Designs for Health, Inc. v. Miller , 187 Conn. App. 1 ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
DESIGNS FOR HEALTH, INC. v. MARK MILLER
(AC 40708)
Keller, Bright and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for breach of
contract in connection with an agreement pursuant to which the defen-
dant agreed to sell certain products provided by the plaintiff. In its
complaint, the plaintiff alleged that the defendant, who is a resident of
California and maintains his primary place of business there, violated
the terms of the agreement and, therefore, was required to pay the
plaintiff damages pursuant to a liquidated damages clause in the
agreement, which contained a forum selection clause that required litiga-
tion arising from the agreement to be resolved by Connecticut courts.
The defendant filed a motion to dismiss the action for lack of personal
jurisdiction, asserting that the plaintiff could not meet its burden to
prove that he had signed the agreement. The defendant attached to his
motion an affidavit in which he averred that he never had any contact
with Connecticut and never signed, or authorized anyone to sign, any
document that might constitute doing business of any kind in Connecti-
cut. The plaintiff filed a memorandum of law in opposition to the motion
to dismiss in which it contended that the trial court had personal jurisdic-
tion over the defendant because he had signed the agreement electroni-
cally. The plaintiff submitted a number of attachments in support of its
opposition that cumulatively asserted that the defendant had signed the
agreement electronically. The defendant filed a reply and an attached
supplemental affidavit in which he specifically rebutted the plaintiff’s
contentions. Thereafter, the court conducted a hearing on the motion
to dismiss at which it heard the parties’ oral arguments. The parties did
not request and the court did not hold a full evidentiary hearing but,
instead, relied on the memoranda and documentary evidence submitted
by the parties to resolve the critical factual dispute as to whether the
defendant had signed the agreement electronically. The trial court
granted the motion to dismiss and rendered judgment thereon, conclud-
ing that the plaintiff failed to meet its burden to establish that the court
had jurisdiction over the defendant pursuant to the long arm statute
(§ 52-59b [a] [1]) applicable to nonresident individuals because it failed
to establish that the defendant had signed the agreement electronically.
On the plaintiff’s appeal to this court, held that the trial court improperly
granted the defendant’s motion to dismiss and concluded that it lacked
personal jurisdiction over the defendant: applying the prima facie stan-
dard used by the United States Court of Appeals for the Second Circuit
in cases involving jurisdictional disputes where the evidentiary record
is only partially developed and the parties have not requested a full
evidentiary hearing, this court concluded that the plaintiff met its burden
to make a prima facie showing that the court had personal jurisdiction
over the defendant because the plaintiff submitted evidence, which, if
credited by the trier of fact, was sufficient to establish that the defendant
electronically had signed the agreement containing the forum selection
clause; moreover, because the plaintiff met its threshold burden of
making a prima facie showing and the parties did not request and the
trial court did not hold a full evidentiary hearing, the trial court was
required to deny the defendant’s motion to dismiss.
Argued October 9, 2018—officially released January 8, 2019
Procedural History
Action to recover damages for breach of contract,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Scholl,
J., granted the defendant’s motion to dismiss for lack
of personal jurisdiction and rendered judgment thereon,
from which the plaintiff appealed to this court.
Reversed; further proceedings.
Stephen J. Curley, with whom, on the brief, was Dan-
iel B. Fitzgerald, for the appellant (plaintiff).
Jeffrey Hellman, for the appellee (defendant).
Opinion
BRIGHT, J. The plaintiff, Designs for Health, Inc.,
appeals from the judgment of the trial court granting
the motion to dismiss filed by the defendant, Mark
Miller. On appeal, the plaintiff claims that the court
improperly concluded that it lacked personal jurisdic-
tion over the defendant because the plaintiff failed to
establish that the defendant had signed electronically
an agreement in which the parties expressly agreed to
submit to the jurisdiction of state and federal courts in
Connecticut. We agree with the plaintiff and, accord-
ingly, reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the plaintiff’s claim. On Sep-
tember 27, 2016, the plaintiff filed this breach of
contract action against the defendant. In the one count
complaint, the plaintiff alleged the following relevant
facts. The plaintiff, a Florida corporation with offices
in Connecticut, ‘‘is in the business of producing and
selling a professional line of nutraceutical and natural
health products . . . to consumers for sale through
health care providers . . . .’’ The defendant, a podia-
trist, maintains a primary place of business in California
and is a resident of California. On or about June 10,
2016, the plaintiff and the defendant entered into an
agreement pursuant to which the defendant agreed to
sell products provided by the plaintiff. Between August
17 and September 8, 2016, the defendant violated the
agreement when he sold products that he had pur-
chased from the plaintiff on a website that had not been
authorized by the plaintiff. As a result of this violation,
the defendant is required, pursuant to a liquidated dam-
ages clause in the agreement, to pay the plaintiff at
least $53,000. The agreement, which was attached to
the complaint, contains a forum selection clause that
requires litigation arising from the agreement to be
resolved by Connecticut courts.1
On November 3, 2016, the defendant filed a motion
to dismiss in which he argued that the court lacked
personal jurisdiction over him because the plaintiff
could not meet its burden to prove that he had signed
the agreement. The defendant attached to his motion,
among other things, an affidavit in which he averred
that he never had any contact with the state of Connecti-
cut and never signed, or authorized anyone to sign, any
document that ‘‘might constitute doing business of any
kind in Connecticut.’’ On December 2, 2016, the plaintiff
filed a motion for an extension of time to respond to
the defendant’s motion so that it could depose the
defendant regarding the factual statements made in his
affidavit. On January 23, 2017, the court entered a sched-
uling order that permitted the plaintiff to conduct the
defendant’s deposition. On February 22, 2017, the plain-
tiff took the deposition of the defendant in California.
On March 24, 2017, the plaintiff filed a memorandum
of law in opposition to the defendant’s motion to dis-
miss in which it contended that the court had personal
jurisdiction over the defendant because he had signed
electronically the agreement that contained the forum
selection clause. The plaintiff submitted a number of
attachments in support of its opposition that cumula-
tively asserted that the defendant had signed electroni-
cally the agreement, including certain excerpts of the
deposition of the defendant, a copy of the agreement, an
affidavit of its general counsel, Stephen M. Carruthers,
a ‘‘DocuSign’’ certificate of completion, a screenshot of
a ‘‘GeoMapLookup’’ search, notice sent by Carruthers
to the defendant informing him of his alleged breach
of the agreement, documents evincing the service of
the defendant, an affidavit of the plaintiff’s independent
sales representative, Toni Lyn Davis, as well as a
redacted record of her telephone calls, and a series
of e-mails that purportedly were exchanged between
Carruthers and the defendant. On April 7, 2017, the
defendant filed a reply that contended that the plaintiff
failed to meet its burden to establish personal jurisdic-
tion, and he attached a supplemental affidavit in which
he specifically rebutted the contentions made by the
plaintiff in support of its opposition.
On May 22, 2017, the court conducted a hearing on
the motion to dismiss at which it heard the parties’
oral arguments. On May 31, 2017, the court issued a
memorandum of decision in which it granted the defen-
dant’s motion. Therein, the court noted that, although
‘‘due process requires that a trial-like hearing be held’’
when ‘‘issues of fact are necessary to the determination
of a court’s jurisdiction,’’ the ‘‘parties did not request
that an evidentiary hearing be held but rel[ied] on evi-
dence they ha[d] submitted by affidavit.’’ (Internal quo-
tation marks omitted.) Accordingly, the court compared
the evidence submitted by both parties2 and concluded
that ‘‘the plaintiff has failed to meet its burden to estab-
lish that this court has jurisdiction over the defendant.
It has not established that the defendant . . . trans-
acted any business in this state, that is, entered into
the agreement which is the subject of this lawsuit, such
that the court has jurisdiction over the defendant pursu-
ant to the long arm statute’’ applicable to nonresident
individuals, General Statutes § 52-59b (a) (1).3 On June
20, 2017, the plaintiff filed a motion to reargue, which
was denied summarily by the trial court. This appeal
followed. Additional facts will be set forth as necessary.
We begin with our standard of review and relevant
legal principles. ‘‘[A] challenge to the jurisdiction of the
court presents a question of law over which our review
is plenary.’’ (Internal quotation marks omitted.) Kenny
v. Banks, 289 Conn. 529, 532, 958 A.2d 750 (2008). ‘‘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 juris-
diction over the defendant. The trial court must first
decide whether the applicable state [long arm] statute
authorizes the assertion of jurisdiction over the [defen-
dant]. If the statutory requirements [are] met, its second
obligation [is] then to decide whether the exercise of
jurisdiction over the [defendant] would violate constitu-
tional principles of due process.’’ (Internal quotation
marks omitted.) Samelko v. Kingstone Ins. Co., 329
Conn. 249, 256, 184 A.3d 741 (2018).
‘‘Ordinarily, the defendant has the burden to disprove
personal jurisdiction.’’ Id. Nevertheless, ‘‘[i]f the defen-
dant 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., 282 Conn. 505,
515, 923 A.2d 638 (2007); see Standard Tallow Corp. v.
Jowdy, 190 Conn. 48, 53–54, 459 A.2d 503 (1983). ‘‘To
do so, the [plaintiff] must produce evidence adequate to
establish such jurisdiction.’’ (Internal quotation marks
omitted.) Samelko v. Kingstone Ins. Co., supra, 329
Conn. 256.
In the present case, the plaintiff’s sole basis for the
court’s exercise of personal jurisdiction over the defen-
dant is that he signed electronically the agreement that
contained the forum selection clause. The defendant
does not dispute that the court would have personal
jurisdiction over him if he had signed the agreement
containing the forum selection clause;4 rather, the
defendant maintains that he did not sign the agreement.
In determining whether a plaintiff met its burden to
establish personal jurisdiction over a defendant, a trial
court ‘‘may encounter different situations, depending
on the status of the record in the case. . . . [L]ack of
. . . jurisdiction may be found in any one of three
instances: (1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undis-
puted facts plus the court’s resolution of disputed
facts.’’ (Internal quotation marks omitted.) Angersola
v. Radiologic Associates of Middletown, P.C., 330 Conn.
251, 274, 193 A.3d 520 (2018); see also Cogswell v. Amer-
ican Transit Ins. Co., supra, 282 Conn. 516.
‘‘When a trial court decides a jurisdictional question
raised by a pretrial motion to dismiss on the basis of
the complaint alone, 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 necessar-
ily implied from the allegations, construing them in a
manner most favorable to the pleader. . . .
‘‘[When] the complaint is supplemented by undis-
puted facts established by affidavits submitted in sup-
port of the motion to dismiss . . . the trial court, in
determining the jurisdictional issue, may consider these
supplementary undisputed facts and need not conclu-
sively presume the validity of the allegations of the
complaint. . . . Rather, those allegations are tempered
by the light shed on them by the [supplementary undis-
puted facts]. . . . If affidavits and/or other evidence
submitted in support of a defendant’s motion to dismiss
conclusively establish that jurisdiction is lacking, and
the plaintiff fails to undermine this conclusion with
counteraffidavits . . . or other evidence, the trial court
may dismiss the action without further proceedings.
. . . If, however, the defendant submits either no proof
to rebut the plaintiff’s jurisdictional allegations . . . or
only evidence that fails to call those allegations into
question . . . the plaintiff need not supply counteraffi-
davits or other evidence to support the complaint . . .
but may rest on the jurisdictional allegations therein.’’
(Internal quotation marks omitted.) Angersola v. Radio-
logic Associates of Middletown, P.C., supra, 330 Conn.
274–75; see Golodner v. Women’s Center of Southeast-
ern Connecticut, Inc., 281 Conn. 819, 826–27, 917 A.2d
959 (2007) (trial court should accept all undisputed
facts when making personal jurisdiction determination
where no evidentiary hearing was requested); Knipple
v. Viking Communications, Ltd., 236 Conn. 602, 608–
609, 674 A.2d 426 (1996) (same).
‘‘Finally, [when] a jurisdictional determination is
dependent on the resolution of a critical factual dispute,
it cannot be decided on a motion to dismiss in the
absence of an evidentiary hearing to establish jurisdic-
tional facts. . . . Likewise, if the question of jurisdic-
tion is intertwined with the merits of the case, a court
cannot resolve the jurisdictional question without a
hearing to evaluate those merits. . . . An evidentiary
hearing is necessary because a court cannot make a
critical factual [jurisdictional] finding [on the basis of]
memoranda and documents submitted by the parties.
. . . In such circumstances, the court may also in its
discretion choose to postpone resolution of the jurisdic-
tional question until the parties complete further discov-
ery or, if necessary, [until] a full trial on the merits has
occurred.’’ (Citations omitted; internal quotation marks
omitted.) Angersola v. Radiologic Associates of Middle-
town, P.C., supra, 330 Conn. 275–76; see Kenny v.
Banks, supra, 289 Conn. 533–34 (trial court erred in
concluding that it lacked personal jurisdiction over non-
resident defendant without first holding evidentiary
hearing to resolve factual issues); Standard Tallow
Corp. v. Jowdy, supra, 190 Conn. 56 (same).
In the present case, the evidence submitted by both
parties created a critical factual dispute as to whether
the defendant had signed the agreement.5 The court,
notwithstanding the foregoing standard, resolved that
critical factual dispute on the basis of only the memo-
randa and documents submitted by the parties because
the ‘‘parties did not request that an evidentiary hearing
be held but rel[ied] on evidence they ha[d] submitted
by affidavit.’’ Indeed, we readily acknowledge that there
is nothing in the record to indicate that, prior to the
court’s decision on the motion to dismiss, the parties
specifically requested that the court hold an evidentiary
hearing, defer resolution to permit further discovery,
or postpone deciding that issue until trial.6
On appeal, the plaintiff does not argue that the court
erred by considering the critical factual dispute on the
basis of only the memoranda and documents submitted
by the parties; rather, the plaintiff’s position is that the
court erred when it improperly applied a heightened
standard of proof to resolve the critical factual dispute
in favor of the defendant. Although it is well established
that a plaintiff has the burden to prove the court’s per-
sonal jurisdiction over a nonresident defendant; see
Standard Tallow Corp. v. Jowdy, supra, 190 Conn.
51–54; the plaintiff maintains that neither our Supreme
Court nor this court has articulated the standard of
proof by which a plaintiff must establish personal juris-
diction to defeat a motion to dismiss filed by a nonresi-
dent defendant in a circumstance where a trial court
decides the motion on the basis of only the documentary
evidence submitted by the parties and without a full
evidentiary hearing. In the absence of such a rule, the
plaintiff advocates that we apply the prima facie stan-
dard that is employed by the federal courts and, at
times, by our Superior Court,7 to circumstances as in
the present case. We agree with the plaintiff.
We find particularly persuasive the decision of the
United States Court of Appeals for the Second Circuit
in Dorchester Financial Securities, Inc. v. Banco BRJ,
S.A., 722 F.3d 81 (2nd Cir. 2013),8 which outlined the
following federal standard applicable to motions to dis-
miss for lack of personal jurisdiction: ‘‘[I]n deciding a
pretrial motion to dismiss for lack of personal jurisdic-
tion a district court has considerable procedural lee-
way. It may determine the motion on the basis of
affidavits alone; or it may permit discovery in aid of
the motion; or it may conduct an evidentiary hearing
on the merits of the motion. . . . Significantly, how-
ever, the showing a plaintiff must make to defeat a
defendant’s claim that the court lacks personal jurisdic-
tion over it varies depending on the procedural posture
of the litigation. . . . [W]e [have] explained this sliding
scale as follows:
‘‘Prior to discovery, a plaintiff challenged by a juris-
diction testing motion may defeat the motion by plead-
ing in good faith, legally sufficient allegations of
jurisdiction. At that preliminary stage, the plaintiff’s
prima facie showing may be established solely by allega-
tions. After discovery, the plaintiff’s prima facie show-
ing, necessary to defeat a jurisdiction testing motion,
must include an averment of facts that, if credited by
the trier, would suffice to establish jurisdiction over
the defendant. At that point, the prima facie showing
must be factually supported.
‘‘Where the jurisdictional issue is in dispute, the plain-
tiff’s averment of jurisdictional facts will normally be
met in one of three ways . . . . If the defendant is
content to challenge only the sufficiency of the plain-
tiff’s factual allegation . . . the plaintiff need persuade
the court only that its factual allegations constitute a
prima facie showing of jurisdiction. If the defendant
asserts . . . that undisputed facts show the absence
of jurisdiction, the court proceeds . . . to determine
if undisputed facts exist that warrant the relief sought. If
the defendant contests the plaintiff’s factual allegations,
then a hearing is required, at which the plaintiff must
prove the existence of jurisdiction by a preponderance
of the evidence.’’ (Citations omitted; internal quotation
marks omitted.) Id., 84–85; see Marine Midland Bank,
N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981) (‘‘If the
court chooses not to conduct a full-blown evidentiary
hearing on the motion, the plaintiff need make only a
prima facie showing of jurisdiction through its own
affidavits and supporting materials. Eventually, of
course, the plaintiff must establish jurisdiction by a
preponderance of the evidence, either at a pretrial evi-
dentiary hearing or at trial. But until such a hearing is
held, a prima facie showing suffices, notwithstanding
any controverting presentation by the moving party, to
defeat the motion.’’).
We are persuaded that the sliding scale standard out-
lined by the United States Court of Appeals for the
Second Circuit in Dorchester Financial Securities,
Inc., should be applied to jurisdictional disputes arising
before Connecticut courts because it is entirely consis-
tent with Connecticut’s existing framework for the reso-
lution of jurisdictional issues. For instance, when a
Connecticut trial court decides a jurisdictional issue on
the basis of only the complaint, it accepts the plaintiff’s
jurisdictional allegations as true, essentially determin-
ing whether the plaintiff has made a prima facie case
for the exercise of jurisdiction. By contrast, when there
is a critical factual dispute relating to jurisdiction, or
when the question of jurisdiction is intertwined with
the resolution of the merits of the case, the trial court,
when requested by a party, must defer resolution of
the jurisdictional issue until an evidentiary hearing or
a trial on the merits has occurred. Because the proof
of a fact at the trial on the merits typically must be by
a preponderance of the evidence, that necessarily
would be the plaintiff’s burden to prove the same fact
for jurisdictional purposes. Furthermore, it would be
futile to hold a trial-like hearing if the burden of proof
was less than by a preponderance of the evidence.
Given the consistency of Connecticut practice with
Second Circuit jurisprudence in cases with no eviden-
tiary record and those with a full evidentiary record,
we also conclude that the Second Circuit’s use of the
prima facie standard makes sense for cases, such as
this, where the evidentiary record is only partially devel-
oped and the parties have not requested a full eviden-
tiary hearing. Our Supreme Court repeatedly has
cautioned trial courts not to make jurisdictional find-
ings where there are disputed issues of fact until the
court has held a full evidentiary hearing ‘‘because a
court cannot make a critical factual [jurisdictional] find-
ing [on the basis of] memoranda and documents submit-
ted by the parties.’’ (Internal quotation marks omitted.)
Angersola v. Radiologic Associates of Middletown,
P.C., supra, 330 Conn. 275. Consequently, where, as in
the present case, neither party requests an evidentiary
hearing, the court cannot resolve the parties’ factual
dispute. Instead, the court must determine whether the
plaintiff’s submissions establish a prima facie case. The
prima facie standard ensures that the critical factual
dispute remains unresolved until after an evidentiary
hearing or trial is held, at which the plaintiff would
have the elevated burden of proving the court’s personal
jurisdiction by a preponderance of the evidence.
Accordingly, having concluded that the prima facie
standard applies to the present case, we now consider
whether the plaintiff met its burden to make a prima
facie showing that the court had personal jurisdiction
over the defendant.9
‘‘[T]o establish a prima facie case, the proponent must
submit evidence which, if credited, is sufficient to estab-
lish the fact or facts which it is adduced to prove. . . .
[T]he evidence offered by the plaintiff is to be taken
as true and interpreted in the light most favorable to
[the plaintiff], and every reasonable inference is to be
drawn in [the plaintiff’s] favor.’’ (Internal quotation
marks omitted.) Schweiger v. Amica Mutual Ins. Co.,
110 Conn. App. 736, 739, 955 A.2d 1241, cert. denied,
289 Conn. 955, 961 A.2d 421 (2008); see 9 J. Wigmore,
Evidence (3d Ed. 1940) § 2494 (delineating general prin-
ciples of prima facie case). Consequently, because the
evidence submitted by the defendant tended to estab-
lish that the court lacked personal jurisdiction and the
court decided the defendant’s motion to dismiss on the
basis of only the parties’ documentary evidence, ‘‘the
plaintiff’s prima facie showing, necessary to defeat a
jurisdiction testing motion, must include an averment
of facts that [are factually supported, and] if credited
by the trier, would suffice to establish jurisdiction over
the defendant.’’ (Internal quotation marks omitted.)
Dorchester Financial Securities, Inc. v. Banco BRJ,
S.A., supra, 722 F.3d 85. This prima facie showing is
made notwithstanding any controverting presentation
by the defendant. Id., 86; see Marine Midland Bank,
N.A. v. Miller, supra, 664 F.2d 904.
In the present case, the plaintiff submitted several
attachments in support of its opposition to the defen-
dant’s motion to dismiss that purportedly established
that the defendant signed the agreement. In particular,
the plaintiff attached a copy of the alleged agreement
that contained the forum selection clause. The
agreement provides that it was entered into on June
10, 2016, by the plaintiff and ‘‘Mark Miller . . . having
an address of 2640B El Camino Real, Carlsbad, CA
92008.’’ The plaintiff’s general counsel, Carruthers,
attested in his affidavit that the agreement was executed
electronically ‘‘through a secure portal provided by a
third-party known as ‘DocuSign’ . . . .’’ The plaintiff
submitted a copy of a DocuSign certificate of comple-
tion that purportedly established that the defendant
electronically signed the agreement on June 10, 2016,
using the e-mail address drmillerorders@gmail.com.
Carruthers further averred that he had engaged in e-mail
correspondences concerning the breach of the alleged
agreement with the defendant, who was using the e-mail
address drmillerorders@gmail.com. The plaintiff sub-
mitted a printout of these e-mail correspondences,
which occurred between December 7 and 9, 2016.
The plaintiff also submitted an affidavit from its inde-
pendent sales representative, Davis, wherein she
attested that on June 22, 2016, twelve days after the
agreement allegedly was executed, she received a voice-
mail left by an individual who identified himself as ‘‘Dr.
Mark Miller.’’ She further averred that, approximately
ten minutes after she attempted to return the call, she
received a second call from the same telephone number
and that she spoke to an individual ‘‘who identified
himself as Dr. Mark Miller,’’ and who ‘‘indicated that he
desired to open an account to purchase [the plaintiff’s]
products for the patients of a group of five . . . health
care professionals . . . .’’ Davis attached to her affida-
vit a redacted printout of her telephone bill that evinces
the ‘‘place called,’’ date, time, number called, and dura-
tion of these telephone calls.
The plaintiff additionally submitted certain excerpts
of the deposition of the defendant taken on February 22,
2017. Therein, the defendant testified that he operates
a mobile podiatry practice and that his ‘‘corporate
address’’ is a United Parcel Service store at 2604B El
Camino Real, Box No. 311, Carlsbad, California 92008.10
He further testified that he received at his corporate
address a copy of the writ of summons and complaint
that stemmed from the present action, which was
addressed to 2640B El Camino Real, Carlsbad, Califor-
nia 92008. Further, the defendant stated that he was
familiar with DocuSign and that he previously had used
it to sign documents. The defendant also testified that
his only personal telephone number is the same tele-
phone number identified by Davis and that he had
received a telephone call ‘‘in late summer [or] early
fall’’ from Davis ‘‘about signing up as a distributor.’’ He
further testified that he previously had heard of the
plaintiff because it was recommended by one of his
patients ‘‘last summer,’’ but he could not recall whether
he ever ordered or received products from the plaintiff.
The circumstances of the present case are strikingly
similar to those at issue in Dorchester Financial Securi-
ties, Inc. v. Banco BRJ, S.A., supra, 722 F.3d 81. In that
case, the plaintiff, a Florida corporation with offices in
New York, filed an action alleging that the defendant,
a Brazilian bank, was liable for breaching an agreement
between the parties concerning an irrevocable letter of
credit. Id., 82–83. The defendant moved to dismiss the
action on the ground that the court lacked personal
jurisdiction over it. Id., 83. In response, the plaintiff
filed a memorandum of law and attached, among other
things, the agreement that contained a forum selection
clause by which the defendant allegedly consented to
submit to the jurisdiction of the state of New York.
Id. In support of its motion to dismiss, the defendant
contended that the plaintiff’s attachments were forger-
ies, and, accordingly, it submitted sworn declarations
and supporting documentation that categorically
denied the plaintiff’s contentions.11 Id., 83–84. The Dis-
trict Court granted the motion to dismiss on the basis
of the defendant’s ‘‘direct, highly specific testimonial
evidence’’ submitted in support of its denials, and the
plaintiff appealed therefrom. Id., 84.
The Second Circuit Court of Appeals applied the
prima facie standard to vacate the District Court’s deci-
sion that granted the defendant’s motion to dismiss. Id.,
85. The court held that, in the absence of an evidentiary
hearing or trial, the defendant’s alleged consent to the
forum selection clause contained within the agreement
submitted by the plaintiff was sufficient to establish a
prima facie case of personal jurisdiction. Id. The court
recognized that ‘‘there is plainly reason to question the
authenticity of the . . . agreement, as [the defendant’s]
evidence submitted to the district court tends to show
that the agreement and the other documents upon
which [the plaintiff] relied were forgeries. But in the
absence of an evidentiary hearing, it was error for the
district court to resolve that factual dispute in [the
defendant’s] favor.’’ Id., 86. It further held that ‘‘[t]o be
clear, we do not hold that the district court in this case
erred in failing to hold an evidentiary hearing, as there
is no indication that either party requested one. Nor
did the district court err in considering materials out-
side the pleadings, as we have made clear that a district
court may do so . . . . Instead, the district court’s
error was, having chosen not to conduct a full-blown
evidentiary hearing . . . in resolving the parties’ dis-
pute over the authenticity of [the plaintiff’s] evidence
rather than evaluating, whether [the plaintiff] had,
through its pleadings and affidavits, made a prima facie
showing of personal jurisdiction notwithstanding any
controverting presentation by the defendant . . . .’’
(Citations omitted; internal quotation marks omitted.)
Id.
The cumulative evidence submitted by the plaintiff
in the present case exceeds the evidence the Second
Circuit considered to be sufficient to establish a prima
facie case in Dorchester Financial Securities, Inc., in
which the court stated that it ‘‘need look no further’’
than the agreement that contained the forum selection
clause. See id., 85 and n.3. In the present case, the
plaintiff submitted an abundance of corroborating evi-
dence to establish that the defendant signed the
agreement. Carruthers’ affidavit evinced that the
agreement was executed electronically through Docu-
Sign by ‘‘Mark Miller,’’ who has an address of ‘‘2640B
El Camino Real, Carlsbad, CA 92008.’’ In his deposition,
the defendant testified that he received service stem-
ming from the present case at his corporate address,
which is sufficiently similar to the address designated
on the agreement. The defendant also testified that he
was familiar with DocuSign and had used it in the past.
The DocuSign certificate of completion evinces that the
agreement was signed on June 10, 2016, using the e-mail
address drmillerorders@gmail.com. That e-mail
address is corroborated by the statements in Carruth-
ers’ affidavit and the attached series of e-mails, which
purportedly demonstrated correspondences regarding
the breach of the alleged agreement between Carruthers
and drmillerorders@gmail.com. Additionally, the defen-
dant agreed at his deposition that he engaged in a tele-
phone conversation with Davis regarding the sale of the
plaintiff’s products around the time that the agreement
allegedly was executed. This admission is substantiated
by Davis’ affidavit and the printout of her telephone
bill that displays the particular details of those tele-
phone calls, which occurred two weeks after the
agreement allegedly was executed. Indeed, the defen-
dant conceded that his telephone number was identified
accurately by Davis. Finally, the defendant acknowl-
edged his familiarity with the plaintiff and did not
affirmatively deny that he ordered or received products
from the plaintiff, but, rather, he responded that he
could not recall.
Applying the foregoing principles to the present case,
we conclude that the plaintiff met its burden to make
a prima facie showing that the court had personal juris-
diction over the defendant because the plaintiff submit-
ted evidence, which, if credited by the trier of fact, was
sufficient to establish that the defendant had signed
the agreement containing the forum selection clause.
Nevertheless, we recognize, as the court did in Dorches-
ter Financial Securities, Inc., that the evidence submit-
ted by the defendant in support of his motion to dismiss
plainly calls into question whether the defendant actu-
ally signed the alleged agreement. Although a trial court
properly can consider such documentary evidence in
determining whether a critical factual dispute exists,
it cannot consider such evidence when determining
whether a plaintiff has made a prima facie showing,
and, absent a full evidentiary hearing, it cannot utilize
this evidence to resolve a critical factual dispute. Thus,
because the plaintiff met its threshold burden of making
a prima facie showing, and the parties did not request
and the court did not hold a full evidentiary hearing,
the court was required to deny the defendant’s motion
to dismiss.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The forum selection clause of the agreement provides: ‘‘This [a]greement
shall be governed in all respects by the substantive laws of the [s]tate of
Connecticut without regard to such state’s conflict of law principles. [The
parties] agree that the sole and exclusive venue and jurisdiction for disputes
arising from this [a]greement shall be in the state or federal court located
in Hartford [c]ounty, Connecticut, and [the parties] hereby submit to the
jurisdiction of such courts; provided, however, that equitable relief may be
sought in any court having proper jurisdiction.’’
2
The court excluded the evidence of the ‘‘GeoMapLookup’’ screenshot
and Carruthers’ related statements in his affidavit that purportedly demon-
strated the physical location of the Internet Protocol address (IP address)
used to execute the agreement. The court specifically stated that ‘‘[t]he only
evidence submitted by the plaintiff to establish that the referenced IP address
is the defendant’s is inadmissible and irrelevant hearsay in that it is informa-
tion from a domain which indicates that the IP address can be traced to
the vicinity of a town in California which borders the town in which the
defendant allegedly maintains a place of business.’’ Generally, although a
plaintiff may rely on only evidence that would be admissible at trial to make
a prima facie showing; see Lujan v. Cabana Management, Inc., 284 F.R.D.
50, 64 (E.D.N.Y. 2012); Adams v. Wex, 56 F. Supp. 2d 227, 229 (D. Conn.
1999); but see Schmidt v. Martec Industries Corp., United States District
Court, Docket No. 07-5020 (DRH) (E.D.N.Y. Sept. 3, 2009); we need not
consider whether the trial court erred by excluding this evidence because
the proximity of the physical location of the IP address is not necessary to
our resolution of this appeal. Consequently, assuming, without deciding,
that the trial court properly excluded this evidence, we likewise omit this
evidence from our consideration.
3
General Statutes § 52-59b (a) provides in relevant part: ‘‘[A] court may
exercise personal jurisdiction over any nonresident individual . . . who in
person or through an agent . . . (1) [t]ransacts any business within the
state . . . .’’
4
‘‘Unlike subject matter jurisdiction . . . personal jurisdiction may be
created through consent or waiver.’’ (Internal quotation marks omitted.)
Narayan v. Narayan, 305 Conn. 394, 402, 46 A.3d 90 (2012). ‘‘Where an
agreement contains a valid and enforceable forum selection clause, it is not
necessary to analyze jurisdiction under the state long-arm statutes or federal
constitutional due process. . . . Parties may consent to personal jurisdic-
tion through forum-selection clauses in contractual agreements.’’ (Citation
omitted; internal quotation marks omitted.) Discover Property & Casualty
Ins. Co. v. TETCO, Inc., 932 F. Supp. 2d 304, 309 (D. Conn. 2013); see
Phoenix Leasing, Inc. v. Kosinski, 47 Conn. App. 650, 653, 707 A.2d 314(1998) (‘‘forum selection clauses have generally been found to satisfy the
due process concerns targeted by the minimum contacts analysis’’).
5
As outlined previously in this opinion, the plaintiff submitted the
agreement containing the forum selection clause and a number of other
attachments that purportedly established that the defendant had signed the
agreement. The defendant submitted two affidavits in which he categorically
denied signing the agreement.
6
At the May 22, 2017 hearing on the motion to dismiss, the plaintiff
advocated that the issue of whether the defendant signed the agreement is
eventually going to have to be determined at trial, however, it did not request
that the court specifically delay making that determination until trial and,
in fact, argued that it had carried its burden ‘‘at the motion to dismiss phase.’’
Furthermore, in its June 29, 2017 motion to reargue, the plaintiff set forth
the following proposition: ‘‘[The plaintiff] believes that the court can and
should deny [the] defendant’s motion without any additional corroborating
information concerning the IP address. However, if the court takes the
position that additional information regarding the IP address is essential to
deciding the motion, [the plaintiff] would appreciate the opportunity to
conduct some additional discovery and subpoena information relating to
the IP address.’’ See footnote 2 of this opinion. This request, however, was
made after the court already had decided the motion to dismiss.
7
See, e.g., Tregaskis v. Wine Enthusiast Cos., Superior Court, judicial
district of Litchfield, Docket No. CV-XX-XXXXXXX-S (July 21, 1995) (relying
on In re Connecticut Asbestos Litigation, 677 F. Supp 70, 72 [D. Conn
1986]); Noon v. Calley & Currier Co., Superior Court, judicial district of
Hartford, Docket No. CV-93-521514-S (March 9, 1995) (14 Conn. L. Rptr.
132) (same); Vitale Fireworks Display Co. v. S. Mantsuna & Co., Superior
Court, judicial district of Litchfield, Docket No. CV-XX-XXXXXXX-S (October
31, 1994) (same); but see Gamlestaden PLC v. Lindholm, Superior Court,
judicial district of Stamford-Norwalk, Docket No. CV-XX-XXXXXXX-S (February
28, 1996) (declining to follow prima facie rule).
8
‘‘[F]ederal rules of civil procedure and the federal court’s interpretations
thereon are not binding upon the state courts. . . . Federal case law, partic-
ularly decisions of the United States Court of Appeals for the Second Circuit
. . . can be persuasive in the absence of state appellate authority . . . .’’
(Citations omitted; internal quotation marks omitted.) Duart v. Dept. of
Correction, 116 Conn. App. 758, 765, 977 A.2d 670 (2009), aff’d, 303 Conn.
479, 34 A.3d 343 (2012); Turner v. Frowein, 253 Conn. 312, 341, 752 A.2d
955 (2000) (‘‘[d]ecisions of the Second Circuit Court of Appeals, although
not binding on us, are particularly persuasive’’).
9
Although the court rendered its judgment without the benefit of this
opinion, we need not remand the matter to the trial court for a determination
as to whether the plaintiff made a prima facie showing of personal jurisdic-
tion because that issue can be determined as a matter of law on the basis
of the record before us. See Emerick v. Glastonbury, 145 Conn. App. 122, 131,
74 A.3d 512 (2013) (remand unnecessary where record on appeal sufficient
to make determination as matter of law), cert. denied, 311 Conn. 901, 83
A.3d 348 (2014); Rosenthal v. Bloomfield, 178 Conn. App. 258, 263, 174 A.3d
839 (2017) (‘‘[w]hether the plaintiff has made out a prima facie case is a
question of law’’ [internal quotation marks omitted]).
10
The defendant’s corporate address, 2604B El Camino Real, Box No. 311,
Carlsbad, California 92008, is substantially similar to the defendant’s address
listed on the agreement, ‘‘2640B El Camino Real, Carlsbad, CA 92008.’’
11
Specifically, the defendant’s evidence tended to show that (1) it had no
prior relationship with the plaintiff, (2) it never did business in the United
States, and (3) it had never issued financial instruments of the size and
nature of the purported letter of credit. The defendant also submitted court
documents from Florida and California to show that it had been the victim
of similar fraudulent schemes in those states.