RACHSTEIN, NORMAN BUCKMAN v. SAKON, No. CV 02-0515919 (Sep. 24, 2004)

BURKE, JUDGE.

On July 16, 2002, the plaintiff, Rachstein, Norman Buckman, LLP, filed a complaint against the defendant, John Sakon. The plaintiff alleges that the defendant has failed to wholly satisfy a judgment rendered against him in the Massachusetts District Court of Newton, Massachusetts. The plaintiff attached the judgment with its complaint. The following facts are undisputed. The defendant is a resident of the state of Connecticut and maintains his principal place of business in Connecticut. The defendant hired the plaintiff, a Massachusetts law firm to provide legal services in conjunction with a negotiation of a lease between the defendant and Shaw's Supermarkets, Inc. (Shaw's), a Massachusetts corporation. Due to alleged delays, an agreement between Shaw's and the defendant could not be reached and as a result, the defendant refused to pay for the legal services provided by the plaintiff.

On August 7, 2002, the defendant filed a motion to dismiss, which was denied by the court, Dunnell, J., on December 16, 2002. On January 10, 2003, the defendant filed an answer along with three special defenses and a counterclaim. On July 8, 2004, the defendant filed a motion for summary judgment on the grounds that there is no genuine issue of material fact in the complaint and special defenses against the plaintiff. In support of his motion for summary judgment, the defendant included a supporting memorandum of law, the signed and sworn affidavit of John Sakon and an excerpt from the lease negotiated by the plaintiff between Shaw's and the defendant.

On July 21, 2004, the plaintiff filed a memorandum of opposition to the defendant's motion for summary judgment along with the signed and sworn affidavit of Geoffrey Norman, an attorney from the plaintiff law firm who represented the defendant during the negotiations with Shaw's. The defendant filed a reply memorandum in support of his motion on July 23, CT Page 14795 2004.

"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

In support of his motion for summary judgment, the defendant argues that the Massachusetts judgment is unenforceable because there was no personal or subject matter jurisdiction over the defendant. The defendant further argues that the plaintiff is not licensed to practice law in Connecticut and therefore, may not sustain an action to recover legal fees for services provided in Connecticut.

In response, the plaintiff argues that the Massachusetts court properly retained jurisdiction over the defendant by way of its long-arm statute and that the defendant maintained sufficient minimum contacts with Massachusetts to satisfy the requirements of constitutional due process. The plaintiff further submits that at the very least, a genuine issue of material fact exists concerning the sufficiency of the defendant's minimum contacts.

Our Supreme Court has held that issues regarding the jurisdiction of a foreign court are determined by the law of the foreign state. See Smith v. Smith, 174 Conn. 434, 438, 389 A.2d 756 (1978). "[A] judgment presumes jurisdiction over the subject matter and over the persons. To overcome this presumption, the burden of undermining the decree of a sister state `rests heavily upon the assailant.'" (Citation omitted.) Id., 438. In Massachusetts, "General Laws c. 223A, § 3, sets out a list of specific instances in which a Massachusetts court may acquire personal jurisdiction over a nonresident defendant. Jurisdiction is conferred only CT Page 14796 when some basis for jurisdiction enumerated in the statute has been established . . . If the literal requirements of the statute are satisfied, it also must be established that the exercise of jurisdiction under [s]tate law [is] consistent with basic due process requirements mandated by the United States Constitution." (Citations omitted; internal quotation marks omitted.) Tatro v. Manor Care, Inc., 416 Mass. 763, 767, 625 N.E.2d 549 (1994); see also Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 6, 389 N.E.2d 76 (1979).

Section 3(a) of G.L.c. 223A grants jurisdiction "over a person . . . as to a cause of action in law or equity arising from the person's . . . transacting any business in [the] commonwealth [of Massachusetts]." "For jurisdiction to exist under § 3(a), the facts must satisfy two requirements — the defendant must have transacted business in Massachusetts, and the plaintiff's claim must have arisen from the transaction of business by the defendant." Tatro v. Manor Care, Inc., supra, 416 Mass. 767.

"The transacting any business clause [in § 3] has been construed broadly . . . Although an isolated (and minor) transaction with a Massachusetts resident may be insufficient, generally the purposeful and successful solicitation of business from residents of the Commonwealth, by a defendant or its agent, will suffice to satisfy this requirement." (Citations omitted; internal quotation marks omitted.) Id.

In arguing that he did not transact business in Massachusetts, the defendant argues that he hired the plaintiff to prepare and execute a lease which would be governed by Connecticut law and concern property located in Connecticut. He further claims that he never intended to transact business in Massachusetts and that the plaintiff has failed to prove such intent. In support of this argument, the defendant averred in his affidavit that he resides in Connecticut and does not maintain offices or conduct business in Massachusetts. Despite the subject property of the lease being located in Connecticut, the defendant does not dispute that he was negotiating a lease with a Massachusetts corporation and hired a Massachusetts law firm to assist in the transaction.

During the course of the transaction, the defendant concedes that he voluntarily traveled to Massachusetts for various meetings. In his affidavit, Norman averred that the defendant on three separate occasions met in Norman's office which is located in Massachusetts. Each meeting lasted several hours, furthermore, Norman averred that he and the defendant attended at least two meetings, each lasting several hours, at the offices of Shaw's in Massachusetts. Norman also averred that the only meeting with the defendant in Connecticut concerned retaining Norman and CT Page 14797 the plaintiff as the defendant's counsel at which no negotiations with Shaw's occurred. At each meeting held in Massachusetts, the central discussion concerned the negotiation of the lease between Shaw's and the defendant. The defendant admits that he attended these meetings yet refutes the argument that the meetings constitute the transaction of business.

Despite the defendant's arguments, the court is left with the following undisputed scenario. The defendant, a Connecticut resident, solicited business from a Massachusetts law firm to provide legal services in negotiating the terms of a property lease involving himself and a Massachusetts corporation. In the course of this transaction, the defendant traveled on multiple occasions to Massachusetts to meet with his Massachusetts lawyer and the Massachusetts party with whom he was negotiating a lease. As the moving party, it is the defendant's burden to show that there is no genuine issue disputing whether he transacted business in Massachusetts. Given the undisputed facts, it is submitted that the defendant has failed to clearly show that his actions do not constitute the transaction of business in Massachusetts. The defendant has also failed to show how the plaintiff's action did not arise from the negotiation between Shaw's and the defendant.

The second requirement for Massachusetts jurisdiction over a nonresident requires the determination of whether assertion of such jurisdiction is "consistent with basic due process requirements mandated by the United States Constitution." Good Hope Industries, Inc. v. Ryder Scott Co., supra, 378 Mass. 5-6. "The governing principle is the fairness of subjecting a defendant to suit in a distant forum. Only if the nonresident defendant has such minimum contacts with the state that the maintenance of the suit does not offend traditional notions of fair play and justice . . . or if the defendant has performed some act by which [it] purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws . . . may the forum, consistently with due process, extend its long arm to embrace it . . . For the purpose of our examination here, these considerations coalesce around the following inquiry: whether there was some minimum contact with the Commonwealth which resulted from an affirmative, intentional act of the defendant, such that it is fair and reasonable to require the defendant to come into the State to defend the action." (Citations omitted; internal quotation marks omitted.) Id., 7. A defendant has engaged in "purposeful availment" if he has intentionally directed business activities toward the forum state, even without physical presence there. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174 (1985). CT Page 14798

The defendant maintains that he did not establish a substantial connection with Massachusetts. He also claims that the choice of law provision in the negotiated lease indicates the "intentions of the parties to utilize Connecticut as the jurisdiction of choice." Consequently, the defendant argues that he did not avail himself to Massachusetts law.

In the course of negotiating with Shaw's, the defendant purposely sought the plaintiff's services because of its past dealings with Shaw's. The defendant then contracted with the plaintiff to negotiate a lease with Shaw's and voluntarily traveled to Massachusetts on several occasions to attend meetings with either Norman, Shaw's or both. Although the lease property was located in Connecticut, a genuine issue of fact exists concerning whether the defendant's act of hiring a Massachusetts law firm and attending several meetings in Massachusetts purposely availed the defendant to Massachusetts jurisdiction.

Furthermore, the defendant's argument concerning the lease's choice of law provision is unfounded. In support of this argument, the defendant submitted an uncertified copy of a portion of the lease. As the moving party, the defendant has the burden of submitting evidence establishing the absence of a genuine issue of material fact. See Allstate Ins. Co. v. Barron, supra, 269 Conn. 405. The defendant has not submitted evidence verifying that all the parties to the lease agreed to the lease's provisions. Also, the defendant concedes that he "lost the multi-million dollar deal with Shaw's" which involved the negotiation of this lease. As such, it is submitted that the defendant has not established whether the lease was consummated and whether its provisions apply to an action between the defendant and the plaintiff.

For the reasons stated, the defendant's motion for summary judgment is denied.

BURKE, J.