Opinion
No. FSTCV10-6005537S
May 10, 2011
Memorandum of Decision on Motion to Dismiss (No. 121)
This is a motion to dismiss the complaint on grounds of lack of personal jurisdiction under the long-arm statute and forum non conveniens.
PROCEDURAL AND FACTUAL BACKGROUND
This is an action by Randy Proto (the plaintiff) against Robert Hamic, Jr. (the defendant). In the complaint, filed on June 22, 2010, the plaintiff alleges that the defendant "has designed and orchestrated an extensive campaign, using the Internet, to disseminate false, misleading, and disparaging information about [the plaintiff], and [the plaintiff]'s businesses, for the purpose of damaging [the plaintiff]'s professional reputation, driving away [the plaintiff]'s clients and affiliates, and gaining an unfair competitive advantage." According to the complaint, the defendant was formerly a student at the plaintiff's martial-arts school and now runs his own school. The plaintiff resides in Weston while the defendant resides in Austin, Texas. The plaintiff owns two businesses that provide instruction in Haganah, a martial arts methodology derived from Israeli military tactics that is primarily used for self-defense. The two businesses are Integrated Defense Fighting Systems, Inc. (IDFS) and International Haganah Federation, Inc. (IHF). The plaintiff's program of instruction is known as F.I.G.H.T., which stands for Fierce Israeli Guerilla Hand-to-Hand Tactics. IDFS and IHF have a training center in Florida and license schools in multiple states, including Connecticut.
The complaint further alleges the following. The defendant owns Summit Self Defense, which provides training in Krav Maga, a type of Israeli martial art, as well as Israeli self-defense tactics and competes with IDFS and IHF. The defendant owns martial-arts schools in New Mexico and Texas "and provides training and seminars nationwide." According to the complaint, beginning in 2009, "[the defendant] has created, developed, and published a variety of Internet websites and blogs, which specifically target [the plaintiff] and contain false, misleading, and disparaging information about [the plaintiff] and his businesses." The complaint lists the addresses of three websites and two blogs purportedly established and maintained by the defendant along with a Facebook page and two Twitter feeds. The plaintiff alleges that some of the blogs are maintained through aliases to disguise the defendant's identity and that the defendant has submitted comments to posts on his blogs using different user names or anonymous names in order to make it appear that multiple people have grievances with the plaintiff and his businesses. The defendant has linked his sites to each other and, according to the complaint, the linking has created a so-called "Google Bomb," a way to manipulate results returned by Google's search engine in order to steer Internet users searching for information about the plaintiff's businesses to the defendant's sites. For instance, in May 2010, the defendant is alleged to have created an Internet "news release" that discusses his "Exposing fake Israeli self-defense instructors" site. This news release was designed to attract Internet users to click on links to the defendant's sites and thus increase the likelihood that those sites would appear in the results following a Google search of the plaintiff's name, according to the complaint.
In addition to maintaining his various Internet platforms for spreading disparaging information about the plaintiff, the defendant is accused of contacting by e-mail various martial-arts schools licensed by the plaintiff's businesses, with at least some of the recipients located in Connecticut. The e-mails contain links to sites created by the defendant. The complaint lists the allegedly disparaging and false statements contained in the defendant's communications.
Furthermore, the complaint alleges that in March 2010, the defendant's counsel sent a letter to the plaintiff's home in Connecticut, demanding that the plaintiff pay the defendant $475,000 within ten days, "ostensibly to keep [the defendant] from filing a lawsuit against [the plaintiff]." In May 2010, the defendant initiated a fraud suit against the plaintiff, IHF, IDFS and another party in state court in Florida, the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. The complaint in the present case alleges that "[b]oth the demand letter and the lawsuit are shams, lack any objective or good faith basis in fact or law, and are designed (a) as anticompetitive tools to improperly and unfairly interfere with [the plaintiff's] businesses and damage his business reputation; and (b) to extract financial payment from [the plaintiff] for improper and unlawful purposes."
The complaint is brought in five counts: (1) violation of Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (2) invasion of privacy by false light, (3) invasion of privacy by unreasonable publicity of another's private life, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress. The complaint claims that the court has jurisdiction pursuant to Connecticut's longarm statute, General Statutes § 52-59b, because the defendant "has committed tortious acts in Connecticut, and/or has committed tortious acts outside the [s]tate that caused injury to persons or property within the [s]tate, by sending tortious communications into Connecticut and by specifically and intentionally targeting his tortious Internet postings at [the plaintiff], an individual residing in Connecticut." In his prayer for relief, the plaintiff seeks compensatory damages, punitive damages, attorneys fees and costs pursuant to both CUTPA and common law, interest and injunctive relief.
This count contains the additional allegation that the defendant published "private information" about the plaintiff's wife and child on his websites and blogs.
On July 28, 2010, the defendant removed the case to the United States District Court for the District of Connecticut. On September 14, 2010, the case was remanded back to the Connecticut Superior Court. On September 28, 2010, the defendant moved to dismiss the complaint on the grounds of lack of personal jurisdiction over the defendant, or, in the alternative, forum non conveniens. Attached to the motion is the affidavit of the defendant. On November 22, 2010, the plaintiff filed an objection to the motion to dismiss. Submitted with the objection is the affidavit of the plaintiff, attached to which are printouts of various blogs allegedly maintained by the defendant, an e-mail sent by the defendant and a copy of a March 4, 2010 demand letter purportedly sent by a Florida law firm to the plaintiff. The objection also includes the affidavits of the following persons: (1) Mike Lee Kanarek; (2) Michael Griffin; (3) Kevin Evitts; and (4) Mark Wilkinson. On December 27, 2010, the defendant filed a memorandum in reply to the plaintiff's objection. Attached to this memorandum are printouts from various websites. On January 5, 2011, the plaintiff filed sur-reply affidavits of the plaintiff and Diane Polletta, an associate of the firm representing the plaintiff. Attached to Polletta's affidavit are excerpts from "Karma's Helpers," a book purportedly written by the defendant. The court heard oral argument in this matter on January 10, 2011.
STANDARD OF REVIEW
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "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 many cases jurisdiction is manifest, as where the sheriff's return shows in-hand service in Connecticut." Kenny v. Banks, 289 Conn. 529, 533, 958 A.2d 750 (2008). On the other hand, "[w]hen jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the [officer's] return . . . When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction . . . Thus, once the defendant contest[s] personal jurisdiction . . . it [is] the plaintiff's burden to produce evidence adequate to establish such jurisdiction." (Citations omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515-16.
"When a . . . court decides a . . . question raised by a pretrial motion to dismiss, it must consider the allegations of 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 10-11, 12 A.3d 865 (2011). "When . . . a motion to dismiss 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.) Wilcox v. Webster Ins., Inc., supra, 294 Conn. 209.
"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." (Brackets in original; citations omitted; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983).
At oral argument, counsel for both parties indicated to the court that the jurisdictional facts are not in dispute. Accordingly, the court will not hold a Standard Tallow evidentiary hearing and will proceed to evaluate the grounds raised in the parties' memoranda and at oral argument.
At oral argument, counsel for the defendant noted that a copy of an e-mail purportedly sent by the defendant is attached to the affidavits of two of the affidavits. The two affidavits are Kanarek and Wilkinson. In his affidavit, Wilkinson attests that the attached e-mail is not the actual e-mail that he received from the defendant but "a true and accurate copy of that e-mail" and that the copy of the e-mail "was obtained from Kanarek, who printed it from his e-mail system." (Wilkinson affidavit, p. 2-3.) Wilkinson attests that after receiving the e-mail from the defendant, he forwarded it to Kanarek. (Wilkinson affidavit, p. 3.) Kanarek attests that the email attached to his affidavit is "a copy of the e-mail Wilkinson sent to me" and "includes within it an e-mail that I understand Wilkinson had received in Connecticut from [the defendant]." (Kanarek affidavit, p. 3.) At oral argument, counsel for the defendant noted that "neither of those e-mails that are attached to those affidavits show that the e-mail they printed out was received directly from [the defendant]" and that "we don't necessarily dispute that [the defendant] sent those e-mails to someone, but would note that those aren't the e-mails that were sent directly to either affiant." Counsel for the defendant also informed that he did not wish to request an evidentiary hearing, that he did not plan to submit any evidence as to this issue and that "he would just like the court to take . . . those affidavits submitted by the plaintiff for what they're worth and for what they've established." Thus, the parties do not dispute the jurisdictional facts, and no Standard Tallow hearing needs to be held.
"When a defendant files a motion to dismiss challenging the court's jurisdiction, a two-part inquiry is required. The trial court must first decide whether the applicable state longarm statute authorizes 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." (Brackets in original; internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996).
DISCUSSION A. Longarm Jurisdiction
The defendant's first ground for moving to dismiss is that the plaintiff cannot establish personal jurisdiction over the defendant via the longarm statute. The defendant argues that Internet postings that are not specifically targeted at Connecticut cannot constitute a "tortious act within the state" within the meaning of General Statutes § 52-59b(a)(2) and that the defendant's lack of business interests in Connecticut precludes jurisdiction pursuant to General Statutes § 52-59b(a)(3). In response, the plaintiff argues that the defendant sent allegedly defamatory e-mails to two Connecticut residents and had counsel send a demand letter to the plaintiff at his home in Connecticut and that these communications are "tortious acts within the state." Furthermore, the plaintiff argues that the threat of sham litigation as expressed through the demand letter is a well-established basis for CUTPA liability. The plaintiff also argues that the defendant's specific and systematic online targeting of a Connecticut resident establishes personal jurisdiction pursuant to General Statutes § 52-59b(a)(2).
Because the defendant is a nonresident of Connecticut, personal jurisdiction may be exercised over him only through the longarm statute. Although the jurisdictional statement contained within the complaint indicates that the court might have personal jurisdiction over the defendant through subsections (2) or (3) of the longarm statute, the plaintiff only addresses subsection (2) in his brief. Accordingly, the plaintiff has abandoned any claim to jurisdiction under subsection (3), and the court will limit its discussion to General Statutes § 52-59b(a)(2).
The jurisdictional statement contained within the complaint states as follows: "This Court has personal jurisdiction over [the defendant] pursuant to General Statutes § 52-59b. [The defendant] has committed tortious acts in Connecticut, and/or has committed tortious acts outside the State that caused injury to persons or property within the State, by sending tortious communications into Connecticut and by specifically and intentionally targeting his tortious Internet postings at [the plaintiff], an individual residing in Connecticut."
"In Knipple v. Viking Communications Ltd., [ supra,] 236 Conn. [610], the Supreme Court held that '[f]alse representations entering Connecticut by wire or mail constitute tortious conduct in Connecticut under [General Statutes] § 33-411(c)(4),' now General Statutes § 33-929(f)(4). Although in that case the court was addressing the issue of personal jurisdiction under General Statutes § 33-411(c)(4), it cited with approval David v. Weitzman, 677 F.Sup. 95, 98 (D.Conn. 1987), in which the District Court held that the transmission of fraudulent misrepresentations into Connecticut by mail or telephone was 'tortious conduct in Connecticut sufficient to establish personal jurisdiction under Connecticut's long-arm [statutes], §§ 33-411(c)(4) and 52-59b(a)(2) . . . The Supreme Court's citation of David v. Weitzman, supra, 95, indicates that it would probably construe § 52-59b(a)(2) the same way that it has construed § 33-411(c)(4) . . . [T]herefore . . . a nonresident defendant does not need to be physically present in Connecticut at the time of the commission of the alleged tortious act for him to have 'commit[ted] a tortious act within the state' for purposes of § 52-59b(a)(2)." (Citations omitted; emphasis omitted; internal quotation marks omitted). Rios v. Fergusan, 51 Conn.Sup. 212, 219-20, 978 A.2d 592 [ 46 Conn. L. Rptr. 731] (2008).
The parties agree that Internet postings specifically targeted at Connecticut constitute "a tortious act within the state" within the meaning of General Statutes § 52-59b(a)(2). See id., 222-23; Swain v. American Capital Strategies, Ltd., Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 03 0103924 (August 4, 2004, Quinn, J.) (under Section 52-59b(a)(2), "[t]he determinative factor is not whether the consequences of the alleged tortious conduct impact a plaintiff in Connecticut, but rather whether the alleged tortious conduct was directly and expressly targeted at the forum state"). The parties, however, differ over whether the Internet postings and communications in this case were specifically targeted at a Connecticut audience. In his affidavit, the plaintiff attests that two Connecticut residents have allegedly received e-mails written by the defendant. (Plaintiff's affidavit, p. 8-9.) One of those residents, Evitts, attests in his own affidavit that he is "a lifelong Connecticut resident" and owns a martial arts education center in Derby. (Evitts affidavit, p. 1.) He attests that he received an e-mail from the defendant in the first half of 2010. (Evitts affidavit, p. 2.) He also attests that he never met the defendant prior to receiving his e-mails, and that "[i]t appears that he found my e-mail address on the website for IDFS and Haganah," which "provides the contact information for Martial Arts America, including its address in Derby, Connecticut, and my e-mail address . . ." (Evitts affidavit, p. 2-3.) Furthermore, he attests that "[b]ecause . . . my e-mail address is found through the Locations page of the fight2survive.com website, it is apparent that [the defendant] knew, when he sent me the e-mail described above, that I and my Martial Arts America business are located in Connecticut." (Evitts affidavit, p. 3.) The plaintiff has also submitted an affidavit of Wilkinson, who attests to be the owner of a martial arts education center in Westport. (Wilkinson affidavit, p. 1.) Wilkinson attests that he received an e-mail from the defendant dated March 22, 2010 that was directed to his address at manager@westportkarate.com. (Wilkinson affidavit, p. 2.) Like Evitts, Wilkinson attests that due to the listing of his e-mail address and his school's street address at the IDFS and Haganah website, "it appears that [the defendant] knew when he sent me the foregoing e-mail that I am and my . . . business were located in Connecticut." (Wilkinson affidavit, p. 3.)
In his affidavit, the defendant denies targeting a Connecticut audience. He also attests as follows: "Although I occasionally responded to e-mails sent by readers of my blogs, I never knowingly e-mailed a Connecticut resident regarding [the plaintiff]." (Defendant's affidavit, p. 4.) In his reply brief, the defendant claims that Evitts's attestation as to where the defendant found his e-mail address is "pure conjecture" and that the affidavits proferred by the plaintiff fail to show that the defendant "knew the identities or locations of the individuals who received his e-mails."
Specifically, in his affidavit, the defendant attests in relevant part: "I addressed all of my blog posts to the United States martial arts community generally," and "I never targeted any of my blog posts specifically to a Connecticut audience." (Defendant's affidavit, p. 3, 4.)
There has been no proof that any of the blog posts allegedly written by the defendant nor any of the e-mails sent to Evitts or Wilkinson were directly and expressly targeted at Connecticut. The relevant attestations regarding the defendant's alleged awareness that he was sending e-mails to Connecticut residents are prefaced by the words "it appears" in the Evitts and Wilkinson affidavits, indicating a lack of actual knowledge of the matter. So far as the argument in favor of personal jurisdiction by way of General Statutes § 52-59b(a)(2) is premised on the defendant's Internet postings and e-mails sent to Connecticut residents, the plaintiff has not met his burden of proving personal jurisdiction.
The plaintiff then argues that the systematic targeting of a Connecticut resident through a large network of websites and blogs designed to manipulate search engine results is a sufficient basis for exercising personal jurisdiction under General Statutes § 52-59b(a)(2). This is a different argument than the one discussed in the paragraphs above. Whereas the former argument relates to the targeting of communications toward a Connecticut audience, the argument under discussion here involves the dissemination of tortious communications about a Connecticut resident. Although in many instances these two analyses will lead to identical conclusions regarding the existence or absence of personal jurisdiction, that is not always the case. For instance, it is possible for one to disseminate tortious communications about a Connecticut resident but to direct those communications to residents of different states or to residents of no state in particular. The question, then, is whether such conduct would lead to personal jurisdiction in Connecticut over the out-of-state disseminator.
Within the context of material posted to the Internet, this issue arose in Rios v. Fergusan, supra, 51 Conn.Sup. 222-23 [ 46 Conn. L. Rptr. 731]. In that case, a North Carolina resident was accused of posting a video on YouTube in which he threatened physical violence against a Connecticut resident. Id., 214-15. In deciding "whether a person who is threatened with physical harm by an Internet posting can obtain judicial relief in the form of a restraining order to protect her from the threatened harm," the court needed to determine whether the non-resident could be subject to personal jurisdiction under General Statutes § 52-59b(a)(2). Id., 212, 223. In ruling that jurisdiction exists, the court reasoned as follows: "The evidence establishes in this case that Fergusan's YouTube video is more than the mere posting of a message on an open Internet forum by a resident of one state that could be seen by someone in a second state. The evidence shows here that he specifically targeted his message at Rios by threatening her life and safety . . . By specifically targeting a Connecticut resident with its threats to the applicant's life and safety and thereby creating in her a fear for her well-being, the YouTube video created by the respondent can be deemed a tortious act committed in this state." Id., 222-23.
United States District Judge Droney applied the reasoning of Rios in Doe I v. Ciolli, 611 F.Sup.2d 216, 217-18 (D.Conn. 2009), where the defendant, a citizen of Texas, was accused of posting tortious statements about two Connecticut citizens, both Yale Law School students, on an Internet discussion board. In deciding on the motion to dismiss for lack of personal jurisdiction, Judge Droney stated that the issue in his case and in Rios was the same: "whether under [General Statutes] § 52-59b(a)(2) an Internet posting that is generally accessible from anywhere in the world could provide the basis for personal jurisdiction over a non-resident defendant who created the posting." Id., 222. Judge Droney wrote that "[t]he Rios court's holding was dependent upon the fact that the non-resident defendant 'specifically targeted' a Connecticut resident, not . . . that the YouTube video contained a threat." Id. The court noted that in his affidavit, the Doe I defendant wrote, "I have not directed my activities on Internet websites . . . so that they would be particularly reviewed or read by persons in Connecticut, nor have I made statements on Internet websites that I believed would be particularly reviewed by or affect persons in Connecticut . . ." (Internal quotation marks omitted.) Id. The defendant's deposition, on the other hand, indicated that he had an "understanding" that it was "possible" that Yale Law School students would read his messages. Id., 222-23. Judge Droney proceeded to rule that personal jurisdiction over the defendant existed under General Statutes § 52-59b(a)(2). Id., 222.
In his affidavit, the defendant attests that, "[u]pon information and belief, [the plaintiff] moved from Florida to Connecticut after I created my blogs discussing his businesses." (Defendant's affidavit, p. 4.) He also attests that he "never targeted any of [his] blog posts specifically to a Connecticut audience." (Defendant's affidavit, p. 4.) The complaint alleges that the various Internet properties employed by the defendant in his allegedly tortious scheme continued to be active as of the date of the complaint, June 2010. Taken together with the defendant's affidavit, this necessarily implies that after the plaintiff moved from Florida to Connecticut, the defendant continued his allegedly tortious conduct with the knowledge that the plaintiff was now a resident of Connecticut.
This is further bolstered by http://www.randyprotoinfo.com, one of the sites allegedly created by the defendant. A printout of this site as it appeared on November 18, 2010 is attached as exhibit A to the plaintiff's affidavit. At the top of the printout is the following statement: "This blog features information concerning Randy S. Proto and his affiliation with Haganah and Mike Kanarek. He is formerly of Florida and now lives in Connecticut. One of his companies is based in New York. Randy bankrolls Mike Kanarek and Haganah. Check this blog for further information." (Plaintiff's affidavit, exh. A.) Furthermore, a March 4, 2010 post at http://www.fakeselfdefenseinstructors.com, another site that the complaint alleges was created and developed by the defendant, is titled "What is Randy Proto doing these days, besides owning Haganah? All on the Internet." (Plaintiff's affidavit, exh. B.) This post includes the following: "Mr. Proto is an avid martial artist and founding black belt of the Haganah self defense system. He lives in Weston, CT with his wife Maria and 4-year-old son . . ." (Plaintiff's affidavit, exh. B.)
The complaint also alleges that the targeting of the plaintiff was systematic and included more than just a website named after the plaintiff. The defendant's "Google Bombing" practices, as alleged in the complaint, made it more likely that individuals typing the plaintiff's name into the Google search field would be directed to various sites, blog posts, Twitter feeds and Facebook pages created by the defendant. Taking the facts to be those alleged in the complaint and the uncontested affidavits, the court decides that the defendant's allegedly systematic targeting of the plaintiff and the defendant's knowledge that the plaintiff was a Connecticut resident are sufficient to subject the defendant to personal jurisdiction under General Statutes § 52-59b(a)(2).
In his reply to the plaintiff's objection, the defendant argues that the March 4, 2010 demand letter allegedly sent to the plaintiff cannot convey jurisdiction over the defendant. No single count within the complaint is wholly premised on the existence of this letter. Having already ruled that jurisdiction arises out of the defendant's allegedly tortious dissemination of content over the Internet, the court now decides that it is not necessary to rule on whether the demand letter can also convey personal jurisdiction over the defendant.
The defendant's additional ground for moving to dismiss is that the plaintiff's claims clearly sound in defamation and that defamation claims are excluded from the longarm statute, General Statutes § 52-59b. The plaintiff replies that his is not a cause of action for defamation and that his CUTPA claim is partially premised on the demand letter, which is a claim wholly separate from defamation.
General Statutes § 52-59b(a) provides in relevant part: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, 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 . . . (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act . . ." (Emphasis added.)
Whether the statutory prohibition on longarm jurisdiction over defamation claims extends to other causes of action has been the subject of some debate in Connecticut courts. In Jane Done One v. Oliver, Superior Court, judicial district of Waterbury, Docket No. CV 99 0151679 (May 19, 2003, Dubay, J.) ( 34 Conn. L. Rptr. 634, 634), the complaint was based on an e-mail sent from Virginia to Connecticut. The plaintiffs brought an action against the sender of the e-mail, among other parties, and the claims included libel per se, invasion of privacy, negligent infliction of emotional distress and intentional infliction of emotional distress. Id., 634-35. Even though "the basis of the plaintiffs' complaint [was] the e-mail," the court extended jurisdiction over the non-defamation claims because "the plaintiffs allege[d] causes of action distinct from defamation . . ." Id., 635.
Similarly, in Jackson v. Tompkins, Superior Court, judicial district of Hartford, Docket No. CV 08 5020840 (February 17, 2009, Wagner, J.T.R.), where the complaint had one count of false light invasion of privacy and one count of slander per se, Judge Wagner dismissed the slander count, reasoning that it was a defamation action precluded by the longarm statute, but declined to dismiss the false light count. As to the false light count, Judge Wagner based his ruling on two grounds. Jackson v. Tompkins, supra, Superior Court, Docket No. CV 08 5020840. First, the longarm statute was enacted in 1969, Public Acts 1969, No. 69-744, §§ 1, 2, whereas the tort of false light invasion of privacy was first recognized in 1982 in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127, 448 A.2d 1317 (1982). Id. Thus, according to Judge Wagner, the legislature "could not have intended to foreclose longarm jurisdiction for false light invasion of privacy because such a tort had not yet been recognized by Connecticut courts, and the legislature has not acted to include this new tort within the scope of § 52-59b." Id. Second, the torts of defamation and invasion of privacy protect different interests. Id. (citing Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 128 n. 19). See also Braunstein v. Hayes Thynne, P.C., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket Nos. CV 91 0117928 and CV 91 0118235 (February 17, 1993, Afigro, J.) ( 8 Conn. L. Rptr. 369, 371) (finding that allegations of negligent misrepresentation and invasion of privacy are distinct from defamation and are within the scope of longarm jurisdiction).
The defendant argues that these decisions "miss the logic and spirit behind § 52-59b(2)-(3)" because Connecticut's longarm statute is modeled on New York's longarm statute, N.Y. C.P.L.R. § 302. While it is true that "New York decisions are especially useful and relevant in construing General Statutes § 52-59b." Gandolfo v. Alford, 31 Conn.Sup. 417, 424, 333 A.2d 65 (1975), the defendant has not offered any relevant case law in support of his claim. Rather, the defendant argues in his brief that New York's interest in promoting freedom of speech and freedom of the press should prevent longarm jurisdiction from reaching the plaintiff's claims, which "clearly sound in defamation when all of his claims are based on allegedly defamatory statements [the defendant] published on his blogs." Other than the argument that Connecticut's statute is modeled on the one in New York, no statutory analysis or statutory history has been offered. Furthermore, in its most recent act rewriting the longarm statute, Public Acts 2004, No. 04-240, § 25, the legislature did not amend the relevant provisions excluding defamation claims from longarm jurisdiction, even though this act was passed more than twenty years after the Goodrich decision first recognized the separate tort of false light invasion of privacy.
The court is not in a position to disregard the specific language of the statute, especially in light of the above-cited Superior Court decisions declining to extend the statutory defamation exception to other causes of action. The defendant's arguments on this ground are better directed to the legislature.
B. Due Process
Having decided that the longarm statute conveys jurisdiction over the defendant, the court must now "decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process." (Brackets in original; internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606. "[T]he constitutional due process standard requires that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice . . . In other words, [t]he Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations . . . By requiring that individuals have fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign . . . the Due Process Clause 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 . . . The due process test for personal jurisdiction has two related components: the 'minimum contacts' inquiry and the 'reasonableness' inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court's exercise of personal jurisdiction." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 523-24. The minimum contacts "test is satisfied if the defendant has personally directed [his] activities at residents of the forum, or has had continuous and systematic general business contacts within the state." Harris v. Sunset Beach Villa Condominium Ass'n., Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 10 5013382 (November 15, 2010, Jennings, J.T.R.).
The court finds Rios v. Fergusan, supra, 51 Conn.Sup. 225 [ 46 Conn. L. Rptr. 731], to be instructive in the minimum contacts analysis. In Rios, the court ruled that the exercise of personal jurisdiction over the non-resident did not violate due process because "[it should have been foreseeable to [the non-resident] that by placing a video on YouTube threatening [the Connecticut resident] in Connecticut, he could be haled into this state to answer an application seeking a restraining order against him." Id. The court also noted that "Connecticut has a strong interest in protecting its citizens from domestic abuse, and the plaintiff has an obvious interest in obtaining convenient and effective relief in Connecticut." Id., 225-26. In contrast, in Harris v. Sunset Beach Villa Condominium Ass'n., Inc., supra, Superior Court, Docket No. CV 10 5013382, this court ruled that "a single isolated act of mailing legal process into a state pursuant to state law to subject the recipient to jurisdiction within the state where the entire transaction occurred and the property at issue was located" "falls far short of the minimum contacts needed for personal jurisdiction in Connecticut."
In the present case, it should have been foreseeable to the defendant that his systematic online campaign against the plaintiff, whom he knew to be a Connecticut resident, could result in him being haled into Connecticut to answer for the allegedly tortious statements he posted on the Internet. Furthermore, "Connecticut has a strong interest in assuring that the plaintiff may avail [him]self of the full scope of remedies for tortious conduct that Connecticut law affords." O'Connor v. O'Connor, 201 Conn. 632, 657, 519 A.2d 13 (1986). Thus, the court decides that the defendant has sufficient minimum contacts with Connecticut to allow for the exercise of personal jurisdiction in a manner consistent with constitutional principles of due process.
"Due process demands more, however, than the existence of minimum contacts between the defendant and the forum state. Once minimum contacts have been established, [t]he second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice — that is, whether it is reasonable under the circumstances of the particular case . . . [Therefore] [w]hile the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable." (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., supra, 282 Conn. 525. "[T]he court must evaluate the following factors as part of this reasonableness analysis: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies." (Internal quotation marks omitted.) Panganiban v. Panganiban, 54 Conn.App. 634, 640, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999). "The import of the 'reasonableness' inquiry varies inversely with the strength of the 'minimum contacts' showing — a strong (or weak) showing by the plaintiff on 'minimum contacts' reduces (or increases) the weight given to 'reasonableness.'" (Internal quotation marks omitted.) 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, 390-91) (quoting Milne v. Catuogno Court Reporting Services, Inc., 239 F.Sup.2d 195, 205 (D.Conn. 2002)).
The defendant has not briefed the reasonableness prong of the due process test. Therefore, the defendant has not presented a compelling case that jurisdiction in this matter is unreasonable. That alone is sufficient ground for the court to rule that exercising jurisdiction over the defendant is reasonable under the circumstances. See Thornton Co. 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, 535) (where the defendant has not met its burden of providing evidence that exercising jurisdiction would be unreasonable and has failed to address the reasonableness factors, the court concludes that jurisdiction over the defendant is fair).
Were the court to apply the parties' pleadings to the five reasonableness factors, it would nevertheless conclude that jurisdiction over the defendant is reasonable in these circumstances. Under the second factor, "[i]t is reasonable for [the defendant] to defend this action in Connecticut because Connecticut has a strong interest in redressing injuries to its own residents." Unique Extrusions, Inc. v. Koehler-Bright Star, LLC, Superior Court, judicial district of New Britain, Docket No. CV 10 6003582 (August 27, 2010, Shortall, J.T.R.) ( 50 Conn. L. Rptr. 530, 536). Furthermore, the plaintiff has a significant interest in obtaining convenient and effective relief in Connecticut courts, and the interstate judicial system favors obtaining the most efficient resolution of this controversy in Connecticut. As to the first reasonableness factor, the defendant has not provided compelling reasons for why the exercise of jurisdiction in Connecticut would impose an undue burden. The sole fact that might support a finding of undue burden would be the defendant's Texas residency, but this fact alone is not enough to offset the other prongs of the reasonableness analysis that tip the balance in favor of jurisdiction. See, e.g., Zelinsky v. Borck, Superior Court, judicial district of New Haven, Docket No. CV 044001993 (June 16, 2005, Rodriguez, J.) (where "[t]he only factor that favors the defendant is the undue burden that the litigation of the suit would put on her because she is a California resident" and "the other factors substantially outweigh this one factor," personal jurisdiction over the defendant in Connecticut is reasonable). Accordingly, the court concludes that personal jurisdiction over the defendant is fair and reasonable.
The fifth reasonableness factor is "the shared interest of the states in furthering substantive social policies." Panganiban v. Panganiban, supra, 54 Conn.App. 640. "This factor requires the [c]ourt to consider the common interests of the several states in promoting substantive social policies . . . Here . . . no such factors have been argued or suggest themselves. Therefore, this factor favors neither party." (Citation omitted; internal quotation marks omitted.) Goldstein v. Nutrition Now, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 96 0150429 (August 11, 1999, Sheldon, J.).
CT Page 10672
C. Forum Non Conveniens
The defendant also moves to dismiss this action on the ground of forum non conveniens. The defendant argues that dismissal is appropriate "because substantially all relevant nonparty discovery is located in Florida and the parties are already litigating similar issues in Florida." Furthermore, the defendant argues that because the plaintiff's claims are disconnected from any Connecticut activities, Florida's interest in regulating business conduct within its borders trumps Connecticut's interest in its own residents in this case.In response, the plaintiff argues that the defendant has failed to meet his burden of showing that Florida is an adequate forum. The plaintiff argues that the majority of the witnesses are Connecticut residents and that the defendant has not shown what records may exist in Florida and has not identified specific Florida-based witnesses. Furthermore, the plaintiff argues that the defendant has failed to show how he would be amenable to process in Florida.
"[T]he overriding inquiry in a forum non conveniens motion is not whether some other forum might be a good one, or even a better one than the [plaintiff's] chosen forum. The question to be answered is whether the plaintiff['s] chosen forum is itself inappropriate or unfair because of the various private and public interest considerations involved." (Internal quotation marks omitted.) Durkin v. Intevac, Inc., 258 Conn. 454, 465, 782 A.2d 103 (2001). "As a common law matter, the doctrine of forum non conveniens vests discretion in the trial court to decide where trial will best serve the convenience of the parties and the ends of justice." (Internal quotation marks omitted.) Id. at 463-64. Accordingly, "[t]he common law principle . . . provides that a court may resist imposition upon its jurisdiction even when it has jurisdiction." (Emphasis in original; internal quotation marks omitted.) Union Carbide Corp. v. Aetna Casualty Surety Co., 212 Conn. 311, 314, 562 A.2d 15 (1989).
"First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case . . . Second, the court should consider all relevant private interest factors with a strong presumption in favor of . . . the plaintiff['s] initial choice of forum . . . Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum . . . Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, the court must . . . ensure that [the plaintiff] can reinstate [his action] in the alternative forum without undue inconvenience or prejudice." (Citations omitted; internal quotation marks omitted.) Durkin v. Intevac, Inc., supra, 258 Conn. 466.
The court must first determine whether the courts of Florida provide an adequate alternative forum. "First the defendant must be amenable to process in the other jurisdiction . . . Ordinarily, if a defendant is amenable to process, then the court can end its inquiry and make a finding that there is an adequate alternative forum." (Citation omitted.) Miller v. United Technologies Corp., 40 Conn.Sup. 457, 461, 515 A.2d 390 (1986), rev'd on other grounds, 233 Conn. 732, 660 A.2d 810 (1995). In the present case, the defendant has indicated in his December 27, 2010 brief and in oral argument that he does not object to the bringing of claims and counterclaims against him in Florida. Therefore, the court finds Florida to be an adequate alternative forum. See, e.g., Molinary v. Patrick, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 00 068946 (October 10, 2001, Moran, J.) (because the defendant already submitted to jurisdiction in New Jersey by filing an action arising out of the same facts and stated "that she would waive any statute of limitations defense that she may have and submit to the jurisdiction of New Jersey," an adequate alternative forum existed in New Jersey).
Having decided that an adequate alternative forum exists, the court will now examine the private interest factors. "[T]he relevant private interest factors are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process for the attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) the possibility of viewing the accident scene if such viewing is appropriate to the action; (4) the enforceability of a judgment; (5) the relative advantages and obstacles to a fair trial; and (6) all other practical problems that make the trial of a case easy, expeditious and inexpensive." Durkin v. Intevac, Inc., supra, 258 Conn. 467. "[C]onsistent with the flexibility necessary in a forum non conveniens analysis, no single factor should be given undue weight." Id., 467. The court will now summarize the evidence proferred by the parties in relation to the relevant factors.
The defendant argues that "[m]ost of the important non-party evidence exists in Florida" because the defendant's comments about the plaintiff's business are connected to the conduct of the plaintiff's Florida businesses and of Kanarek, a Florida resident who is a director of IDFS (a Florida corporation), a manager of IHF (a Florida limited liability company) and the chief instructor of Haganah programs. These are witnesses and entities to whom the parties must have access, the defendant argues, and they will not be subject to subpoena in Connecticut. Furthermore, according to the defendant, there is a potential need for testimony from "other individuals who may reside in Florida such as martial arts instructors who attended classes at" the plaintiff's businesses.
In response, the plaintiff argues that the defendant fails to identify any documents that exist in Florida and that document requests relating to this litigation will be directed to the defendant's Texas residence and to his businesses in Texas and New Mexico while most documents supporting the plaintiff's claims "will be produced by, or on behalf of, individuals located in Connecticut." Furthermore, the plaintiff notes the defendant's failure to specifically identify Florida witnesses or the subject matter and relevance of their testimony. The only witness named by the defendant, Kanarek, attests in his affidavit his willingness to testify in Connecticut, a forum he does not deem to be inconvenient. (Kanarek affidavit, p. 3.) A fact witness identified by the plaintiff, Griffin, attests to being the vice president of operations for IHF and IDFS and a Missouri resident. (Griffin affidavit, p. 1-2.) Griffin also attests that he is willing to travel to Connecticut for the purposes of testifying at trial. (Griffin affidavit, p. 2.) Two other witnesses who may testify in support of the plaintiff's case, Evitts and Wilkinson, are Connecticut residents or own Connecticut businesses. The plaintiff further notes that the defendant, despite being a Texas resident, does not argue that it would be more inconvenient for him to travel from Texas to Connecticut than from Texas to Florida.
The defendant responds that due to the separate action in Florida, he "will have to bear legal expenses to litigate nearly identical issues in two separate forums as opposed to one" and that "Texas is much closer to Florida than Connecticut." Thus, according to the defendant's brief, "[f]orcing [the defendant] into another faraway venue will impose additional inconvenience and expense, including the duplicative expense of engaging two different law firms." The defendant also argues that in spite of the affidavits of out-of-state witnesses who attest to their willingness to travel to Connecticut, "the court is powerless to force their attendance should these witnesses have a change of heart." Potential Florida witnesses IDFS and IHF have not agreed to appear for corporate depositions in Connecticut, the defendant argues, and traveling to Florida for corporate depositions would result in unnecessary expenses.
"When a dismissal is premised on the convenience of witnesses, more than a mere allegation to that effect is required . . . Rather, the defendant[s] must establish, with specificity, inconvenience to witnesses that is sufficiently prejudicial to justify dismissal . . . A party seeking to transfer a case . . . for the convenience of witnesses must identify the key witnesses to be called and must make a general statement of what their testimony will cover . . . The burden is upon it to give the names and locations of potential witnesses and the substance of their testimony . . . Sufficient information must be included in the affidavits to establish that the named witnesses are key witnesses who need to be called and that their testimony is material." (Citations omitted; internal quotation marks omitted.) Picketts v. International Playtex, Inc., 215 Conn. 490, 509-10, 576 A.2d 518 (1990).
The defendant has failed to identify why the Florida witnesses' testimony is necessary and why it is inconvenient for those witnesses to travel to Connecticut. Furthermore, the defendant has not explained why it is more inconvenient for him to travel to Connecticut than Florida, other than the difference in distances between those states and Texas. Judge Adams recently denied a motion to dismiss on the ground of forum non conveniens when "[t]he defendant . . . ha[d] not provided any information identifying the specific witnesses necessary to this action, why their testimony is necessary, or why it will be inconvenient for the witnesses to appear before a Connecticut court (other than the implied inconvenience of California being far from Connecticut)." Everett v. Everett, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 10 6004013 (December 16, 2010, Adams, J.) Thus, in relation to the first two private factors, the defendant has failed to meet his burden in justifying the invocation of the doctrine of forum non conveniens.
The only other private interest factor that has been briefed is the fourth factor, which relates to the enforceability of a judgment. The defendant argues that he holds no assets in Connecticut, and hence, the plaintiff will not be able to enforce a judgment against him. In response, the plaintiff argues that because the defendant is a Texas resident who operates businesses in Texas and New Mexico, there is no guarantee that a judgment against the defendant could be enforced in Florida. Accordingly, the court decides that the fourth private interest factor does not tip this decision in the direction of dismissal due to forum non conveniens.
With regards to the pending Florida fraud action between these parties, counsel for the plaintiff indicated at oral argument that the plaintiff has moved to dismiss the claims against him. A counterclaim was filed against the defendant by IDFS, IHF and Kanarek. A copy of this counterclaim attached to the defendant's December 27, 2010 brief reveals that it was alleged to be a compulsory counterclaim and that the counts were (1) defamation, (2) tortious interference with business relationships, (3) tortious interference with prospective economic advantage, (4) false advertising/trade libel, (5) intentional infliction of emotional distress, and (6) a violation of the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). Thus, the Florida counterclaims were filed by parties who are not involved in the present action, and the causes of action alleged in the counterclaims are primarily different from those alleged in the present action. The plaintiff's involvement in the Florida action appears to be limited to the filing of a motion to dismiss.
"The fact that one of two parallel actions involving common parties, claims and issues was the first to be filed, or the first in which the claims and issues raised in both of them were sought to be adjudicated, may bear importantly on the fairness and convenience of litigating the dispute in one forum versus the other. Where, in particular, much time, energy and money have been spent on a first-filed action before a second, parallel action is commenced, continuing the latter action, either in lieu of or in addition to the former, will almost certainly be productive of waste, duplication of effort and inconsistent legal rulings. In those circumstances, a decision to continue the original action only, to the exclusion of its later-filed counterpart, will usually be fairer to and more convenient for the parties than permitting both actions to proceed simultaneously." Travelers Ins. Co. v. Howmet Corp., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0550685 (July 31, 1997, Sheldon, J.).
"Where, by contrast, no significant work has been done on a first-filed action before a parallel action is filed, there is no compelling reason for according a special preference to the first-filed action. Under those quite different circumstances, there can obviously be no concern that if both actions proceed simultaneously, the second action will be any more wasteful, duplicative of effort or productive of conflicting legal rulings than the first . . . Plainly, if the balance of competing private and public interest factors traditionally considered in a forum non conveniens analysis favors trial in the second forum rather than the first, the first-filed status of the original action should have very little effect on the outcome of a forum non conveniens motion." Id.
The defendant has failed to show that significant work has been done in the first-filed Florida action. The defendant attests: "My Florida action is still in its initial state and to my knowledge [the plaintiff] has not yet answered my complaint." (Defendant's affidavit, p. 4.) Judging by the evidence submitted in relation to this motion, the sole interaction between the two parties in Florida courts has been the filing of a complaint and a motion to dismiss.
Bearing in mind the presumption in favor of the plaintiffs initial choice of forum, Durkin v. Intevac, Inc., supra, 258 Conn. 466, the court rules that the relevant private interest factors, to the extent they have been identified and briefed by the parties, do not advocate in favor of dismissal. Because the defendant has failed to meet his burden of showing that the private interest factors favor dismissal, there is no need to evaluate the public interest factors of the forum non conveniens analysis. See Ensign-Bickford Industries, Inc. v. Great American Ins. Co., Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0076590 (May 16, 2002, Sferrazza, J.) ( 32 Conn. L. Rptr. 173, 175).
CONCLUSION
For the foregoing reasons the Motion to Dismiss is denied in all respects.
SO ORDERED