Matthews v. SBA, Inc.

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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
(Appeal from Superior Court, judicial district of
Waterbury, Complex Litigation Docket, Shaban, J.)
Justin R. Clark, with whom, on the brief, was Wendell
G. Davis, Jr., for the appellants (plaintiffs).
John F. Farraher, Jr., pro hac vice, with whom were
David B. Zabel and, on the brief, Barbara M. Schellenb-
erg, 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 Ste-
phen Kotfila, appeal from the judgment of the trial court
granting the defendants’ motions to dismiss. The plain-
tiffs, 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 of which are foreign business entities
and nonresident individuals, are, for the purpose of
clarity, best organized into four categories: (1) the SBA
defendants; (2) the Investment Company defendants;
(3) the Employee defendants; and (4) James H. Ross.
In total, three motions to dismiss were filed: one on
behalf of the SBA defendants; one on behalf of the
Investment Company defendants and Employee defen-
dants; and one on behalf of Ross. The court granted
the motions to dismiss on various grounds as to each
defendant and thereupon rendered judgment in favor
of the defendants, from which the plaintiffs appealed.
The plaintiffs claim that the court improperly granted
the defendants’ motions to dismiss because it erred in
finding that (1) there was insufficient service of process
pursuant to General Statutes §§ 52-59b (c), 34-225 (b),
and 33-929 (b); (2) it lacked personal jurisdiction under
the applicable long arm provisions, General Statutes
§§ 52-59b (a) and 33-929 (f), and as a violation of consti-
tutional due process; and (3) venue was improper pur-
suant to General Statutes § 51-345. We affirm the
judgment of the court.
I
BACKGROUND
This case arises out of underlying events in which
the plaintiffs allege they were injured by misrepresenta-
tions 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, each of which maintains a business
address in Massachusetts.4
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 Wire-
less Incorporated (BWI). Some assets of BWI were pur-
chased by a newly formed company named Optasite,
of which the plaintiffs were founding members and
shareholders. At that time, Optasite was a Massachu-
setts company with a principal place of business in
Glastonbury, Connecticut. Village Ventures, Inc., and
Worcester Venture Fund, L.P., were early stage, minor-
ity interest investors in Optasite. Both plaintiffs left
Optasite in 2001 to take positions at a company named
Pinnacle Site Development, Inc. (Pinnacle), a Connecti-
cut corporation doing business in Glastonbury, Con-
necticut.
‘‘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 Glaston-
bury, Connecticut. Negotiations over the merger, which
included telephone calls and in-person meetings by all
parties involved, were done substantially in Glaston-
bury, Connecticut. The merger was closed on Septem-
ber 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 criti-
cized the plaintiffs and otherwise frustrated their
attempts to act upon the business model. All the defen-
dants 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 defen-
dants attempted to force the plaintiffs from New Optas-
ite 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 resigna-
tion. 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 New Optasite to limit its
response to third party requests for information con-
cerning Matthews. This contract was drafted and exe-
cuted in Connecticut. In June, 2003, Kotfila also
resigned from New Optasite. In further reliance on rep-
resentations 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 plain-
tiffs, 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 Glaston-
bury, 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, Mas-
sachusetts. 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 Optas-
ite, Ross, then chief executive officer of New Optasite,
served as an expert against Matthews in a Massachu-
setts 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 Corpora-
tion.’’ (Footnote omitted.)
Service of a copy of the writ of summons and com-
plaint was attempted or made upon twenty of the defen-
dants on or about September 13, 2011.5 Pursuant to
Practice Book §§ 10-30 and 10-31 (a), on November 3,
2011, the SBA defendants, on their own behalf, and the
Investment Company defendants, on behalf of them-
selves and the Employee defendants, each filed a
motion to dismiss the complaint. As grounds for their
motions, the defendants asserted (1) insufficient ser-
vice 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, § 52-
59b (a) and § 33-929 (f), and as a violation of constitu-
tional principles of due process; and (3) improper venue
pursuant to § 51-345.
In support of their motion to dismiss, the SBA defen-
dants submitted an affidavit by Thomas P. Hunt, general
counsel for SBA Communications Corporation. In his
affidavit, Hunt detailed the histories of the SBA defen-
dants. He averred, inter alia, that SBA Communications
Corporation is incorporated and has its principal place
of business in Florida, ‘‘has no contacts’’ with Connecti-
cut, is not registered to transact business in Connecti-
cut, 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 Invest-
ment Company defendants: Marsh submitted an affida-
vit on behalf of Point Judith Capital Partners, LLC and
related entities; Matthew C. Harris submitted an affida-
vit on behalf of Village Ventures, Inc., and related enti-
ties; and Peake submitted an affidavit on behalf of
Worcester Venture Fund, L.P., Worcester Capital Part-
ners, 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 Con-
necticut that would be sufficient to establish juris-
diction.
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,
§ 52-59b (a), and as a violation of constitutional due
process; (2) improper venue pursuant to § 51-345; and
(3) lack of subject matter jurisdiction.6 Ross, too, sub-
mitted an affidavit in support of his motion to dismiss.
He averred, inter alia, that he did not become president
and chief operating officer of New Optasite until after
the plaintiffs had left the company, that he never had
been a party to a contract with or attended a meeting
with either plaintiff, and that he had never had a discus-
sion with either plaintiff concerning their interests in
New Optasite. Ross further averred that he engaged in
no activity in Connecticut related to the valuation of
the Colorado telecommunications company and its
assets. All activity associated with the valuation
occurred in Massachusetts.
Thereafter, the plaintiffs filed memoranda of law in
opposition to the three motions to dismiss. Pursuant
to Practice Book § 10-31 (b),7 Matthews and Kotfila both
provided the court with counteraffidavits, effectively
reiterating the allegations made in the complaint. After
a hearing, the court granted the motions to dismiss and
dismissed the claims against the twenty-one defendants
on different grounds as to each defendant.
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 defen-
dants). 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 dis-
missed the claims against five merged defendants, hav-
ing 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 Infra-
structure Holdings II, Inc., formerly known as Optasite,
Inc.,10 Optasite Tower Holdings, LLC; and Optasite Hold-
ing Company, Inc. At oral argument before this court,
the plaintiffs’ counsel conceded that the trial court
could not exercise personal jurisdiction over the nonex-
istent 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 exis-
tence at the time the action against it commenced, as
it had been dissolved in 2004. The court therefore con-
cluded 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 dis-
missed the claims against the following ten defendants
for lack of personal jurisdiction as a result of the plain-
tiffs’ 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 § 51-345, venue
in Connecticut was improper with respect to ‘‘all’’ defen-
dants and granted the defendants’ motions to dismiss
on that ground.
The plaintiffs first claim that the court erred by dis-
missing the claims against six defendants—Harris;
Worcester Venture Fund, L.P.; Worcester Capital Part-
ners, 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, § 52-59b (a)
and General Statutes § 33-929 (f), and as a violation of
constitutional due process. In the alternative, for the
first time on appeal, the plaintiffs argue that the court
committed plain error by failing to conclude, sua
sponte, that § 33-929 (f)—which permits only a resident
or a person having a usual place of business in this state
to sue a foreign corporation in a Connecticut court—
violates article first, § 10, of the constitution of Connect-
icut and the commerce clause of the United States con-
stitution.11 Third, the plaintiffs claim that the court erred
in finding that venue in Connecticut was improper pur-
suant to § 51-345.12 We are not persuaded by the plain-
tiffs’ arguments, and, accordingly, affirm the decision
of the court.
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 [determi-
nation] 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, constru-
ing 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 affida-
vits 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 sup-
port of a defendant’s motion to dismiss conclusively
establish that jurisdiction is lacking, and the plaintiff
fails to undermine this conclusion with counteraffida-
vits . . . or other evidence, the trial court may dismiss
the action without further proceedings.’’ (Internal quo-
tation marks omitted.) Worth v. Commissioner of
Transportation, 135 Conn. App. 506, 516, 43 A.3d 199,
cert. denied, 305 Conn. 919, 47 A.3d 389 (2012); see also
Knipple v. Viking Communications, Ltd., 236 Conn.
602, 608, 674 A.2d 426 (1996) (noting that ‘‘this court
has previously considered the undisputed factual allega-
tions in the complaint as well as the undisputed factual
allegations in the various affidavits when adjudicating
the motion [to dismiss] where no evidentiary hearing
has been held’’).
‘‘[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 judi-
cial 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 juris-
diction is a foreign corporation or a nonresident individ-
ual, 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 for-
eign business entities—contested personal jurisdiction,
the plaintiffs assumed the burden of establishing juris-
diction. As an evidentiary hearing was neither requested
nor held, we accept, as did the trial court, the undis-
puted allegations in the complaint, the affidavits submit-
ted 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 Ven-
ture 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] juris-
diction over that party.’’ (Internal quotation marks omit-
ted.) 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 pre-
scribes, 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
service of process in time, form, and manner sufficient
to satisfy the requirements of mandatory statutes . . .
are essential to jurisdiction over the person.’’ (Internal
quotation marks omitted.) Bowen v. Seery, 99 Conn.
App. 635, 637, 915 A.2d 335, cert. denied, 282 Conn. 906,
920 A.2d 308 (2007). There is a presumption of truth
in matters asserted in the marshal’s return of service.
Cogswell v. American Transit Ins. Co., supra, 282 Conn.
515. Mindful of these overarching principles, we now
turn to assessing the sufficiency of service as to each
of the six defendants the court concluded were improp-
erly served.
A
Harris
The plaintiffs argue that the court improperly con-
cluded that it did not have jurisdiction over Harris, a
Massachusetts resident, because service of process was
not effected in compliance with § 52-59b (c), the long
arm statute applicable to nonresident individuals, for-
eign partnerships, and foreign voluntary associations.
We are not persuaded.
Section 52-59b (c) requires process to be served ‘‘by
leaving with or at the office of the Secretary of the
State, at least twelve days before the return day of
such process, a true and attested copy thereof, and by
sending to the defendant at the defendant’s last-known
address, by registered or certified mail, postage prepaid,
return receipt requested, a like true and attested copy
with an endorsement thereon of the service upon the
Secretary of the State. . . .’’ Noting that the address at
which service was attempted was not Harris’ actual
address, and that ‘‘it is not clear what process the plain-
tiffs engaged in to ascertain [Harris’] last known
address,’’ the court concluded that the plaintiffs had
not served Harris at his last known address, as required
by the statute. The plaintiffs contend that because they
made a search for Harris’ address which revealed that
‘‘there appear to be several addresses for Matthew Har-
ris both before and after 2008,’’ and because Harris
received notice of the suit, they satisfied this last known
address requirement and service of process was there-
fore proper under § 52-59b (c).
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 appel-
late 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 served with process at his
abode in connection with this litigation.
Our Supreme Court has stated with respect to the
last known address requirement of § 52-59b (c): ‘‘The
requirement that [process] be mailed to the defendant at
his ‘last-known address’ does not mean the last address
known to the plaintiff but does mean the last address
of the defendant so far as it is known, that is, by those
who under the ordinary circumstances of life would
know it. Unless the defendant has departed for parts
unknown, it means his actual address; if he has disap-
peared it means his last address so far as it is reasonably
possible to ascertain it. This address the plaintiff must
learn at his peril and only if the copy is mailed to it is
there a compliance with the statute. . . . Interpreted
in the sense which the legislature intended, our statute,
if complied with, will certainly bring about a reasonable
probability of actual notice of the pendency of the
action to the defendant.’’ (Internal quotation marks
omitted.) Cadlerock Joint Venture II, L.P. v. Milazzo,
287 Conn. 379, 393, 949 A.2d 450 (2008); see also D’Oc-
chio v. Connecticut Real Estate Commission, 189 Conn.
162, 171, 455 A.2d 833 (1983) (holding that sending
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 defen-
dant’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 acknowl-
edge 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, Massachu-
setts, ‘‘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 plain-
tiffs 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 § 52-59b (c) and that it
therefore lacked jurisdiction over him. Accordingly, the
court properly granted the motion to dismiss as to
Harris.
B
Worcester Venture Fund, L.P.
As noted, § 52-59b (c) also governs service of process
upon foreign partnerships and requires that the plaintiff
leave process with the secretary of the state and send
process to the defendant at its last known address. See
part III A of this opinion. The court found that the
plaintiffs did not satisfy either of these two require-
ments: that is, they did not serve the secretary of the
state or Worcester Venture Fund, L.P., a Delaware lim-
ited partnership with a principal place of business in
Amherst, Massachusetts, at its last known address.
The ‘‘argument’’ portion of the plaintiffs’ brief
addressing the dismissal of the claims against Worces-
ter Venture Fund, L.P., consists of four sentences and
lacks a single citation to legal authority. The first sen-
tence merely insists that the court erred in finding insuf-
ficient 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 defen-
dant 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 § 52-59b (c) requires service upon
the secretary of the state. The plaintiffs do not even
contest the fact that they did not leave process with
the secretary of the state in connection with Worcester
Venture Fund, L.P.14
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 aban-
doning an issue by failure to brief the issue properly.
. . . [F]or this court judiciously and efficiently to con-
sider 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 have not
been adequately briefed. . . . [A]ssignments of error
which are merely mentioned but not briefed beyond a
statement of the claim will be deemed abandoned and
will not be reviewed by this court. . . . Where the par-
ties cite no law and provide no analysis of their claims,
we do not review such claims.’’ (Internal quotation
marks omitted.) Russell v. Russell, 91 Conn. App. 619,
634–35, 882 A.2d 98, cert. denied, 276 Conn. 924, 925,
888 A.2d 92 (2005).
Without analysis or discussion regarding the court’s
conclusion that service of process upon Worcester Ven-
ture Fund, L.P., was insufficient because the plaintiffs
did not leave process with the secretary of the state, a
mandatory requirement under § 52-59b (c), we cannot
reverse the judgment of the trial court.15
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 Worces-
ter Capital Partners, LLC, and Point Judith Capital Part-
ners, 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 General Statutes § 34-225
(b),16 the statute governing service of process upon for-
eign limited liability companies.
The following additional facts are relevant to our
resolution of these claims. Worcester Capital Partners,
LLC, and Point Judith Capital Partners, LLC, are both
Delaware limited liability companies. The marshal’s
return of service indicates that a copy of the writ of
summons and complaint was sent to Worcester Capital
Partners, LLC, at its former place of business in Hadley,
Massachusetts. Worcester Capital Partners, LLC, had
vacated those premises in 2010 and relocated to
Amherst, Massachusetts. Worcester Capital Partners,
LLC, was never served at its Amherst address. Likewise,
Point Judith Capital Partners, LLC, had a principal place
of business in Boston, Massachusetts, at the time that
service was attempted. The marshal’s return of service,
however, indicates that a copy of the writ of summons
and complaint was instead mailed to Point Judith Capi-
tal Partners, LLC’s former place of business in Provi-
dence, Rhode Island. Nothing in the record or the
marshal’s returns of service suggests that the secretary
of the state was served in connection with Point Judith
Capital Partners, LLC, or Worcester Capital Partners,
LLC.
Section 34-225 (b) requires that service be made upon
the foreign limited liability company’s agent or, where
one has not been appointed or cannot be located with
reasonable diligence, upon the secretary of the state.
General Statutes § 34-225 (b). Assessing the sufficiency
of service under § 34-225 (b), the court concluded that
‘‘[t]here is no record or evidence that the plaintiffs have
made service upon Worcester Capital Partners, LLC, or
Point Judith Capital Partners, LLC, in accordance with
the statute, or that they even served the defendants
at the addresses they occupied at the time suit was
commenced.’’ Moreover, the plaintiffs do not dispute
that the addresses at which they attempted to serve the
defendants were incorrect, and they acknowledge that
§ 34-225 (b) governs service of process upon foreign
limited liability companies. Instead, they assert that ‘‘the
law recognizes that other methods of service of process
may be a proper means to notify someone that there
is a lawsuit against them,’’ and that because the defen-
dants received notice of the pendency of the action
against them, service of process was therefore suf-
ficient.
This court has previously held that ‘‘there is no exclu-
sive 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). Section 34-
225 (d) is explicit that the section does not exclude
other methods of serving foreign limited liability compa-
nies, so long as the alternative method is otherwise
authorized by law.17 The plaintiffs, however, have not
cited any statute authorizing service of process by the
method they employed.18 Nor have they provided the
court with any basis to demonstrate that, despite a
diligent search, they were not able to serve Worcester
Capital Partners, LLC, and Point Judith Capital Part-
ners, LLC, at their correct addresses.
Furthermore, we are unconvinced by the plaintiffs’
argument that service of process was sufficient simply
because Worcester Capital Partners, LLC, and Point
Judith Capital Partners, LLC, received notice of the suit
against them. As we have previously noted, ‘‘[p]roper
service of process is not some mere technicality.’’
Hibner v. Bruening, supra, 78 Conn. App. 458. Although
the defendants received notice of the suit against them,
‘‘[m]ere notice of an action is not sufficient to confer
personal jurisdiction over a nonresident defendant.
. . . Such jurisdiction over a nonresident requires stat-
utory authorization.’’ (Citation omitted; internal quota-
tion marks omitted.) Cato v. Cato, 27 Conn. App. 142,
144, 605 A.2d 558 (1992), aff’d, 226 Conn. 1, 626 A.2d
734 (1993). The plaintiffs, in this case, are correct that
they were not necessarily required to serve Worcester
Capital Partners, LLC, or Point Judith Capital Partners,
LLC, in accordance with the procedures set forth in
§ 34-225, but in opposing the defendants’ motion to
dismiss, they were required to demonstrate that they
served the defendants in a manner otherwise ‘‘permitted
by law,’’ which they have not done. See General Statutes
§ 34-225 (d).
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 Capi-
tal 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
of process, addressed to Village Ventures Services, Inc.,
was mailed to the business address of Village Ventures,
Inc., in Williamstown, Massachusetts. Similarly, Optas-
ite Towers, LLC, changed its name to SBA Infrastruc-
ture, 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 sum-
mons 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 Grey-
hound 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 Vil-
lage Ventures, Inc. That is, the plaintiffs argue that
where only the name of the company changes, but the
entity undergoes no ‘‘substantive change,’’ service
under the entity’s former name does not defeat service
of process. The plaintiffs offer no legal support for this
proposition. Nor do the plaintiffs state in their appellate
briefs what statutory provision authorized the particu-
lar methods of service of process that they employed.
Rather, they simply insist that because SBA Infrastruc-
ture, LLC, and Village Ventures, Inc., received notice
of the suit against them, even if the writ of summons
and complaint used their former names, service of pro-
cess was proper.
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 aban-
doning 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 Optas-
ite 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 pro-
vide 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 Corpora-
tion; (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, § 52-59b (a) and § 33-929 (f); and
second, the defendants have the constitutionally man-
dated minimum contacts with the state sufficient to
permit the exercise of personal jurisdiction in accor-
dance with the due process clause of the fourteenth
amendment.
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 jurisdic-
tion, the plaintiff bears the burden of presenting evi-
dence 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 two part inquiry is required.
The trial court must first decide whether the applicable
state long-arm statute authorizes the assertion of juris-
diction over the [defendant]. If the statutory require-
ments [are] met, its second obligation [is] then to decide
whether the exercise of jurisdiction over the [defen-
dant] would violate constitutional principles of due pro-
cess.’’19 (Internal quotation marks omitted.) Knipple v.
Viking Communications, Ltd., supra, 236 Conn. 606.
‘‘Only if we find the [long arm] statute to be applicable
do we reach the question whether it would offend due
process to assert jurisdiction.’’ Lombard Bros., Inc. v.
General Asset Management Co., 190 Conn. 245, 250,
460 A.2d 481 (1983). Here, the trial court found that the
plaintiffs had failed to prove that the requirements of
our long arm statutes had been satisfied, and that exer-
cising jurisdiction over the defendants would not com-
port with constitutional due process. We do not reach
the plaintiffs’ challenge to the court’s conclusion that
exercising jurisdiction would not comport with due pro-
cess in view of our determination that the court cor-
rectly 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 corpora-
tions, SBA Communications Corporation and Village
Ventures Services, Inc. Ultimately, we are not per-
suaded by the plaintiffs’ arguments and affirm the judg-
ment 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 sur-
viving foreign limited liability company defendants—
Optasite Towers, LLC; Point Judith Capital Partners,
LLC; and Worcester Capital Partners, LLC—pursuant
to § 33-929 (f), the long arm provision that expressly
applies only to foreign corporations. Because our
review of the court’s decision is plenary, we must
resolve for the first time whether § 52-59b (a),20 our
general long arm provision, or § 33-929 (f),21 our corpo-
ration specific long arm provision, governs the jurisdic-
tional analysis of foreign limited liability companies.
Although the court apparently analyzed long arm
jurisdiction over the foreign LLCs under our corpora-
tion specific long arm statute, § 33-929, we are con-
vinced that our general long arm jurisdiction statute,
§ 52-59b, applies to foreign LLCs.22 The court, in part,
based its dismissal of the claims against the LLC defen-
dants on the fact that the plaintiffs failed to satisfy the
residency requirements of § 33-929 (f), and therefore
could not sue a foreign business entity in Connecticut
courts. See part IV B of this opinion. It also concluded
that the plaintiffs’ allegations were too conclusory,
based on ‘‘group allegations’’ that were not particular-
ized as to the individual defendants, and did not raise
any genuine issue of material fact that the individual
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, General Statutes §§ 34-100 to 34-242, con-
tains provisions pertaining to the registration of foreign
LLCs in Connecticut; General Statutes § 34-223; and the
service of process on foreign LLCs; General Statutes
§ 34-225; see part III C of this opinion; the legislature
did not expressly specify how to treat foreign LLCs for
the purposes of long arm jurisdiction. Additionally, our
Supreme Court has not yet had occasion to decide
whether § 52-59b (a) or § 33-929 (f) is the long arm
provision that applies to foreign LLCs. There is a split of
authority among our trial courts and the federal District
Courts that have confronted this issue. We agree with
the majority of the courts, and, adopting the well rea-
soned analysis of the United States District Court for
the District of Connecticut in Austen v. Catterton Part-
ners V, LP, 729 F. Supp. 2d 548, 553–60 (D. Conn. 2010),
we hold that our general long arm jurisdiction provision,
§ 52-59b, rather than our corporation specific long arm
provision, § 33-929, applies to foreign LLCs.23
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 § 33-
929 (f) applies only to ‘‘foreign corporations,’’ whereas
§ 52-59b (a) applies expressly only to ‘‘nonresident indi-
vidual[s], foreign partnership[s] or foreign voluntary
association[s],’’ the court found that an LLC, a relatively
new form of business organization, does ‘‘not fit easily
into any of those categories,’’ and thus determined that
the statutes were ambiguous. (Internal quotation marks
omitted.) Id., 557. After examining extratextual evi-
dence, as authorized by General Statutes § 1-2z, the
court concluded that § 52-59b (a) was the appropriate
long arm statute to apply to foreign LLCs. Id., 557–59.
The court in Austen relied on three reasons in coming
to this conclusion. ‘‘First, the structure of the Connecti-
cut General Statutes provides persuasive evidence that
§ 52-59b (a), and not § 33-929 (e)-(f), is the long-arm
jurisdiction statute applicable to foreign LLCs in Con-
necticut. Although § 52-59b (a) on its face is a statute
with limited reach—to individuals, partnerships, and
voluntary associations—it is codified in Title 52, which
provides the general rules of civil procedure that apply
in Connecticut courts. Section 33-929 (e)-(f), on the
other hand, is codified in Title 33, which contains Con-
necticut’s corporation law. The placement of § 52-59b
(a) and § 33-929 (e)-(f) in the General Statutes suggests
that § 52-59b (a) is the generally applicable long-arm
jurisdiction statute that applies to all business organiza-
tions other than corporations. Furthermore, although
LLCs are neither corporations nor partnerships, Con-
necticut’s Limited Liability Company Act is codified at
Title 34, which also includes Connecticut’s partnership
law, rather than at Title 33, which consists of the corpo-
ration law. While the placement of the limited liability
company laws in the General Statutes does not neces-
sarily support classifying LLCs as partnerships, it does
counsel against applying to LLCs a long-arm provision
specific to corporations.’’ (Emphasis omitted.) Id., 558.
Second, the court stated: ‘‘[C]onstruing § 52-59b (a)
to apply to LLCs requires less violence to the text of
the statute than construing § 33-929 (e)-(f) to apply to
LLCs. . . . If the Court reads the term ‘LLC’ into the
text of § 52-59b (a), all the other terms of the statute
are equally applicable to individuals, partnerships, vol-
untary associations, and LLCs. The same is true of § 33-
929 (f), but it is not quite true of § 33-929 (e). Under
that subsection, a foreign corporation may be sued in
Connecticut upon any cause of action arising from the
corporation’s transaction of business in Connecticut in
violation of § 33-920. Section 33-920 is a provision that
specifically requires foreign corporations to obtain a
certificate of authority from the Secretary of the State
before conducting business in Connecticut. Although
there is an analogous provision requiring foreign LLCs
to register with the Secretary of the State, see Conn.
Gen. Stat. § 34-223, § 33-920 does not apply to LLCs,
and §§ 33-920 and § 34-223 do not appear to be precisely
coextensive. Thus, interpreting § 33-929 (e) to apply to
foreign corporations and foreign LLCs to the same
extent would require further significant textual alter-
ations.’’ (Citation omitted.) Austen v. Catterton Part-
ners V, LP, supra, 729 F. Supp. 2d 558.
Finally, the court in Austen was persuaded that
‘‘absent a clear and definitive textual answer, and
absent any conclusive extra-textual evidence of statu-
tory meaning, the Supreme Court of Connecticut would
interpret § 52-59b (a) and § 33-929 (e)-(f) in the manner
most consistent with the . . . years of lower Connecti-
cut court decisions interpreting the two statutes.’’ Id.,
558–59.24 We agree with the court in Austen and are
convinced that § 52-59b (a) was the provision under
which the trial court should have assessed long arm
jurisdiction over Optasite Towers, LLC, Point Judith
Capital Partners, LLC, and Worcester Capital Partners,
LLC. Although the court did not analyze the issue under
§ 52-59b (a), we nonetheless affirm the decision of the
court dismissing the claims against these foreign LLCs
for lack of long arm jurisdiction.
Having decided that § 52-59b (a) is the long arm stat-
ute applicable to foreign LLCs, we turn to the statute.
Under § 52-59b (a), a foreign LLC is subject to personal
jurisdiction in Connecticut if the LLC (1) transacts any
business within the state, (2) commits a tortious act
other than defamation within the state, (3) commits a
tortious act other than defamation outside the state
that causes injury within the state, (4) owns, uses, or
possesses real property in the state, or (5) uses a com-
puter or computer network located in the state. The
plaintiffs’ only allegation is that Optasite Towers, LLC,
Point Judith Capital Partners, LLC, and Worcester Capi-
tal Partners, LLC, engaged in tortious conduct in Con-
necticut that brings them within the ambit of § 52-59b
(a) (2).
In dismissing the claims against the defendants, the
court found that the plaintiffs did not allege with suffi-
cient specificity in the complaint and affidavits that
each individual defendant had engaged in tortious con-
duct. The court stated: ‘‘The plaintiffs’ complaint and
supporting affidavits house a number of group allega-
tions. Notably, to the extent the complaint and support-
ing 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 alle-
gations such as these are not sufficient to establish
personal jurisdiction over a specific defendant and can-
not 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-07-5007876S, CV-07-5007877S
(May 9, 2008) (Eveleigh, J.), which held, ‘‘group allega-
tions that all defendants engaged in tortious conduct
are not sufficient to establish long arm jurisdiction over
a particular defendant. . . . Rather, plaintiffs must pre-
sent jurisdictional facts as to each defendant.’’ (Cita-
tion omitted.)
We agree with the court’s reasoning and find that
neither the complaint nor the plaintiffs’ affidavits con-
tain any specific factual allegations that Optasite
Towers, LLC, Point Judith Capital Partners, LLC, or
Worcester Capital Partners, LLC, engaged in any tor-
tious conduct in this state sufficient to establish juris-
diction. 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 defen-
dant.’’ 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 sub-
mitted in support of the defendants’ motions to dismiss
specifically refuted the claims against the individual
defendants. The defendants’ affidavits indicate that nei-
ther Optasite Towers, LLC, Point Judith Capital Part-
ners, 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 Con-
necticut. As previously noted, Hunt averred that Optas-
ite 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 Infra-
structure, 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.
The plaintiffs’ counteraffidavits do not refute those
claims. Rather, they rely solely on the conclusory allega-
tions contained in their complaint that the ‘‘Investment
Companies’’ and ‘‘SBA defendants’’ engaged in tortious
conduct, none of which is attributed to any individual
defendant. As our Supreme Court has stated, ‘‘if the
complaint is supplemented by undisputed facts estab-
lished by affidavits submitted in support of the motion
to dismiss . . . [then] the trial court, in determining the
jurisdictional issue, may consider these supplementary
undisputed facts and need not conclusively presume
the validity of the allegations of the complaint. . . .
Rather, those allegations are tempered by the light shed
on them by the [supplementary undisputed facts]. If
affidavits and/or other evidence submitted in support
of a defendant’s motion to dismiss conclusively estab-
lish 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.’’ (Emphasis
altered; internal quotation marks omitted.) Columbia
Air Services, Inc. v. Dept. of Transportation, 293 Conn.
342, 347–48, 977 A.2d 636 (2009). In the present case,
the plaintiffs’ counteraffidavits fail to undermine the
defendants’ affidavits that conclusively establish that
jurisdiction is lacking.
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) (plain-
tiff’s complaint and affidavit contained no specific fac-
tual 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) (plaintiff’s testimony as
to necessary jurisdictional facts was as conclusory as
complaint’s allegations), aff’d, 254 Conn. 145, 757 A.2d
14 (2000). Moreover, those allegations must allege juris-
dictional 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
Section 52-59b (a) expressly governs long arm juris-
diction over nonresident individuals and foreign part-
nerships. As such, we discuss the court’s dismissal of
the claims against Marsh, Harris, Peake, Ross, and
Worcester Venture Fund, L.P., together. The plaintiffs
again claim that they alleged facts sufficient to establish
that the aforementioned defendants committed tortious
acts within the state of Connecticut.
As we have explained, under § 52-59b (a), a court
possesses personal jurisdiction over nonresident indi-
viduals and foreign partnerships with respect to causes
of action arising out of tortious conduct within the state.
The crux of the plaintiffs’ claim is that Marsh, Harris,
and Peake—the ‘‘Individual Defendants’’—and the
‘‘Investment Companies,’’ including Worcester Venture
Fund, L.P., collectively made fraudulent misrepresenta-
tions and committed tortious conduct which harmed
the plaintiffs.
Relying on West Hartford v. Taubman Centers, Inc.,
supra, Superior Court, Docket Nos. CV-07-5007876S,
CV-07-5007877S, the court found that, ‘‘[b]etween the
allegations of the complaint and supporting affidavits,
the plaintiffs have only pled in generalities as to each
and every defendant and have not alleged any particu-
larized claims as to any of the Investment Company
and Employee defendants that raise a question of mate-
rial fact as to whether any tortious conduct occurred.’’
We agree with the trial court that the plaintiffs’ claims
rest upon group allegations that fail to specify the tor-
tious conduct in which any particular individual defen-
dant engaged.
The plaintiffs rely on several allegations in their com-
plaint 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 [plain-
tiffs] that [their] interest in New Optasite was and would
always be pari passu with existing and future sharehold-
ers and/or investors in New Optasite and/or its succes-
sor 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 Ven-
tures 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’ affi-
davits 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
§ 52-59b (a) (2). Indeed, it is undisputed that all of the
acts that allegedly gave rise to the plaintiffs’ claims
against Ross occurred in Massachusetts, where the val-
uation of the Colorado telecommunications company
occurred. Moreover, the plaintiffs do not allege that
Ross was a party to the contract alleged to have been
breached or that he committed any tortious act outside
the state that caused injury to any person or property
within Connecticut. Even if we assume that the plain-
tiffs had alleged that Ross committed a tortious act,
the complaint and affidavits are devoid of any allegation
that that act caused injury ‘‘to a person or property
within the state,’’ a necessary claim for establishing
jurisdiction pursuant to § 52-59b (a) (3). Indeed, the
plaintiffs are both Massachusetts residents.
For these reasons, the plaintiffs failed to allege juris-
dictional 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 Commu-
nications Corporation and Village Ventures Services,
Inc. The plaintiffs assert, as they did before the trial
court, that § 33-929 (f) authorizes jurisdiction over these
foreign corporations.25 The court correctly ruled that
because the plaintiffs are not residents of this state and
do not have a usual place of business in Connecticut,
they cannot use § 33-929 (f) to establish jurisdiction
over SBA Communications Corporation, a Florida cor-
poration with its principal place of business in Boca
Raton, Florida, or Village Ventures Services, Inc., a Dela-
ware corporation with its principal place of business
in Amherst, Massachusetts.
The explicit language of § 33-929 (f) empowers only
‘‘a resident of this state’’ or a ‘‘person having a usual
place of business in this state’’ to sue a foreign corpora-
tion in a Connecticut court. See Wilkinson v. Boats
Unlimited, Inc., 236 Conn. 78, 87, 670 A.2d 1296 (1996)
(discussing § 33-411 [c], formerly § 33-929 [f]). Accord-
ingly, the plaintiffs, Massachusetts residents, argue that
they maintain a usual place of business in Connecticut.
They offer four reasons in support of this assertion: (1)
they formerly worked for companies that, at the time
of the complained of actions, had their primary places of
business in Connecticut; (2) the complained of actions
occurred in Connecticut; (3) they are members of four
Connecticut limited liability companies; and (4) they
‘‘regularly conduct business in Connecticut.’’ The plain-
tiffs’ argument is without merit, and because they have
failed to demonstrate that they have a usual place of
business in Connecticut, they cannot use § 33-929 (f)
to establish long arm jurisdiction over SBA Communica-
tions Corporation or Village Ventures Services, Inc.26
The plaintiffs’ first two bases for satisfying the resi-
dency requirement are irrelevant to establishing a usual
place of business under § 33-929 (f). The plain language
of the statute speaks to the time of the filing of the
suit, rather than the time when the underlying events
occurred, as the operative moment at which the ‘‘usual
place of business’’ or residency requirement must be
satisfied. That is, the statute states that a foreign corpo-
ration may be sued in our courts ‘‘by a person having a
usual place of business in this state.’’ (Emphasis added.)
General Statutes § 33-929 (f). The statute does not open
our courts to former residents or persons who, at some
prior time, had a usual place of business in Connecticut,
and the plaintiffs offer no support for this proposition.
The fact that the alleged tortious conduct by the
defendants occurred in Connecticut is similarly unavail-
ing to satisfy the residency requirements. Section § 33-
929 (f) provides in relevant part: ‘‘Every foreign corpora-
tion shall be subject to suit in this state, by a resident
of this state or by a person having a usual place of
business in this state, whether or not such foreign cor-
poration is transacting or has transacted business in
this state and whether or not it is engaged exclusively in
interstate or foreign commerce, on any cause of action
arising . . . out of tortious conduct in this state
. . . .’’ The statute requires both that the tortious con-
duct occurred in this state, and that the plaintiffs fulfill
the residency requirement. That the alleged tortious
conduct occurred in this state does not by itself allow
the plaintiffs to use § 33-929 (f) to subject SBA Commu-
nications Corporation or Village Ventures Services, Inc.,
to our long arm jurisdiction.
We are equally unpersuaded by the plaintiffs’ con-
tention that their membership in four Connecticut lim-
ited 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 mem-
bers. . . . 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 plain-
tiffs were permitted to invoke their membership in Con-
necticut LLCs to show that they maintain a usual place
of business in this state, the record does not demon-
strate 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.’’ Par-
ticularly, the plaintiffs aver in their affidavits that they
‘‘have and continue to do business in the State of Con-
necticut . . . .’’ 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 § 33-929 (f). In order to evaluate
the plaintiffs’ claim, it is necessary for us to determine
the contours of what is required to establish a ‘‘usual
place of business.’’ This requirement presents a ques-
tion of statutory construction ‘‘over which this court
exercises plenary review.’’ State v. LaFleur, 307 Conn.
115, 125, 51 A.3d 1048 (2012). ‘‘When construing a stat-
ute, [o]ur fundamental objective is to ascertain and give
effect to the apparent intent of the legislature. . . . In
other words, we seek to determine, in a reasoned man-
ner, the meaning of the statutory language as applied
to the facts of [the] case, including the question of
whether the language actually does apply. . . . In seek-
ing to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation. . . . When
a statute is not plain and unambiguous, we also look
for interpretive guidance to the legislative history and
circumstances surrounding its enactment, to the legisla-
tive policy it was designed to implement, and to its
relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) McCoy v.
Commissioner of Public Safety, 300 Conn. 144, 150–51,
12 A.3d 948 (2011).
As § 1-2z directs, we begin our analysis with the text
of the statute. Noticeably, the text of the statute does
not define the term ‘‘usual place of business.’’ A wider
search, moreover, reveals that the term is also not
expressly defined elsewhere in the General Statutes.
Our textual inquiry, however, does not end here.
Accordingly, ‘‘we turn to General Statutes § 1-1 (a),
which provides in relevant part: ‘In the construction
of the statutes, words and phrases shall be construed
according to the commonly approved usage of the lan-
guage . . . .’ We look to the dictionary definition of the
[term] to ascertain [its] commonly approved meaning.’’
R.C. Equity Group, LLC v. Zoning Commission, 285
Conn. 240, 254 n.17, 939 A.2d 1122 (2008); see also
Groton v. Mardie Lane Homes, LLC, 286 Conn. 280,
288, 943 A.2d 449 (2008) (‘‘[i]f a statute or regulation
does not sufficiently define a term, it is appropriate
to look to the common understanding of the term as
expressed in a dictionary’’ [internal quotation marks
omitted]).
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 expe-
rience, 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 defini-
tion, 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 alleg-
ing 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 Con-
necticut . . . .’’ 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 com-
plaint and affidavits are devoid of any allegations con-
cerning 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, insuffi-
cient 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 the company
that employs the plaintiffs, Tower Acquisition, LLC, is
a Delaware company with a business address in Massa-
chusetts.
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 jurisdic-
tion.’’ Knipple v. Viking Communications, Ltd., supra,
236 Conn. 607. The plaintiffs have not done so. We
conclude, therefore, that the trial court properly dis-
missed the plaintiffs’ complaint against SBA Communi-
cations Corporation and Village Ventures Services, Inc.,
on the ground that the plaintiffs did not satisfy the
residency requirements of § 33-929 (f).
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 Part-
ners; 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 com-
menced. 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 Part-
ners, 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.
1
In its finding of facts, the court found that the official name of New
Optasite is, in fact, Optasite, Inc. We must note, however, that the plaintiffs
never identify in their complaint or supporting affidavits the actual corporate
name of New Optasite. Nor do they otherwise allege which, if any, of the
defendants is its successor.
2
For the purposes of this appeal, we refer to the defendants as follows:
The SBA defendants are: (1) SBA, Inc.; (2) SBA Infrastructure Holdings,
Inc.; (3) SBA Infrastructure Holdings II, Inc., formerly known as Optasite,
Inc.; (4) SBA Acquisition 2008-2, Inc.; (5) SBA Communications Corporation;
(6) Optasite Holdings, LLC; (7) Optasite Towers, LLC; (8) Optasite Tower
Holdings, LLC; and (9) Optasite Holding Company, Inc.
The Investment Company defendants are: (1) Point Judith; (2) Point Judith
Capital Partners, LLC; (3) Worcester Capital Partners; (4) Worcester Capital
Partners, LLC; (5) Worcester Venture Fund, L.P.; (6) Village Ventures; (7)
Village Ventures Services, Inc.; and (8) Village Ventures Securities Corpo-
ration.
The Employee defendants are: (1) Sean M. Marsh; (2) Matthew C. Harris;
and (3) Word D. Peake III. Marsh, a Massachusetts resident, was employed
by Village Ventures, Inc., as regional managing director from 2000 to 2006.
Since 2001, he has been a member of Point Judith Capital Partners, LLC.
Harris is a resident of New York and has been employed by Village Ventures,
Inc., since 2000. Peake, a Massachusetts resident, is a member of Long River
Capital Management, LLC, which is the sole member of Worcester Capital
Management, LLC, neither of which are parties to this action. Worcester
Capital Management, LLC, manages Worcester Capital Partners, LLC, which,
in turn, is the general partner of Worcester Venture Fund, L.P.
The fourth group of defendants consists solely of James H. Ross. Ross is
a Massachusetts resident and has served as the president and chief operating
officer of New Optasite since 2003.
3
The complaint alleges: (1) breach of contract as to the SBA defendants
and the Investment Company defendants; (2) breach of the covenant of
good faith and fair dealing as to the SBA defendants and the Investment
Company defendants; (3) unjust enrichment as to the SBA defendants and the
Investment Company defendants; (4) breach of contract as to the Employee
defendants; (5) breach of the covenant of good faith and fair dealing as
to the Employee defendants; (6) unjust enrichment as to the Employee
defendants; (7) breach of contract of separation as to the SBA defendants
and Ross; (8) breach of fiduciary duty as to the SBA defendants and the
Investment Company defendants; (9) fraudulent misrepresentation as to
all defendants; (10) negligent misrepresentation as to all defendants; (11)
tortious interference with contract as to the Investment Company defendants
and the Employee defendants; (12) tortious interference with a business
expectancy as to the Investment Company defendants, the Employee defen-
dants, and Ross; (13) conversion as to the SBA defendants; (14) replevin
as to the SBA defendants; and (15) violation of the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq., as to the SBA defendants
and Investment Company defendants.
4
The plaintiffs’ four limited liability companies are: (1) MKB Properties,
LLC; (2) Western Summits, LLC; (3) Canyon Summits, LLC; and (4) Montana
Summits, LLC. These limited liability companies are not plaintiffs and are
not relevant to the allegations of the complaint. They are referenced by the
plaintiffs solely as a basis for their claim that they satisfy the residency
requirements of the long arm provision of General Statutes § 33-929. See
part IV C of this opinion.
5
Although not noted by the court, we observe that of the twenty-one
defendants, Optasite Holding Company, Inc., was not named in the summons
despite being named as a defendant in the complaint. The record contains
no indication that the plaintiffs served or attempted to serve process upon
Optasite Holding Company, Inc. Generally, ‘‘[o]ne who is not served with
process does not have the status of a party to the proceeding.’’ (Internal
quotation marks omitted.) Bicio v. Brewer, 92 Conn. App. 158, 165, 884 A.2d
12 (2005) (finding that state of Connecticut was not party to action where
writ of summons named only defendant, motorist operating state owned
ambulance, and record did not indicate service of process was made upon
state). The plaintiffs’ attorney, however, conceded at argument before this
court that the trial court did not have personal jurisdiction over Optasite
Holding Company, Inc., because, prior to commencement of this action, the
entity had ceased to exist by virtue of merger and its successor had not
been named a defendant. See footnote 9 of this opinion and accompanying
text. Because the plaintiffs have conceded that the court did not have
jurisdiction over Optasite Holding Company, Inc., we need not address
further the issue concerning sufficiency of service of process on Optasite
Holding Company, Inc.
6
The court found that the plaintiffs’ claims were within the court’s subject
matter jurisdiction and denied Ross’ motion to dismiss on that ground. Ross
has not appealed from that judgment.
7
Practice Book (2012) § 10-31 (b), now § 10-31 (a), provides in relevant
part: ‘‘Any adverse party who objects to [a motion to dismiss] shall, at least
five days before the motion is to be considered on the short calendar, file
and serve . . . a memorandum of law and, where appropriate, supporting
affidavits as to facts not apparent on the record.’’
8
Indeed, in apparent recognition that two of the defendants never had
existed, the plaintiffs withdrew their claims against SBA Infrastructure Hold-
ings, Inc., and Optasite Holdings, LLC, following the hearing on the motions.
9
An entity absorbed in a merger ceases to exist and any of its remaining
liabilities are assumed by the successor entity. Because the absorbed entity
ceases to exist, it therefore cannot be sued. This proposition is true for
both corporations and limited liability companies. See General Statutes (Rev.
to 2011) § 33-820 (a) (‘‘When a merger becomes effective . . . [2] [t]he
separate existence of every corporation or other entity that is merged into
the survivor ceases,’’ and, ‘‘[3] [a]ll liabilities of each corporation or other
entity that is merged into the survivor are vested in the survivor . . . .’’);
General Statutes (Rev. to 2011) § 34-197 (‘‘[2] The separate existence of
each limited liability company or other entity that is a party to the plan of
merger or consolidation, except the survivor, shall cease. . . . [6] The survi-
vor shall be responsible and liable for all liabilities and obligations of each
of the limited liability companies or other entities that were merged or
consolidated . . . .’’).
10
We are obliged to note an inconsistency in the court’s findings. In its
memorandum of decision, the court found that SBA Infrastructure Holdings,
Inc., both never had existed and had ceased to exist by virtue of merger.
We recognize this to be nothing more than a typographical error and con-
clude that the court correctly found that SBA Infrastructure Holdings, Inc.,
never had existed, and intended to identify SBA Infrastructure Holdings II,
Inc., as having ceased to exist by virtue of merger. This conclusion is amply
supported by the record and the court’s findings. In his affidavit, Hunt
averred: ‘‘To the best of my knowledge and as reflected in the records of
SBA Communications Corporation, there is not now and there has never
been an entity named ‘SBA Infrastructure Holdings, Inc.,’ which is a named
Defendant.’’ Indeed, following the hearing on the motions to dismiss, the
plaintiffs withdrew their claims against SBA Infrastructure Holdings, Inc.
See footnote 8 of this opinion.
The court, however, also found that SBA Infrastructure Holdings II, Inc.,
ultimately had merged into an entity called SBA Infrastructure, LLC, which is
not a party to this action. This finding is also supported by Hunt’s undisputed
averments. As such, we adhere to ‘‘[t]he prevailing rule . . . that scrivener’s
errors should generally be overlooked on review.’’ (Internal quotation marks
omitted.) State v. Bothwell, 78 Conn. App. 64, 77, 826 A.2d 182, cert. denied,
266 Conn. 908, 832 A.2d 72 (2003).
11
The plaintiffs’ plain error argument merits only brief discussion. ‘‘[The
plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts to rectify errors committed at trial that,
although unpreserved, are of such monumental proportion that they threaten
to erode our system of justice and work a serious and manifest injustice
on the aggrieved party. . . . An appellate court addressing a claim of plain
error first must determine if the error is indeed plain in the sense that it is
patent [or] readily discernable on the face of a factually adequate record,
[and] also . . . obvious in the sense of not debatable.’’ (Citation omitted;
internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 684–85,
31 A.3d 1012 (2011). This case does not present this type of extraordinary
situation, as the alleged error can hardly be described as ‘‘obvious in the
sense of not debatable.’’ (Internal quotation marks omitted.) Id., 685. Given
that our courts routinely apply the long arm provision of § 33-929 without
considering or questioning its constitutionality, it is difficult to fathom why
the court should have identified it, sua sponte, as a blatantly obvious and
nondebatable violation of the Connecticut and United States constitutions.
Moreover, the case law suggests the opposite. The United States Court
of Appeals for the Second Circuit has stated: ‘‘There is nothing to compel
a state to exercise jurisdiction over a foreign corporation unless it chooses
to do so, and the extent to which it so chooses is a matter for the law of
the state as made by its legislature.’’ (Internal quotation marks omitted.)
Arrowsmith v. United Press International, 320 F.2d 219, 222 (2d Cir. 1963);
id., 232 n.19 (concluding that Vermont’s long arm statute, which limited
suits against foreign corporations to suits brought by its own residents, did
not violate equal protection clause of fourteenth amendment or privileges
and immunities clause of article four, § 2, of the United States constitution).
Accordingly, given the lack of any obvious error, we decline to reverse the
court’s decision pursuant to the plain error doctrine.
12
‘‘When a defendant files a motion to dismiss challenging the court’s
jurisdiction, a two part inquiry is required. The trial court must first decide
whether the applicable state long-arm 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.) Knipple v. Viking Communications,
Ltd., 236 Conn. 602, 606, 674 A.2d 426 (1996). ‘‘It is axiomatic that courts
do not engage in constitutional analysis if a nonconstitutional basis upon
which to resolve an issue exists.’’ Shelton v. Statewide Grievance Committee,
277 Conn. 99, 107, 890 A.2d 104 (2006). Because we conclude that the
long arm statutes do not authorize the assertion of jurisdiction over the
defendants, we do not reach the plaintiffs’ argument that exercising jurisdic-
tion over the defendants comports with constitutional due process. Likewise,
because we conclude that the court properly granted the motions to dismiss
for insufficient service of process and lack of long arm jurisdiction, we need
not discuss the plaintiffs’ claim that venue in Connecticut was proper.
13
It is worth noting that our Superior Courts, which have addressed the
last known address requirement far more frequently than our appellate
courts, routinely require some foundation for establishing the extent and
nature of the plaintiff’s search. See Dime Bank v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., Superior Court, judicial district of Stamford-Norwalk,
Complex Litigation Docket, Docket No. X05-CV-09-4017091S (January 15,
2010) (affidavit submitted by plaintiff’s attorney describing steps taken to
determine nonresident defendants’ last known address did not support con-
clusion it was nonresident defendants’ last known address); Ross v.
Castelano, Superior Court, judicial district of Stamford-Norwalk, Docket No.
CV-02-0190247 (May 6, 2003) (concluding plaintiffs did not serve defendant at
his last known address because they failed to file ‘‘any affidavits or any
document’’ or ‘‘proof . . . of . . . investigation’’); cf. Updike, Kelly, & Spel-
lacy, P.C. v. Beckett, Superior Court, judicial district of Hartford, Docket
No. X03-CV-04-97890S (March 6, 2002) (31 Conn. L. Rptr. 500) (affidavit
submitted by employee of plaintiff describing reliance on address provided
by defendant and prior use of that address for correspondence supported
conclusion it was defendant’s last known address), rev’d on other grounds,
269 Conn. 613, 850 A.2d 145 (2004). In this case, the plaintiffs did not provide
the court with any such documentary support evincing the nature or extent
of their search for Harris’—or any other defendant’s—last known address.
14
We confirm that nothing in the marshal’s return or the record indicates
that process was left with the secretary of the state, as required by § 52-
59b (c).
15
Even if the plaintiffs had left process with the secretary of the state,
for the reasons set forth in part III A of this opinion, the plaintiffs did not
satisfy their burden of proving that they served Worcester Venture Fund,
L.P., at its last known address.
16
General Statutes § 34-225 (b) provides: ‘‘When the Secretary of the State
and the Secretary of the State’s successors in office have been appointed
a foreign limited liability company’s agent for service of process, the foreign
limited liability company may be served by any proper officer or other
person lawfully empowered to make service leaving two true and attested
copies of such process together with the required fee at the office of the
Secretary of the State or depositing the same in the United States mail, by
registered or certified mail, postage prepaid, addressed to said office. The
Secretary of the State shall file one copy of such process and keep a record
of the date and hour of such receipt, and, within two business days after
such service, forward by registered or certified mail the other copy of such
process to the foreign limited liability company at the address of the office
designated in the application for registration filed pursuant to section 34-
223. Service so made shall be effective as of the date and hour received by
the Secretary of the State as shown on the Secretary of the State’s records.
If it appears from the records of the Secretary of the State that such a
foreign limited liability company has failed to appoint or maintain a statutory
agent for service, or if it appears by affidavit attached to the process, notice
or demand of the officer or other proper person directed to serve any
process, notice or demand upon such a foreign limited liability company’s
statutory agent for service appearing on the records of the Secretary of the
State that such agent cannot, with reasonable diligence, be found, service
of such process, notice or demand on such foreign limited liability company
may, when timely made, be made by such officer or other proper person
by: (1) Leaving a true and attested copy thereof together with the required
fee at the office of the Secretary of the State or depositing the same in the
United States mail, by registered or certified mail, postage prepaid, addressed
to said office, and (2) depositing in the United States mail, by registered or
certified mail, postage prepaid, a true and attested copy thereof, together
with a statement by such officer that service is being made pursuant to this
section, addressed to such foreign limited liability company at the address
of the office designated in the articles of organization in the state of formation
as shown on the records of such state.’’
17
General Statutes § 34-225 (d) provides: ‘‘Nothing contained in this sec-
tion shall limit or affect the right to serve any process, notice or demand
required or permitted by law to be served upon a limited liability company
in any other manner permitted by law.’’
18
At the hearing on the motions to dismiss, the plaintiffs referenced § 33-
929 (b) as authorizing service upon the limited liability companies. This
subsection, however, authorizes only a foreign corporation to be served by
certified mail, not a foreign limited liability company.
19
‘‘The federal due process clause permits state courts to exercise [per-
sonal] jurisdiction over a nonresident corporate [or individual] defendant
that has certain minimum contacts with the forum such that the maintenance
of the suit does not offend traditional notions of fair play and substantial
justice. . . . 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 . . . . Alternatively,
[e]ven when the cause of action does not arise out of or relate to the foreign
corporation’s [or individual’s] activities in the forum State, due process is
not offended by a State’s subjecting the corporation [or individual] to its
[personal] jurisdiction if the defendant has had continuous and systematic
general business contacts with the state.’’ (Internal quotation marks omit-
ted.) Knipple v. Viking Communications, Ltd., supra, 236 Conn. 606 n.6.
20
General Statutes § 52-59b (a) provides in relevant part: ‘‘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, foreign
partnership or foreign voluntary association . . . who in person or
through an agent: (1) Transacts any business within the state; (2) commits
a tortious act within the state, except as to a cause of action for defamation
of character arising from the act; (3) commits a tortious act outside the
state causing injury to person or property within the state, except as to a
cause of action for defamation of character arising from the act, if such
person or agent (A) regularly does or solicits business, or engages in any
other persistent course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in the state, or (B) expects
or should reasonably expect the act to have consequences in the state and
derives substantial revenue from interstate or international commerce; (4)
owns, uses or possesses any real property situated within the state; or (5)
uses a computer, as defined in subdivision (1) of subsection (a) of section
53-451, or a computer network, as defined in subdivision (3) of subsection
(a) of said section, located within the state.’’ (Emphasis added.)
21
General Statutes § 33-929 (f) provides in relevant part: ‘‘Every foreign
corporation shall be subject to suit in this state, by a resident of this state
or by a person having a usual place of business in this state, whether or
not such foreign corporation is transacting or has transacted business in
this state and whether or not it is engaged exclusively in interstate or foreign
commerce, on any cause of action arising . . . out of any business solicited
in this state by mail or otherwise if the corporation has repeatedly so solicited
business, whether the orders or offers relating thereto were accepted within
or without the state . . . .’’ (Emphasis added.)
22
In their appellate brief, the SBA defendants agree with the trial court
and argue that an LLC is to be treated as a corporation for the purposes of
long arm jurisdiction and the court, therefore, was correct to assess jurisdic-
tion under § 33-929 (f).
23
Even if we assume, arguendo, that § 33-929 (f) applies to foreign limited
liability companies, the plaintiffs still failed to meet their burden of establish-
ing long arm jurisdiction over Optasite Towers, LLC, Point Judith Capital
Partners, LLC, and Worcester Capital Partners, LLC. Section 33-929 (f) autho-
rizes courts to exercise personal jurisdiction over a foreign corporation only
where the plaintiff is ‘‘a resident of this state or . . . a person having a
usual place of business in this state . . . .’’ The plaintiffs, Massachusetts
residents, are neither residents of Connecticut nor do they have a usual
place of business in the state and therefore cannot satisfy the statute’s
residency requirements. See part IV C of this opinion.
24
A majority of courts have treated foreign LLCs as partnerships and,
consequently, have applied § 52-59b for purposes of long arm jurisdiction.
See, e.g., Avant Capital Partners, LLC v. Strathmore Development Co.
Michigan, LLC, United States District Court, Docket No. 3:12-CV-1194 (VLB)
(D. Conn. September 30, 2013); Austen v. Catterton Partners V, LP, supra,729 F. Supp. 2d 548; Lis v. Delvecchio, United States District Court, Docket
No. 3:11CV01057 (AWT) (D. Conn. August 13, 2012); Screen Tech, Inc. v.
Carolina Precision Plastics, LLC, United States District Court, Docket No.
3:05cv975 (SRU) (D. Conn. January 25, 2006); Pasquariello Electric Corp.
v. Nyberg, Superior Court, judicial district of New Haven, Docket No. CV-
XX-XXXXXXX (October 7, 2009); Lauria v. Mennes, Superior Court, judicial
district of Stamford-Norwalk, Docket No. CV-07-5003950 (October 2, 2007);
Horniatko v. Riverfront Assn., LLC, Superior Court, judicial district of
Hartford, Docket No. CV-04-4000332S (June 21, 2005) (39 Conn. L. Rptr.
566); Worms v. WGB Partners, L.L.C., Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-95-0149182S (September 26, 1996);
Nadler v. Grayson Construction Co., Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-02-0190015S (April 15, 2003) (34 Conn.
L. Rptr. 482); New England National, LLC v. Kabro of East Lyme, LLC,
Superior Court, judicial district of New London, Docket No. 550014 (Febru-
ary 23, 2000).
Other courts have treated foreign LLCs as corporations and applied § 33-
929 (f). See, e.g., In re Bayou Hedge Fund Investment Litigation, 472 F.
Supp. 2d 534 (S.D.N.Y. 2007); Lechner v. Capital Group Cos., United States
District Court, Docket No. 3:05CV1410 (WWE) (D. Conn. May 26, 2006);
Swain v. American Capital Strategies, Ltd., Superior Court, judicial district
of Middlesex, Complex Litigation Docket, Docket No. X04-CV-03-0103924S
(August 4, 2004); Hartford Fire Ins. Co. v. United Restoration LLC, Superior
Court, judicial district of Hartford, Docket No. CV-02-0813517 (April 4, 2003).
25
General Statutes § 33-929 (f) provides in relevant part: ‘‘Every foreign
corporation shall be subject to suit in this state, by a resident of this state
or by a person having a usual place of business in this state, whether or
not such foreign corporation is transacting or has transacted business in
this state and whether or not it is engaged exclusively in interstate or foreign
commerce, on any cause of action arising . . . out of tortious conduct in
this state . . . .’’ (Emphasis added.)
26
The court also found that, by relying on group allegations, the plaintiffs
failed to sufficiently allege that the foreign corporations committed tortious
conduct within the state. In other words, even if the plaintiffs had satisfied
the residency requirements, they nonetheless failed to establish long arm
jurisdiction because their allegations were not particularized as to SBA
Communications Corporation or Village Ventures Services, Inc. For the
reasons set forth in part IV A of this opinion, we agree.
27
As previously noted, the plaintiffs conceded at oral argument before
this court that there was no error as to the trial court’s rulings on the
nonexistent and merged defendants.