United States District Court, D. Connecticut
ORDER ON MOTION TO DISMISS
R. UNDERHILL UNITED STATES DISTRICT JUDGE
Gianetti (“Gianetti”) filed a fourteen-count suit
against the following defendants: Teakwood, Ltd., David
Houze, Todd Fentress, 256 Enterprises, Inc., Heritages
Resources, Inc., Jack D'Aurora, and Robert J. Behal,
alleging: fraudulent concealment and misrepresentation (Count
I); conspiracy to commit fraud (Count II); conspiracy to
commit fraud by non-disclosure (Count III); negligent
misrepresentation (Count IV); professional negligence (Count
V); breach of fiduciary duty (Count VI); breach of contract
(Count VII); breach of the covenant of good faith and fair
dealing (Count VIII); negligent misrepresentation (Count IX);
action for discovery (Count X); accounting (Count XI);
personal liability for damages (Count XII); disregard of
business entity (Count XIII); and successor liability (XIV).
argue that the District of Connecticut does not have personal
jurisdiction to consider Gianetti's claims against them,
and that venue is improper here. Gianetti argues that
jurisdiction and venue are both proper. For the following
reasons, the motion to dismiss is GRANTED.
Standard of Review
Lack of Personal Jurisdiction
plaintiff bears the burden of showing that the court has
personal jurisdiction over each defendant. Metro. Life
Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d
Cir. 1996). Where, as here, there has been no discovery on
jurisdictional issues and the court is relying solely on the
parties' pleadings and affidavits, the plaintiff need
only make a prima facie showing that the court possesses
personal jurisdiction over the defendant. Bank Brussels
Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d
779, 784 (2d Cir. 1999).
diversity cases, courts apply the forum state's law to
determine whether the court has personal jurisdiction over a
defendant. Arrowsmith v. United Press International,
20 F.2d 219, 223 (2d Cir. 1963). “Connecticut utilizes
a familiar two-step analysis to determine if a court has
personal jurisdiction. First, the court must determine if the
state's long-arm statute reaches the foreign corporation.
Second, if the statute does reach the corporation, then the
court must decide whether that exercise of jurisdiction
offends due process.” Bensmiller v. E.I. Dupont de
Nemours & Co., 47 F.3d 79, 81 (2d Cir. 1995) (citing
Green v. Sha-Na-Na, 637 F.Supp. 591, 595 (D. Conn.
same standard of review is applied to a motion to dismiss for
improper venue under Federal Rule of Civil Procedure 12(b)(3)
as is applied to dismissals for lack of personal jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(2).
Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d
Cir. 2005). Although the plaintiff bears the burden of
demonstrating that venue is proper, Indymac Mortg.
Holdings, Inc. v. Reyad, 167 F.Supp.2d 222, 237 (D.
Conn. 2001), the plaintiff need only make a prima
facie showing of venue if the court relies only on
pleadings and affidavits to evaluate the propriety of the
forum. Gulf Ins. Co., 417 F.3d at 355 (citing with
alteration CutCo Indus. v. Naughton, 806 F.2d 361,
364-65 (2d Cir. 1986). When proceeding on the pleadings and
affidavits, the court “must draw all reasonable
inferences and resolve all factual conflicts in favor of the
plaintiff.” Phillips v. Audio Active Ltd., 494
F.3d 378, 384 (2d Cir. 2007); see also U.S. Envtl. Prot.
Agency v. Port Auth. of N.Y. & N.J., 162 F.Supp.2d
173, 183 (S.D.N.Y. 2001) (citing 5B Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1352 (Apr. 2015 Supp.)). If a district court
determines that venue is not proper, it may dismiss the case
or transfer it to any district in which the case could have
been brought. 28 U.S.C. § 1406(a) (2006); see also
Minette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.
1993); but see Gonzalez v. Hasty, 651 F.3d 318, 324
(2d Cir. 2011) (district court should avoid transferring a
case that is a “sure loser.” (citing
Moreno-Bravo v. Gonzales, 463 F.3d 253, 263 (2d Cir.
following facts are drawn from the Amended Complaint, Doc.
No. 1 (“Am. Compl.”). The claims at issue arise
out of Gianetti's interest in Discovery 76, a limited
partnership and owner of real estate parcels around Columbus,
Ohio. Am. Compl. at ¶¶ 14-15.
1976, Gianetti, a resident of Connecticut, became a limited
partner in Discovery 76, a company whose inhabitants received
rental subsidies. Id. Gianetti obtained his
partnership interest in Discovery 76 as an investment and tax
shelter sold through Shearson Hayden Stone, a brokerage
company located in Greenwich, Connecticut. Id. at
attempted to convince Discovery 76 to sell its assets in the
real estate but was unsuccessful. Id. at ¶ 26.
In December 2003, Discovery 76 was terminated and merged with
an LLC known as Teakwood, Ltd., a named defendant in this
case. Id. at ¶ 22. Gianetti was informed that
his interest in Discovery 76 was now worthless. Id.
at ¶ 26.
filed a complaint on March 30, 2018, Doc. No. 1, and an
amended complaint on April 16, 2018, Doc. No. 6. Defendants
filed their motion to dismiss the amended complaint on August
13, 2018, Doc. No. 13. Gianetti opposed the motion on