DESIGNS FOR HEALTH, INC.
v.
MARK 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
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