaintiff now asserts claims against the defendant for (1) breach of contract; (2) intentional and wanton breach of contract; (3) a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b(a) (CUTPA); and (4) unjust enrichment.
The defendant moves to dismiss the action for lack of personal jurisdiction on the grounds that it did not " transact business" in Connecticut and does not have the minimum contacts required to satisfy due process. In support of its motion, the defendant submits the signed and sworn affidavit of Dr. Keith Paull, the principal of the defendant. In its objection to the defendant's motion to dismiss, the plaintiff submits the signed and sworn affidavits of Will Rubinow, its managing member, and Carlos Benavides, its staffing manager.
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." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations in 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts . . . If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits . . . the trial court may dismiss the action without further proceedings." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 651-52. " [W]here a jurisdictional determination is not dependent on the resolution of a meaningful factual dispute, there is no requirement that the court conduct a fact-based hearing." Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 47, 75 A.3d 38, cert. denied, 310 Conn. 936, 79 A.3d 889 (2013).
" If the defendant challenging the court's personal jurisdiction is a foreign corporation or a nonresident individual, it is the plaintiff's burden to prove the court's jurisdiction." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). In this context, " the court must undertake a two-part inquiry to determine the propriety of its exercising such jurisdiction over the defendant. 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.) Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008).
The defendant argues that it is not within reach of the applicable long-arm statute, General Statutes § 52-59b, because it did not " transact business" in Connecticut. In the alternative, the defendant further contends that it lacks the requisite minimum contacts with Connecticut and, therefore, exercising personal jurisdiction would violate due process. In response, the plaintiff argues that the defendant sought out its services and purposefully entered into a contract for said services and thus did " transact business" in Connecticut. Additionally, the plaintiff contends that the parties' negotiations, the terms of the contract, and its course of dealing, particularly its shared history, demonstrate that the defendant has the requisite minimum contacts.
Before addressing whether § 52-59b confers jurisdiction over the defendant, this court must examine the evidence submitted by the parties, namely, the assorted affidavits.
I.
The principal of the defendant, in his affidavit, avers that he is in charge of hiring [physician] assistants, and that as a general practice, the defendant does not use recruiting firms when seeking to fill job positions. He further avers that, notwithstanding this policy, the defendant regularly receives unsolicited e-mails and communications from recruitment firms. The following is additionally averred in the affidavit. Around June 2015, the defendant began advertising for a potential [physician] assistant position. On August 27, 2015, the defendant received an unsolicited e-mail from a Robert Benavides, associated with the plaintiff, with information about a potential candidate for a [physician] assistant position, Keri Stump, along with a proposed contingent agreement. No one from the defendant's office responded to this e-mail. On August 28, 2015, Keri Stump sent her curriculum vitae directly to the defendant via e-mail, and she was ultimately hired by the defendant. The defendant did not initiate any communications with the plaintiff during the hiring process for Keri Stump nor did the defendant make any agreements with the plaintiff for its services.
Carlos Benavides, the plaintiff's staffing manager, avers that he had telephone conversations with Diana Northup, the defendant's practice manager on April 21, 2015; August 28, 2015; September 1, 2015; and September 10, 2015. At various times between April 2015 and September 2015, he also left voicemails for Diana. The affidavit also refers to various e-mails that were sent to Diana during this same time period, two of which included the plaintiff's contingent agreement. These e-mails are embodied in the affidavit, wherein Carlos Benavides includes the text from each message he allegedly sent. William Rubinow, the plaintiff's managing member, avers that his company had previously worked with the defendant in 2010 and refers to e-mails between him and Diana in March 2010. He also includes the text of the e-mail he sent to Diana as well as her response in his affidavit. He then avers that he e-mailed Diana on September 11, 2015, regarding the referral of Keri Stump. This e-mail is similarly embodied in the affidavit.
Although the affidavit submitted by the defendant refers to a " Robert Benavides, " the affidavit of Carlos Benavides submitted by the plaintiff states his name as " Carlos R. Benavides." Thus, it would appear that Robert Benavides and Carlos R. Benavides are the same individual.
Although at first glance it would appear that the two affidavits submitted by the plaintiff create a factual dispute, significant portions of these affidavits are inadmissible hearsay. " An out-of-court statement offered to establish the truth of the matter asserted is hearsay . . . As a general rule, such hearsay exceptions are inadmissible unless they fall within a recognized exception to the hearsay rule." (Internal quotation marks omitted.) Johnson v. Board of Education, 130 Conn.App. 191, 198-99, 23 A.3d 68 (2011), appeal dismissed, 310 Conn. 302, 77 A.3d 137 (2013); see also Conn. Code Evid. § 8-1(3). The e-mails embodied in the affidavits constitute hearsay, not a single e-mail is properly authenticated; both affiants simply copy and paste text that is allegedly from e-mails sent or received. See Chief Information Officer v. Computer Plus Center, Inc., 310 Conn. 60, 115-17, 74 A.3d 1242 (2013); State v. Eleck, 130 Conn.App. 632, 637-40, 23 A.3d 818 (2011), aff'd, 314 Conn. 123, 100 A.3d 817 (2014); cf. Practice Book § 17-46. Aside from attesting that these are e-mail messages sent to Diana, it is unclear who created the content of the e-mail, and from where and to whom the e-mail was sent. See Chief Information Officer v. Computer Plus Center, Inc., supra, 117.
Practice Book § 17-46 provides: " Supporting or opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto."
Additionally, any statements in the affidavit of Carlos Benavides of what Diana said in the alleged telephone calls are similarly inadmissible hearsay. See Conn. Code Evid. § 8-1(3). What Diana said to Carlos in these alleged telephone calls are out-of-court statements that are being offered in the affidavits to prove that the defendant did seek out the plaintiff's services, the defendant was aware of the agreement and its terms, and that the defendant did in fact accept the terms. In other words, they are out-of-court statements being offered to prove the truth of the matter asserted. When the affidavits are considered without the hearsay, all that is established is that Carlos spoke with Diana on the phone a few times, left voicemail messages, and sent various e-mails over a period of time, e-mails that were not responded to. The facts asserted by the defendant in the affidavit submitted in support of the motion to dismiss are, therefore, largely undisputed.
There remains a dispute as to whether the defendant ever initiated any communications with the plaintiff. In the affidavit submitted by the defendant, it is averred that the defendant never initiated any telephone calls or e-mails. Carlos attests, however, that Diana called him on September 10, 2015, a date after which there had already been several communications from the plaintiff to the defendant. The question of personal jurisdiction is not dependent on whether this telephone call took place, however, and is therefore irrelevant.
On the basis of the affidavit submitted by the defendant and the two affidavits submitted by the plaintiff, minus the hearsay, it is clear that personal jurisdiction is lacking. Telephone calls and written communications between an out-of-state defendant and a plaintiff within the jurisdiction are generally an insufficient basis for which to exercise jurisdiction under the long-arm statute. See Green v. Simmons, 100 Conn.App. 600, 605, 919 A.2d 482 (2007); Calderoni v. Gissas, Superior Court, judicial district of New Britain, Docket No. CV-15-6030914-S, (April 26, 2016, Young, J.) (" the transmission of communications between an out-of-state defendant and a plaintiff within the jurisdiction does not, by itself, constitute the transaction of business in forum state" [internal quotation marks omitted]). Accordingly, this court cannot exercise jurisdiction over the defendant.
II
Even if the statements in the affidavits were admissible and construed in a light most favorable to the plaintiff, this court concludes that it cannot exercise jurisdiction over the defendant under § 52-59b. Section 52-59b(a) provides in relevant part: " [A] court may exercise jurisdiction over any nonresident individual, foreign partnership or foreign voluntary association . . . who in person or through an agent: (1) Transacts any business within the state . . ." " [A]lthough the term '[t]ransacts any business' is not defined by statute, [our Supreme Court has] construed the term 'to embrace a single purposeful business transaction.'" Ryan v. Cerullo, 282 Conn. 109, 119, 918 A.2d 867 (2007). Additionally, " a nonresident individual who has not entered this state physically nevertheless may be subject to the jurisdiction in this state under § 52-59b(a)(1) if that individual has invoked the benefits and protections of Connecticut's laws by virtue of his or her purposeful Connecticut-related activity . . ." (Internal quotation marks omitted.) Id., 120. Accordingly, " [t]here must be some definitive act taken by the defendant that evinces a purposeful availment of the privileges of conducting the subject activity within the forum state and that, subsequently, invokes the benefit and protections of its laws." Walshon v. Ballon Stoll Bader & Nadler, P.C., 121 Conn.App. 366, 372, 996 A.2d 1195 (2010).
In Walshon, the plaintiff hired the defendant, a New York law firm, to represent him in a securities fee claim which had been initiated against him. Walshon v. Ballon Stoll Bader & Nadler, P.C., supra, 121 Conn.App. 368. The defendant chose to arbitrate the matter before the National Association of Securities Dealers in New York; however, neither the plaintiff nor the defendant appeared at the hearing. Id. After a default award and judgment was entered against the plaintiff, he initiated a breach of contract claim against the defendant in Connecticut. Id., 368-69. The action was dismissed for lack of personal jurisdiction because " the defendant had no substantial contacts with Connecticut." Id., 369. The court discussed the fact that the defendant was hired to practice law in New York, accepted and signed the retainer contract in New York, never met with the plaintiff in Connecticut, did not advertise in Connecticut, and had no personnel, offices or assets in Connecticut. Id. The Appellate Court affirmed, noting that " [a]lthough the defendant knew the plaintiff, its client, resided in Connecticut, there is nothing to indicate that the defendant anticipated litigating or arbitrating in Connecticut." Id., 373. Furthermore, the plaintiff's claim " arises from the defendant's alleged failure to appear, or to give notice to the plaintiff to appear, in New York at the arbitration hearing . . . Accordingly, the defendant's alleged breach of contract occurred in New York . . . [T]herefore, the transaction giving rise to the plaintiff's claim occurred in New York." Id., 374.
In the present case, the defendant cannot fairly be characterized as having transacted business in this state for purposes of § 52-59b(a)(1). Even if the statements in the affidavits submitted by the plaintiff were admissible, the defendant's conduct is at best described as passive, rather than definitive or purposeful. The defendant did not seek out the plaintiff's recruitment services but, rather, the plaintiff sought out the defendant when working to place candidates, to inquire whether it would be interested in said candidates. See Rubinow Aff., ¶ 4; Benavides Aff., ¶ 7, 9. Assuming arguendo that there was a contract between the parties for the plaintiff's services, that contract was for the plaintiff to find a physician assistant to fill a position in Texas, for a Texas medical practice, with no personnel, offices, or assets in Connecticut. See Walshon v. Ballon Stoll Bader & Nadler, P.C., supra, 121 Conn.App. 369. In fact, the candidate whose hiring forms the basis for this action was residing in Texas while working with the plaintiff to be placed in a suitable position in Texas. Although the plaintiff is a Connecticut company and performed its recruitment services from Connecticut, those facts alone are insufficient to warrant a determination that the defendant transacted business in this state, especially in light of the fact that the defendant did not purposefully secure the plaintiff's Connecticut-based services. But see Pro Performance Corporate Services, Inc. v. Goldman, 47 Conn.Supp. 476, 481-83, 804 A.2d 248 (2002) (finding that defendant's purposeful conduct in contacting and securing Connecticut-based services of plaintiff constituted transacting business). Simply put, the nexus between the defendant's actions and this state is too attenuated to support a conclusion that the defendant, in allegedly receiving the plaintiff's services, transacted business in this state. See Ryan v. Cerullo, supra, 282 Conn. 121. Finally, the defendant never met with the plaintiff in Connecticut, further weakening the defendant's connection to the forum state. See Walshon v. Ballon Stoll Bader & Nadler, P.C., supra, 373 (" the defendant never met with the plaintiff in Connecticut, which is evidence of an even weaker connection with the forum state than the defendant in Rosenblit [v. Danaher, 206 Conn. 125, 537 A.2d 145 (1988)] had, where the court declined to find jurisdiction appropriate").
It is true that in certain circumstances, a nonresident individual who has not physically entered this state may still be subject to personal jurisdiction. See Ryan v. Cerullo, supra, 282 Conn. 120. Our Appellate Court affirmed the finding of personal jurisdiction over a nonresident defendant who had never physically been present in Connecticut in Doyle Group v. Alaskans for Cuddy, 146 Conn.App. 341, 77 A.3d 880 (2013). In Doyle Group, the individual defendant was running in Alaska as a candidate for the United States Senate and hired the plaintiff, a Connecticut-based political consulting firm, whom he had contacted pursuant to a recommendation. Doyle Group v. Alaskans for Cuddy, supra, 343. Although he had never met with the plaintiff in Connecticut, the Appellate Court held that the trial court properly exercised jurisdiction over the defendant because he had purposefully entered into a contract with a Connecticut business to perform consulting services from that state, signed said contract, mailed the contract along with a personal check for $10,000 to the plaintiff at its place of business in Connecticut, and engaged in telephone calls and e-mail communications arising from the contract. Id., 348-49. Further, the contract specifically prohibited the plaintiff from performing its services outside of Connecticut without permission from the defendant. Id., 345.
The present case is readily distinguishable. Here, the defendant did not seek out the plaintiff's services as the defendant did in Doyle Group. Where in Doyle Group there was a contract explicitly signed and sent back along with a check; Doyle Group v. Alaskans for Cuddy, supra, 146 Conn.App. 349; in the present case, there is simply a contingent agreement, attached to an email, which was never signed or verbally agreed to. Again, assuming the existence of a contract between the parties, the defendant was a largely inactive and uninvolved participant. This conclusion is drawn from the plaintiff s own evidence. The affidavit of Carlos Benavides details an assortment of telephone calls and e-mail communications that went unanswered by the defendant. In Doyle Group, however, there were communications engaged in by both parties arising out of the contract, with the defendant receiving consulting services via e-mail and telephone. Id., 343-44.
Accordingly, the allegations of the complaint and the parties' affidavits do not demonstrate that the defendant purposefully conducted activities in this state. To the contrary, a more accurate characterization of the conduct is that the plaintiff purposefully directed its activities towards Texas; it solicited business in Texas, sought to enter into an agreement with a Texas medical practice; and was working to place a Texas resident into a physician assistant position in Texas. The defendant did not transact business within the meaning of § 52-59b(a)(1), and this court does not have personal jurisdiction over it. Having determined that the long-arm statute is inapplicable, it is unnecessary to address the question of minimum contacts and due process.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss is granted.