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HHD-CV21-6137666-S : SUPERIOR COURT
:
PHOENIX ENVIRONMENTAL :
LABORATORIES, INC. : J.D. OF HARTFORD
Plaintiff :
v. : AT HARTFORD
:
CLARENCE J. BEAMES, IV :
Defendant : May 10, 2021
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION
TO DISMISS
Pursuant to Connecticut Practice Book 10-31, Plaintiff, Phoenix Environmental
Laboratories, Inc., (hereinafter referred to as “Plaintiff” or “Phoenix Labs”) by and through its
attorney, hereby submits this Memorandum of Law in Opposition to Defendant’s Motion to Dismiss
Plaintiff’s Complaint.
I. PRELIMINARY STATEMENT
Plaintiff is a Connecticut corporation that provides lab testing services throughout the
United States. Defendant, Clarence Beames, IV, (hereinafter referred to as “Defendant” or
“Beames”) is a former employee of the Plaintiff. When Defendant provided his notice of
resignation on or about November 30, 2020, Plaintiff made several informal and formal demands
for Defendant to return company property, which included company cell phones, company laptops
which contained customer lists, individual account information and the contact and transactional
information for each of the customers with whom the employee serviced. (Letter of Resignation,
attached hereto as Exhibit A). Defendant refused to return the company property, thereby blocking
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any access the company had to its own information. On December 16, 2020, Defendant received a
formal demand letter from Plaintiff’s attorney; Defendant also received a Litigation Hold Notice,
putting Defendant on notice that litigation was imminent. (Demand Letter and Hold Notice,
attached hereto as Exhibit B). Defendant responded that he was in the process of finding an
attorney.
Three weeks after Defendant received the Litigation Hold Notice, and without any prior
contact with the Company, Defendant filed a garden variety wage claim within the state of New
York, alleging he is owed commissions that were due but never paid to him. In his current Motion
to Dismiss, Defendant attempts to frame the filing of this action as being “retaliatory,” despite a
clear record to the contrary. Defendant’s actions can be characterized by a series of devices to
delay and obstruct Plaintiff from having access to its own business information, while Defendant
continues to work for a direct competitor. The motion to dismiss this lawsuit on the grounds that
the action is retaliatory is consistent with the patter.
Moreover, Defendant misstates to this Court the gravamen of Plaintiff’s allegations. He
characterizes this matter solely as the matter of returning physical property and ignores the valuable
intellectual property it contains. He further argues that, because this court ruled a writ of mandamus
was not the proper procedural vehicle for the relief sought, this complaint is somehow without
merit.
Plaintiff filed this lawsuit as a last resort. Perhaps naively, Plaintiff relied on Defendant’s
statement in his letter of resignation in which he stated he wanted to facilitate a smooth transition.
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(Ex. A). Plaintiff, taking Defendant at his word, asked him to provide customer account
information, which only he had access to at the time. Rather than doing so, he engaged in a series
of actions to stall and obstruct Plaintiff by offering specious explanations as to why he would not
comply with their requests. Finally, after many such attempts to resolve the issues informally, it
was made clear that the Plaintiff’s only recourse available was litigation.
Equally implausible is Defendant’s contention that he did not have the minimum contacts
with the state of Connecticut. In its complaint, Plaintiff alleges that Defendant had at least one
customer in the state of Connecticut. (Complaint ¶10). While this alone is sufficient under our case
law, upon further examination into company records, Defendant had over fifteen (15) customer
accounts in which the customer was registered through the state of Connecticut Secretary of State’s
office, either as a Connecticut organization or a foreign entity conducting business within the state.
(List of Connecticut Customer Accounts, attached hereto as Exhibit C).
Moreover, with the title of Regional Sales Manager, Defendant held himself out as a
representative within the state. (Defendant’s Business Card, attached hereto as Exhibit D). On
Defendant’s business card, it states Defendant is certified in nine (9) different states, including
Connecticut. New York does not appear as the first state, nor the only state. His business card
provides his work address as a Connecticut location, with both a general telephone and fax number
with a Connecticut area code. Nowhere on the business card does Defendant hold himself out as an
employee working solely in the state of New York or providing services only to New York
customers. The business card also gives the Defendant’s business email address as
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“buddy.phoenixlabs@twc.com,” in contradiction to his argument that this email is not property of
the Plaintiff.
Plaintiff respectfully asks this court to find that the ends of justice so require that
Defendant’s Motion to Dismiss be denied in its entirety.
II. FACTUAL BACKGROUND
Phoenix Labs is a Connecticut corporation headquartered in Manchester, Connecticut, which
offers high quality testing of soils, water, sludge and solids to a diver client base throughout the
country. (Complaint ¶3). Defendant is a New York resident who worked for Plaintiff. (Complaint
¶2).
Defendant worked as a Sales Manager for the Plaintiff from August 13, 2007 to on or about
December 21, 2020. (Complaint ¶5). To assist Defendant with his duties as an employee, Plaintiff
provided Defendant with a company cellphone, internet service, a company computer and an array
of confidential, proprietary, and commercially sensitive information. (Employment Agreement,
attached hereto as Exhibit E).
The company property contained confidential and proprietary information and trade secrets,
including but not limited to sales accounts, customer accounts and information, financial
information, data points, records, reports and other information; all property belonging exclusively
to Plaintiff. (Complaint ¶ 7). The company property also contained sales and services
communications between customers and the Plaintiff. (Complaint ¶ 8).
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The cellphone account and company property were paid for entirely by the Plaintiff, in the
state of Connecticut, its intended use being solely for conducting company business. The account
was used for business services, company client phone numbers and business activities. (Complaint
¶ 9; Complaint ¶ 10; Sample Invoices attached hereto as Exhibit F).
The Defendant used a “Phoenix Labs” email address on the company computer and
cellphone. (Complaint ¶ 11). Defendant used this cellphone account, along with cable, internet and
email services paid for exclusively by the Plaintiff.
At the beginning of December 2020, Defendant notified Plaintiff of his intent to resign from
the Company, through a letter of resignation dated November 30, 2020. (Complaint ¶ 13). On the
same day Defendant provided his notice of resignation, Plaintiff asked Defendant to provide the
company with the passwords to the company issued cellphone so it could access its records.
(Complaint ¶ 14; Affidavit of Padric F.S. Noonan, Esq., attached hereto as Exhibit G). Defendant
refused to provide the information to Plaintiff. (Complaint ¶ 15).
Prior to Defendant’s last date of work, Plaintiff attempted multiple times to access its
account and retrieve company information. Despite several informal attempts to obtain the
company information from Defendant, Defendant continued to refuse to provide Plaintiff with its
confidential and propriety information. Complaint ¶ 17).
Defendant remains in possession of the company cellphone, internet/email service and
company computer. (Complaint ¶ 18).
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While employed by Plaintiff, Defendant had contacts and customers within the state of
Connecticut. (Complaint ¶ 19). While employed by Plaintiff, Defendant transacted business
within the state and the Defendant’s dealings with respect to his employer were in the state of
Connecticut. (Complaint ¶ 19; Ex. C; Ex. F).
While employed by Plaintiff, Defendant committed tortious acts within and outside of the
state of Connecticut, which caused injury to the Plaintiff within the state of Connecticut.
(Complaint ¶ 20).
As a salesperson, Defendant knew or should have reasonably expected his theft of company
property would have dramatic consequences for the Plaintiff in the state of Connecticut. The
Plaintiff derives substantial revenue from interstate commerce. During Defendant’s employment,
he had personal knowledge of, access to and and/or was privy to Plaintiff’s trade secrets and/or
confidential information, including access to the company owned cellphone account and its
customer accounts. He was the only person that had the ability to access these customer accounts.
(Complaint ¶ 22).
Plaintiff takes reasonable steps to protect its confidential information, and employees are
required to return company property immediately following their termination of employment.
(Complaint ¶ 23.)
On December 16, 2020, Defendant was issued a demand letter through Plaintiff’s counsel in
an effort to retrieve its stolen property and confidential information. (Ex. B). As part of the
demand letter, Defendant was also issued a litigation hold notice, in which he was notified that
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litigation in the state of Connecticut would be imminent if he did not return the Plaintiff’s property
and was advised to preserve all documents which may relate to the litigation. (Ex. B.)
Following his departure from the company and his theft of its property, Defendant took a
position with a competitor that is engaged in the same, or a substantially similar business as
Plaintiff. (Complaint ¶ 25)
Defendant has continued to use and benefit from the Plaintiff’s confidential information and
company property. (Complaint ¶ 26.) Plaintiff will continue to suffer irreparable harm if Defendant
is not prevented from his continued theft and malicious conversion of company property.
(Complaint ¶ 29.)
III. PROCEDURAL HISTORY
On January 28, 2021, Plaintiff filed a ten (10) count complaint against Defendant. On
February 5, 2021, Plaintiff filed an Application for a Writ of Mandamus (Entry No. 101.00), which
was denied by the court on February 24, 2021 (Entry No. 101.86). On March 25, 2021, Defendant
filed a Motion to Dismiss Plaintiff’s civil complaint, alleging this court does not have personal
jurisdiction over the defendant (Entry No. 106.00, 107.00, 108.00).
IV. LAW AND ARGUMENT
A. Legal Standard.
Connecticut Practice Book § 10-31 states in part that any adverse party to a motion to
dismiss may respond to the motion through a memorandum of law in opposition and, where
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appropriate, include “supporting affidavits as to facts not apparent on the record.” Practice Book
10-31.
“When a ... court decides a ... 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, construing 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.” (Citations omitted; internal quotation marks omitted.) Labissoniere v. Gaylord Hosp.,
Inc., 182 Conn.App. 445, 451-52, 185 A.3d 680 (2018).
“A motion to dismiss admits all facts well pleaded and invokes any record that accompanies
the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks
omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002); Carpenter v. Daar,
199 Conn. App. 367, 381, 236 A.3d 239, 251 (2020).
“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.” Samelko v. Kingstone Ins. Co., 329 Conn. 249, 256, 184
A.3d 741 (2018).
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“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. Designs for Health,
Inc. v. Miller, 187 Conn. App. 1, 11–12, 201 A.3d 1125, 1132–33 (2019).
B. This Court has Personal Jurisdiction over the Defendant Pursuant to
Connecticut’s Long-Arm Statute.
Connecticut General Statute §52-59b addresses the jurisdiction of our courts over
nonresident individuals. The statute states the following: “(a) 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, or over the executor or
administrator of such 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
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(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. (Conn. Gen Stat. § 52-59b).
i. Defendant transacted business within the State of Connecticut.
While employed by Plaintiff, Beames transacted business within the state of Connecticut. In
its complaint, Plaintiff states that Defendant had at least one client in the state of Connecticut in
which he transacted business within the state and that Defendant’s dealings with respect to his
employer were in the state of Connecticut. (Complaint ¶19). Upon further examination into the
matter, Plaintiff identified at least fifteen (15) customer accounts that were handled by the
Defendant in which each customer was registered through the state of Connecticut Secretary of
State’s office, either as a Connecticut corporation or a foreign entity doing business within the state.
(Ex. C). Three of those customers (Langan Engineering, C2G Environmental, and Triumvirate
Environmental) are headquartered in Connecticut.
One of Defendant’s duties as a regional salesman was to collect and submit samples for
testing from his customers. Those samples were submitted to the Plaintiff’s Connecticut facility to
be tested at that facility. In 2020 alone, Defendant submitted approximately 993 samples to the
Connecticut facility for testing; all samples are tested in Connecticut. (Ex. C.)
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With respect to Connecticut’s long arm statute, because “the General Statutes do not define
what the phrase ‘transacts any business' means in the context of § 52–59b ... we construe the term
‘transacts any business' to embrace a single purposeful business transaction.” Zartolas v.
Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). “In determining whether the plaintiffs' cause
of action arose from the defendants' transaction of business within this state we do not resort to a
rigid formula. Rather, we balance considerations of public policy, common sense, and the
chronology and geography of the relevant factors.” Id., at 477, 440 A.2d 179; Walshon v. Ballon
Stoll Bader & Nadler, P.C., 121 Conn. App. 366, 371–72, 996 A.2d 1195, 1198–99 (2010).
“A purposeful business transaction is one in which the defendant has engaged in some form
of affirmative conduct allowing or promoting the transaction of business within the forum state.”
Ruocco v. Metro Boston Hockey League, Superior Court, judicial district of New Haven, Docket
No. CV 07 4024835 (December 7, 2007, Robinson, J.); Dime Bank v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., No. X05CV094017091S, 2010 WL 760441, at *7 (Conn. Super. Ct. Jan. 15, 2010).
Whether the customers were headquartered in Connecticut or another state, Defendant
transacted business within the state of Connecticut with respect to those customers. Defendant had
to coordinate with the Connecticut office to provide information on testing; he had to send samples
to the Connecticut office; reports produced from those samples all occurred within the state of
Connecticut.
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ii. Defendant committed tortious acts outside of Connecticut causing injury to
Plaintiff within Connecticut.
By refusing to provide Plaintiff with its property and customer accounts, Defendant
committed tortious acts outside of Connecticut, causing injury to Plaintiff within the state of
Connecticut. Defendant expected or should have reasonably expected that his actions would have
consequences in the state in Connecticut, in which the Plaintiff derives substantial revenue from
interstate or international commerce and in which the Defendant was paid his salary.
Our Supreme Court has interpreted “derives substantial revenue from interstate or
international commerce,” as used in § 52-59b(a)(3)(B), to mean “enough revenue to indicate a
commercial impact in the forum, such that a defendant fairly could have expected to be haled into
court there.” Ryan v. Cerullo, supra, 282 Conn. 125; Gilbert v. Zivtech, LLC, No. CV176074279S,
2018 WL 3715572, at *10 (Conn. Super. Ct. July 5, 2018). Defendant serviced at least fifteen (15)
clients that had dealings in the state of Connecticut. By refusing to turn over the company property,
Plaintiff did not have access to any of those customer accounts; Defendant was the only one with
access to the customer information. Any disruption to those accounts could have resulted in
Plaintiff losing the customers; a loss of those accounts to a competitor would have a sizeable
commercial and financial impact on the Plaintiff.
C. The constitutional principles of due process have been adequately established.
i. Plaintiff has established Defendant had the requisite minimum contacts.
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Once the long-arm requirements are met by the Plaintiff, the court has an obligation to then
decide whether exercise of jurisdiction over the Defendant would violate constitutional principles of
due process. Kenny v. Banks, supra, 289 Conn. 533, (2008). “A determination of whether sufficient
minimum contacts with Connecticut exist is a fact question.” Standard Tallow Corp. v. Jowdy,
supra, 190 Conn. 56. It is “incumbent on the plaintiff to prove the facts establishing the requisite
minimum contacts.” Id., 52-53.
“The twin touchstones of due process analysis under the minimal contacts doctrine are
foreseeability and fairness. The foreseeability that is critical to due process analysis ... is that the
defendant's conduct and connection with the forum State are such that he should reasonably
anticipate being haled into court there.” Hart, Nininger & Campbell Associates, Inc. v. Rogers,
supra, 16 Conn.App. 625-26, (1998).
By requiring that individuals have fair warning that a particular activity may subject them to
the jurisdiction of a foreign sovereign ... the due process clause gives a degree of predictability to
the legal system that allows potential defendants to structure their primary conduct with some
minimum assurance as to where that conduct will and will not render them liable to suit. Zivtech,
LLC, No. CV176074279S, at *10–11 (Conn. Super. Ct. July 5, 2018).
Despite Defendant’s attempt to frame this lawsuit as retaliatory, the record indicates clearly
that Defendant should have reasonably anticipated that he would be subject to litigation in
Connecticut based on his actions. The complaint alleges that Defendant intentionally withheld
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company property, refused to return the property, and intentionally withheld confidential and
proprietary information, for the benefit of himself and his new employer.
Defendant was put on notice through repeated informal requests while still an employee that
the company intended to seek legal redress should he continue to refuse to turn over the company
property. Defendant was put on further notice through a formal demand letter and Litigation Hold
Notice. It was only after Defendant received the demand letter and litigation hold notice that he
filed a wage claim in the state of New York. There can be no doubt based on the number of
requests made by Plaintiff in December 2020 that Defendant knew litigation in the state was
imminent. Defendant is withholding company property paid for by the Plaintiff in the state of
Connecticut. Defendant is withholding confidential and proprietary information, which includes
customer information from customers located within the state, or transacting within the state. (Ex.
C).
ii. The assertion of personal jurisdiction comports with fair play and justice.
Once minimum contacts have been established, the second stage of the due process inquiry
asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and
substantial justice—that is, whether it is reasonable under the circumstances of the particular case.
Therefore, while the exercise of jurisdiction is favored where the plaintiff has made a threshold
showing of minimum contacts at the first stage of the inquiry, it may be defeated where the
defendant presents a compelling case that the presence of some other considerations would render
jurisdiction unreasonable.” Cogswell v. American Transit Ins. Co., supra, 282 Conn. 525.
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Connecticut has a strong interest in protecting its citizens from civil theft. Plaintiff has a
strong interest in protecting its assets, customers, and proprietary and confidential information.
Accordingly, the plaintiff's interest in obtaining and the state's interest in providing relief and
protection from civil theft and conversion outweigh any burden the Defendant may face in
defending this case in Connecticut. Exercising personal jurisdiction over him is neither unjust nor
otherwise violates the constitutional principles of due process.
The court will typically look to five (5) factors when analyzing due process: (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. Where a plaintiff makes
the threshold showing of the minimum contacts required for the first part of the due process test, a
defendant must present a compelling case that the presence of some other considerations would
render jurisdiction unreasonable. The import of the ‘reasonableness' inquiry varies inversely with
the strength of the ‘minimum contacts' showing—a strong (or weak) showing by the plaintiff on
‘minimum contacts' reduces (or increases) the weight given to ‘reasonableness.’ Milne v. Catuogno
Court Reporting Services, Inc., 239 F.Sup.2d 195, 205 (D.Conn.2002).
Connecticut has a strong interest in protecting its citizens from civil theft and conversion by
out-of-state individuals; to hold contrary would be to hold that a Connecticut employer cannot
enforce in the courts of this state the obligation of former employees to return company property
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and proprietary information. Employees would be free to unplug their laptops and head home to the
state in which they are domiciled, free equipment and trade secrets in tow. The Plaintiff has an
obvious interest in obtaining relief in the state where it is located, where it provides services, and
where the company property and information should have been returned. Lastly, all states share a
social policy interest that companies who are located and perform services within their borders
should be able to seek legal redress for theft of property before their courts. (“All states share a
social policy interest that companies, including law firms, who are located and perform services
within their borders, are able to seek payment for the services in their courts.” Id. at 4)
Exercising personal jurisdiction over the Defendant would not violate his due process rights.
D. This court is the proper jurisdiction to decide the issues in this case.
The common law doctrine of forum non conveniens is an exception to the general rule that a
court must hear and decide cases over which it has jurisdiction by statute or constitution, and
recognizes the discretion of a court, in some few instances, where jurisdiction and venue are proper
... to dismiss a suit because the court has determined that another forum is better suited to decide the
issues involved.” Sabino v. Ruffolo, 19 Conn.App. 402, 405–06 (1989). “A court that decides to
dismiss a case on the grounds of forum non conveniens has jurisdiction but elects to dismiss the
case and defer to another forum.” Durkin v. Intevac, Inc., 258 Conn. 454, 480 (2001).
“[T]he central principle of the forum non conveniens doctrine is that unless the balance is strongly
in favor of the defendants the plaintiff's choice of forum should rarely be disturbed ... the doctrine
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of forum non conveniens is a drastic remedy ... which the trial courts must approach with caution
and restraint. The trial court does not have unchecked discretion to dismiss cases ... simply because
another forum in the court's view may be superior to that chosen by the plaintiffs ... The plaintiffs'
choice of forum, which may well have been chosen precisely because it provides the plaintiffs with
certain procedural or substantive advantages, should be respected unless equity weighs strongly in
favor of the defendant[s] ...” Durkin, supra at 464–65.
The court looks to four factors in determining whether the Plaintiff’s choice of forum is
correct. First, the court should determine whether an adequate alternative forum exists that
possesses jurisdiction over the whole case. Second, the court should consider all relevant private
interest factors with a strong presumption in favor of…the plaintiffs' initial choice of forum. Third,
if the balance of private interest factors is equal, the court should consider whether any public
interest factors tip the balance in favor of trying the case in the foreign forum. Finally, if the public
interest factors tip the balance in favor of trying the case in the foreign forum, “the court must ...
ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue
inconvenience or prejudice.” Durkin at 466.
Both private and public interest factors show a strong presumption in favor of Connecticut
as a choice of forum. The Plaintiff has filed a ten (10) count complaint against the Defendant
alleging damages under both common law and Connecticut statutory law. Plaintiff is alleging that
Defendant committed civil theft and conversion of its Company property. It has expended
considerable time and resources in an effort to resolve this matter short of litigation. The Plaintiff
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will only suffer additional losses should it have this case dismissed and brought before a court in
another state. The public has a strong interest in preventing out-of-state individuals from
committing tortious acts, only to hide behind jurisdictional issues to prevent redress.
Connecticut is the appropriate forum for this action. It is the situs of the documents,
witnesses, and damages. The Defendant’s motion to dismiss this case on the contention that New
York rather than Connecticut is the proper forum should be rejected. First, it should be appreciated
that this Defendant was a Regional Sales Manager; it is an outside sales position. All of his
business dealings begin and end with Connecticut. Aside from the records which he has withheld
from the Company, all other records, documents, and witnesses will be based in Connecticut.
Ironically, even the wage action he filed and now offers as the front-piece to this motion to dismiss
must inevitably return to the actions taken or not taken in Connecticut.
No reasonable argument can be made that there is a forum better suited to decide the issues
concerning the adjudication and jurisprudence involved than Connecticut and this court’s
application of the law.
WHEREFORE, based on the foregoing reasons and the existing pleadings, Plaintiff
respectfully moves this Court deny Defendant’s Motion to Dismiss in its entirety.
THE PLAINTIFF
PHOENIX ENVIRONMENTAL
LABORATORIES, INC.
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By:___Padric F.S. Noonan___
Padric F.S. Noonan, Esq.
Robert Noonan & Associates
6 Way Road, Suite 314
Middlefield, CT 06455
Tel. (860) 349-7010
Fax. (860) 349-7011
padricnoonan@robertnoonan.com
Juris No. 435887
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CERTIFICATION
I hereby certify that a copy of the foregoing has been e-mailed this 10th day of May, 2021 to
the Defendant’s attorney:
Ronald Kim, Esq.
PO Box 318
Saratoga Springs, NY 12866
ron@ronaldkimlaw.com
By:___Padric F.S. Noonan___
Padric F.S. Noonan, Esq.
Robert Noonan & Associates
6 Way Road, Suite 314
Middlefield, CT 06455
Tel. (860) 349-7010
Fax. (860) 349-7011
padricnoonan@robertnoonan.com
Juris No. 435887
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HHD-CV21-6137666-S : SUPERIOR COURT : PHOENIX ENVIRONMENTAL : LABORATORIES, INC. : J.D. OF HARTFORD Plaintiff : v. : AT HARTFORD : CLARENCE J. BEAMES, IV : Defendant : May 10, 2021 PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS Pursuant to Connecticut Practice Book 10-31, Plaintiff, Phoenix Environmental Laboratories, Inc., (hereinafter referred to as “Plaintiff” or “Phoenix Labs”) by and through its attorney, hereby submits this Memorandum of Law in Opposition to Defendant’s Motion to Dismiss Plaintiff’s Complaint. I. PRELIMINARY STATEMENT Plaintiff is a Connecticut corporation that provides lab testing services throughout the United States. Defendant, Clarence Beames, IV, (hereinafter referred to as “Defendant” or “Beames”) is a former employee of the Plaintiff. When Defendant provided his notice of resignation on or about November 30, 2020, Plaintiff made several informal and formal demands for Defendant to return company property, which included company cell phones, company laptops which contained customer lists, individual account information and the contact and transactional information for each of the customers with whom the employee serviced. (Letter of Resignation, attached hereto as Exhibit A). Defendant refused to return the company property, thereby blocking Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 1 Tel. 860-349-7010 Fax 860-349-7011 any access the company had to its own information. On December 16, 2020, Defendant received a formal demand letter from Plaintiff’s attorney; Defendant also received a Litigation Hold Notice, putting Defendant on notice that litigation was imminent. (Demand Letter and Hold Notice, attached hereto as Exhibit B). Defendant responded that he was in the process of finding an attorney. Three weeks after Defendant received the Litigation Hold Notice, and without any prior contact with the Company, Defendant filed a garden variety wage claim within the state of New York, alleging he is owed commissions that were due but never paid to him. In his current Motion to Dismiss, Defendant attempts to frame the filing of this action as being “retaliatory,” despite a clear record to the contrary. Defendant’s actions can be characterized by a series of devices to delay and obstruct Plaintiff from having access to its own business information, while Defendant continues to work for a direct competitor. The motion to dismiss this lawsuit on the grounds that the action is retaliatory is consistent with the patter. Moreover, Defendant misstates to this Court the gravamen of Plaintiff’s allegations. He characterizes this matter solely as the matter of returning physical property and ignores the valuable intellectual property it contains. He further argues that, because this court ruled a writ of mandamus was not the proper procedural vehicle for the relief sought, this complaint is somehow without merit. Plaintiff filed this lawsuit as a last resort. Perhaps naively, Plaintiff relied on Defendant’s statement in his letter of resignation in which he stated he wanted to facilitate a smooth transition. Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 2 Tel. 860-349-7010 Fax 860-349-7011 (Ex. A). Plaintiff, taking Defendant at his word, asked him to provide customer account information, which only he had access to at the time. Rather than doing so, he engaged in a series of actions to stall and obstruct Plaintiff by offering specious explanations as to why he would not comply with their requests. Finally, after many such attempts to resolve the issues informally, it was made clear that the Plaintiff’s only recourse available was litigation. Equally implausible is Defendant’s contention that he did not have the minimum contacts with the state of Connecticut. In its complaint, Plaintiff alleges that Defendant had at least one customer in the state of Connecticut. (Complaint ¶10). While this alone is sufficient under our case law, upon further examination into company records, Defendant had over fifteen (15) customer accounts in which the customer was registered through the state of Connecticut Secretary of State’s office, either as a Connecticut organization or a foreign entity conducting business within the state. (List of Connecticut Customer Accounts, attached hereto as Exhibit C). Moreover, with the title of Regional Sales Manager, Defendant held himself out as a representative within the state. (Defendant’s Business Card, attached hereto as Exhibit D). On Defendant’s business card, it states Defendant is certified in nine (9) different states, including Connecticut. New York does not appear as the first state, nor the only state. His business card provides his work address as a Connecticut location, with both a general telephone and fax number with a Connecticut area code. Nowhere on the business card does Defendant hold himself out as an employee working solely in the state of New York or providing services only to New York customers. The business card also gives the Defendant’s business email address as Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 3 Tel. 860-349-7010 Fax 860-349-7011 “buddy.phoenixlabs@twc.com,” in contradiction to his argument that this email is not property of the Plaintiff. Plaintiff respectfully asks this court to find that the ends of justice so require that Defendant’s Motion to Dismiss be denied in its entirety. II. FACTUAL BACKGROUND Phoenix Labs is a Connecticut corporation headquartered in Manchester, Connecticut, which offers high quality testing of soils, water, sludge and solids to a diver client base throughout the country. (Complaint ¶3). Defendant is a New York resident who worked for Plaintiff. (Complaint ¶2). Defendant worked as a Sales Manager for the Plaintiff from August 13, 2007 to on or about December 21, 2020. (Complaint ¶5). To assist Defendant with his duties as an employee, Plaintiff provided Defendant with a company cellphone, internet service, a company computer and an array of confidential, proprietary, and commercially sensitive information. (Employment Agreement, attached hereto as Exhibit E). The company property contained confidential and proprietary information and trade secrets, including but not limited to sales accounts, customer accounts and information, financial information, data points, records, reports and other information; all property belonging exclusively to Plaintiff. (Complaint ¶ 7). The company property also contained sales and services communications between customers and the Plaintiff. (Complaint ¶ 8). Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 4 Tel. 860-349-7010 Fax 860-349-7011 The cellphone account and company property were paid for entirely by the Plaintiff, in the state of Connecticut, its intended use being solely for conducting company business. The account was used for business services, company client phone numbers and business activities. (Complaint ¶ 9; Complaint ¶ 10; Sample Invoices attached hereto as Exhibit F). The Defendant used a “Phoenix Labs” email address on the company computer and cellphone. (Complaint ¶ 11). Defendant used this cellphone account, along with cable, internet and email services paid for exclusively by the Plaintiff. At the beginning of December 2020, Defendant notified Plaintiff of his intent to resign from the Company, through a letter of resignation dated November 30, 2020. (Complaint ¶ 13). On the same day Defendant provided his notice of resignation, Plaintiff asked Defendant to provide the company with the passwords to the company issued cellphone so it could access its records. (Complaint ¶ 14; Affidavit of Padric F.S. Noonan, Esq., attached hereto as Exhibit G). Defendant refused to provide the information to Plaintiff. (Complaint ¶ 15). Prior to Defendant’s last date of work, Plaintiff attempted multiple times to access its account and retrieve company information. Despite several informal attempts to obtain the company information from Defendant, Defendant continued to refuse to provide Plaintiff with its confidential and propriety information. Complaint ¶ 17). Defendant remains in possession of the company cellphone, internet/email service and company computer. (Complaint ¶ 18). Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 5 Tel. 860-349-7010 Fax 860-349-7011 While employed by Plaintiff, Defendant had contacts and customers within the state of Connecticut. (Complaint ¶ 19). While employed by Plaintiff, Defendant transacted business within the state and the Defendant’s dealings with respect to his employer were in the state of Connecticut. (Complaint ¶ 19; Ex. C; Ex. F). While employed by Plaintiff, Defendant committed tortious acts within and outside of the state of Connecticut, which caused injury to the Plaintiff within the state of Connecticut. (Complaint ¶ 20). As a salesperson, Defendant knew or should have reasonably expected his theft of company property would have dramatic consequences for the Plaintiff in the state of Connecticut. The Plaintiff derives substantial revenue from interstate commerce. During Defendant’s employment, he had personal knowledge of, access to and and/or was privy to Plaintiff’s trade secrets and/or confidential information, including access to the company owned cellphone account and its customer accounts. He was the only person that had the ability to access these customer accounts. (Complaint ¶ 22). Plaintiff takes reasonable steps to protect its confidential information, and employees are required to return company property immediately following their termination of employment. (Complaint ¶ 23.) On December 16, 2020, Defendant was issued a demand letter through Plaintiff’s counsel in an effort to retrieve its stolen property and confidential information. (Ex. B). As part of the demand letter, Defendant was also issued a litigation hold notice, in which he was notified that Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 6 Tel. 860-349-7010 Fax 860-349-7011 litigation in the state of Connecticut would be imminent if he did not return the Plaintiff’s property and was advised to preserve all documents which may relate to the litigation. (Ex. B.) Following his departure from the company and his theft of its property, Defendant took a position with a competitor that is engaged in the same, or a substantially similar business as Plaintiff. (Complaint ¶ 25) Defendant has continued to use and benefit from the Plaintiff’s confidential information and company property. (Complaint ¶ 26.) Plaintiff will continue to suffer irreparable harm if Defendant is not prevented from his continued theft and malicious conversion of company property. (Complaint ¶ 29.) III. PROCEDURAL HISTORY On January 28, 2021, Plaintiff filed a ten (10) count complaint against Defendant. On February 5, 2021, Plaintiff filed an Application for a Writ of Mandamus (Entry No. 101.00), which was denied by the court on February 24, 2021 (Entry No. 101.86). On March 25, 2021, Defendant filed a Motion to Dismiss Plaintiff’s civil complaint, alleging this court does not have personal jurisdiction over the defendant (Entry No. 106.00, 107.00, 108.00). IV. LAW AND ARGUMENT A. Legal Standard. Connecticut Practice Book § 10-31 states in part that any adverse party to a motion to dismiss may respond to the motion through a memorandum of law in opposition and, where Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 7 Tel. 860-349-7010 Fax 860-349-7011 appropriate, include “supporting affidavits as to facts not apparent on the record.” Practice Book 10-31. “When a ... court decides a ... 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, construing 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.” (Citations omitted; internal quotation marks omitted.) Labissoniere v. Gaylord Hosp., Inc., 182 Conn.App. 445, 451-52, 185 A.3d 680 (2018). “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002); Carpenter v. Daar, 199 Conn. App. 367, 381, 236 A.3d 239, 251 (2020). “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.” Samelko v. Kingstone Ins. Co., 329 Conn. 249, 256, 184 A.3d 741 (2018). Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 8 Tel. 860-349-7010 Fax 860-349-7011 “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. Designs for Health, Inc. v. Miller, 187 Conn. App. 1, 11–12, 201 A.3d 1125, 1132–33 (2019). B. This Court has Personal Jurisdiction over the Defendant Pursuant to Connecticut’s Long-Arm Statute. Connecticut General Statute §52-59b addresses the jurisdiction of our courts over nonresident individuals. The statute states the following: “(a) 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, or over the executor or administrator of such 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 Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 9 Tel. 860-349-7010 Fax 860-349-7011 (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. (Conn. Gen Stat. § 52-59b). i. Defendant transacted business within the State of Connecticut. While employed by Plaintiff, Beames transacted business within the state of Connecticut. In its complaint, Plaintiff states that Defendant had at least one client in the state of Connecticut in which he transacted business within the state and that Defendant’s dealings with respect to his employer were in the state of Connecticut. (Complaint ¶19). Upon further examination into the matter, Plaintiff identified at least fifteen (15) customer accounts that were handled by the Defendant in which each customer was registered through the state of Connecticut Secretary of State’s office, either as a Connecticut corporation or a foreign entity doing business within the state. (Ex. C). Three of those customers (Langan Engineering, C2G Environmental, and Triumvirate Environmental) are headquartered in Connecticut. One of Defendant’s duties as a regional salesman was to collect and submit samples for testing from his customers. Those samples were submitted to the Plaintiff’s Connecticut facility to be tested at that facility. In 2020 alone, Defendant submitted approximately 993 samples to the Connecticut facility for testing; all samples are tested in Connecticut. (Ex. C.) Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 10 Tel. 860-349-7010 Fax 860-349-7011 With respect to Connecticut’s long arm statute, because “the General Statutes do not define what the phrase ‘transacts any business' means in the context of § 52–59b ... we construe the term ‘transacts any business' to embrace a single purposeful business transaction.” Zartolas v. Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981). “In determining whether the plaintiffs' cause of action arose from the defendants' transaction of business within this state we do not resort to a rigid formula. Rather, we balance considerations of public policy, common sense, and the chronology and geography of the relevant factors.” Id., at 477, 440 A.2d 179; Walshon v. Ballon Stoll Bader & Nadler, P.C., 121 Conn. App. 366, 371–72, 996 A.2d 1195, 1198–99 (2010). “A purposeful business transaction is one in which the defendant has engaged in some form of affirmative conduct allowing or promoting the transaction of business within the forum state.” Ruocco v. Metro Boston Hockey League, Superior Court, judicial district of New Haven, Docket No. CV 07 4024835 (December 7, 2007, Robinson, J.); Dime Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. X05CV094017091S, 2010 WL 760441, at *7 (Conn. Super. Ct. Jan. 15, 2010). Whether the customers were headquartered in Connecticut or another state, Defendant transacted business within the state of Connecticut with respect to those customers. Defendant had to coordinate with the Connecticut office to provide information on testing; he had to send samples to the Connecticut office; reports produced from those samples all occurred within the state of Connecticut. Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 11 Tel. 860-349-7010 Fax 860-349-7011 ii. Defendant committed tortious acts outside of Connecticut causing injury to Plaintiff within Connecticut. By refusing to provide Plaintiff with its property and customer accounts, Defendant committed tortious acts outside of Connecticut, causing injury to Plaintiff within the state of Connecticut. Defendant expected or should have reasonably expected that his actions would have consequences in the state in Connecticut, in which the Plaintiff derives substantial revenue from interstate or international commerce and in which the Defendant was paid his salary. Our Supreme Court has interpreted “derives substantial revenue from interstate or international commerce,” as used in § 52-59b(a)(3)(B), to mean “enough revenue to indicate a commercial impact in the forum, such that a defendant fairly could have expected to be haled into court there.” Ryan v. Cerullo, supra, 282 Conn. 125; Gilbert v. Zivtech, LLC, No. CV176074279S, 2018 WL 3715572, at *10 (Conn. Super. Ct. July 5, 2018). Defendant serviced at least fifteen (15) clients that had dealings in the state of Connecticut. By refusing to turn over the company property, Plaintiff did not have access to any of those customer accounts; Defendant was the only one with access to the customer information. Any disruption to those accounts could have resulted in Plaintiff losing the customers; a loss of those accounts to a competitor would have a sizeable commercial and financial impact on the Plaintiff. C. The constitutional principles of due process have been adequately established. i. Plaintiff has established Defendant had the requisite minimum contacts. Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 12 Tel. 860-349-7010 Fax 860-349-7011 Once the long-arm requirements are met by the Plaintiff, the court has an obligation to then decide whether exercise of jurisdiction over the Defendant would violate constitutional principles of due process. Kenny v. Banks, supra, 289 Conn. 533, (2008). “A determination of whether sufficient minimum contacts with Connecticut exist is a fact question.” Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 56. It is “incumbent on the plaintiff to prove the facts establishing the requisite minimum contacts.” Id., 52-53. “The twin touchstones of due process analysis under the minimal contacts doctrine are foreseeability and fairness. The foreseeability that is critical to due process analysis ... is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Hart, Nininger & Campbell Associates, Inc. v. Rogers, supra, 16 Conn.App. 625-26, (1998). By requiring that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign ... the due process clause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. Zivtech, LLC, No. CV176074279S, at *10–11 (Conn. Super. Ct. July 5, 2018). Despite Defendant’s attempt to frame this lawsuit as retaliatory, the record indicates clearly that Defendant should have reasonably anticipated that he would be subject to litigation in Connecticut based on his actions. The complaint alleges that Defendant intentionally withheld Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 13 Tel. 860-349-7010 Fax 860-349-7011 company property, refused to return the property, and intentionally withheld confidential and proprietary information, for the benefit of himself and his new employer. Defendant was put on notice through repeated informal requests while still an employee that the company intended to seek legal redress should he continue to refuse to turn over the company property. Defendant was put on further notice through a formal demand letter and Litigation Hold Notice. It was only after Defendant received the demand letter and litigation hold notice that he filed a wage claim in the state of New York. There can be no doubt based on the number of requests made by Plaintiff in December 2020 that Defendant knew litigation in the state was imminent. Defendant is withholding company property paid for by the Plaintiff in the state of Connecticut. Defendant is withholding confidential and proprietary information, which includes customer information from customers located within the state, or transacting within the state. (Ex. C). ii. The assertion of personal jurisdiction comports with fair play and justice. Once minimum contacts have been established, the second stage of the due process inquiry asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice—that is, whether it is reasonable under the circumstances of the particular case. Therefore, while the exercise of jurisdiction is favored where the plaintiff has made a threshold showing of minimum contacts at the first stage of the inquiry, it may be defeated where the defendant presents a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Cogswell v. American Transit Ins. Co., supra, 282 Conn. 525. Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 14 Tel. 860-349-7010 Fax 860-349-7011 Connecticut has a strong interest in protecting its citizens from civil theft. Plaintiff has a strong interest in protecting its assets, customers, and proprietary and confidential information. Accordingly, the plaintiff's interest in obtaining and the state's interest in providing relief and protection from civil theft and conversion outweigh any burden the Defendant may face in defending this case in Connecticut. Exercising personal jurisdiction over him is neither unjust nor otherwise violates the constitutional principles of due process. The court will typically look to five (5) factors when analyzing due process: (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. Where a plaintiff makes the threshold showing of the minimum contacts required for the first part of the due process test, a defendant must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. The import of the ‘reasonableness' inquiry varies inversely with the strength of the ‘minimum contacts' showing—a strong (or weak) showing by the plaintiff on ‘minimum contacts' reduces (or increases) the weight given to ‘reasonableness.’ Milne v. Catuogno Court Reporting Services, Inc., 239 F.Sup.2d 195, 205 (D.Conn.2002). Connecticut has a strong interest in protecting its citizens from civil theft and conversion by out-of-state individuals; to hold contrary would be to hold that a Connecticut employer cannot enforce in the courts of this state the obligation of former employees to return company property Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 15 Tel. 860-349-7010 Fax 860-349-7011 and proprietary information. Employees would be free to unplug their laptops and head home to the state in which they are domiciled, free equipment and trade secrets in tow. The Plaintiff has an obvious interest in obtaining relief in the state where it is located, where it provides services, and where the company property and information should have been returned. Lastly, all states share a social policy interest that companies who are located and perform services within their borders should be able to seek legal redress for theft of property before their courts. (“All states share a social policy interest that companies, including law firms, who are located and perform services within their borders, are able to seek payment for the services in their courts.” Id. at 4) Exercising personal jurisdiction over the Defendant would not violate his due process rights. D. This court is the proper jurisdiction to decide the issues in this case. The common law doctrine of forum non conveniens is an exception to the general rule that a court must hear and decide cases over which it has jurisdiction by statute or constitution, and recognizes the discretion of a court, in some few instances, where jurisdiction and venue are proper ... to dismiss a suit because the court has determined that another forum is better suited to decide the issues involved.” Sabino v. Ruffolo, 19 Conn.App. 402, 405–06 (1989). “A court that decides to dismiss a case on the grounds of forum non conveniens has jurisdiction but elects to dismiss the case and defer to another forum.” Durkin v. Intevac, Inc., 258 Conn. 454, 480 (2001). “[T]he central principle of the forum non conveniens doctrine is that unless the balance is strongly in favor of the defendants the plaintiff's choice of forum should rarely be disturbed ... the doctrine Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 16 Tel. 860-349-7010 Fax 860-349-7011 of forum non conveniens is a drastic remedy ... which the trial courts must approach with caution and restraint. The trial court does not have unchecked discretion to dismiss cases ... simply because another forum in the court's view may be superior to that chosen by the plaintiffs ... The plaintiffs' choice of forum, which may well have been chosen precisely because it provides the plaintiffs with certain procedural or substantive advantages, should be respected unless equity weighs strongly in favor of the defendant[s] ...” Durkin, supra at 464–65. The court looks to four factors in determining whether the Plaintiff’s choice of forum is correct. First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case. Second, the court should consider all relevant private interest factors with a strong presumption in favor of…the plaintiffs' initial choice of forum. Third, if the balance of private interest factors is equal, the court should consider whether any public interest factors tip the balance in favor of trying the case in the foreign forum. Finally, if the public interest factors tip the balance in favor of trying the case in the foreign forum, “the court must ... ensure that [the] plaintiffs can reinstate their [action] in the alternative forum without undue inconvenience or prejudice.” Durkin at 466. Both private and public interest factors show a strong presumption in favor of Connecticut as a choice of forum. The Plaintiff has filed a ten (10) count complaint against the Defendant alleging damages under both common law and Connecticut statutory law. Plaintiff is alleging that Defendant committed civil theft and conversion of its Company property. It has expended considerable time and resources in an effort to resolve this matter short of litigation. The Plaintiff Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 17 Tel. 860-349-7010 Fax 860-349-7011 will only suffer additional losses should it have this case dismissed and brought before a court in another state. The public has a strong interest in preventing out-of-state individuals from committing tortious acts, only to hide behind jurisdictional issues to prevent redress. Connecticut is the appropriate forum for this action. It is the situs of the documents, witnesses, and damages. The Defendant’s motion to dismiss this case on the contention that New York rather than Connecticut is the proper forum should be rejected. First, it should be appreciated that this Defendant was a Regional Sales Manager; it is an outside sales position. All of his business dealings begin and end with Connecticut. Aside from the records which he has withheld from the Company, all other records, documents, and witnesses will be based in Connecticut. Ironically, even the wage action he filed and now offers as the front-piece to this motion to dismiss must inevitably return to the actions taken or not taken in Connecticut. No reasonable argument can be made that there is a forum better suited to decide the issues concerning the adjudication and jurisprudence involved than Connecticut and this court’s application of the law. WHEREFORE, based on the foregoing reasons and the existing pleadings, Plaintiff respectfully moves this Court deny Defendant’s Motion to Dismiss in its entirety. THE PLAINTIFF PHOENIX ENVIRONMENTAL LABORATORIES, INC. Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 18 Tel. 860-349-7010 Fax 860-349-7011 By:___Padric F.S. Noonan___ Padric F.S. Noonan, Esq. Robert Noonan & Associates 6 Way Road, Suite 314 Middlefield, CT 06455 Tel. (860) 349-7010 Fax. (860) 349-7011 padricnoonan@robertnoonan.com Juris No. 435887 Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 19 Tel. 860-349-7010 Fax 860-349-7011 CERTIFICATION I hereby certify that a copy of the foregoing has been e-mailed this 10th day of May, 2021 to the Defendant’s attorney: Ronald Kim, Esq. PO Box 318 Saratoga Springs, NY 12866 ron@ronaldkimlaw.com By:___Padric F.S. Noonan___ Padric F.S. Noonan, Esq. Robert Noonan & Associates 6 Way Road, Suite 314 Middlefield, CT 06455 Tel. (860) 349-7010 Fax. (860) 349-7011 padricnoonan@robertnoonan.com Juris No. 435887 Robert Noonan & Associates LLC 6 Way Road, Suite 314, Middlefield, CT 06455 20 Tel. 860-349-7010 Fax 860-349-7011