Kane v. NK Investments, LP et al
Filing
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ORDER granting #20 Motion to Dismiss. The clerk is instructed to close this case. Signed by Judge Warren W. Eginton on 4/24/2018. (Gould, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DONNA KANE,
Plaintiff,
17cv1364 (WWE)
v.
NK INVESTMENTS, LP,
STEINBRECHER AND ASSOCS.,
INC., and BNSF RAILWAY COMPANY
Defendants.
MEMORANDUM OF DECISION ON MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION, IMPROPER VENUE
AND FAILURE TO STATE A CLAIM
In this action, plaintiff Donna Kane alleges that defendant
Steinbrecher and Associates is liable for breach of contract, and that
defendant BNSF Railway Company is liable for tortious interference with
plaintiff’s contract with Steinbrecher.
Defendants now move for dismissal based on lack of personal
jurisdiction, improper venue and failure to state a claim.
For the following reasons, the motion to dismiss will be granted.
BACKGROUND
Plaintiff’s complaint alleges the following factual background. The
Court also includes additional facts that have been averred to in affidavits.
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Defendant has submitted affidavits from James Obermiller, BNSF’s
Director of Compliance and information Governance, and Susan
Steinbrecher. The affidavit from Steinbrecher includes the relevant
contract attached as an exhibit. The Court’s consideration of a motion to
dismiss for lack of personal jurisdiction may include materials outside the
pleading including affidavits. Alpha Capital Anstalt v. Oxysure Sys., Inc.,
2017 WL 2271518, at *2 (S.D.N.Y. May 8, 2017).
Plaintiff is a resident of Connecticut; defendant Steinbrecher is a
Texas corporation based in Hurst, Texas; and BNSF Railway Company is a
Delaware corporation based in Fort Worth, Texas.
Steinbrecher provides education and training services to BNSF.
Commencing in 2013, plaintiff worked for Steinbrecher as a leadership
trainer. As of February 2017, plaintiff and Steinbrecher had entered into a
written service contract.
In February 2017, plaintiff was assigned to conduct a training for
BNSF at a Doubletree Hotel in San Bernadino, California. During her stay,
plaintiff reported to the hotel manager that she had suffered from the
presence of bed bugs in her room. She later sent the manager an email
expressing her dissatisfaction with the hotel.
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Later, while working at an event for Steinbrecher in Texas, plaintiff
received an email from a Doubletree representative that was copied to a
representative from BNSF. Plaintiff had not been aware that the
Doubletree and BNSF, or its employee, had a longstanding relationship
with one another.
On February 22, 2017, Linda Steinbrecher, Steinbrecher’s owner,
requested that plaintiff participate in a conference call. During the call on
March 9, 2017, Ms. Steinbrecher was located in Texas. She conveyed to
plaintiff that BNSF had demanded that she have no further involvement
with any training conducted by Steinbrecher for BNSF. Later that day, Ms.
Steinbrecher called plaintiff to terminate her employment.
DISCUSSION
On a motion to dismiss for lack of personal jurisdiction under Rule
12(b)(2), “plaintiff bears the burden of showing that the court has
jurisdiction over the defendant.” In re Magnetic Audiotape Antitrust Litig.,
334 F.3d 204, 206 (2d Cir. 2003). At this stage of the proceedings, if the
court relies upon pleadings and affidavits, the plaintiff must make out only a
prima facie showing of personal jurisdiction, and the affidavits and
pleadings should be construed most favorably to the plaintiff. CutCo
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Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). To
determine personal jurisdiction, the court must consider the facts as they
exist at the time of plaintiff’s filing. Klinghoffer v. S.N.C. Achille Lauro Ed
Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria,
937 F.2d 44, 52 (2d Cir. 1991).
To survive a pretrial motion to dismiss for lack of personal jurisdiction,
a plaintiff bears the burden of showing that the court has jurisdiction over
the defendant. Kernan v. Kurz-Hastings, Inc., 175 F. 3d 236, 240 (2d Cir.
1999). The amenability of a nonresident to suit in a federal court in a
diversity action is determined according to the law of the state where the
court sits. Arrowsmith v. United Press Int’l, 320 F. 2d 219, 223 (2d Cir.
1963). In Connecticut, the court makes a two step inquiry. Bensmiller v.
E.I. Dupont de Nemours & Co., 47 F. 3d 79, 81 (2d Cir. 1995). The court
first determines whether the exercise of jurisdiction over the party is
conferred by Connecticut’s long arm statute.
If jurisdiction is permissible under the long arm statute, the court then
determines whether the exercise of jurisdiction under the statute comports
with the provisions of the Fourteenth Amendment’s due process clause.
Metropolitan Life Insurance Company v. Robertson-CECO Corp., 84 F.3d
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560, 567 (2d Cir.). Either specific jurisdiction or general jurisdiction can
satisfy the constitutional requirement of sufficient minimum contacts
between the defendant and the forum. Milne v. Catuogno Court Reporting
Svcs., Inc., 239 F. Supp. 2d 195, 203 (D. Conn. 2002).
“Where the claim arises out of, or relates to, the defendant's contacts
with the forum––i.e., specific jurisdiction—minimum contacts exist where
the defendant purposefully availed itself of the privilege of doing business
in the forum and could foresee being haled into court there.” Bank
Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d
Cir. 2002). General jurisdiction may be asserted regardless of whether the
claim arises from the corporation’s forum contacts only where these
contacts are continuous and systematic. U.S. Titan, Inc. v. Guangzhou
Zhen Hua Shipping Co., Ltd., 241 F.3d 135, 152 (2d Cir. 2001).
Finally, a court must also determine whether the assertion of personal
jurisdiction comports with traditional due process notions of fair play and
substantial justice or whether it is reasonable under the circumstances of a
particular case. International Shoe Co. v. State of Wash., Office of
Unemployment Compensation and Placement, 326 U.S. 310, 316 (1945).
Whether it is “reasonable” to exercise jurisdiction in a particular case
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depends on “(1) the burden that the exercise of jurisdiction will impose on
the defendant; (2) the interests of the forum state in adjudicating the case;
(3) the plaintiff's interest in obtaining convenient and effective relief; (4) the
interstate judicial system's interest in obtaining the most efficient resolution
of the controversy; and (5) the shared interest of the states in furthering
substantive social policies.” Metropolitan Life Ins. Co. v. Robertson-Ceco
Corp., 84 F.3d 560, 568 (2d Cir. 1996).
The long-arm statute relevant to corporations, Connecticut General
Statute § 33-929(f), provides, in relevant part:
Every foreign corporation shall be subject to suit in this state, by a
resident of this state … on any cause of action arising as follows: (1)
Out of any contract made in this state or to be performed in this state;
(2) 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; (3) out of the production, manufacture or distribution of goods
by such corporation with the reasonable expectation that such goods
are to be used or consumed in this state and are so used or
consumed, regardless of how or where the goods were produced,
manufactured, marketed or sold or whether or not through the
medium of independent contractors or dealers; or (4) out of tortious
conduct in this state, whether arising out of repeated activity or single
acts, and whether arising out of misfeasance or nonfeasance.
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Section 33-929 Applied to defendant BNSF
Under Section 33-929(f)(4), a corporate defendant’s tortious conduct
must be “directly and expressly targeted” at Connecticut; it is not sufficient
that the tortious conduct caused injury in Connecticut. See Gen. Star
Indemn. Co. v. Anheuser-Busch Cos., Inc., 199 F.3d 1322, 1999 WL
1024708, at *1 (2d Cir. 1999). Here, plaintiff has not asserted that
defendant BNSF engaged in tortious conduct directly and expressly
targeted at Connecticut. The assertedly tortious communication—BNSF’s
request to Steinbrecher that plaintiff no longer provide training for BNSF--is
not alleged to have occurred in Connecticut but rather in Texas.
Section 33-929 applied to defendant Steinbrecher
Under Section 33-929(f)(1), Steinbrecher could be subject to personal
jurisdiction in Connecticut if the contract was “made” in Connecticut or was
to be performed in Connecticut. Under Connecticut law, a contract is
“made” when and where the last thing is done to create an effective
agreement. Open Sols. Inc. v. Granite Credit Union, 2013 WL 5435105, at
*2 (D. Conn. Sept. 29, 2013); Johnson v. Webtab, Inc., 2018 WL 632313,
*5 (Conn. Super. Ct. Jan. 12, 2018).
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The copy of the contract attached to Ms. Steinbrecher’s affidavit
indicates that she signed the agreement on February 29, 2017, after
plaintiff signed the agreement on February 16, 2017. Defendant
represents that Steinbrecher rendered the contract enforceable by signing
the contract in Texas after plaintiff had signed it in Connecticut. Plaintiff’s
opposition to the motion does not counter these assertions.
Additionally, the contractual terms provide that “the project scope is a
minimum of 100 one-day classes to be held across various cities within the
United States,” to take place “across 40 plus locations in the United
States.” Defendant states that the contract was limited to facilitating
employee training for BNSF, which has no employees in Connecticut.
Plaintiff’s opposition does not counter these representations regarding
performance. Accordingly, the Court finds that the contract was neither
made in Connecticut nor was it to be performed in Connecticut.
Plaintiff has addressed neither defendants’ arguments that general
jurisdiction is lacking nor that personal jurisdiction over the defendants
would not comport with due process. The Court will grant the motion to
dismiss for lack of personal jurisdiction over defendant Steinbrecher and
BNSF.
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Improper Venue
Defendants assert that even if personal jurisdiction were proper,
Connecticut is the improper venue under 28 U.S.C .§1391. In determining
whether venue is proper, the Court should identify the nature of the claims
and acts or omissions giving rise to such claim; and whether a substantial
part of those acts or omissions occurred in the district where suit was filed.
Daniel v. Am. Bd. of Emer. Med., 428 F.3d 408, 432 (2d Cir. 2005). As
previously discussed, plaintiff’s complaint fails to allege that any act by
BNSF occurred in Connecticut. Plaintiff did sign the contract in
Connecticut, but it was rendered an enforceable contract when Ms.
Steinbrecher signed the contract in Texas. Plaintiff’s conduct in Texas led
to her the termination of her contract with Steinbrecher. Further, Ms.
Steinbrecher was in Texas when she informed plaintiff that her employment
was terminated. Plaintiff has not alleged her location during that phone
call. In her opposition brief, plaintiff has represented that the largest
portion of events giving rise to this case occurred in Texas. Thus, the
Court finds that the significant conduct that is material to plaintiff’s claims
occurred in Texas rather than in Connecticut. The Court will grant the
motion to dismiss on the basis of improper venue.
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CONCLUSION
For the foregoing reasons, the motion to dismiss [doc. 20] is
GRANTED for lack of personal jurisdiction or, alternatively, for improper
venue. The clerk is instructed to close this case.
/s/Warren W. Eginton
Warren W. Eginton
Senior United States District Judge
Dated this _24th__th day of April, 2018 in Bridgeport, Connecticut.
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