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*********************************************** 
DESIGNS FOR HEALTH, INC. v. MARK MILLER

(AC 40708)

Keller, Bright and Pellegrino, Js.

Syllabus

The plaintiff sought to recover damages from the defendant for breach of

contract in connection with an agreement pursuant to which the defendant agreed to sell certain products provided by the plaintiff. In its

complaint, the plaintiff alleged that the defendant, who is a resident of

California and maintains his primary place of business there, violated

the terms of the agreement and, therefore, was required to pay the

plaintiff damages pursuant to a liquidated damages clause in the

agreement, which contained a forum selection clause that required litigation arising from the agreement to be resolved by Connecticut courts.

The defendant filed a motion to dismiss the action for lack of personal

jurisdiction, asserting that the plaintiff could not meet its burden to

prove that he had signed the agreement. The defendant attached to his

motion an affidavit in which he averred that he never had any contact

with Connecticut and never signed, or authorized anyone to sign, any

document that might constitute doing business of any kind in Connecticut. The plaintiff filed a memorandum of law in opposition to the motion

to dismiss in which it contended that the trial court had personal jurisdiction over the defendant because he had signed the agreement electronically. The plaintiff submitted a number of attachments in support of its

opposition that cumulatively asserted that the defendant had signed the

agreement electronically. The defendant filed a reply and an attached

supplemental affidavit in which he specifically rebutted the plaintiff’s

contentions. Thereafter, the court conducted a hearing on the motion

to dismiss at which it heard the parties’ oral arguments. The parties did

not request and the court did not hold a full evidentiary hearing but,

instead, relied on the memoranda and documentary evidence submitted

by the parties to resolve the critical factual dispute as to whether the

defendant had signed the agreement electronically. The trial court

granted the motion to dismiss and rendered judgment thereon, concluding that the plaintiff failed to meet its burden to establish that the court

had jurisdiction over the defendant pursuant to the long arm statute

(§ 52-59b [a] [1]) applicable to nonresident individuals because it failed

to establish that the defendant had signed the agreement electronically.

On the plaintiff’s appeal to this court, held that the trial court improperly

granted the defendant’s motion to dismiss and concluded that it lacked

personal jurisdiction over the defendant: applying the prima facie standard used by the United States Court of Appeals for the Second Circuit

in cases involving jurisdictional disputes where the evidentiary record

is only partially developed and the parties have not requested a full

evidentiary hearing, this court concluded that the plaintiff met its burden

to make a prima facie showing that the court had personal jurisdiction

over the defendant because the plaintiff submitted evidence, which, if

credited by the trier of fact, was sufficient to establish that the defendant

electronically had signed the agreement containing the forum selection

clause; moreover, because the plaintiff met its threshold burden of

making a prima facie showing and the parties did not request and the

trial court did not hold a full evidentiary hearing, the trial court was

required to deny the defendant’s motion to dismiss.

Argued October 9, 2018—officially released January 8, 2019

Procedural History

Action to recover damages for breach of contract,

and for other relief, brought to the Superior Court in

the judicial district of Hartford, where the court, Scholl,

J., granted the defendant’s motion to dismiss for lack

of personal jurisdiction and rendered judgment thereon,

from which the plaintiff appealed to this court.
Reversed; further proceedings.

Stephen J. Curley, with whom, on the brief, was Daniel B. Fitzgerald, for the appellant (plaintiff).

Jeffrey Hellman, for the appellee (defendant).
Opinion

BRIGHT, J. The plaintiff, Designs for Health, Inc.,

appeals from the judgment of the trial court granting

the motion to dismiss filed by the defendant, Mark

Miller. On appeal, the plaintiff claims that the court

improperly concluded that it lacked personal jurisdiction over the defendant because the plaintiff failed to

establish that the defendant had signed electronically

an agreement in which the parties expressly agreed to

submit to the jurisdiction of state and federal courts in

Connecticut. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff’s claim. On September 27, 2016, the plaintiff filed this breach of

contract action against the defendant. In the one count

complaint, the plaintiff alleged the following relevant

facts. The plaintiff, a Florida corporation with offices

in Connecticut, ‘‘is in the business of producing and

selling a professional line of nutraceutical and natural

health products . . . to consumers for sale through

health care providers . . . .’’ The defendant, a podiatrist, maintains a primary place of business in California

and is a resident of California. On or about June 10,

2016, the plaintiff and the defendant entered into an

agreement pursuant to which the defendant agreed to

sell products provided by the plaintiff. Between August

17 and September 8, 2016, the defendant violated the

agreement when he sold products that he had purchased from the plaintiff on a website that had not been

authorized by the plaintiff. As a result of this violation,

the defendant is required, pursuant to a liquidated damages clause in the agreement, to pay the plaintiff at

least $53,000. The agreement, which was attached to

the complaint, contains a forum selection clause that

requires litigation arising from the agreement to be

resolved by Connecticut courts.1

On November 3, 2016, the defendant filed a motion

to dismiss in which he argued that the court lacked

personal jurisdiction over him because the plaintiff

could not meet its burden to prove that he had signed

the agreement. The defendant attached to his motion,

among other things, an affidavit in which he averred

that he never had any contact with the state of Connecticut and never signed, or authorized anyone to sign, any

document that ‘‘might constitute doing business of any

kind in Connecticut.’’ On December 2, 2016, the plaintiff

filed a motion for an extension of time to respond to

the defendant’s motion so that it could depose the

defendant regarding the factual statements made in his

affidavit. On January 23, 2017, the court entered a scheduling order that permitted the plaintiff to conduct the

defendant’s deposition. On February 22, 2017, the plaintiff took the deposition of the defendant in California.
On March 24, 2017, the plaintiff filed a memorandum

of law in opposition to the defendant’s motion to dismiss in which it contended that the court had personal

jurisdiction over the defendant because he had signed

electronically the agreement that contained the forum

selection clause. The plaintiff submitted a number of

attachments in support of its opposition that cumulatively asserted that the defendant had signed electronically the agreement, including certain excerpts of the

deposition of the defendant, a copy of the agreement, an

affidavit of its general counsel, Stephen M. Carruthers,

a ‘‘DocuSign’’ certificate of completion, a screenshot of

a ‘‘GeoMapLookup’’ search, notice sent by Carruthers

to the defendant informing him of his alleged breach

of the agreement, documents evincing the service of

the defendant, an affidavit of the plaintiff’s independent

sales representative, Toni Lyn Davis, as well as a

redacted record of her telephone calls, and a series

of e-mails that purportedly were exchanged between

Carruthers and the defendant. On April 7, 2017, the

defendant filed a reply that contended that the plaintiff

failed to meet its burden to establish personal jurisdiction, and he attached a supplemental affidavit in which

he specifically rebutted the contentions made by the

plaintiff in support of its opposition.

On May 22, 2017, the court conducted a hearing on

the motion to dismiss at which it heard the parties’

oral arguments. On May 31, 2017, the court issued a

memorandum of decision in which it granted the defendant’s motion. Therein, the court noted that, although

‘‘due process requires that a trial-like hearing be held’’

when ‘‘issues of fact are necessary to the determination

of a court’s jurisdiction,’’ the ‘‘parties did not request

that an evidentiary hearing be held but rel[ied] on evidence they ha[d] submitted by affidavit.’’ (Internal quotation marks omitted.) Accordingly, the court compared

the evidence submitted by both parties2 and concluded

that ‘‘the plaintiff has failed to meet its burden to establish that this court has jurisdiction over the defendant.

It has not established that the defendant . . . transacted any business in this state, that is, entered into

the agreement which is the subject of this lawsuit, such

that the court has jurisdiction over the defendant pursuant to the long arm statute’’ applicable to nonresident

individuals, General Statutes § 52-59b (a) (1).3 On June

20, 2017, the plaintiff filed a motion to reargue, which

was denied summarily by the trial court. This appeal

followed. Additional facts will be set forth as necessary.

We begin with our standard of review and relevant

legal principles. ‘‘[A] challenge to the jurisdiction of the

court presents a question of law over which our review

is plenary.’’ (Internal quotation marks omitted.) Kenny

v. Banks, 289 Conn. 529, 532, 958 A.2d 750 (2008). ‘‘When

a defendant challenges personal jurisdiction in a motion

to dismiss, the court must undertake a two part inquiry
to determine the propriety of its exercising such jurisdiction over the defendant. 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.) Samelko v. Kingstone Ins. Co., 329

Conn. 249, 256, 184 A.3d 741 (2018).

‘‘Ordinarily, the defendant has the burden to disprove

personal jurisdiction.’’ Id. Nevertheless, ‘‘[i]f the defendant challenging the court’s personal jurisdiction is a

foreign corporation or a nonresident individual, it is

the plaintiff’s burden to prove the court’s jurisdiction.’’

Cogswell v. American Transit Ins. Co., 282 Conn. 505,

515, 923 A.2d 638 (2007); see Standard Tallow Corp. v.

Jowdy, 190 Conn. 48, 53–54, 459 A.2d 503 (1983). ‘‘To

do so, the [plaintiff] must produce evidence adequate to

establish such jurisdiction.’’ (Internal quotation marks

omitted.) Samelko v. Kingstone Ins. Co., supra, 329

Conn. 256.

In the present case, the plaintiff’s sole basis for the

court’s exercise of personal jurisdiction over the defendant is that he signed electronically the agreement that

contained the forum selection clause. The defendant

does not dispute that the court would have personal

jurisdiction over him if he had signed the agreement

containing the forum selection clause;4

rather, the

defendant maintains that he did not sign the agreement.

In determining whether a plaintiff met its burden to

establish personal jurisdiction over a defendant, a trial

court ‘‘may encounter different situations, depending

on the status of the record in the case. . . . [L]ack of

. . . jurisdiction may be found in any one of three

instances: (1) the complaint alone; (2) the complaint

supplemented by undisputed facts evidenced in the

record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed

facts.’’ (Internal quotation marks omitted.) Angersola

v. Radiologic Associates of Middletown, P.C., 330 Conn.

251, 274, 193 A.3d 520 (2018); see also Cogswell v. American Transit Ins. Co., supra, 282 Conn. 516.

‘‘When a trial court decides a jurisdictional question

raised by a pretrial motion to dismiss on the basis of

the complaint alone, it must consider the allegations

of the complaint in their most favorable light. . . . In

this regard, a court must take the facts to be those

alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a

manner most favorable to the pleader. . . .

‘‘[When] the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss . . . 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 establish that jurisdiction is lacking, and

the plaintiff fails to undermine this conclusion with

counteraffidavits . . . or other evidence, the trial court

may dismiss the action without further proceedings.

. . . If, however, the defendant submits either no proof

to rebut the plaintiff’s jurisdictional allegations . . . or

only evidence that fails to call those allegations into

question . . . the plaintiff need not supply counteraffidavits or other evidence to support the complaint . . .

but may rest on the jurisdictional allegations therein.’’

(Internal quotation marks omitted.) Angersola v. Radiologic Associates of Middletown, P.C., supra, 330 Conn.

274–75; see Golodner v. Women’s Center of Southeastern Connecticut, Inc., 281 Conn. 819, 826–27, 917 A.2d

959 (2007) (trial court should accept all undisputed

facts when making personal jurisdiction determination

where no evidentiary hearing was requested); Knipple

v. Viking Communications, Ltd., 236 Conn. 602, 608–

609, 674 A.2d 426 (1996) (same).

‘‘Finally, [when] a jurisdictional determination is

dependent on the resolution of a critical factual dispute,

it cannot be decided on a motion to dismiss in the

absence of an evidentiary hearing to establish jurisdictional facts. . . . Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court

cannot resolve the jurisdictional question without a

hearing to evaluate those merits. . . . An evidentiary

hearing is necessary because a court cannot make a

critical factual [jurisdictional] finding [on the basis of]

memoranda and documents submitted by the parties.

. . . In such circumstances, the court may also in its

discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, [until] a full trial on the merits has

occurred.’’ (Citations omitted; internal quotation marks

omitted.) Angersola v. Radiologic Associates of Middletown, P.C., supra, 330 Conn. 275–76; see Kenny v.

Banks, supra, 289 Conn. 533–34 (trial court erred in

concluding that it lacked personal jurisdiction over nonresident defendant without first holding evidentiary

hearing to resolve factual issues); Standard Tallow

Corp. v. Jowdy, supra, 190 Conn. 56 (same).

In the present case, the evidence submitted by both

parties created a critical factual dispute as to whether

the defendant had signed the agreement.5 The court,

notwithstanding the foregoing standard, resolved that

critical factual dispute on the basis of only the memoranda and documents submitted by the parties because

the ‘‘parties did not request that an evidentiary hearing
be held but rel[ied] on evidence they ha[d] submitted

by affidavit.’’ Indeed, we readily acknowledge that there

is nothing in the record to indicate that, prior to the

court’s decision on the motion to dismiss, the parties

specifically requested that the court hold an evidentiary

hearing, defer resolution to permit further discovery,

or postpone deciding that issue until trial.6

On appeal, the plaintiff does not argue that the court

erred by considering the critical factual dispute on the

basis of only the memoranda and documents submitted

by the parties; rather, the plaintiff’s position is that the

court erred when it improperly applied a heightened

standard of proof to resolve the critical factual dispute

in favor of the defendant. Although it is well established

that a plaintiff has the burden to prove the court’s personal jurisdiction over a nonresident defendant; see

Standard Tallow Corp. v. Jowdy, supra, 190 Conn.

51–54; the plaintiff maintains that neither our Supreme

Court nor this court has articulated the standard of

proof by which a plaintiff must establish personal jurisdiction to defeat a motion to dismiss filed by a nonresident defendant in a circumstance where a trial court

decides the motion on the basis of only the documentary

evidence submitted by the parties and without a full

evidentiary hearing. In the absence of such a rule, the

plaintiff advocates that we apply the prima facie standard that is employed by the federal courts and, at

times, by our Superior Court,7

to circumstances as in

the present case. We agree with the plaintiff.

We find particularly persuasive the decision of the

United States Court of Appeals for the Second Circuit

in Dorchester Financial Securities, Inc. v. Banco BRJ,

S.A., 722 F.3d 81 (2nd Cir. 2013),8 which outlined the

following federal standard applicable to motions to dismiss for lack of personal jurisdiction: ‘‘[I]n deciding a

pretrial motion to dismiss for lack of personal jurisdiction a district court has considerable procedural leeway. It may determine the motion on the basis of

affidavits alone; or it may permit discovery in aid of

the motion; or it may conduct an evidentiary hearing

on the merits of the motion. . . . Significantly, however, the showing a plaintiff must make to defeat a

defendant’s claim that the court lacks personal jurisdiction over it varies depending on the procedural posture

of the litigation. . . . [W]e [have] explained this sliding

scale as follows:

‘‘Prior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, legally sufficient allegations of

jurisdiction. At that preliminary stage, the plaintiff’s

prima facie showing may be established solely by allegations. After discovery, the plaintiff’s prima facie showing, necessary to defeat a jurisdiction testing motion,

must include an averment of facts that, if credited by

the trier, would suffice to establish jurisdiction over
the defendant. At that point, the prima facie showing

must be factually supported.

‘‘Where the jurisdictional issue is in dispute, the plaintiff’s averment of jurisdictional facts will normally be

met in one of three ways . . . . If the defendant is

content to challenge only the sufficiency of the plaintiff’s factual allegation . . . the plaintiff need persuade

the court only that its factual allegations constitute a

prima facie showing of jurisdiction. If the defendant

asserts . . . that undisputed facts show the absence

of jurisdiction, the court proceeds . . . to determine

if undisputed facts exist that warrant the relief sought. If

the defendant contests the plaintiff’s factual allegations,

then a hearing is required, at which the plaintiff must

prove the existence of jurisdiction by a preponderance

of the evidence.’’ (Citations omitted; internal quotation

marks omitted.) Id., 84–85; see Marine Midland Bank,

N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981) (‘‘If the

court chooses not to conduct a full-blown evidentiary

hearing on the motion, the plaintiff need make only a

prima facie showing of jurisdiction through its own

affidavits and supporting materials. Eventually, of

course, the plaintiff must establish jurisdiction by a

preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such a hearing is

held, a prima facie showing suffices, notwithstanding

any controverting presentation by the moving party, to

defeat the motion.’’).

We are persuaded that the sliding scale standard outlined by the United States Court of Appeals for the

Second Circuit in Dorchester Financial Securities,

Inc., should be applied to jurisdictional disputes arising

before Connecticut courts because it is entirely consistent with Connecticut’s existing framework for the resolution of jurisdictional issues. For instance, when a

Connecticut trial court decides a jurisdictional issue on

the basis of only the complaint, it accepts the plaintiff’s

jurisdictional allegations as true, essentially determining whether the plaintiff has made a prima facie case

for the exercise of jurisdiction. By contrast, when there

is a critical factual dispute relating to jurisdiction, or

when the question of jurisdiction is intertwined with

the resolution of the merits of the case, the trial court,

when requested by a party, must defer resolution of

the jurisdictional issue until an evidentiary hearing or

a trial on the merits has occurred. Because the proof

of a fact at the trial on the merits typically must be by

a preponderance of the evidence, that necessarily

would be the plaintiff’s burden to prove the same fact

for jurisdictional purposes. Furthermore, it would be

futile to hold a trial-like hearing if the burden of proof

was less than by a preponderance of the evidence.

Given the consistency of Connecticut practice with

Second Circuit jurisprudence in cases with no evidentiary record and those with a full evidentiary record,
we also conclude that the Second Circuit’s use of the

prima facie standard makes sense for cases, such as

this, where the evidentiary record is only partially developed and the parties have not requested a full evidentiary hearing. Our Supreme Court repeatedly has

cautioned trial courts not to make jurisdictional findings where there are disputed issues of fact until the

court has held a full evidentiary hearing ‘‘because a

court cannot make a critical factual [jurisdictional] finding [on the basis of] memoranda and documents submitted by the parties.’’ (Internal quotation marks omitted.)

Angersola v. Radiologic Associates of Middletown,

P.C., supra, 330 Conn. 275. Consequently, where, as in

the present case, neither party requests an evidentiary

hearing, the court cannot resolve the parties’ factual

dispute. Instead, the court must determine whether the

plaintiff’s submissions establish a prima facie case. The

prima facie standard ensures that the critical factual

dispute remains unresolved until after an evidentiary

hearing or trial is held, at which the plaintiff would

have the elevated burden of proving the court’s personal

jurisdiction by a preponderance of the evidence.

Accordingly, having concluded that the prima facie

standard applies to the present case, we now consider

whether the plaintiff met its burden to make a prima

facie showing that the court had personal jurisdiction

over the defendant.9

‘‘[T]o establish a prima facie case, the proponent must

submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . .

[T]he evidence offered by the plaintiff is to be taken

as true and interpreted in the light most favorable to

[the plaintiff], and every reasonable inference is to be

drawn in [the plaintiff’s] favor.’’ (Internal quotation

marks omitted.) Schweiger v. Amica Mutual Ins. Co.,

110 Conn. App. 736, 739, 955 A.2d 1241, cert. denied,

289 Conn. 955, 961 A.2d 421 (2008); see 9 J. Wigmore,

Evidence (3d Ed. 1940) § 2494 (delineating general principles of prima facie case). Consequently, because the

evidence submitted by the defendant tended to establish that the court lacked personal jurisdiction and the

court decided the defendant’s motion to dismiss on the

basis of only the parties’ documentary evidence, ‘‘the

plaintiff’s prima facie showing, necessary to defeat a

jurisdiction testing motion, must include an averment

of facts that [are factually supported, and] if credited

by the trier, would suffice to establish jurisdiction over

the defendant.’’ (Internal quotation marks omitted.)

Dorchester Financial Securities, Inc. v. Banco BRJ,

S.A., supra, 722 F.3d 85. This prima facie showing is

made notwithstanding any controverting presentation

by the defendant. Id., 86; see Marine Midland Bank,

N.A. v. Miller, supra, 664 F.2d 904.

In the present case, the plaintiff submitted several

attachments in support of its opposition to the defendant’s motion to dismiss that purportedly established
that the defendant signed the agreement. In particular,

the plaintiff attached a copy of the alleged agreement

that contained the forum selection clause. The

agreement provides that it was entered into on June

10, 2016, by the plaintiff and ‘‘Mark Miller . . . having

an address of 2640B El Camino Real, Carlsbad, CA

92008.’’ The plaintiff’s general counsel, Carruthers,

attested in his affidavit that the agreement was executed

electronically ‘‘through a secure portal provided by a

third-party known as ‘DocuSign’ . . . .’’ The plaintiff

submitted a copy of a DocuSign certificate of completion that purportedly established that the defendant

electronically signed the agreement on June 10, 2016,

using the e-mail address drmillerorders@gmail.com.

Carruthers further averred that he had engaged in e-mail

correspondences concerning the breach of the alleged

agreement with the defendant, who was using the e-mail

address drmillerorders@gmail.com. The plaintiff submitted a printout of these e-mail correspondences,

which occurred between December 7 and 9, 2016.

The plaintiff also submitted an affidavit from its independent sales representative, Davis, wherein she

attested that on June 22, 2016, twelve days after the

agreement allegedly was executed, she received a voicemail left by an individual who identified himself as ‘‘Dr.

Mark Miller.’’ She further averred that, approximately

ten minutes after she attempted to return the call, she

received a second call from the same telephone number

and that she spoke to an individual ‘‘who identified

himself as Dr. Mark Miller,’’ and who ‘‘indicated that he

desired to open an account to purchase [the plaintiff’s]

products for the patients of a group of five . . . health

care professionals . . . .’’ Davis attached to her affidavit a redacted printout of her telephone bill that evinces

the ‘‘place called,’’ date, time, number called, and duration of these telephone calls.

The plaintiff additionally submitted certain excerpts

of the deposition of the defendant taken on February 22,

2017. Therein, the defendant testified that he operates

a mobile podiatry practice and that his ‘‘corporate

address’’ is a United Parcel Service store at 2604B El

Camino Real, Box No. 311, Carlsbad, California 92008.10

He further testified that he received at his corporate

address a copy of the writ of summons and complaint

that stemmed from the present action, which was

addressed to 2640B El Camino Real, Carlsbad, California 92008. Further, the defendant stated that he was

familiar with DocuSign and that he previously had used

it to sign documents. The defendant also testified that

his only personal telephone number is the same telephone number identified by Davis and that he had

received a telephone call ‘‘in late summer [or] early

fall’’ from Davis ‘‘about signing up as a distributor.’’ He

further testified that he previously had heard of the

plaintiff because it was recommended by one of his

patients ‘‘last summer,’’ but he could not recall whether
he ever ordered or received products from the plaintiff.

The circumstances of the present case are strikingly

similar to those at issue in Dorchester Financial Securities, Inc. v. Banco BRJ, S.A., supra, 722 F.3d 81. In that

case, the plaintiff, a Florida corporation with offices in

New York, filed an action alleging that the defendant,

a Brazilian bank, was liable for breaching an agreement

between the parties concerning an irrevocable letter of

credit. Id., 82–83. The defendant moved to dismiss the

action on the ground that the court lacked personal

jurisdiction over it. Id., 83. In response, the plaintiff

filed a memorandum of law and attached, among other

things, the agreement that contained a forum selection

clause by which the defendant allegedly consented to

submit to the jurisdiction of the state of New York.

Id. In support of its motion to dismiss, the defendant

contended that the plaintiff’s attachments were forgeries, and, accordingly, it submitted sworn declarations

and supporting documentation that categorically

denied the plaintiff’s contentions.11 Id., 83–84. The District Court granted the motion to dismiss on the basis

of the defendant’s ‘‘direct, highly specific testimonial

evidence’’ submitted in support of its denials, and the

plaintiff appealed therefrom. Id., 84.

The Second Circuit Court of Appeals applied the

prima facie standard to vacate the District Court’s decision that granted the defendant’s motion to dismiss. Id.,

85. The court held that, in the absence of an evidentiary

hearing or trial, the defendant’s alleged consent to the

forum selection clause contained within the agreement

submitted by the plaintiff was sufficient to establish a

prima facie case of personal jurisdiction. Id. The court

recognized that ‘‘there is plainly reason to question the

authenticity of the . . . agreement, as [the defendant’s]

evidence submitted to the district court tends to show

that the agreement and the other documents upon

which [the plaintiff] relied were forgeries. But in the

absence of an evidentiary hearing, it was error for the

district court to resolve that factual dispute in [the

defendant’s] favor.’’ Id., 86. It further held that ‘‘[t]o be

clear, we do not hold that the district court in this case

erred in failing to hold an evidentiary hearing, as there

is no indication that either party requested one. Nor

did the district court err in considering materials outside the pleadings, as we have made clear that a district

court may do so . . . . Instead, the district court’s

error was, having chosen not to conduct a full-blown

evidentiary hearing . . . in resolving the parties’ dispute over the authenticity of [the plaintiff’s] evidence

rather than evaluating, whether [the plaintiff] had,

through its pleadings and affidavits, made a prima facie

showing of personal jurisdiction notwithstanding any

controverting presentation by the defendant . . . .’’

(Citations omitted; internal quotation marks omitted.)

Id.
The cumulative evidence submitted by the plaintiff

in the present case exceeds the evidence the Second

Circuit considered to be sufficient to establish a prima

facie case in Dorchester Financial Securities, Inc., in

which the court stated that it ‘‘need look no further’’

than the agreement that contained the forum selection

clause. See id., 85 and n.3. In the present case, the

plaintiff submitted an abundance of corroborating evidence to establish that the defendant signed the

agreement. Carruthers’ affidavit evinced that the

agreement was executed electronically through DocuSign by ‘‘Mark Miller,’’ who has an address of ‘‘2640B

El Camino Real, Carlsbad, CA 92008.’’ In his deposition,

the defendant testified that he received service stemming from the present case at his corporate address,

which is sufficiently similar to the address designated

on the agreement. The defendant also testified that he

was familiar with DocuSign and had used it in the past.

The DocuSign certificate of completion evinces that the

agreement was signed on June 10, 2016, using the e-mail

address drmillerorders@gmail.com. That e-mail

address is corroborated by the statements in Carruthers’ affidavit and the attached series of e-mails, which

purportedly demonstrated correspondences regarding

the breach of the alleged agreement between Carruthers

and drmillerorders@gmail.com. Additionally, the defendant agreed at his deposition that he engaged in a telephone conversation with Davis regarding the sale of the

plaintiff’s products around the time that the agreement

allegedly was executed. This admission is substantiated

by Davis’ affidavit and the printout of her telephone

bill that displays the particular details of those telephone calls, which occurred two weeks after the

agreement allegedly was executed. Indeed, the defendant conceded that his telephone number was identified

accurately by Davis. Finally, the defendant acknowledged his familiarity with the plaintiff and did not

affirmatively deny that he ordered or received products

from the plaintiff, but, rather, he responded that he

could not recall.

Applying the foregoing principles to the present case,

we conclude that the plaintiff met its burden to make

a prima facie showing that the court had personal jurisdiction over the defendant because the plaintiff submitted evidence, which, if credited by the trier of fact, was

sufficient to establish that the defendant had signed

the agreement containing the forum selection clause.

Nevertheless, we recognize, as the court did in Dorchester Financial Securities, Inc., that the evidence submitted by the defendant in support of his motion to dismiss

plainly calls into question whether the defendant actually signed the alleged agreement. Although a trial court

properly can consider such documentary evidence in

determining whether a critical factual dispute exists,

it cannot consider such evidence when determining

whether a plaintiff has made a prima facie showing,
and, absent a full evidentiary hearing, it cannot utilize

this evidence to resolve a critical factual dispute. Thus,

because the plaintiff met its threshold burden of making

a prima facie showing, and the parties did not request

and the court did not hold a full evidentiary hearing,

the court was required to deny the defendant’s motion

to dismiss.

The judgment is reversed and the case is remanded

for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

1 The forum selection clause of the agreement provides: ‘‘This [a]greement

shall be governed in all respects by the substantive laws of the [s]tate of

Connecticut without regard to such state’s conflict of law principles. [The

parties] agree that the sole and exclusive venue and jurisdiction for disputes

arising from this [a]greement shall be in the state or federal court located

in Hartford [c]ounty, Connecticut, and [the parties] hereby submit to the

jurisdiction of such courts; provided, however, that equitable relief may be

sought in any court having proper jurisdiction.’’

2 The court excluded the evidence of the ‘‘GeoMapLookup’’ screenshot

and Carruthers’ related statements in his affidavit that purportedly demonstrated the physical location of the Internet Protocol address (IP address)

used to execute the agreement. The court specifically stated that ‘‘[t]he only

evidence submitted by the plaintiff to establish that the referenced IP address

is the defendant’s is inadmissible and irrelevant hearsay in that it is information from a domain which indicates that the IP address can be traced to

the vicinity of a town in California which borders the town in which the

defendant allegedly maintains a place of business.’’ Generally, although a

plaintiff may rely on only evidence that would be admissible at trial to make

a prima facie showing; see Lujan v. Cabana Management, Inc., 284 F.R.D.

50, 64 (E.D.N.Y. 2012); Adams v. Wex, 56 F. Supp. 2d 227, 229 (D. Conn.

1999); but see Schmidt v. Martec Industries Corp., United States District

Court, Docket No. 07-5020 (DRH) (E.D.N.Y. Sept. 3, 2009); we need not

consider whether the trial court erred by excluding this evidence because

the proximity of the physical location of the IP address is not necessary to

our resolution of this appeal. Consequently, assuming, without deciding,

that the trial court properly excluded this evidence, we likewise omit this

evidence from our consideration.

3 General Statutes § 52-59b (a) provides in relevant part: ‘‘[A] court may

exercise personal jurisdiction over any nonresident individual . . . who in

person or through an agent . . . (1) [t]ransacts any business within the

state . . . .’’

4

‘‘Unlike subject matter jurisdiction . . . personal jurisdiction may be

created through consent or waiver.’’ (Internal quotation marks omitted.)

Narayan v. Narayan, 305 Conn. 394, 402, 46 A.3d 90 (2012). ‘‘Where an

agreement contains a valid and enforceable forum selection clause, it is not

necessary to analyze jurisdiction under the state long-arm statutes or federal

constitutional due process. . . . Parties may consent to personal jurisdiction through forum-selection clauses in contractual agreements.’’ (Citation

omitted; internal quotation marks omitted.) Discover Property & Casualty

Ins. Co. v. TETCO, Inc., 932 F. Supp. 2d 304, 309 (D. Conn. 2013); see

Phoenix Leasing, Inc. v. Kosinski, 47 Conn. App. 650, 653, 707 A.2d 314

(1998) (‘‘forum selection clauses have generally been found to satisfy the

due process concerns targeted by the minimum contacts analysis’’).

5 As outlined previously in this opinion, the plaintiff submitted the

agreement containing the forum selection clause and a number of other

attachments that purportedly established that the defendant had signed the

agreement. The defendant submitted two affidavits in which he categorically

denied signing the agreement.

6 At the May 22, 2017 hearing on the motion to dismiss, the plaintiff

advocated that the issue of whether the defendant signed the agreement is

eventually going to have to be determined at trial, however, it did not request

that the court specifically delay making that determination until trial and,

in fact, argued that it had carried its burden ‘‘at the motion to dismiss phase.’’

Furthermore, in its June 29, 2017 motion to reargue, the plaintiff set forth

the following proposition: ‘‘[The plaintiff] believes that the court can and

should deny [the] defendant’s motion without any additional corroborating

information concerning the IP address. However, if the court takes the
position that additional information regarding the IP address is essential to

deciding the motion, [the plaintiff] would appreciate the opportunity to

conduct some additional discovery and subpoena information relating to

the IP address.’’ See footnote 2 of this opinion. This request, however, was

made after the court already had decided the motion to dismiss.

7 See, e.g., Tregaskis v. Wine Enthusiast Cos., Superior Court, judicial

district of Litchfield, Docket No. CV-95-0067373-S (July 21, 1995) (relying

on In re Connecticut Asbestos Litigation, 677 F. Supp 70, 72 [D. Conn

1986]); Noon v. Calley & Currier Co., Superior Court, judicial district of

Hartford, Docket No. CV-93-521514-S (March 9, 1995) (14 Conn. L. Rptr.

132) (same); Vitale Fireworks Display Co. v. S. Mantsuna & Co., Superior

Court, judicial district of Litchfield, Docket No. CV-93-0064860-S (October

31, 1994) (same); but see Gamlestaden PLC v. Lindholm, Superior Court,

judicial district of Stamford-Norwalk, Docket No. CV-93-0130058-S (February

28, 1996) (declining to follow prima facie rule).

8

‘‘[F]ederal rules of civil procedure and the federal court’s interpretations

thereon are not binding upon the state courts. . . . Federal case law, particularly decisions of the United States Court of Appeals for the Second Circuit

. . . can be persuasive in the absence of state appellate authority . . . .’’

(Citations omitted; internal quotation marks omitted.) Duart v. Dept. of

Correction, 116 Conn. App. 758, 765, 977 A.2d 670 (2009), aff’d, 303 Conn.

479, 34 A.3d 343 (2012); Turner v. Frowein, 253 Conn. 312, 341, 752 A.2d

955 (2000) (‘‘[d]ecisions of the Second Circuit Court of Appeals, although

not binding on us, are particularly persuasive’’).

9 Although the court rendered its judgment without the benefit of this

opinion, we need not remand the matter to the trial court for a determination

as to whether the plaintiff made a prima facie showing of personal jurisdiction because that issue can be determined as a matter of law on the basis

of the record before us. See Emerick v. Glastonbury, 145 Conn. App. 122, 131,

74 A.3d 512 (2013) (remand unnecessary where record on appeal sufficient

to make determination as matter of law), cert. denied, 311 Conn. 901, 83

A.3d 348 (2014); Rosenthal v. Bloomfield, 178 Conn. App. 258, 263, 174 A.3d

839 (2017) (‘‘[w]hether the plaintiff has made out a prima facie case is a

question of law’’ [internal quotation marks omitted]).

10 The defendant’s corporate address, 2604B El Camino Real, Box No. 311,

Carlsbad, California 92008, is substantially similar to the defendant’s address

listed on the agreement, ‘‘2640B El Camino Real, Carlsbad, CA 92008.’’

11 Specifically, the defendant’s evidence tended to show that (1) it had no

prior relationship with the plaintiff, (2) it never did business in the United

States, and (3) it had never issued financial instruments of the size and

nature of the purported letter of credit. The defendant also submitted court

documents from Florida and California to show that it had been the victim

of similar fraudulent schemes in those states.