Opinion
CV156013580S
12-07-2015
Swift Transportation Co. v. RTL Enterprises, LLC, Individually and dba Red Transfer & Logistics et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT GRAMERCY GROUP, INC.'S MOTION TO DISMISS (#110)
Elpedio N. Vitale, J.
Pursuant to § 10-30(a)(2) of the Practice Book, the defendant Gramercy Group, Inc. (" Gramercy") requests a dismissal of the plaintiff's complaint for lack of personal jurisdiction. Citing to C.G.S. § 33-929(f), " Gramercy" alleges that the plaintiff Swift Transportation Co. of Arizona, LLC, is a foreign corporation " unable to fulfill the residency requirements" of said statute, and thus cannot sustain its burden to establish jurisdiction over it. Specifically, " Gramercy" argues that the " explicit language of C.G.S. § 33-929(f) empowers only a resident of the state or a person having a usual place of business in the state to sue a foreign corporation in a Connecticut court." The plaintiff Swift Transportation Co. of Arizona, LLC (" Swift") objects and contends that under Connecticut's longarm statute, " a party need not be a 'resident' of Connecticut in order to avail itself of the use of Connecticut's courts, so long as the plaintiff has a 'usual place of business' with this state."
It is apparently undisputed that " Swift" was and remains a Delaware limited liability company with its principal place of business in Arizona, and that " Gramercy" was and remains a New York corporation with a principal place of business in New York. " Gramercy" is registered with the Connecticut Secretary of State as a foreign corporation. Each party submitted a memorandum for the court's consideration, as well as affidavits and exhibits attached thereto. Oral argument on the matter occurred on November 2, 2015.
Discussion
" Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . ." (Internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998). " 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." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). " In ruling upon whether a complaint survives a motion to dismiss a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). " The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone . . . Where, however . . . the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; internal quotation marks omitted.) Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).
A challenge to this court's jurisdiction over the foreign corporate defendant is properly raised by way of a motion to dismiss. Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983). " If the defendant challenges the court's jurisdiction, it is then incumbent on the plaintiff to prove the facts establishing the requisite minimum contacts." Id., at 53. The court will consider " the undisputed factual allegations in the various affidavits when adjudicating [a motion to dismiss] where no evidentiary hearing has been held." Barde, supra, at 61-62. Because an evidentiary hearing was not requested in this case, this court will accept all undisputed factual allegations for the purpose of determining whether the plaintiffs have sustained their burden of proving that the court has personal jurisdiction over the defendants. Knipple v. Viking Communications, Ltd., 236 Conn. 602, 608-09, 674 A.2d 426 (1996).
A challenge to personal jurisdiction involves a two-part inquiry. " The first inquiry is whether the applicable state longarm statute authorizes the assertion of jurisdiction over the [defendant]; and, if the statutory requirements are met, whether the exercise of in personam jurisdiction would violate constitutional principles of due process." (Citations omitted; internal quotation marks omitted.) Gaudio v. Gaudio, 23 Conn.App. 287, 298, 580 A.2d 1212 (1990).
The defendant did not raise a due process claim in its brief or at oral argument, and consequently the court considers that claim to be abandoned. See Conn. Light & Power Co. v. Dep't of Pub. Util. Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). Nevertheless the court will very briefly address the issue. " A court may subject a defendant to judgment only when the defendant has sufficient contacts with the sovereign such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice' . . . A person may submit to a State's authority in a number of ways . . . Incorporation or principal place of business for corporations . . . indicates general submission to a State's powers . . . There is also a more limited form of submission to a State's authority for disputes that arise out of or are connected with activities within the state. Where a defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." (Citations omitted; internal quotation marks omitted.) J. McIntyre Mach, Ltd. v. Nicastro, 564 U.S. 131 S.Ct. 2780, 2787-88, 180 L.Ed.2d 765 (2011) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). " Whether a given defendant has contacts with the forum state sufficient to satisfy due process is dependent upon the facts of the particular case." Cogswell v. American Transit Ins. Co., 282 Conn. 505, 923 A.2d 638 (2007). " Gramercy" is registered with the Connecticut Secretary of the State as a foreign corporation. Exhibit A, attached to the plaintiff's memorandum of law, demonstrates " Gramercy" is listed as a contractor and that the transaction in question involved use of a transfer facility in Connecticut. Having registered in Connecticut as a foreign corporation and availing itself of a Connecticut facility, " Gramercy" has submitted to Connecticut's authority in a manner sufficient to overcome any due process claim had it been raised.
The plaintiff claims that jurisdiction attaches under C.G.S. § 33-929(f) which provides in relevant part as follows:
Sec. 33-929. Service of process on foreign corporation.
(f) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, or any cause of action arising as follows . . . or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.
During oral argument, the parties acknowledged that the question of jurisdiction at issue in this case rests on the court's determination of the meaning of the phrase " usual place of business" as used in § 33-929(f). While the defendant has argued that " the Connecticut longarm statutes do not confer jurisdiction over actions committed by a nonresident party against another nonresident, " the court construes the defendant's response at oral argument to " Swift's" claim that jurisdiction may attach if the court determines " Swift" has a " usual place of business" in Connecticut as a tacit acknowledgment of the availability of such a method of conferring jurisdiction. § 33-929(f) is silent with regard to a definition of " usual place of business." The explicit language of § 33-929(f) empowers only " a person having a usual place of business in this state" to sue a foreign corporation in Connecticut.
The plaintiff has submitted affidavits alleging that it does in fact have a " usual place of business" in Plainfield, Connecticut. The affidavit of Daniel W. Coffey, Esq., admitted to practice in New York courts, and admitted to practice pro hac vice in Connecticut, avers in paragraph thirteen that a " usual place of business" exists in Plainfield, Connecticut and provided an " accompanying client affidavit" of Charles Dougherty, a full-time employee of the plaintiff " Swift."
Dougherty avers in his affidavit in relevant part as follows:
1. I am a full-time employee of the plaintiff, Swift Transportation Co. of Arizona, LLC (" Swift"). I submit this affidavit in opposition to defendant Gramercy Group, Inc.'s motion to dismiss.
2. For approximately eight (8) years, I have been employed full-time by Swift as an on-site manager. My physical location is, and has been, in Plainfield, Connecticut. My office is located at the Lowe's Distribution Center, 1421 Lowe's Way, Plainfield, Connecticut, 06734.
3. The Lowe's Distribution Center is a large regional distribution center from which Lowe's products are distributed throughout New England.
4. My job duties entail overseeing the transport of product from the Lowe's Distribution Center in Plainfield, Connecticut to Lowe's stores in New England. I also have two other accounts which I am handling out of this Plainfield, Connecticut location.
5. Another Swift employee, Scott McCall, also is a full-time Swift employee who works with me at the Plainfield, Connecticut location. Mr. McCall's title is driver-manager. The vast majority of his work involves overseeing drivers moving product out of the Lowe's Distribution Center in Plainfield, Connecticut to Lowe's stores in New England. Mr. McCall has been working with me full-time at this Plainfield location for approximately five (5) years.
6. Swift has had a permanent presence in Connecticut for at least the eight (8) years that I have worked in Plainfield full-time as a Swift employee.
Although " Gramercy" submitted the affidavit of Vincent Parziale, its President and Chief Executive officer, the averments contained therein did not challenge the claims made in Dougherty's affidavit.
In Matthews v. SBA, Inc., 149 Conn.App. 513, 558-60, 89 A.3d 938 (2014), the court discussed the contours of what is required to establish a " usual place of business." The court's analysis began with its observation that the text of the statute does not define the phrase in question. The court went on to state, however, that " a wider search, moreover, reveals that the term is also not expressly defined elsewhere in the General Statutes. Our textual inquiry, however, does not end here. Accordingly, we turn to General Statutes § 1-1(a), which provides in relevant part: 'In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . .' We look to the dictionary definition of the [term] to ascertain [its] commonly approved meaning. R.C. Equity Group, LLC. v. Zoning Commission, 285 Conn. 240, 254 n.17, 939 A.2d 1122 (2008); see also Groton v. Mardie Lane Homes, LLC, 286 Conn. 280, 288, 943 A.2d 449 (2008) (" [i]f a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary" [internal quotation marks omitted]).
We begin with the definition of " usual." Black's Law Dictionary (9th Ed. 2009) defines " usual" as " [o]rdinary [or] customary, " or " [e]xpected based on previous experience, or on a pattern or course of conduct to date." " Place of business" is defined as " [a] location at which one carries on a business." Black's Law Dictionary, supra . In light of these definitions, we conclude that the statute is plain and unambiguous with respect to what constitutes a " usual place of business. That is, as applied to the facts of this case, we do not see more than one likely or plausible meaning of the term usual place of business. Under this dictionary based definition, it is clear that this state need not be the plaintiffs' primary or sole place of business, but it must, at the very least, be customary or expected that the plaintiff's conduct business here." Id. 559-60.
Applying the foregoing principles to this case, the court concludes that the plaintiff has satisfied it's burden of alleging facts sufficient for the court to find that it has a " usual place of business" in Connecticut. Charles Dougherty has worked full-time as an on-site manager for " Swift" in Plainfield, Connecticut for eight years. His location and responsibilities are adequately described in his affidavit, and he further describes the responsibilities of another employee at that site.
Dougherty's representations are apparently undisputed in connection with this motion. The plaintiff has supported it's contention that it usually, customarily, and ordinarily carries out business in this state. See Barde v. Board of Trustees, supra .
For the foregoing reasons, the Motion to Dismiss is denied.