Designs for Health, Inc. v. Miller

          Argued October 9, 2018

         Procedural History

         Action to recover damages for breach of contract, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Scholl, J., granted the defendant's motion to dismiss for lack of personal jurisdiction and rendered judgment thereon, from which the plaintiff appealed to this court. Reversed; further proceedings.

          Stephen J. Curley, with whom, on the brief, was Daniel B. Fitzgerald, for the appellant (plaintiff).

          Jeffrey Hellman, for the appellee (defendant).

          Keller, Bright and Pellegrino, Js.

          OPINION

          BRIGHT, J.

         The plaintiff, Designs for Health, Inc., appeals from the judgment of the trial court granting the motion to dismiss filed by the defendant, Mark Miller. On appeal, the plaintiff claims that the court improperly concluded that it lacked personal jurisdiction over the defendant because the plaintiff failed to establish that the defendant had signed electronically an agreement in which the parties expressly agreed to submit to the jurisdiction of state and federal courts in Connecticut. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of the plaintiff's claim. On September 27, 2016, the plaintiff filed this breach of contract action against the defendant. In the one count complaint, the plaintiff alleged the following relevant facts. The plaintiff, a Florida corporation with offices in Connecticut, ‘‘is in the business of producing and selling a professional line of nutraceutical and natural health products . . . to consumers for sale through health care providers . . . .'' The defendant, a podiatrist, maintains a primary place of business in California and is a resident of California. On or about June 10, 2016, the plaintiff and the defendant entered into an agreement pursuant to which the defendant agreed to sell products provided by the plaintiff. Between August 17 and September 8, 2016, the defendant violated the agreement when he sold products that he had purchased from the plaintiff on a website that had not been authorized by the plaintiff. As a result of this violation, the defendant is required, pursuant to a liquidated damages clause in the agreement, to pay the plaintiff at least $53, 000. The agreement, which was attached to the complaint, contains a forum selection clause that requires litigation arising from the agreement to be resolved by Connecticut courts.^[1]

         On November 3, 2016, the defendant filed a motion to dismiss in which he argued that the court lacked personal jurisdiction over him because the plaintiff could not meet its burden to prove that he had signed the agreement. The defendant attached to his motion, among other things, an affidavit in which he averred that he never had any contact with the state of Connecticut and never signed, or authorized anyone to sign, any document that ‘‘might constitute doing business of any kind in Connecticut.'' On December 2, 2016, the plaintiff filed a motion for an extension of time to respond to the defendant's motion so that it could depose the defendant regarding the factual statements made in his affidavit. On January 23, 2017, the court entered a scheduling order that permitted the plaintiff to conduct the defendant's deposition. On February 22, 2017, the plaintiff took the deposition of the defendant in California.

         On March 24, 2017, the plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss in which it contended that the court had personal jurisdiction over the defendant because he had signed electronically the agreement that contained the forum selection clause. The plaintiff submitted a number of attachments in support of its opposition that cumulatively asserted that the defendant had signed electronically the agreement, including certain excerpts of the deposition of the defendant, a copy of the agreement, an affidavit of its general counsel, Stephen M. Carruthers, a ‘‘DocuSign'' certificate of completion, a screenshot of a ‘‘GeoMapLookup'' search, notice sent by Carruthers to the defendant informing him of his alleged breach of the agreement, documents evincing the service of the defendant, an affidavit of the plaintiff's independent sales representative, Toni Lyn Davis, as well as a redacted record of her telephone calls, and a series of e-mails that purportedly were exchanged between Carruthers and the defendant. On April 7, 2017, the defendant filed a reply that contended that the plaintiff failed to meet its burden to establish personal jurisdiction, and he attached a supplemental affidavit in which he specifically rebutted the contentions made by the plaintiff in support of its opposition.

         On May 22, 2017, the court conducted a hearing on the motion to dismiss at which it heard the parties' oral arguments. On May 31, 2017, the court issued a memorandum of decision in which it granted the defendant's motion. Therein, the court noted that, although ‘‘due process requires that a trial-like hearing be held'' when ‘‘issues of fact are necessary to the determination of a court's jurisdiction, '' the ‘‘parties did not request that an evidentiary hearing be held but rel[ied] on evidence they ha[d] submitted by affidavit.'' (Internal quotation marks omitted.) Accordingly, the court compared the evidence submitted by both parties^[2] and concluded that ‘‘the plaintiff has failed to meet its burden to establish that this court has jurisdiction over the defendant. It has not established that the defendant . . . transacted any business in this state, that is, entered into the agreement which is the subject of this lawsuit, such that the court has jurisdiction over the defendant pursuant to the long arm statute'' applicable to nonresident individuals, General Statutes § 52-59b (a) (1).^[3] On June 20, 2017, the plaintiff filed a motion to reargue, which was denied summarily by the trial court. This appeal followed. Additional facts will be set forth as necessary.

         We begin with our standard of review and relevant legal principles. ‘‘[A] challenge to the jurisdiction of the court presents a question of law over which our review is plenary.'' (Internal quotation marks omitted.) Kenny v. Banks, 289 Conn. 529, 532, 958 A.2d 750 (2008). ‘‘When a defendant challenges personal jurisdiction in a motion to dismiss, 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.) Samelko v. Kingstone Ins. Co., 329 Conn. 249, 256, 184 A.3d 741 (2018).

         ‘‘Ordinarily, the defendant has the burden to disprove personal jurisdiction.'' Id. Nevertheless, ‘‘[i]f 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); see Standard Tallow Corp. v.Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983). ‘‘To do so, the [plaintiff] must produce ...