MICHAEL MATTHEWS ET AL. v. SBA, INC., ET AL.
(AC 34673)
Sheldon, Keller and Harper, Js.
Argued September 11, 2013-officially released April 22, 2014
513
John F. Farraher, Jr., pro hac vice, with whom were David B. Zabel and, on the brief, Barbara M. Schellenberg, for the appellees (named defendant et al.).
Daniel J. Finnegan, for the appellee (defendant James H. Ross).
Michael D. Blanchard, with whom was Christopher M. Wasil, for the appellees (defendant Village Ventures, Inc., et al.).
Opinion
KELLER, J. The plaintiffs, Michael Matthews and Stephen Kotfila, appeal from the judgment of the trial court granting the defendants’ motions to dismiss. The plaintiffs, Massachusetts residents, brought the underlying action against twenty-one defendants seeking damages sounding in a number of legal theories for the alleged dilution of their stock ownership interests in the early stages of a wireless telecommunications company called Optasite, Inc. (New Optasite).1 The twenty-one
defendants,2 all
I
BACKGROUND
This case arises out of underlying events in which the plaintiffs allege they were injured by misrepresentations and other misconduct that occurred in connection with the merger of two companies in which they held stock, Pinnacle Site Development, Inc., and Optasite, Inc. On September 20, 2011, the plaintiffs filed a fifteen-count3 complaint on the basis of a common set of factual allegations to recover damages from the four groups of defendants: the SBA defendants, the Investment Company defendants, the Employee defendants, and Ross. At all times relevant to the allegations of the complaint, as well as at the time this action commenced, the plaintiffs were residents of Massachusetts. They are also the sole members of four Connecticut limited
liability companies,
The court‘s memorandum of decision adequately sets forth the undisputed facts contained in the complaint and the parties’ affidavits in support of and in opposition to the motions to dismiss. “In the 1990s, the plaintiffs were affiliated with a company named Berkshire Wireless Incorporated (BWI). Some assets of BWI were purchased by a newly formed company named Optasite, of which the plaintiffs were founding members and shareholders. At that time, Optasite was a Massachusetts company with a principal place of business in Glastonbury, Connecticut. Village Ventures, Inc., and Worcester Venture Fund, L.P., were early stage, minority interest investors in Optasite. Both plaintiffs left Optasite in 2001 to take positions at a company named Pinnacle Site Development, Inc. (Pinnacle), a Connecticut corporation doing business in Glastonbury, Connecticut.
“In August of 2002, Optasite agreed to merge with Pinnacle, the latter being the surviving company (New Pinnacle). New Pinnacle was, itself, incorporated in Delaware with its principal place of business in Glastonbury, Connecticut. Negotiations over the merger, which included telephone calls and in-person meetings by all parties involved, were done substantially in Glastonbury, Connecticut. The merger was closed on September 5, 2002, in New York, New York, and Matthews became chief executive officer of New Pinnacle. The plaintiffs allege that all the defendants represented to
the plaintiffs that their fully vested interest in New Pinnacle was and would always be on equal footing with that of other shareholders. In the beginning of 2003, New Pinnacle was renamed Optasite, Inc. (New Optasite).
“In accordance with New Optasite‘s business model, the plaintiffs thereafter brought business deals to the company and otherwise tried to advance the company‘s interests. Despite this, the defendants thereafter criticized the plaintiffs and otherwise frustrated their attempts to act upon the business model. All the defendants brought concerns in general in regard to both the business model and New Optasite that ran counter to repeated representations made to the plaintiffs during the merger and formation of New Optasite. The defendants attempted to force the plaintiffs from New Optasite so a new management team could be brought in. In doing so, they concealed from the plaintiffs material facts, conditions, and circumstances regarding New Optasite and conspired to create an environment in which [the plaintiffs] would leave New Optasite and forfeit their interest in the company. More specifically, the defendants unreasonably rejected business deals brought by the plaintiffs only to accept the same deals after the plaintiffs were forced out of New Optasite.
“Despite the plaintiffs’ efforts, New Optasite claimed poor performance on their part and sought their resignation. Although denying the claim of poor performance, given his frustration with the situation, Matthews resigned as chief executive officer on or about April 30, 2003. In connection with his resignation, Matthews and New Optasite executed a separation contract that, among other things, bound
resigned from New Optasite. In further reliance on representations allegedly made by all of the defendants, Matthews failed to exercise stock options that he had in New Optasite and which expired at the end of August, 2003. After the expiration of the stock options, the board of directors of New Optasite represented to the plaintiffs, who were still shareholders, that it had a new plan for reorganization of New Optasite. The board of directors noted that the reorganization would dilute the plaintiffs’ shares but nonetheless assured the plaintiffs that the future benefit of the diluted shares would far outweigh the initial loss. Allegedly, all the defendants and the board of directors knew or should have known that this representation was false and that the dilution was for their own benefit. The effect of the alleged misrepresentation was to ‘wash out’ the plaintiffs’ shares and interest in New Optasite and caused them to suffer losses and other financial injury. According to the plaintiffs, the defendants had conspired to make these false representations and injure the plaintiffs’ monetary and professional interests, and [the alleged conspiracy] was predominately effectuated in Glastonbury, Connecticut, during this time.
“In 2004, New Optasite resumed being headquartered in Massachusetts. The defendants Sean M. Marsh and Word D. Peake III attended board meetings in both Glastonbury, Connecticut, and Worcester, Massachusetts. In April of 2004, [the defendant] Point Judith Capital Partners, LLC, caused the fund for which it served as general partner to make its first investment in New Optasite.
“In 2006, well after the plaintiffs had left New Optasite, Ross, then chief executive officer of New Optasite, served as an expert against Matthews in a Massachusetts court case that involved the valuation of various business interests. There, detrimental to Matthews’ claims, he placed the value of a Colorado company at
far less than what Matthews had placed it at. In his role in the court case, Ross attended meetings, reviewed documents, and wrote a report with his findings. All of these actions took place in Massachusetts. Ross was not asked to testify either at a deposition or at trial with respect to the matter. The plaintiffs allege that these acts by New Optasite and Ross breached the terms of the separation contract signed in 2003 between New Optasite and Matthews.
“Later in 2006, New Optasite was reorganized into a holding company named Optasite Holding Company, Inc. In 2008, the company was acquired by and became part of [the defendant] SBA Communications Corporation.” (Footnote omitted.)
Service of a copy of the writ of summons and complaint was attempted or made upon twenty of the defendants on or about September 13, 2011.5 Pursuant to
motion to dismiss the complaint. As grounds for their motions, the defendants asserted (1) insufficient service of process under §§ 52-59b, 34-225, and 33-929; (2) lack of personal jurisdiction for failure to satisfy the requirements of our applicable long arm statutes,
In support of their motion to dismiss, the SBA defendants submitted an affidavit by Thomas P. Hunt, general counsel for SBA Communications Corporation. In his affidavit, Hunt detailed the histories of the SBA defendants. He averred, inter alia, that SBA Communications Corporation is incorporated and has its principal place of business in Florida, “has no contacts” with Connecticut, is not registered to transact business in Connecticut, does not transact business in Connecticut, and does not have any offices, employees, or real or personal property in Connecticut.
Three additional affidavits were submitted in support of the motion to dismiss the claims against the Investment Company defendants: Marsh submitted an affidavit on behalf of Point Judith Capital Partners, LLC, and related entities; Matthew C. Harris submitted an affidavit on behalf of Village Ventures, Inc., and related entities; and Peake submitted an affidavit on behalf of Worcester Venture Fund, L.P., Worcester Capital Partners, LLC, and related entities. Also, Marsh, Harris, and Peake each submitted an affidavit in support of the motion to dismiss the claims brought against them in their individual capacities. The affidavits in support of the Investment Company and Employee defendants’ motion to dismiss set forth the histories of the business entities and the Employee defendants’ connections to those entities, and disavowed any contacts with Connecticut that would be sufficient to establish jurisdiction.
Ross also appeared and filed a motion to dismiss on the basis of (1) lack of personal jurisdiction under the long arm statute applicable to nonresident individuals,
The court found that ten of the defendants either never had existed (nonexistent defendants) or had ceased to exist by virtue of merging into successor
entities prior to service of the complaint (merged defendants). Accordingly, the court, sua sponte, dismissed the claims against the five nonexistent defendants that it had identified: SBA Infrastructure Holdings, Inc.; Optasite Holdings, LLC; Village Ventures; Worcester Capital Partners; and Point Judith.8 The court also dismissed the claims against five merged defendants, having concluded that, upon merger, the entities had ceased to exist and therefore could not be served with process, and that the merged defendants’ successors had not been named as defendants.9 The five merged defendants are: SBA, Inc.; SBA Acquisition 2008-2, Inc.; SBA Infrastructure Holdings II, Inc., formerly known as Optasite, Inc.,10 Optasite Tower Holdings, LLC; and Optasite Holding
the plaintiffs’ counsel conceded that the trial court could not exercise personal jurisdiction over the nonexistent defendants or the merged defendants. As such, the propriety of the court‘s dismissal of the claims against the ten aforementioned nonexistent defendants and merged defendants is not at issue on appeal.
Also, the court found that Village Ventures Securities Corporation, a Delaware corporation, was not in existence at the time the action against it commenced, as it had been dissolved in 2004. The court therefore concluded that it could not exercise jurisdiction over it and granted the motion to dismiss the claims against it on that ground. On appeal, the plaintiffs do not dispute the court‘s dismissal of the claims against Village Ventures Securities Corporation. As such, we need not address them further.
The court granted the following six defendants’ motions to dismiss on the ground of insufficient service of process: (1) Harris; (2) Worcester Venture Fund, L.P.; (3) Worcester Capital Partners, LLC; (4) Point Judith Capital Partners, LLC; (5) Optasite Towers, LLC; and (6) Village Venture Services, Inc. The court also dismissed the claims against the following ten defendants for lack of personal jurisdiction as a result of the plaintiffs’ failure to satisfy the requirements of the applicable long arm statutes and as a violation of constitutional due process: (1) SBA Communications Corporation; (2) Optasite Towers, LLC; (3) Point Judith Capital Partners,
LLC; (4) Worcester Venture Fund, L.P.; (5) Worcester Capital Partners, LLC; (6) Village Ventures Services, Inc.; (7) Marsh; (8) Harris; (9) Peake; and (10) Ross. Finally, the court found that pursuant to
The plaintiffs first claim that the court erred by dismissing the claims against six defendants-Harris; Worcester Venture Fund, L.P.; Worcester Capital Partners, LLC; Point Judith Capital Partners, LLC; Optasite Towers, LLC; and Village Venture Services, Inc.-for improper service of process. Second, the plaintiffs claim that the court improperly granted the defendants’ motions to dismiss for lack of personal jurisdiction under the applicable long arm provisions,
in finding that venue in Connecticut was improper pursuant to
II
STANDARD OF REVIEW
“The standard of review for a court‘s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the
court‘s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, 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. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone. . . . Where, however, as here, the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue[s] . . . .” (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).
“If affidavits and/or other evidence submitted in support of a defendant‘s
“[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts
demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413-14, 35 A.3d 188 (2012). “If 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., supra, 282 Conn. 515. In this case, when the twenty-one defendants-all nonresident individuals and foreign business entities-contested personal jurisdiction, the plaintiffs assumed the burden of establishing jurisdiction. As an evidentiary hearing was neither requested nor held, we accept, as did the trial court, the undisputed allegations in the complaint, the affidavits submitted by the defendants, and the plaintiffs’ counteraffidavits.
Mindful of the foregoing principles, we address the plaintiffs’ claims in turn.
III
SERVICE OF PROCESS
We first address the plaintiffs’ claim that the court incorrectly found that it lacked personal jurisdiction over defendants Harris; Worcester Venture Fund, L.P.; Worcester Capital Partners, LLC; Point Judith Capital Partners, LLC; Optasite Towers, LLC; and Village Venture Services, Inc., because service of process was not effected in compliance with the applicable statutes. We disagree with the plaintiffs.
“[T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court‘s exercise of personal jurisdiction.” (Internal quotation marks omitted.) Jimenez v. DeRosa, 109 Conn. App. 332,
338, 951 A.2d 632 (2008). “[S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court‘s exercise of [personal] jurisdiction over that party.” (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn. App. 158, 166-67, 884 A.2d 12 (2005). Therefore, “[p]roper service of process is not some mere technicality.” Hibner v. Bruening, 78 Conn. App. 456, 458, 828 A.2d 150 (2003).
“[W]hen a particular method of serving process is set forth by statute, that method must be followed. . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction. . . . [A]n action commenced by such improper service must be dismissed.” (Citation omitted; internal quotation marks omitted.) Jimenez v. DeRosa, supra, 109 Conn. App. 338. “Facts showing the
A
Harris
The plaintiffs argue that the court improperly concluded that it did not have jurisdiction over Harris, a Massachusetts resident, because service of process was not effected in compliance with
arm statute applicable to nonresident individuals, foreign partnerships, and foreign voluntary associations. We are not persuaded.
The following additional facts are relevant to our resolution of this claim. The marshal‘s return of service provides that on September 13, 2011, a true and attested copy of the original writ of summons and complaint was left with the secretary of the state and a copy thereof was sent to Harris at a residential address in Williamstown, Massachusetts, by certified, return receipt requested mail. Harris averred in his affidavit that although he had resided at the Williamstown address from 1998 to 2008, he has since worked and resided in New York. The plaintiffs state in their appellate brief that to determine Harris’ address, they relied on Federal Election Commission records that indicate
that “as late as May, 2009, Mr. Harris represented that he resided at the [Williamstown address].” Previously, at the hearing on the motion to dismiss, the plaintiffs’ attorney stated in passing that they had “made searches on the Internet, Federal [Election] Commission records, [and] other records” to determine the addresses of the twenty-one defendants.
The marshal‘s supplemental return, dated September 26, 2011, reveals that the certified mail addressed to Harris was returned to the marshal and that the package was marked “FORWARD TIME EXPIRED, RETURN TO SENDER.” The plaintiffs do not dispute that the Williamstown address was not Harris’ actual address at the time of attempted service. Harris averred that he had not been personally
Our Supreme Court has stated with respect to the last known address requirement of
process to home of defendant‘s wife satisfied last known address requirement where defendant had fled for “parts unknown“). A plaintiff must use “diligent and persistent efforts“; Cadlerock Joint Venture II, L.P. v. Milazzo, supra, 395; to determine the actual address of the defendant and unless a defendant has departed for “parts unknown,” the plaintiff must learn the defendant‘s actual address “at his peril.” (Internal quotation marks omitted.) Id., 393.
There is nothing in the plaintiffs’ affidavits or the record, aside from the plaintiffs’ attorney‘s passing statements at the hearing on the motions to dismiss and in the appellate brief, to indicate the nature or extent of the plaintiffs’ search for Harris’ actual address. They do not contend that Harris “departed for parts unknown.” Indeed, the plaintiffs implicitly acknowledge that the Williamstown address was not the only one available to them. They state that “there appear to be several addresses for Matthew Harris both before and after 2008, and he was served at one of them.” Although the plaintiffs relied on an address contained in Federal Election Commission records, these records were two years old at the time of attempted service in September, 2011, and merely revealed that Harris represented that he resided in Williamstown, Massachusetts, “as late as May, 2009. . . .” Nothing in the record indicates that the plaintiffs attempted to serve Harris at any of these other purported addresses, either before or after process was returned to the marshal marked “RETURN TO SENDER.” It was “‘at [their] peril‘“; Cadlerock Joint Venture II, L.P. v. Milazzo, supra, 287 Conn. 393; to determine Harris’ actual address, and they failed to do so.
Given the record and the representations made to the court, the court correctly concluded that the plaintiffs had not sustained their burden of proving that they engaged in “diligent and persistent efforts” to determine the actual address of Harris.13 Id., 395. We agree with the court that service of process upon Harris was not effected in compliance with
B
Worcester Venture Fund, L.P.
As noted,
The “argument” portion of the plaintiffs’ brief addressing the dismissal of the claims against Worcester Venture Fund, L.P., consists of four sentences and lacks a single citation to legal authority. The first sentence merely insists that the court erred in finding insufficient service of process. The second sentence summarizes the court‘s findings: that the plaintiffs failed to serve either Worcester Venture Fund, L.P., at its last known address or the secretary of the state. The plaintiffs then assert: “Here, the same arguments apply with respect to the plaintiffs’ diligence in finding a last known address as apply [to their discussion of Harris]. The plaintiffs did make a search . . . and the defendant in question did receive notice of the pendency of the suit.” (Citation omitted.) The plaintiffs offer no argument contesting the court‘s dismissal of the claims against Worcester Venture Fund, L.P., on the ground that service under
It is well established that “[w]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that
Without analysis or discussion regarding the court‘s conclusion that service of process upon Worcester Venture Fund, L.P., was insufficient because the plaintiffs did not leave process with the secretary of the state, a mandatory requirement under
C
Worcester Capital Partners, LLC, and Point Judith Capital Partners, LLC
We together address the plaintiffs’ claim that the court improperly dismissed the claims against Worcester Capital Partners, LLC, and Point Judith Capital Partners, LLC. The plaintiffs argue that the court improperly dismissed the claims brought against Worcester Capital Partners, LLC, and Point Judith Capital Partners, LLC, for insufficient service of process because of failure to satisfy the requirements of
The following additional facts are relevant to our resolution of these claims.
This court has previously held that “there is no exclusive means for service on a limited liability company,” regardless of whether the limited liability company is domestic or foreign. Little v. Mackeyboy Auto, LLC, 142 Conn. App. 14, 20, 62 A.3d 1164 (2013).
Furthermore, we are unconvinced by the plaintiffs’ argument that service of process was sufficient simply because
We therefore conclude that the court did not err in granting the motion to dismiss the claims against Worcester Capital Partners, LLC, and Point Judith Capital Partners, LLC, for insufficient service of process.
D
Optasite Towers, LLC, and Village Ventures Services, Inc.
We address together the plaintiffs’ arguments that the court improperly dismissed the claims against Optasite Towers, LLC, and Village Ventures Services, Inc., for insufficient service of process.
The following undisputed facts, as found by the court, are necessary for the resolution of this issue. Village Ventures Services, Inc., changed its name to Village Ventures, Inc., on July 31, 2000, eleven years prior to the commencement of the underlying action. Service of process, addressed to Village Ventures Services, Inc., was mailed to the business address of Village Ventures, Inc., in Williamstown, Massachusetts. Similarly, Optasite Towers, LLC, changed its name to SBA Infrastructure, LLC, on September 18, 2008, nearly three years prior to service of the complaint. SBA Infrastructure, LLC, is a Delaware limited liability company with its principal place of business in Boca Raton, Florida. The marshal‘s return of service indicates that a copy of the original writ of summons and complaint, addressed to Optasite Towers, LLC, was sent by certified mail to the business address of SBA Infrastructure, LLC, in Boca Raton.
The court concluded that service of process was insufficient because neither Village Ventures, Inc., nor SBA Infrastructure, LLC, was named in the writ of summons or complaint. In dismissing the claims against Optasite Towers, LLC, and Village Ventures Services, Inc., the court relied on the well settled principle that “[t]he jurisdiction of the court is limited to those parties that have been expressly named in the action coming before it.” See, e.g., Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 234, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000); Delio v. Earth Garden Florist, Inc., 28 Conn. App. 73, 77, 609 A.2d 1057 (1992); General Motors Acceptance Corp. v. Pumphrey, 13 Conn. App. 223, 227-28, 535 A.2d 396 (1988). On appeal, the plaintiffs appear to argue that serving a business entity under its former name allows a court to exercise jurisdiction over the renamed entities—in this case, SBA Infrastructure, LLC, and Village Ventures, Inc. That is, the plaintiffs
We reiterate that we do not review claims that have been inadequately briefed and deem such claims to be abandoned. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. . . . We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999). The plaintiffs’ briefing as it pertains to the service of process for Optasite Towers, LLC, and Village Ventures Services, Inc., is wholly inadequate. The plaintiffs do not cite any legal authority in support of their argument that they may serve a defendant under a former name, and they provide no statutory basis under which this court may even assess whether the methods of service they used were otherwise proper.
As the plaintiffs’ claims are inadequately briefed, we deem them to be abandoned. As such, we affirm the judgment of the court dismissing the claims against Optasite Towers, LLC, and Village Ventures Services, Inc., for insufficient service of process.
IV
PERSONAL JURISDICTION
We next turn to the plaintiffs’ claim that the court improperly granted the motions to dismiss on the ground that it could not exercise personal jurisdiction over ten defendants: (1) SBA Communications Corporation; (2) Optasite Towers, LLC; (3) Point Judith Capital Partners, LLC; (4) Worcester Venture Fund, L.P.; (5) Worcester Capital Partners, LLC; (6) Village Ventures Services, Inc.; (7) Marsh; (8) Harris; (9) Peake; and (10) Ross. The plaintiffs’ claim is twofold: first, the court has jurisdiction over these defendants under the applicable long arm statutes,
In analyzing personal jurisdiction, we are mindful of certain well settled principles. As we noted previously, once a defendant that is a foreign corporation or who is a nonresident individual challenges personal jurisdiction, the plaintiff bears the burden of presenting evidence sufficient to establish jurisdiction. Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515. “When a defendant files a motion to dismiss challenging the court‘s jurisdiction, a
the plaintiffs’ challenge to the court‘s conclusion that exercising jurisdiction would not comport with due process in view of our determination that the court correctly concluded in the alternative that it lacked jurisdiction over the defendants under the applicable long arm statutes.
For the purpose of clarity, we first address the court‘s long arm jurisdiction over the foreign limited liability companies (LLCs): Optasite Towers, LLC; Point Judith Capital Partners, LLC; and Worcester Capital Partners, LLC. We turn then to the court‘s long arm jurisdiction over the foreign partnership, Worcester Venture Fund, L.P., and the nonresident individuals: Marsh, Harris, Peake, and Ross. Finally, we discuss the court‘s long arm jurisdiction as it pertains to the foreign corporations, SBA Communications Corporation and Village Ventures Services, Inc. Ultimately, we are not persuaded by the plaintiffs’ arguments and affirm the judgment of the court dismissing the claims against these ten defendants for lack of long arm jurisdiction.
A
Personal Jurisdiction Over Limited Liability Companies
The plaintiffs contest the court‘s determination that it could not exercise personal jurisdiction over the surviving foreign limited liability company defendants—Optasite Towers, LLC; Point Judith Capital Partners, LLC; and Worcester Capital Partners, LLC—pursuant to
general long
Although the court apparently analyzed long arm jurisdiction over the foreign LLCs under our corporation specific long arm statute,
defendants had engaged in any tortious conduct that could confer jurisdiction over them.
The question of which long arm statute applies arises because, although the Connecticut Limited Liability Company Act,
In Austen, the court was tasked with determining whether Connecticut‘s long arm statutes authorized two nonresident plaintiffs to exercise long arm jurisdiction over a California LLC. Id., 551, 553. Observing that
The court in Austen relied on three reasons in coming to this conclusion. “First, the structure of the Connecticut General Statutes provides persuasive evidence that
Second, the court stated: “[C]onstruing
Finally, the court in Austen was persuaded that “absent a clear and definitive textual answer, and absent any conclusive extra-textual evidence of statutory meaning, the Supreme Court of Connecticut would interpret
convinced that
Having decided that
Other courts have treated foreign LLCs as corporations and applied
In dismissing the claims against the defendants, the court found that the plaintiffs did not allege with sufficient specificity in the complaint and affidavits that each individual defendant had engaged in tortious conduct. The court stated: “The plaintiffs’ complaint and supporting affidavits house a number of group allegations. Notably, to the extent the complaint and supporting affidavits allege any tortious conduct on the part of any of the defendants, the plaintiffs allege that all defendants engaged in the tortious behavior. Group allegations such as these are not sufficient to establish personal jurisdiction over a specific defendant and cannot be relied upon to allege tortious conduct in the state.” In reaching this conclusion, the court relied on West Hartford v. Taubman Centers, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket Nos. CV-07-5007876-S, CV-07-5007877-S (May 9, 2008) (Eveleigh, J.), which held, “group allegations that all defendants engaged in tortious conduct are not sufficient to establish long arm jurisdiction over a particular defendant. . . . Rather, plaintiffs must present jurisdictional facts as to each defendant.” (Citation omitted.)
We agree with the court‘s reasoning and find that neither the complaint nor the plaintiffs’ affidavits contain any specific factual allegations that Optasite Towers, LLC, Point Judith Capital Partners, LLC, or Worcester Capital Partners, LLC, engaged in any tortious conduct in this state sufficient to establish jurisdiction. The gravamen of the plaintiffs’ claim is that the defendants “made misrepresentations or took actions that harmed the plaintiffs” in Connecticut. In support of this assertion, the plaintiffs claim that the complaint “alleges jurisdictional facts for each and every defendant.” A review of the complaint and accompanying affidavits, however, suggests that the plaintiffs merely have made the same general allegations against broad categories of defendants—the “Investment Companies” and the “SBA defendants“—and have not specifically alleged any tortious conduct against Optasite Towers, LLC, Point Judith Capital Partners, LLC, or Worcester Capital Partners, LLC.
These generalized allegations are insufficient to establish jurisdiction, especially as the affidavits submitted in support of the defendants’ motions to dismiss specifically refuted the claims against the individual defendants. The defendants’ affidavits indicate that neither Optasite Towers, LLC, Point Judith Capital Partners, LLC, nor Worcester Capital Partners, LLC, engaged in any of the acts enumerated in the long arm statute and deny committing any tortious acts in Connecticut. As previously noted, Hunt averred that Optasite Towers, LLC, had, in 2008, changed its name to SBA Infrastructure, LLC, which was not named a party to this action. Neither the complaint nor the plaintiffs’ affidavits contain any particularized allegation against either Optasite Towers, LLC, or its successor, SBA Infrastructure, LLC. Moreover, Peake averred that Worcester Capital Partners, LLC, had never been a shareholder of New Optasite, and had merely been a general partner of Worcester Venture Fund, L.P. Meanwhile, Marsh averred that Point Judith Capital Partners, LLC, was a manager of entities that make investments and that none of those entities had invested in Optasite until April, 2004, after the complained of events occurred.
A plaintiff, in presenting facts sufficient to establish the court‘s jurisdiction, must present specific, and not simply conclusory, allegations. Cf. Pitruzello v. Muro, 70 Conn. App. 309, 317-18, 798 A.2d 469 (2002) (plaintiff‘s complaint and affidavit contained no specific factual allegations that defendant had engaged in tortious conduct or solicited business in Connecticut); Olson v. Accessory Controls & Equipment Corp., 54 Conn. App. 506, 517, 735 A.2d 881 (1999), aff‘d, 254 Conn. 145, 757 A.2d 14 (2000). Moreover, those allegations must allege jurisdictional facts sufficient to prove that the court had personal jurisdiction over a specific defendant. Having failed to establish this predicate, the plaintiffs have failed to prove that the court had jurisdiction over Optasite Towers, LLC, Point Judith Capital Partners, LLC, or Worcester Capital Partners, LLC.
B
Personal Jurisdiction Over Nonresident Individuals and Foreign Partnership
As we have explained, under
Relying on West Hartford v. Taubman Centers, Inc., supra, Superior Court, Docket Nos. CV-07-5007876-S, CV-07-5007877-S, the court found that, “[b]etween
The plaintiffs rely on several allegations in their complaint and affidavits as proof that Marsh, Harris, and Peake, as a group, engaged in tortious conduct in this state. The plaintiffs averred that, in Connecticut, the “Individual Defendants . . . represented to the [plaintiffs] that [their] interest in New Optasite was and would always be pari passu with existing and future shareholders and/or investors in New Optasite and/or its successor and assigns knowing such representation to be false.” (Emphasis omitted.) The only individualized claim as to any of the Employee defendants, however, came with respect to Marsh. In his affidavit, Matthews averred that in the spring of 2002, he “approached the defendant Sean Marsh and the defendant Village Ventures regarding a proposed merger between Optasite and Pinnacle.” As the court correctly observed, “it is not clear how this particularized assertion can form the basis of any tortious conduct.”
Finally, with respect to Ross, the court stated: “The plaintiffs have not asserted that Ross was a party to the contract between Matthews and New Optasite or that Ross was even affiliated with the company at the time the contract was formed. As such, the complaint has failed to assert sufficient facts to establish a claim arising out of a contract with, or tortious conduct by, Ross.” We agree. The complaint and the plaintiffs’ affidavits are devoid of any allegation that Ross committed any tortious acts within Connecticut that would bring him within the ambit of the court‘s jurisdiction under
For these reasons, the plaintiffs failed to allege jurisdictional facts sufficient to prove that the court had personal jurisdiction over Harris, Marsh, Peake, Ross, or Worcester Venture Fund, L.P.
C
Personal Jurisdiction Over Foreign Corporations
We turn finally to the court‘s long arm jurisdiction over the foreign corporation defendants, SBA Communications Corporation and Village Ventures Services, Inc. The plaintiffs assert, as they did before the trial court, that
The explicit language of
The plaintiffs’ first two bases for satisfying the residency requirement are irrelevant to establishing a usual place of business under
The fact that the alleged tortious conduct by the defendants occurred in Connecticut is similarly unavailing to satisfy the residency requirements.
We are equally unpersuaded by the plaintiffs’ contention that their membership in four Connecticut limited liability companies satisfies the usual place of business requirement. The plaintiffs brought this action in their individual capacities. The Connecticut limited liability companies of which they are members have no discernible connection to this action, and the plaintiffs cannot use their membership as a bootstrap to establish jurisdiction. “A limited liability company is a distinct legal entity whose existence is separate from its members. . . . A limited liability company has the power to sue or be sued in its own name . . . or may be a party to an action through a suit brought in its name by a member.” (Citations omitted.) Wasko v. Farley, 108 Conn. App. 156, 170, 947 A.2d 978, cert. denied, 289 Conn. 922, 958 A.2d 155 (2008). The plaintiffs offer no law or authority in support of their argument that they may invoke their membership in Connecticut limited liability companies to satisfy personal “usual place of business” standards. We also note that even if the plaintiffs were permitted to invoke their membership in Connecticut LLCs to show that they maintain a usual place of business in this state, the record does not demonstrate that those LLCs have a usual place of business in Connecticut. To the contrary, the only relevant specific jurisdictional facts in the record are that the four limited liability companies have business addresses in Lee, Massachusetts.
In a further effort to establish that they have a usual place of business in Connecticut, the plaintiffs argue that they “regularly conduct business in the state.” Particularly, the plaintiffs aver in their affidavits that they “have and continue to do business in the State of Connecticut . . . .” Whether such averments satisfy the residency requirement requires us, for the first time, to determine what constitutes a “usual place of business” within the meaning of
As
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 plaintiffs conduct business here.
The plaintiffs have not satisfied their burden of alleging facts sufficient for the court to find that they have a usual place of business in Connecticut. See Cogswell v. American Transit Ins. Co., supra, 282 Conn. 515. The plaintiffs do not allege facts supporting their contention that they usually, customarily or ordinarily carry out business in this state. Instead, they merely aver that “have and continue to do business in the State of Connecticut . . . .” The plaintiffs did not provide the trial court with any other facts by which it could determine that they maintain a usual place of business in this state. Whether the extent of that business is sporadic, occasional or habitual cannot be determined by an examination of the pleadings or the record. The complaint and affidavits are devoid of any allegations concerning the extent, nature or frequency of the business the plaintiffs purportedly conduct. Indeed, the plaintiffs do not even aver that Connecticut is their usual place of business, but merely a state in which they “continue to do business . . . .” By relying on a single, insufficient and conclusory averment, the plaintiffs have failed to provide the court with any information concerning what specific business they conduct in the state. Even if we take the facts in the light most favorable to the plaintiffs, Matthews and Kotfila have failed to meet their burden of demonstrating that either of them have a usual place of business in Connecticut. To the contrary, the only specific jurisdictional facts in the record are that the four limited liability companies have business addresses in Lee, Massachusetts, and that
Again, “[i]f a challenge to the [trial] court‘s personal jurisdiction is raised by a defendant . . . the plaintiff must bear the burden of proving the court‘s jurisdiction.” Knipple v. Viking Communications, Ltd., supra, 236 Conn. 607. The plaintiffs have not done so. We conclude, therefore, that the trial court properly dismissed the plaintiffs’ complaint against SBA Communications Corporation and Village Ventures Services, Inc., on the ground that the plaintiffs did not satisfy the residency requirements of
V
CONCLUSION
To summarize, the court properly dismissed the claims against the five nonexistent defendants that it identified: SBA Infrastructure Holdings, Inc.; Optasite Holdings, LLC; Village Ventures; Worcester Capital Partners; and Point Judith.
The court properly dismissed the claims against the five defendants that it found had ceased to exist by virtue of merger: SBA, Inc.; SBA Acquisition 2008-2, Inc.; SBA Infrastructure Holdings II, Inc.; Optasite Tower Holdings, LLC; and Optasite Holding Company, Inc.27
The court dismissed the claims against defendant Village Ventures Securities Corporation because it was not in existence at the time the action against it commenced. On appeal, the plaintiffs did not contest the propriety of the court‘s dismissal with respect to this defendant.
The court properly dismissed the claims against six of the defendants for insufficient service of process: Harris; Worcester Venture Fund, L.P.; Worcester Capital Partners, LLC; Point Judith Capital Partners, LLC; Optasite Towers, LLC; and Village Venture Services, Inc.
Finally, the court properly dismissed the claims against ten of the defendants for the plaintiffs’ failure to satisfy the requirements of the applicable long arm statutes: SBA Communications Corporation; Optasite Towers, LLC; Point Judith Capital Partners, LLC; Worcester Venture Fund, L.P.; Worcester Capital Partners, LLC; Village Venture Services, Inc.; Marsh; Harris; Peake; and Ross.
For all of the above stated reasons, we conclude that the court properly granted the defendants’ motions to dismiss.
The judgment is affirmed.
In this opinion the other judges concurred.
LONGVIEW ESTATES, LLC v. WILLIAM WOODIN ET AL. (AC 35383)
Beach, Alvord and Flynn, Js.