Sherman Associates v. Kals
| Decision Date | 10 May 1995 |
| Docket Number | Civ. No. 3:94CV00742 (PCD). |
| Citation | 899 F. Supp. 868 |
| Court | U.S. District Court — District of Connecticut |
| Parties | SHERMAN ASSOCIATES, Richard Suisman, Plaintiff, v. Dr. Heinz-Deiter KALS, Defendant. |
Kerry Marc Wisser, Peter Rustin, Weinstein & Wisser, P.C., West Hartford, CT, for Sherman Associates, Richard Suisman.
Stephen G. Silverberg, West Hartford, CT, Lewis J. Roberts, Rabinowitz, Roberts & Silverberg, South Glastonbury, CT, for Dr. Heinz-Deiter Kals, Buro Fur Kommunale Planund und Wirtschaftsforderung GMBH.
Lewis J. Roberts, Rabinowitz, Roberts & Silverberg, South Glastonbury, CT, for Gertrude Kals.
RULING ON DEFENDANTS' MOTION TO DISMISS
Plaintiffs bring this diversity action to recover damages alleged to have resulted from fraud and violation of Connecticut Unfair Trade Practices Act ("CUTPA") C.G.S. § 42-110a, et seq. Defendant moves to dismiss for lack of personal jurisdiction pursuant to F.R.Civ.P. 12(b)(2).
Plaintiffs, Sherman Associates and Richard Suisman, allege the following facts. Defendant, a German national, came to Connecticut in December, 1990, specifically to meet with plaintiffs. The meeting took place at Bradley International Airport in Windsor Locks, Connecticut. Plaintiffs discussed a real estate redevelopment project with defendant at that meeting. The property for redevelopment was, The Colonial Theater (hereinafter "Theater"), located in Hartford, Connecticut. Based on his representations plaintiffs engaged defendant as a broker to obtain financing for the project. Defendant was to arrange a loan of $4.5 million and to receive $300,000 in commission if the loan was arranged successfully.
Thereafter, defendant arranged a meeting between plaintiffs and a German bank in New York. After this loan application was denied, defendant further represented that he could arrange the loan from the bank's headquarters in Germany. Defendant then caused the plaintiffs to send $150,000 to him, to be used as part of a security deposit required by the bank while reviewing the loan application. A letter of agreement was signed by both plaintiffs and defendant in June, 1991, describing their respective obligations. Plaintiffs were later informed that defendant had retained both an engineering company and an accounting firm, to evaluate the project. Defendant obtained plaintiff's approval for certain payments to be made for `due diligence' costs to the parties evaluating the project. In September, 1991, defendant met with plaintiffs in New York and informed them that their loan application had again been rejected. Thereafter, defendant offered to fund the project personally and mailed a letter describing his intent to acquire the "Theater" property in a partnership arrangement with plaintiff Suisman.
Defendant agreed to refund $75,000 of the original $150,000 and to hold the remaining $75,000 to cover the due diligence costs incurred in the loan application. Defendant promised verification of the evaluation studies which plaintiffs never received, although they were informed that all of the $75,000 had been used to cover these costs. Upon subsequent investigation plaintiffs learned that the specified engineering company had never been employed by the defendant and that the accounting company had gone out of business in October, 1990. Plaintiffs, then, initiated this action to recover damages.
In diversity cases a challenge to the court's jurisdiction over a non resident defendant requires a two step inquiry: (1) whether personal jurisdiction is appropriate under the forum state's long-arm statute and (2) whether the exercise of jurisdiction comports with due process. Greene v. Sha-Na-Na, 637 F.Supp. 591, 595 (D.Conn.1986). The burden of establishing jurisdiction over the defendant is upon the plaintiff, however, the plaintiff need only make a prima facie showing that jurisdiction exists. Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 768 (2d Cir. 1983). In the absence of an evidentiary hearing or a trial on the merits, all pleadings and affidavits are construed in the light most favorable to the plaintiff. Id.
Since the allegations contained in the complaint and the affidavit of plaintiff Suisman, must be accepted as true for the purposes of this motion, the only determination to be made is whether they bring the defendant within the scope of Conn.Gen.Stat. § 52-59b and satisfy due process. The statute provides in pertinent 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 non resident individual, or foreign partnership, or his or its executor or administrator, who in person or through an agent: (1) Transacts any business within the state ...
Conn.Gen.Stat. § 52-59b(a)(1).
The term "transacts any business" has been construed "to embrace a single transaction of a business nature." Gandolfo v. Alford, 31 Conn.Supp. 417, 423, 333 A.2d 65 (1975). This broad interpretation "is not unreasonable so long as jurisdiction extends only to causes of action arising from that act." Id. at 423, 333 A.2d 65.
In determining whether defendant, Kals', contacts constitute transacting business within the state, we do not apply a rigid formula but balance considerations of public policy, common sense, and the chronology and geography of the relevant factors. Zartolas v. Nisenfeld, 184 Conn. 471, 477 (1981). Defendant solicited the plaintiff's business by coming to Connecticut. He was to act as a broker in obtaining financing for the "Theater" project and entered into an agreement with the plaintiffs, whereby he would receive a commission of $300,000. Defendant was in constant contact with plaintiffs for a ten month period, sending numerous letters, faxes and making many telephone calls to Connecticut during this time. Defendant also induced plaintiffs to send $150,000 to his bank account in Germany, purportedly to facilitate obtaining a loan. This money was sent from Connecticut and defendant requested plaintiff's approval to use it to pay costs of the parties evaluating the redevelopment project.
After this second loan application was denied defendant proposed financing the "Theater" project himself and offered to purchase the property in partnership with plaintiff Suisman. The property which was the focus of these business endeavors was located in Connecticut and any loans obtained would have been secured by that property. Had he been successful in obtaining the loan, defendant would have been paid his commission by the plaintiffs in Connecticut. Defendant relies on the rule that "the transmission of communications ... does not by itself constitute transaction of business in the forum state." Bross Utilities Service Corp. v. Abdulla Fouad A. Aboubshait, 489 F.Supp. 1366, 1372 (1980). However, the instant case is distinguishable from Bross because the defendant came into the forum state to meet with plaintiffs and initiated the business relationship. It is, therefore, not unreasonable to say that defendant engaged in a business transaction within Connecticut. Consequently, defendant's extended dealings with plaintiffs, are sufficient to bring him within the Connecticut long-arm statute, especially since the plaintiff's cause of action arises directly out of the same acts.
Defendant's contacts with Connecticut must also be scrutinized to determine whether they meet constitutional due process requirements.
It is the totality of the defendant's conduct and connections with the case that must be considered, on a case by case basis, to determine whether the defendant could reasonably have anticipated being haled into court here. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 92, 97-98 98 S.Ct. 1690, 1696, 1699-1700, 56 L.Ed.2d 132 (1978); Hanson v. Denckla, 357 U.S. 235, 251, 253 78 S.Ct. 1228, 1238, 1239, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, 326 U.S. 310, 316 66 S.Ct. 154, 158...
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