Standard Tallow Corp. v. Jowdy

• Decision Date: 03 May 1983
• Citation: 190 Conn. 48,459 A.2d 503
• Court: Connecticut Supreme Court
• Parties: STANDARD TALLOW CORPORATION v. James JOWDY et al.

Page 503

459 A.2d 503

190 Conn. 48

STANDARD TALLOW CORPORATION v. James JOWDY et al.

Supreme Court of Connecticut.

Argued Dec. 2, 1982.

Decided May 3, 1983.

[190 Conn. 49] Robert P. Volpe, Hartford, with whom, on the brief, was Robert B. Yules, Hartford, for appellant (plaintiff).

Robert Rasamny, West Redding, for appellee (defendant Bahij Halaby).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

SPEZIALE, Chief Justice.

This appeal by the plaintiff concerns the dismissal of the plaintiff's action by the trial court on the ground of lack of jurisdiction over an out of state defendant. The plaintiff, Standard Tallow Corporation, is a New Jersey corporation, authorized to do business in this state. The defendants, James Jowdy and Bahij Halaby, ¹ were personal guarantors of a series of twelve promissory notes issued by Economat Supermarkets, Inc., a foreign corporation, and payable at a bank in New York. When Economat Supermarkets, Inc., defaulted on the notes, the plaintiff elected to exercise an acceleration clause therein and brought this action to collect the amount due from the defendants.

The plaintiff obtained an order of prejudgment remedy from the court, N. O'Neill, J., and real estate located in Danbury belonging to the defendant Halaby was attached by a deputy sheriff on February 25, 1980. Notice by mail was sent to Halaby in New York State pursuant to an order of notice dated April 11, 1980. Halaby did own the real property attached, which was unrelated to the plaintiff's cause of action, but he was not a Connecticut resident when the action was commenced.

On May 7, 1980, Halaby filed a motion to dismiss, claiming that the attachment of real property owned by him was not sufficient to support the jurisdiction of the court over him. On June 10, 1980, the plaintiff filed a motion to postpone the hearing on Halaby's motion until fourteen days after Halaby complied with the plaintiff's discovery request, which was to be filed in the future. On June 13, 1980, the plaintiff filed a ten page request for disclosure and production of documents directed to establishing facts upon which jurisdiction could be shown. Thereafter, on June 20, 1980, Halaby filed an objection to the plaintiff's motion to postpone. Arguments on both the motion to dismiss and the motion to postpone were heard on July 1, 1980 by the court, Moraghan, J. At that time, the trial court refused the plaintiff's request for a trial-like hearing, but it did accept into evidence certain documents indicating Halaby's ownership of real estate and also indicating his ownership in 1976 of a business in Connecticut. The court orally denied the motion to postpone the hearing, thereby in effect denying the plaintiff's request for disclosure and production. By an order and memorandum of decision filed October 20, 1980, the court found that the plaintiff had based its assertion of jurisdiction solely on Halaby's ownership of real property located in Connecticut, that the plaintiff had the burden of proving jurisdiction, and that "the attachment of real property, without more, is insufficient to satisfy the minimum contacts standard required by Shaffer [v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) ]" for the assertion of quasi in rem jurisdiction. It therefore granted Halaby's motion to dismiss and to dissolve the prejudgment attachment of the defendant's property. ²

The plaintiff appealed the dismissal to this court claiming that the court erred (1) by placing the burden on it to prove jurisdiction; (2) by denying it a trial-like hearing to determine contested issues of fact; (3) by refusing to postpone any hearing on the jurisdictional issue until the plaintiff could obtain discovery of facts to determine the extent of Halaby's contacts with the state of Connecticut; and (4) by finding that Halaby had insufficient contacts with Connecticut to justify the exercise of quasi in rem jurisdiction over him.

We conclude that the trial court correctly placed the burden of proving jurisdiction on the plaintiff as the party alleging quasi in rem jurisdiction, but that it erred in denying the plaintiff a trial-like hearing and in denying a continuance of the hearing to permit discovery on the issue of jurisdiction. Because the plaintiff was prohibited from developing a factual record on the question of Halaby's actual contacts in the trial court, it would be premature at this time to address the question of whether Halaby's contacts are sufficient for the court to assert quasi in rem jurisdiction over him.

I BURDEN OF PROOF

The plaintiff's first claim is that the burden of proof should be on a defendant who files a motion to dismiss thereby contesting the court's jurisdiction over him, rather than on the plaintiff who asks the court to assume jurisdiction. "[A]ll assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe [Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ] and its progeny." Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2583, 53 L.Ed.2d 683 (1977); see Hodge v. Hodge, 178 Conn. 308, 318, 422 A.2d 280 (1979). Those standards, as set out in International Shoe, require that "in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " (Emphasis in original.) International Shoe Co. v. Washington, supra, 326 U.S. at 316, 66 S.Ct. at 158.

Whether sufficient minimum contacts exist for a court to have jurisdiction is clearly dependent on the facts of each particular case. "Like any standard that requires a determination of 'reasonableness,' the 'minimum contacts' test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present. Hanson v. Denckla, 357 U.S. 235, 246 [78 S.Ct. 1228, 1235, 2 L.Ed.2d 1283] (1958)." Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132, reh. denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978).

In many cases jurisdiction is immediately evident, as where the sheriff's return shows abode service in Connecticut. When, however, the jurisdictional basis is not clear on the face of the record ³ because service is had under the long-arm statutes, ⁴ additional facts establishing the "minimum contacts" required by due process may need to be shown. It has not been the practice in this state to require these minimum contacts to be made a part of the allegations in the complaint. Because a lack of personal jurisdiction may be waived by the defendant, ⁵ the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss. Practice Book §§ 142, 143(2), 144. If the defendant challenges the court's jurisdiction, it is then incumbent on the plaintiff to prove the facts establishing the requisite minimum contacts.

"The general rule putting the burden of proof on the defendant as to jurisdictional issues raised is based on the presumption of the truth of the matters stated in the officer's return. When jurisdiction is based on personal or abode service, the matters stated in the return, if true, confer jurisdiction. When jurisdiction is based on constructive service, jurisdiction cannot arise solely from the acts recited in the return. There should be no presumption of the truth of the plaintiff's allegation of the additional facts necessary to confer jurisdiction." 1 Stephenson, Conn.Civ.Proc. (2d Ed.) § 96, p. 390. Placing the burden on the plaintiff to prove contested factual issues pertaining to jurisdiction is in accord with rulings in other states which have addressed the same question. See Chavez v. State of Indiana, 122 Ariz. 560, 596 P.2d 698 (App.1979); Pace Carpet Mills v. Life Carpet & Tile Co., 365 So.2d 445 (Fla.App.1978); Mergenthaler Linotype v. Storch Enterprises, 66 Ill.App.3d 789, 23 Ill.Dec. 352, 383 N.E.2d 1379 (1978); Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957); Krupnick v. Danin, 86 A.D.2d 623, 446 N.Y.S.2d 357 (1982); Lincoln v. Seawright, 104 Wisc.2d 4, 310 N.W.2d 596 (1981).

This court has recognized that the burden of proof is on the plaintiff to prove jurisdiction over the person when constructive service is used. In Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 429 A.2d 478 (1980), the defendant, a New York resident, allegedly was served via a person alleged to be his agent in Connecticut, but was never personally served. He "moved to dismiss the complaint against him, alleging lack of personal jurisdiction over him. When this motion was heard, the plaintiff requested and received a continuance to enable it to make an appropriate evidentiary showing." (Emphasis added.) Id., 224, 429 A.2d 478. When a motion to dismiss for lack of personal jurisdiction raises a factual question which is not determinable from the face of the record, the burden of proof is on the plaintiff to present evidence which will establish jurisdiction. The trial court correctly placed this burden on the plaintiff. ⁶

II TRIAL-LIKE HEARING; DISCOVERY

The plaintiff next claims that the trial court erred by denying it a trial-like hearing on the question of jurisdiction. It further claims that the court erred by denying it an opportunity to obtain discovery from Halaby before a hearing was held.

The trial court denied without comment the plaintiff's motion to postpone the hearing on Halaby's motion to dismiss, and it proceeded immediately to hear argument on the motion to dismiss. The trial court in effect ruled that an evidentiary hearing was necessary when it recognized that the minimum contacts test of International Shoe Co. v. Washington, supra, should...