Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00597-IVIRK Document 128-4 Filed O2/11/2005 Page 1 014
EXHIBIT 3

Case 3:03-cv-00597-IVIRK Document 128-4 Filed 02/1 1/2005 Page 2 d’i8$€ 2 0f4
Westlaw
Not Reported in A.2d Page 1
1992 WL 91805 (Conn.Super.), 6 Conn. L. Rptr. 381
(Cite as: 1992 WL 91805 (C0nn.Super.))
C (hereinafter Copco). According to the third party
UNPUBLISHED OPINION. CHECK COURT complaint, Dohm purchased the tractor from Eagle
RULES BEFORE CITING. and the tractor was manufactured by Copco. The
third party complaint recites that a spare tire rack at
the rear of the tractor, alleged to have been
Superior Court of Connecticut, Judicial District of defectively designed, manufactured or installed by
Waterbtuy. the third party defendants, was a cause of the
Tina WINKELMAN, et al. accident in that the tractor trailer stopped in the
v. course of making a tum because its air and power
Darrel DOHM. lines had become pinched upon contact with the
N0. 096682. spare tire rack.
April 27, 1992. Eagle contends that as to it, the third party
complaint should be dismissed for the reason that
MEMORANDUM OF DECISION RE: MOTION the court lacks in personam jurisdiction. A
TO DISMISS FILED BY EAGLE INTERNATIONAL three—pronged attack has been mounted. Both sides
TRUCK SALES, INC. submitted affidavits in compliance with Practice
Book Section 143. Eagle maintains that (1) the
BARNETT, Judge. affidavits submitted by the third party plaintiffs are
insufficient for their purpose; (2) the third party
*1 The parties to the dispute embodied in the plaintiffs have not shown facts sufficient to bring
motion to dismiss are Darrell Dohm (hereinafter Eagle within the "long arm" jurisdiction statute
Dohm) and Central Transport (hereinafter Central), Section 33—411(c); and (3) the third party plaintiffs
defendants and third party plaintiffs, and Eagle have not demonstrated minimal contacts by Eagle
International Truck Sales, Inc. (hereinafter Eagle) a with Connecticut to satisfy the due process
third party defendant. Prom the original complaint requirements ofthe federal constitution.
Dohm appears to be a resident of Ohio and Central
is a Michigan corporation authorized to do business I.
in Connecticut. Eagle is a Delaware corporation Whenever in personam jurisdiction is attached, the
with its principal place of business in Ohio. burden to prove jurisdiction is on the party asserting
it-·in this instance Dohm and Central. Standard
The original complaint is predicated upon an Tallow Corporation v. Jowaly, 190 Conn. 48, 54 N.
accident that occured on December 2, 1989 in 6 (1983); see Packer Plastics [nc. v. Laundon, 214
Cheshire between a car operated by the plaintiff Conn. 52, 55 (1990). The applicability of Section
Tina Winkelman and a tractor trailer driven by 33-411(c) should be discussed first.
Dohm. In addition to having been the driver of the
tractor trailer, Dohm was also the owner of the The parties are in seeming agreement that the
tractor. The trailer portion of the vehicle belonged pertinent statutory language is that of Section
to Central. In the original complaint, negligence 33—41l(c)(3). They have ignored, however, the
and recklessness is claimed against Dohm and explicit language of this subsection that limits the
negligence is asserted against Central. privilege of long—arm jurisdiction to parties who
reside or have a usual place of business within the
Sometime after the plaintiffs initiated their suit, state. See Beachboard v. Trustees of Columbia
Dohrn and Central brought a third party products University, 6 Conn.App. 43, 45 cert. denied 199
liability complaint against Eagle and Copco Steel & Conn. 801 (1986); Hill v. WR. Grace & C0., 42
Engineering Co. of South Bend, Indiana Conn.Sup. 25, 28 (1991). Even more important,
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Case 3:03-cv-00597-IVIRK Document 128-4 Filed 02/1 1/2005 Page 3 di¤$€ 3 OM
Not Reported in A.2d Page 2
1992 WL 91805 (Conn.Super.), 6 Conn. L. Rptr. 381
(Cite as: 1992 WL 91805 (Conn.Super.))
they have ignored the fact that the complaint at inadequate. Farrell v. Farrell, 182 Conn. 34, 39
issue is athirdimpleader complaint. (1980). And the same rule should pertain to
motions to dismiss where affidavits are utilized to
*2 This court is in full agreement with Connecticut supply jurisdictional facts. See Barde v. Board of
General Life Ins. Co. v. S VA, Inc., 743 F.Supp. 107, Trustees, 207 Conn. 59, 61-62 (1988). Moreover,
109, (D.Conn.l990) where the United States the very concept of an affidavit is a document
District Court interpreted Section 33—4ll(c) as stating facts within the knowledge of the affiant.
"directed toward assertions of original jurisdiction Rosenblit v. Danaher, 206 Conn. 125, 136-37
and not [to] extensions of existing jurisdiction to (1988).
third parties." Where, as here, there is jurisdiction
of the underlying claim, there is personal The courts ruling means that on the questions of
jurisdiction over the impleaded parties. Ia'. The minimum contacts, the provisions of paragraphs 6
relevant statute is not Section 33—41l(c) but rather through 8 of the Michetti affidavit and paragraphs 5
Section 52-102a (impleading of third parties by through 7 of the Huffman affidavit cannot be
defendant) about which no complaint as to a lack of considered. In effect both affidavits are eliminated
compliance has been made. because it was in these paragraphs that the affiants
suggested that Eagle's business dealings with
II. Central could serve as notice to Eagle that a driver
Compliance with state law jurisdictional statutes is for Central, such as Dohm, would be pulling
of course not the whole story. As explained in Central's trailer in Connecticut.
International Shoe Co. v. Washington, 326 U.S.
310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) a state Unaffected by the courts ruling are the affidavit of
court can render a valid personal judgment against a Dohm and the affidavit of Thomas L. Warren, the
nonresident defendant only so long as there exist at president of Eagle. Dohm purchased the used
least "minimurn contacts" between the defendant tractor on October 28, 1989 at which time he gave
and the forum state. Pursuant to Practice Book his address as 7286 Hyde Park Drive, Middlebury
Section 143 the parties have submitted affidavits on Heights, Ohio. Warren's affidavit states that Eagle,
the issue of minimum contacts. A determination of a Delaware corporation with a principal place of
whether there were such minimum contacts must business in Cleveland, Ohio, is engaged in the
first take into account Eagle's claims of deficiencies selling and servicing of new and used trucks and
inthe affidavits supplied by Dohm and Central. parts thereof and does not manufacture trucks or
parts. Warren's affidavit contains flat denials of
Eagle's attacks on the affidavits focuses upon the any act by Eagle whereby the in personam
"best of knowledge and belief" language in jurisdiction of Connecticut courts could be
paragraphs 6 through 8 of the affidavit of Joe presumed. In opposition, Dohm's affidavit says
Michetti and in paragraphs 5 through 7 of the that the tractor was purchased for interstate driving
affidavit of Churck Huffman. Both Michetti and and when it was purchased, he was attempting to get
Huffman represent themselves as employees of a job with Central and that agents and employees of
Central. Eagle knew of his intentions. Dohm's affidavit also
says that Eagle does business with Central and has
The court agrees with Eagle's contention that knowledge of Central's activities that include an
statements made on an affiant’s best knowledge and extensive involvement in interstate commerce with
belief are insufficient. Practice Book Section 143 terminals in many states one of which is
allows affidavits "as to facts not apparent on the Connecticut.
record." A similar requirement of factual
assertions is contained in Practice Book Section 381 The "minimum contacts" mentioned earlier must be
dealing with the requirements of an affidavit in of such nature that maintenance of a suit does not
motions for summary judgment. offend traditional concepts of fair play and
substantial justice, ideas that the due process clause
In stnnrnary judgment situations, affidavits based protects. International Shoe C0. v. Washington
on knowledge and belief would clearly be supra; see Insurance Corp. of Ireland v.
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Case 3:03-cv-00597-IVIRK Document 128-4 Filed 02/1 1/2005 Page 4 cltatge 4 of4
Not Reported in A.2d PGEG 3
1992 WL 91805 (Conn.Super.), 6 Conn. L. Rptr. 381
(Cite as: 1992 WL 91805 (C0nn.Super.))
Compagnie des Bauxites de Guinee, 456 U.S. 694, affidavits do not establish a prima facie case for
702 & n. 10, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) jurisdiction. Accordingly, Eagle's motion to
. Although the minimum contacts test is nebulous dismiss is granted.
and determinable only on an ad hoc basis, United
States Trust C0. v. Bhart, 197 Conn. 34, 40 (1985) 1992 WL 91805 (Conn.Super.), 6 Conn. L. Rptr.
decisions subsequent to International Shoe have 381
supplied proper guideposts.
END OF DOCUMENT
*3 Traditional notions of fair play and substantial
justice mean that it is reasonable to require the
nonresident defendant to defend a certain suit
brought in a particular state. The burden on the
defendant, while a primary concern, must be
considered in light of the plaintiffs desire for
convenient and effective relief and the forum state's
interest in adjudicatiing the dispute. Worldwide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 292,
100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Our
Supreme Court has posited the due process analysis
in terms of the "Twin Touchstones" of
foreseeability and faimess. United States Trust Co.
v. Bohart, supra at 41. But no matter what
designations are used, there is agreement that the
forseeability appropriate for the due process
analysis is not the mere likelihood that a product
will find its way into the forum state. Instead, the
critical aspect of foreseeability is that the
defendant's conduct and connection with the forum
state are such that he or it should reasonably
anticipate being haled into court there. World—Wide
Volkswagen Corp. v. Woodson, supra at 297;
United States Trust Co. v. B0/tart, supra.
More to the point are decisions such as Asahi
Metal Industry C0., Ltd. v. Superior Court of
Calfornia, Solano County, 480 U.S. 102, 107 S.Ct.
1026, 94 L.Ed.2d 92 (1987) and Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85
L.Ed.2d 528 (1985). In both cases, the Supreme
Court held that "the substantial correction between
the defendant and the forum state necessary for a
finding of minimum contacts must come about by
an action of the defendant purposefully directed
toward the forum state. The placement of a
product into the stream of commerce, without more
is not an act of the defendant purposefully directed
toward the forum state." Asahi Metal Industry,
supra at 112; see Burger King Corp, supra at 475 i
for substantially identical language.
Viewed from these precepts, it is clear that the
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