Foisie v. Foisie

• Decision Date: 25 September 2019
• Docket Number: CV176028794S
• Court: Connecticut Superior Court
• Parties: Janet FOISIE v. Robert FOISIE

Janet FOISIE v. Robert FOISIE

No. CV176028794S

Superior Court of Connecticut, Judicial District of New London, New London

September 25, 2019

UNPUBLISHED OPINION

Knox J.

ISSUE AND SUBMISSION

The substituted defendants, Sir Clare Roberts and C. Kamilah Roberts, co-executors of the estate of Robert Foisie submitted their motion to dismiss the plaintiff’s action on the ground that the court lacks personal jurisdiction over them. The substituted defendants also move this court to reconsider its May 6, 2019 order substituting the defendants for the decedent.

FACTUAL AND PROCEDURAL BACKGROUND

On March 7, 2017, the plaintiff, Janet Foisie, filed an amended complaint, against the now deceased defendant, Robert Foisie. The complaint alleges fraud by the decedent Robert Foisie with respect to the mediation between him and the plaintiff leading up to their marital dissolution and in the stipulated marital dissolution proceeding. See Docket No. 137.00. The plaintiff alleges that in 2010, she and Robert Foisie jointly engaged a private mediator, after agreeing to divorce, to facilitate negotiations for the terms of the divorce. The parties reached an agreement on settlement terms and the plaintiff then commenced a dissolution action in the Superior Court in the judicial district of New London at Norwich. After a stipulated judgment was obtained on agreed-upon terms, the plaintiff allegedly learned that Robert Foisie had undisclosed offshore assets that were allegedly part of their marital estate. The plaintiff’s amended complaint is set forth in six counts and alleges: (1) fraud, (2) negligent misrepresentation, (3) breach of fiduciary duty, (4) breach of contract, (5) fraudulent transfer pursuant to General Statutes § 52-552e, and (6) common-law fraudulent transfer.

On February 14, 2017, Robert Foisie filed a motion to dismiss on the grounds that the court "did not have jurisdiction over the defendant as the requirements of the longarm statute have not been satisfied and/or exercising jurisdiction over the defendant would violate due process." See Docket No 129.00. In denying that motion, the court, Bates J., found that each individual count in the complaint arose out of conduct that Robert Foisie undertook within the state of Connecticut, that Robert Foisie had constitutional "minimum contacts" within the state according to the Burger King v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 1074, 85 L.Ed.2d 528 (1985), and that every factor laid out by our Appellate Court in Panganiban v. Panganiban, 54 Conn.App. 634, 640, 736 A.2d 190, cert. denied, 251 Conn. 920, 742 A.2d 359 (1999) for the reasonableness of exercising personal jurisdiction had been satisfied. See Docket No. 129.50, pgs. 4-8.

On June 18, 2018, Robert Foisie died. See Docket No. 197.00, Ex. A. On March 21, 2019, pursuant to General Statutes § 52-599, the plaintiff filed a second amended application to substitute the defendants, Sir Clare Roberts and C. Kamilah Roberts in the present action, in the place of Robert Foisie. See Docket No. 196.00. The second amended application to substitute the defendants was filed in response to Robert Foisie’s last will and testament, dated May 23, 2017. The May 23, 2017 will and testament purports to deal with his assets in Antigua and Barbuda (Antiguan will), while leaving his previous arrangements in place with respect to any property located outside of Antigua and Barbuda. On September 7, 2018, a grant of probate by the High Court of Justice for the State of Antigua and Barbuda named the defendants Sir Clare Roberts and C. Kamilah Roberts co-executors of the estate of Robert Foisie.

This court after reviewing the plaintiff’s application and attached exhibits granted the second amended application to substitute the defendants pursuant to § 52-599. See Docket No. 196.50. The substituted defendants were served pursuant to § 52-599 on May 13, 2019. See Docket No. 203.00.

On May 24, 2019, the substituted defendants filed a motion to dismiss and/or reconsider the substitution of the defendants on the ground that the court lacks personal jurisdiction over them. See Docket No. 204.00. The defendants assert that in light of the language in the Antiguan will they cannot be found to be Robert Foisie’s executors in the United States, and as such, the plaintiff must separately satisfy the requirements of the Connecticut longarm statute, General Statutes § 52-59b, with respect to the defendants themselves. The defendants argue that because the defendants do not have minimum contacts with Connecticut and extending jurisdiction over them would be unreasonable due to their location, this court does not have jurisdiction. The plaintiff filed an objection and corresponding memorandum of law on June 24, 2019. See Docket No. 205.00. On July 8, 2019, the defendants filed a reply. See Docket No. 207.00. The motion was heard at short calendar on July 23, 2019. For reasons more fully explained below, the court denies the substituted defendants’ motion to dismiss for lack of personal jurisdiction and denies the substituted defendants’ motion to reconsider.

DISCUSSION

I MOTION TO DISMISS

"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn 338, 350, 63 A.3d 940 (2013). "A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process; and (4) insufficiency of service of process." Practice Book § 10-30(a). "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 [longarm] 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).

"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 ... Where, however, as here, the motion is accompanied by supporting affidavits [and other evidence] containing undisputed facts, the court may look to their content for determination of the jurisdictional issue." (Internal quotation marks omitted.) Samelko v. Kingstone Ins. Co., supra, 329 Conn. 255-56; see also Cuozzo v. Orange, 315 Conn. 606, 615, 109 A.3d 903 (2015) (court may consider supplementary, undisputed facts in determining jurisdictional issue).

Ordinarily, the defendant has the burden to disprove personal jurisdiction. See Cogswell v. American Transit Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). However, "[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." Id. To do so, the plaintiff must "produce evidence adequate to establish such jurisdiction." Id., 516.

"The due process test for personal jurisdiction has two related components: the ‘minimum contacts’ inquiry and the ‘reasonableness’ inquiry. The court must first determine whether the defendant has sufficient contacts with the forum state to justify the court’s exercise of personal jurisdiction ... For purposes of this initial inquiry, a distinction is made between ‘specific’ jurisdiction and ‘general’ jurisdiction." (Internal quotation marks omitted.) Panganiban v. Panganiban, supra, 54 Conn.App. 639. "A state court will have ‘specific’ jurisdiction over a nonresident defendant whenever the defendant has ‘purposefully directed’ [its] activities at residents of the forum ... and the litigation [has] result[ed] from alleged injuries that ‘arise out of or relate to’ those activities ..." (Citation omitted; internal quotation marks omitted.) Thomason v. Chemical Bank, 234 Conn. 281, 288, 661 A.2d 595 (1995).

"The second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice- that is, whether it is reasonable under the circumstances of the particular case ... The Supreme Court has held that the court must evaluate the following factors as part of this reasonableness analysis: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies." (Internal quotation marks omitted.) Panganiban v. Panganiban, supra, 54 Conn.App. 640.

A Longarm Statute

The applicable Connecticut longarm statute, § 52-59b, provides 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 ... or over the executor or administrator of such nonresident individual ... who...