United States District Court, D. Connecticut
LOUIS FERRARA, MELISSA FERRARA, and NEW ENGLAND ALPACAS, Plaintiffs,
RYEN MUNRO and TRIPPING GNOME FARM, LLC, Defendants.
RULING ON DEFENDANTS' MOTION TO DISMISS
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
breach of contract action, relating to failure to pay
commissions on the sale of alpacas, is currently before the
Court on Defendants' Motion to Dismiss, Doc.
When filed, the motion was on behalf of both the individual
defendant (Ryen Munro) and the corporate defendant (Tripping
Gnome Farm, LLC) (sometimes, "TGF"). Subsequently,
and while the motion to dismiss was pending, TGF filed a
voluntary petition for bankruptcy in the District of Maine.
This Ruling resolves the motion to dismiss the complaint, and
also considers the changed circumstances resulting from
TGF's bankruptcy proceeding.
to the allegations of the complaint, Plaintiffs Louis Ferrara
and Melissa Ferrara are citizens of Connecticut. The Ferraras
do business under the trade name of the third Plaintiff, New
England Alpacas, whose principal place of business is located
in Killingworth, Connecticut.
bring this action against defendants Ryen Munro and Tripping
Gnome Farm, LLC ("Defendants"), seeking contractual
damages "arising from the Defendants' refusal to pay
the Plaintiffs commission on the Defendants' sale of
certain alpaca[s] to non-party Pamela Brewster and her
company Stillmeadow Farm, LLC, " located in Stonington,
Connecticut. Doc. 1 ("Complaint"), ¶ 1.
Plaintiffs allege that they entered into a binding contract
with Defendants "under which the Defendants were
obligated to pay the Plaintiffs a commission on the sale of
alpacas by Defendants to Ms. Brewster and her company during
a two-year period ending June 19, 2013." Id..
With respect to these alpaca sales, however, Defendants have
allegedly "repeatedly refused to pay [Plaintiffs] the
commission owed." Id.
their Complaint, Plaintiffs have included the following state
law claims against both Defendants: breach of contract,
unjust enrichment, breach of the implied covenant of good
faith and fair dealing, and violation of Connecticut's
Unfair Trade Practices, Conn. Gen. Stat. § 42-110a,
et seq. In addition, Plaintiffs assert a claim
against individual defendant Munro for tortious interference
with contractual relations. Since Plaintiffs assert only
state law claims, they base this Court's subject matter
jurisdiction solely on diversity of citizenship under 28
U.S.C. § 1332(a)(1).Doc. 1, ¶ 2.
before the Court is Defendants' "Motion to
Dismiss" pursuant to Rules 12(b)(2), b(3), and b(6) of
the Federal Rules of Civil Procedure. Doc. 14. In particular,
defendant Ryen Munro moves to dismiss the action against him
for lack of personal jurisdiction under Rule 12(b)(2). In
addition, both defendants, Munro and Tripping Gnome Farm,
LLC, move to dismiss the action based on Connecticut's
"prior pending action doctrine, " which, as
Defendants assert, "applies in this diversity case, as
well as federal abstention principles." Doc. 14, at 1.
NOTICE OF BANKRUPTCY FILING BY TRIPPING GNOME FARM,
Court previously intended to resolve the motion to dismiss
[Doc. 14] in its entirety herein. However, on October 10,
2017, counsel for Tripping Gnome Farm, LLC ("TGF")
filed a notice of "Suggestion of Bankruptcy, "
informing the Court that on October 6, 2017, TGF filed a
voluntary petition for relief under Chapter 7 of Title 11 of
the United States Bankruptcy Code, 11 U.S.C. § 101
et seq., in the United States Bankruptcy Court for
the District of Maine. Doc. 32.
notice of bankruptcy, TGF's counsel stated,
"[p]ursuant to Section 362(a) of the Code, this action
is stayed." That is something of an overstatement.
Pursuant to 11 U.S.C. § 362(a), the captioned action in
this Court was automatically stayed against TGF, the
defendant debtor upon the filing of its bankruptcy
petition in the District of Maine. As to individual defendant
Ryen Munro, there has been no suggestion to the Court, or
evidence presented, that a bankruptcy filing was made by him
as an individual. In general, the automatic stay is limited
to debtors and does not encompass non-bankrupt co-defendants.
See Teachers Ins. & Annuity Ass'n of America v.
Butler, 803 F.2d 61, 65 (2d Cir. 1986) ("It is
well-established that stays pursuant to § 362(a) are
limited to debtors and do not encompass non-bankrupt
co-defendants."); see also Queenie, Ltd. v. Nygard
Int'l, 321 F.3d 282, 287 (2d Cir. 2003) ("[A]
suit against a codefendant is not automatically stayed by the
debtor's bankruptcy filing.") (quoting 3 Collier on
Bankruptcy § 362.03[d] (15th ed.2002)); Thomson
Kernaghan & Co. v. Global Intellicom, Inc., Nos. 99
Civ. 3005(DLC), 99 Civ. 3015(DLC), 2000 WL 640653, at *14
(S.D.N.Y. May 17, 2000) (Except in "unusual
circumstances, " "Section 362 limits the extension
of an automatic stay to a proceeding against the
debtor"- i.e., does not encompass non-bankrupt
co-defendants.); In re Metal Center, 31 B.R. 458,
462 (D.Conn.1983) ("Generally, the automatic stay does
not apply to proceedings against nondebtors.");
Austin v. Unarco Indus., Inc., 705 F.2d 1, 4-5 (1st
Cir.1983) ("[T]he Bankruptcy Court was correct in
deciding that the automatic stay provisions of 11 U.S.C.
§ 362(a) apply only to the bankrupt debtor."),
cert. denied, 463 U.S. 1247 (1983).
there has been no showing that defendant Munro is a
bankruptcy debtor, there is no applicable § 362(a) stay
of this action against him. Accordingly, the action is stayed
against debtor TGF, but remains active with respect to
defendant Munro. The Court will proceed in resolving the
motion to dismiss as to this non-debtor individual defendant.
In light of the stay, claims pending against TGF will not be
impacted by the Court's ruling on the motion to dismiss.
Those claims will remain in effect and stayed.
main dispute at issue in this case arises from an alleged
contract which Plaintiffs assert they entered with Tripping
Gnome Farm, LLC (also "TGF"). Prior to June 20,
2011, Plaintiffs engaged "in the business of buying,
raising, selling and brokering the sale of alpacas" at
their place of business in Killingworth, Connecticut. Doc. 1,
¶ 8. Plaintiffs allege that Defendants, who
"engaged in the business of breeding, raising, selling,
and brokering the sales of alpacas, " deceived them into
disclosing the name of an interested alpaca buyer "by
falsely leading the Plaintiffs to believe that if [they] did
so, the Defendants would pay [them] the commissions set forth
in the Contract." Doc. 1, ¶¶ 9, 64.
Thereafter, by "refusing to pay the agreed-to
commissions, and by Munro preventing TGF from doing so, the
Defendants gained an unfair business advantage over the
Plaintiffs and all other similar businesses in that the
Defendants illegally and unfairly made their products and
services cheaper to sell to Connecticut residents."
Id., ¶ 65. Plaintiffs allege that
Defendants' conduct has been "immoral, unethical,
oppressive, . . . unscrupulous, " and offensive to the
public policy of Connecticut. Id., ¶ 68.
contrast, Defendants allege that no binding written contract
exists because, inter alia, Defendants "never
signed." Doc. 15, at 1. Munro states in his Declaration
that "[t]he Plaintiffs and the Defendant Tripping Gnome
Farm, LLC never agreed on the terms of the Master Contract
that was sent" and "[t]his lawsuit is based on the
unsigned, draft Master Contract." Doc. 16, ¶¶
8-9. The alleged "Agreement, " as presented by
Plaintiffs, contains only the signatures of Melissa Ferrara
and Louis Ferrara. Doc. 22, Ex. A ("Brokering and
Boarding Contract"), at 12. No signature of Ryen Munro,
in either his individual capacity or as a member or manager
of TGF, appears on that contract.
argue that, despite the lack of a binding contract,
Plaintiffs have commenced a series of "four cases
between Defendants and Plaintiffs" regarding this same
contract dispute. Id., at 1-2. Defendants describe
the four cases as follows:
(1) an action that Tripping Gnome filed in the Cumberland
County, Maine Superior Court (PORSC-CV-2014-00157), seeking a
declaratory judgment with respect to the parties' rights
and obligations (the "Maine Case");
(2) an action that Plaintiffs subsequently filed in
Connecticut Superior Court (MMX-CV14-6011790-S) (the
"First Connecticut Case"), as a result of which the
Maine Case was stayed;
(3) another action that Plaintiffs filed in Connecticut
Superior Court (MMX-CV15-6013059-S) (the "Pending
Connecticut Case"), which is nearly identical to both
the First Connecticut Case and the instant case and which was
filed after rulings adverse to Plaintiffs in the First
Connecticut Case, thus allowing Plaintiffs to continue to
pursue essentially the same case regardless of those adverse
(4) now, the present case, in this federal Court.
Doc. 15, at 1-2.
state that three of the four cases - "all but the First
Connecticut Case [(2), above], which Plaintiffs voluntarily
withdrew after filing the Pending Connecticut case" -
remain. Id., at 2. According to Defendants,
Plaintiffs have "repeatedly and unjustifiably tried to
drag Ryen Munro into . . . three Connecticut cases as a party
despite the absence of any allegations that Mr. Munro acted
in any capacity other than as a manager of Tripping
Gnome." Id. Moreover, each time the Connecticut
Superior Court has ruled against Plaintiffs, they "have
disregarded the ruling and tried again." Id.
Defendants conclude that the present action before this Court
is "no more than the latest harassing effort to pursue
Ryen Munro, and also to effectively create an 'insurance
policy' in the event that the pending Connecticut
litigation is dismissed." Id. Moreover,
"[t]he prior dismissals of Ryen Munro from Connecticut
state court actions should be followed by his dismissal from
this case as well." Id.
Standard for Dismissal under Rule 12(b)(2), Fed. R. Civ.
P., for Lack of Personal
Ryen Munro moves to dismiss Plaintiffs' complaint for
lack of personal jurisdiction under Rule 12(b)(2),
Fed.R.Civ.P. In support of his motion, he claims that this
Court cannot exercise personal jurisdiction over him under
Connecticut's long-arm statute, Conn. Gen Stat. §
52-59b, because he lacks the requisite minimum contacts with
either the state of Connecticut or this District.
motion to dismiss must be granted if a court lacks personal
jurisdiction over a defendant. Fed.R.Civ.P. 12(b)(2). On a
motion to dismiss for lack of personal jurisdiction under
Rule 12(b)(2), "the plaintiff bears the burden of
showing that the court has jurisdiction over the
defendant." Metro. Life Ins. Co. v. Robertson-Ceco
Corp., 84 F.3d 560, 566 (2d Cir. 1996) (citing
Robinson v. Overseas Military Sales Corp., 21 F.3d
502, 507 (2d Cir.1994)). Prior to discovery, a plaintiff may
defeat the motion "based on legally sufficient
allegations of jurisdiction." Metro. Life Ins.
Co., 84 F.3d at 566 (citation omitted). "A prima
facie case [of personal jurisdiction] requires nonconclusory
fact-specific allegations or evidence showing that activity
that constitutes the basis of jurisdiction has taken
place." Chirag v. MT Marida Marguerite
Schiffahrts, 604 Fed.Appx. 16, 19 (2d Cir.2015) (citing
Jazini v. Nissan Motor Co., 148 F.3d 181, 186 (2d
general, the district court may exercise discretion in
determining the best procedural approach to decide a 12(b)(2)
motion for lack of personal jurisdiction. Specifically,
"[i]n deciding a pretrial motion to dismiss for lack of
personal jurisdiction a district court has considerable
procedural leeway" and "may determine the motion on
the basis of affidavits alone; or it may permit discovery in
aid of the motion; or it may conduct an evidentiary hearing
on the merits of the motion." Dorchester Fin. Sec.,
Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir. 2013)
(per curiam) (quoting Marine Midland Bank, N.A.
v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)). See
also, e.g., Blau v. Allianz Life Ins. Co. of N. Am., 124
F.Supp.3d 161, 170 (E.D.N.Y. 2015).
a motion to dismiss for lack of personal jurisdiction is
"inherently a matter requiring the resolution of factual
issues outside of the pleadings . . . all pertinent
documentation submitted by the parties may be considered in
deciding the motion.” Energy Brands, Inc. v.
Spiritual Brands, Inc., 571 F.Supp.2d 458, 463 (S.D.N.Y.
2008) (quoting Pilates, Inc. v. Pilates Inst., Inc.,
891 F.Supp. 175, 178 n. 2 (S.D.N.Y. 1995)). When considering
the motion, the court must construe the pleadings liberally
for the benefit of the plaintiffs. Hoffritz for Cutlery,
Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.
evidentiary hearing is held, but extensive discovery has been
conducted, "the plaintiff's prima facie showing,
necessary to defeat a jurisdiction testing motion, must
include an averment of facts that, if credited by [the
ultimate trier of fact], would suffice to establish
jurisdiction over the defendant." Ball v.
Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197
(2d Cir. 1990), cert. denied, 498 U.S. 854 (1990).
As described above, absent an evidentiary hearing, when the
motion is "decided on the basis of affidavits and other
written materials, the plaintiff need only make a prima facie
showing." MacDermid, Inc. v. Deiter, 702 F.3d
725, 727 (2d Cir. 2012) (citation omitted). In that instance,
"the allegations in the complaint must be taken as true
to the extent they are uncontroverted by the defendant's
diversity or federal question case, personal jurisdiction is
determined by the law of the state in which the district
court sits. See Bensusan Restaurant Corp. v. King,
126 F.3d 25, 27 (2d Cir.1997); Arrowsmith v. United Press
Int'l, 320 F.2d 219, 231 (2d Cir.1963). If the
exercise of jurisdiction is appropriate under that
state's statute, the court then must decide whether such
exercise comports with the requisites of constitutional
Fourteenth Amendment due process. Metropolitan Life Ins.
Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.
1996), cert. denied, 519 U.S.107 (1996). See
also World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980); Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945).
Personal Jurisdiction over Ryen Munro
defendant's conduct is sufficient for the exercise of
personal jurisdiction if: (1) the conduct satisfies the
requirements of the relevant state's long-arm statute,
and (2) the conduct satisfies the "minimum
contacts" requirement of the Due Process Clause of the
Fourteenth Amendment. See, e.g., Doe v. Ciolli, 611
F.Supp.2d 216, 220-21 (D. Conn. 2009) (citing Inset Sys.,
Inc. v. Instruction Set, Inc., 937 F.Supp. 161, 163
the law of Connecticut, "the state where the district
court is located, " the applicable statute, Conn. Gen.
Stat. § 52-59b (captioned "Jurisdiction of courts
over nonresident individuals") states in relevant part:
(a) 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 . . . who in
person or through an agent: (1) Transacts any business within
the state; (2) commits a tortious act within the state,
except as to a cause of action for defamation of character
arising from the act; (3) commits a tortious act outside the
state causing injury to person or property within the state,
except as to a cause of action for defamation of character
arising from the act, if such person or agent (A) regularly
does or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from goods
used or consumed or services rendered, in the state, or (B)
expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue
from interstate or international commerce; (4) owns, uses or
possesses any real property situated within the state; or (5)
uses a computer, as defined in subdivision (1) of subsection
(a) of section 53-451, or a computer network, as defined in
subdivision (3) of subsection (a) of said section, located
within the state.
discussed more fully below, Plaintiffs argue that there is
personal jurisdiction over Munro pursuant to Conn. Gen. Stat.
§§ 52-59b(a)(1) (defendant "[t]ransacts any
business" in Connecticut) and (a)(3) (defendant
"commits a tortious act outside the state causing injury
to person or property within the state").
Proper Service of Process
order for this Court to exercise personal jurisdiction over
Defendant Munro, there must first be an appropriate service
of process upon him, providing him with adequate notice of
the claim.Then there must be an adequate basis for
Federal Rule of Civil Procedure 4(e), "[u]nless federal
law provides otherwise, an individual . . . may be served in
a judicial district of the United States by: (1) following
state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the
district court is located or where service is made;" or
by "delivering a copy of the summons and of the
complaint to the individual personally;" "leaving a
copy of each at the individual's dwelling or usual place
of abode with someone of suitable age and discretion who
resides there;" or "delivering a copy of each to an
agent authorized by appointment or by law to receive service
"[a]ny nonresident individual . . . over whom a court
may exercise personal jurisdiction, . . . shall be deemed to
have appointed the Secretary of the State as [his] attorney
and to have agreed that any process in any civil action
brought against the nonresident individual . . . may be
served upon the Secretary of the State and shall have the
same validity as if served upon the nonresident individual .
. . personally." Conn. Gen. Stat.§ 52-59b(c).
to the case docket, in compliance with Conn. Gen. Stat.
§ 52-59b, Munro was served on September 15, 2016, by
Robert S. Miller, State Marshal for New Haven County, who
left a copy of the summons and complaint with the Secretary
of State of Connecticut, as Agent for Service. See
Doc. 6 ("Summons Returned Executed, " 9/1/2016).
Also on that date, Miller sent a copy of the summons and
complaint by certified mail, return receipt requested to:
Ryen Munro, 64 Lupine Lane, Freeport, ME 04032. Id.
Upon these facts in the case record, there appears to have
been proper service upon Munro under Connecticut's
long-arm Statute, Conn. Gen. Stat. §
52-59b(c). Moreover, Munro has not challenged the
method of service upon him. The Court thus finds that proper
service has been effected and proceeds to the next
requirement for the exercise of personal jurisdiction
Connecticut's Long-Arm Statute
to the specific language of Connecticut's long-arm
statute, the Court must determine whether Connecticut law
confers any basis for this Court to exercise jurisdiction
over defendant Ryen Munro. Plaintiffs assert that "Munro
is a nonresident who transact[ed] business in this state, and
who committed a tortious act outside the state causing injury
to the Plaintiffs in Connecticut, while deriving substantial
revenue from alpaca[-]used, and alpaca-related services
rendered, in Connecticut." Doc. 24, at 14.
Transaction of Business under Conn. Gen. Stat. §
support of personal jurisdiction based on transaction of
business, Plaintiffs state that Munro sent telephone and
email communications into Connecticut and therefore engaged
in conduct within this state pursuant to Conn. Gen. Stat.
§ 52-59b. Factually, Plaintiffs allege that Munro
"personally participated in the conduct constituting
contractual breaches and tortious conduct." Doc. 24, at
15. "The contract was negotiated between the
Plaintiffs and Munro in significant part over the telephone
and by electronic mail while the Plaintiffs were physically
located in Connecticut." Doc. 1, ¶ 14. "On or
about June 17, 2011, Munro accepted the Plaintiffs' offer
to enter a contract which incorporated the terms of the
Plaintiffs' standard Brokering and Boarding Contract,
modified by the negotiations between the parties."
Id., ¶ 16. "On or about June 20, 2011, the
Plaintiffs performed their obligations under the Contract by
disclosing Ms. Brewster's name and contact information to
Munro via ...