Motion to Dismiss in DEILEY, LARRY A. v. NEFF COMPANIES, LLC, D/B/A REI HOLDINGS| Trellis.Law

On February 13, 2020 a Motion-Secondary was filed involving a dispute between Larry A. Deiley, and Neff Companies, Llc, D B A Rei Holdings, for T90 - Torts - All other in the District Court of Fairfield County.

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NO. FBT-CV20-6094348-S : SUPERIOR COURT

LARRY A. DEILEY : JUDICIAL DISTRICT OF FAIRFIELD

VS. : AT BRIDGEPORT

NEFF COMPANIES, LLC, d/b/a
REI HOLDINGS : MARCH 31, 2020

MEMORANDUM OF LAW IN OPPOSITION TO
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

I. Procedural Posture

Larry A. Deiley (the "Plaintiff") commenced this action by summons and

complaint dated January 28, 2020, in six counts alleging the breach by Neff Companies,

LLC, d/b/a REI Holdings (the "Defendant") of two Tax Lien Assignment Agreements (the

"Bridgeport Contract" and the "West Haven Contract", or collectively, the "Contracts")

pursuant to which the Plaintiff purchased from the Defendant, and the Defendant sold to

the Plaintiff, all of the Defendant's right, title and interest in and to two municipal real

property tax liens, one in the City of Bridgeport and one in the City of West Haven,

fraud, breach of the covenants of good faith and fair dealing implied in the Contracts,

unjust enrichment, breach of fiduciary duty and a violation of the Connecticut Unfair

Trade Practices Act.

On February 28, 2020, the Defendant appeared by counsel. On March 9, 2020,

the Defendant moved to dismiss this action for lack of subject matter jurisdiction on the

ground that the Contracts contain express choice of venue and venue waiver

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provisions. The Plaintiff now respectfully submits this memorandum of law in opposition

to that motion.

II. Factual Background

The Plaintiff alleges in his complaint the Defendant is a Utah limited liability

company registered with the Connecticut Secretary of the State to transact business in

the State of Connecticut. The Defendant engages in the business of purchasing and

selling real property tax liens in various states, including the State of Connecticut,

holding itself out to the public as creating a secondary market for the purchase of tax

liens by individuals who normally cannot compete with institutional investors, banks and

hedge funds in the primary market for the purchase of tax liens directly from

government entities.

On or about June 18, 2015, the Plaintiff and the Defendant entered into the

Bridgeport Contract pursuant to which the Plaintiff purchased from the Defendant, and

the Defendant sold to the Plaintiff, all of the Defendant's right, title and interest in and to

a municipal real property tax lien (the "2007 Bridgeport Tax Lien") for the unpaid taxes

on the Grand List of October 1, 2007 assessed by the City of Bridgeport on the real

property owned by 1225 Connecticut Ave., LLC known as and located at 148 Bishop

Avenue, Bridgeport, Connecticut ("148 Bishop"), for the sum of $7,204.69. The

Defendant never executed or delivered to the Defendant an assignment of the

Bridgeport 2007 Tax Lien for recording on the Bridgeport land records, and therefore no

assignment of the 2007 Tax Lien by the Defendant to the Plaintiff was ever recorded on

the Bridgeport land records. Although a Certificate of Continuing Tax Lien with respect

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to the 2007 Bridgeport Tax Lien in the principal amount of $3,202.68 had been recorded

by the City of Bridgeport on April 15, 2009 in Volume 8002 at Page 1 of the Bridgeport

land records, the Bridgeport land records reveal that it was not assigned to the

Defendant and, on information and belief, it is still owned by the City of Bridgeport. The

Defendant, therefore, did not own the 2007 Bridgeport Tax Lien when it entered into the

Bridgeport Contract with the Plaintiff on or about June 18, 2015, by which it purportedly

sold him the 2007 Tax Lien. The Defendant thereby breached the Bridgeport Contract

by selling the Defendant a tax lien which it did not own, causing financial damage to the

Plaintiff.

Similarly, on or about May 28, 2015, the Plaintiff and the Defendant entered into

the West Haven Contract pursuant to which the Plaintiff purchased from the Defendant,

and the Defendant sold to the Plaintiff, all of the Defendant's right, title and interest in

and to a municipal real property tax lien (the "2005 West Haven Tax Lien") for the

unpaid taxes on the Grand List of October 1, 2005 assessed by the City of West Haven

on the real property owned by John H. Stevenson known as and located at 34 Thomas

Street, West Haven, Connecticut ("34 Thomas"), for the sum of $4,609.79. The

Defendant never executed or delivered to the Defendant an assignment of the 2005

West Haven Tax Lien for recording on the West Haven land records, and therefore no

assignment of the 2005 West Haven Tax Lien by the Defendant to the Plaintiff was ever

recorded on the West Haven land records. If a 2005 West Haven Tax Lien was ever

recorded, the West Haven land records do not reveal any assignment to the Defendant.

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The Defendant, therefore, did not own the 2005 West Haven Tax Lien when it entered

into the West Haven Contract with the Plaintiff on or about May 28, 2015, by which it

purportedly sold him the 2005 West Haven Tax Lien. The Defendant thereby breached

the West Haven Contract by selling the Defendant a tax lien which it did not own.

Both the Bridgeport Contract and the West Haven Contract contain the following

provision in Paragraph 3 thereof:

In the event of a dispute, the Parties submit to the jurisdiction of the State
of Utah, waiving any jurisdiction in the state in which the property subject
to the Tax Liens is located, and the venue of any proceedings shall be
Utah County, State of Utah.

Copies of the Contracts are exhibits to the Defendant's motion.

III. Law and Argument

“A motion to dismiss ... properly attacks the jurisdiction of the court, essentially

asserting that the plaintiff cannot as a matter of law and fact state a cause of action that

should be heard by the court.” (Emphasis in original; internal quotation marks omitted.)

Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991). “A motion to dismiss

tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”

(Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71

(2006). “Jurisdiction over the subject matter is the court’s power to hear and decide

cases of the general class to which the proceedings at issue belong ... Where a

decision as to whether a court has subject matter jurisdiction is required, every

presumption favoring jurisdiction should be indulged.” (Citations omitted; internal

quotation marks omitted.) Olympia Mortgage Corp. v. Klein, 61 Conn.App. 305, 307,

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763 A.2d 1055 (2001), quoting, Haigh v. Haigh, 50 Conn.App. 456, 460- 61, 717 A.2d

837 (1998).

The standard for ruling upon a motion to dismiss is well established. “ ‘In ruling

upon whether a complaint survives a motion to dismiss, 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. Mahoney v.

Lensink, 213 Conn. 548, 567, 569 A.2d 518 (1990)....’ Pamela B. v. Ment, 244 Conn.

296, 308, 709 A.2d 1089 (1998). Furthermore, ‘it is the law in our courts, as it is in the

federal courts, that [a] court may dismiss a complaint only if it is clear that no relief could

be granted under any set of facts that could be proved consistent with the allegations.'

(Internal quotation marks omitted.) Id., at 309, 709 A.2d 1089.” Villager Pond, Inc. v.

Town of Darien, 54 Conn.App. 178, 183, 734 A.2d 1031 (1999).

A. The forum selection clause in the Contracts does not deprive the Court of
subject matter jurisdiction.

A forum selection clause in a contract does not implicate the subject matter

jurisdiction of the court in which the civil action is commenced. "[A] mere contractual

agreement does not alter the subject matter jurisdiction of this court. Subject matter

jurisdiction relates to the court's competency to exercise power in a particular type of

legal controversy, and “unlike juridiction [sic] of the person, [it] cannot be created

through consent or waiver.” Castro v. Viera, 207 Conn. 420, 430, 541 A.2d 1216 (1988).

Thus, 'the old notion that forum selection clauses in contracts "are improper because

they had to 'oust' a court of jurisdiction is hardly more than a vestigal [sic] of legal

fiction." ' Emlee Equipment Leasing Corp., 41 Conn.Sup. 575, 57 (1991), quoting The

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Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972). 'In the face of such an

agreement a court retains the right to hear the case ... but it is not bound to exercise

that right.' Funding Systems Leasing Corp. v. Diaz, 34 Conn.Sup. 99, 101-02, 470 A.2d

720 (1977). (emphasis added). ... As a court of general jurisdiction, the superior court

has the power to entertain actions for breach of contract. See Bank of Babylon v. Quirk,

192 Conn. 447, 449, 472 A.2d 21 (1984) (superior court is court of general jurisdiction);

Emlee Equipment Leasing Corp., supra 577 ('... [T]he Superior Court of Connecticut has

subject matter jurisdiction to hear ... contract dispute[s]')." Copelco Leasing Corp. v.

Fox, No. CV 91 0324266 S, 1992 WL 32681, at *2.

"Moreover, the claim that a forum selection clause will strip a court of its

jurisdiction over the parties, while not yet expressly considered by this court, [footnote

omitted] has been solidly rejected by the great weight of courts and authorities

considering the question after the Supreme Court's decision in Bremen. See, e.g.,

Lambert v. Kysar, 983 F.2d 1110, 1118 n. 11 (1st Cir.1993) ('It is well established that a

forum selection clause does not divest a court of jurisdiction or proper venue over a

contractual dispute. Rather, a court addressing the enforceability of a forum selection

clause is to consider whether it must, in its discretion, decline jurisdiction and defer to

the selected forum.' [Emphasis in original.]); Manrique v. Fabbri, 493 So.2d 437, 439–

40 (Fla.1986) ('Forum selection clauses ... do not oust courts of their jurisdiction. They

merely present the court with a legitimate reason to refrain from exercising that

jurisdiction.' [Internal quotation marks omitted.]); Smith, Valentino & Smith, Inc. v.

Superior Court, 17 Cal.3d 491, 495, 551 P.2d 1206, 131 Cal.Rptr. 374 (1976) ( '[w]hile it

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is true that the parties may not deprive courts of their jurisdiction over causes by private

agreement ... it is readily apparent that courts possess discretion to decline to exercise

jurisdiction in recognition of the parties' free and voluntary choice of a different

forum' [citation omitted; emphasis in original]); 1 Restatement (Second), supra, § 80."

Reiner, Reiner & Bendett, P.C. v. The Cadle Co., 278 Conn. 92, 102-03, 897 A.2d 58

(2006) (rejecting the claim that the trial court lacked personal jurisdiction over the

defendant on the basis of an Ohio forum selection clause).

Thus, the subject matter jurisdiction of this Court is unaffected by the forum

selection clause in the Contracts, and this Court is free to exercise jurisdiction over this

action, and ought to do so.

B. The forum selection clause does not exclude the exercise of this Court's
jurisdiction because it does not contain specific language of exclusion.

" 'The general rule, as demonstrated by several federal cases, is that a forum

selection clause conferring jurisdiction in one forum will not be interpreted as excluding

jurisdiction elsewhere unless it contains specific language of exclusion. See Boutari

and Son, Wines and Spirits v. Attiki Importers and Distributors, Inc., 22 F.3d 51, 52

(1994) (the general rule in cases containing forum selection clauses is that when only

jurisdiction is specified the clause will generally not be enforced without some further

language indicating the parties' intent to make jurisdiction exclusive); see also

Docksider, Ltd. v. Sea Technology, Ltd., 875 F.2d 762, 764 (9th Cir.1989); Hunt Wesson

Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77-78 (9th Cir.1987). Connecticut case

law also appears to impose the requirement that the language of the clause indicate

that the forum choice is exclusive. See Dan Perkins Chevrolet v. Auto Tell Services,

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Inc., Superior Court, judicial district of Ansonia Milford at Milford, Docket No. 36508

(March 17, 1992) (Flynn, J.) (6 Conn. L. Rptr. 690); Copelco Leasing Corp. v. Fox,

Superior Court, judicial district of New Haven at New Haven, Docket No. 324266

(February 7, 1992) (DeMayo, J.) (5 Conn. L. Rptr. 8).(5 Conn. L. Rptr. 8).' (Internal

quotation marks omitted.) IDV North America v. Illva Saronno, S.p.A., Superior Court,

judicial district of Hartford, Docket No. 058059 (September 9, 1999) (Teller, J.)."

Friedman v. Jamison Business Systems, Inc., No. CV010343518S, 2002 WL 442286, at

*2 (Conn. Super. Ct. Feb. 25, 2002).

The key language in the forum selection clause in the Contracts is, "In the event

of a dispute, the Parties submit to the jurisdiction of the State of Utah...." There is no

language of exclusion in that wording. It does not provide that the Parties "shall"1 or

"must" or "are required to" submit to the jurisdiction of the State of Utah. It does not say

that they submit "exclusively" or "only" to the jurisdiction of the State of Utah. Although

the Defendant makes the naked assertion that the forum selection clause in the

Contracts is exclusive, the Defendant does not and, indeed, it cannot point to any

language of exclusion in that one-sentence clause. The forum selection clause in the

1 While the Contracts say that venue "shall be" in Utah County, Utah, the issue of venue
does not even arise until the question of jurisdiction is settled. " 'Venue must be
carefully distinguished from jurisdiction. Jurisdiction deals with the power of a court to
hear and dispose of a given case; in the federal system, it involves questions of a
constitutional dimension concerning the basic division of judicial power among the
states and between state and federal courts. Venue is of a distinctly lower level of
importance; it is simply a statutory device designed to facilitate and balance the
objectives of optimum convenience for parties and witnesses and efficient allocation of
judicial resources.' Jack H. Friedenthal, et aI., Civil Procedure § 2.1, at 10 (2d ed.
1993)." Black's Law Dictionary, (9th Ed. 2009), p. 1695.

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Contracts, therefore, does not prevent this Court for exercising its subject matter

jurisdiction.

C. The Contracts are contracts of adhesion and the forum selection clause
therein is not binding on the Plaintiff.

"It is an established principle that 'parties to a contract may agree in advance to

submit to the jurisdiction of a given court.' United States Trust Co. v. Bohart, 197 Conn.

34, 43, 495 A.2d 1034 (1985), quoting National Rental v. Szukhent, 374 U.S. 311,

315-16 (1964). Moreover, where 'the court selected [by the parties] is reasonably

appropriate, and ... there is no indication that "the parties had such greatly

disproportionate bargaining power that the agreement could be regarded as

unconscionable, the tendency is to give effect to such agreemernts [sic]." ' Fairfield

Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 498, 495 A.2d 286 (1985),

quoting James & Hazard, Civil Procedure (2d Ed.1977) § 12.21." Copelco Leasing

Corp. v. Fox, supra, at *1 (Conn. Super. Ct. Feb. 7, 1992) (denying motion to dismiss for

lack of subject matter jurisdiction).

The Utah County, Utah court selected by the Defendant and nominally "agreed

to" by the Plaintiff in the Contracts is not "reasonably appropriate." The Defendant has

purposefully chosen to do business in the State of Connecticut by registering with the

Secretary of the State to do so, in order that it may tap into the lucrative tax lien

marketplace in any of the 169 municipalities in Connecticut and draw its customers into

the Connecticut tax lien marketplace. Participation in this marketplace requires

negotiating for the purchase of, purchasing, recording and enforcing the tax liens

exclusively in Connecticut and requires the Defendant's customers, such as the Plaintiff,

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to litigate the foreclosure of the liens, or to assert and defend the priorities of the liens

they purchase, exclusively in the Connecticut Superior Court. The business relationship

between the Plaintiff and the Defendant has everything to do with Connecticut and

nothing to do with Utah. The happenstance that the Defendant is a Utah corporation

with its principal place of business in Utah is of no significance to its customers,

including the Plaintiff. This lack of significance of the Defendant's situs in Utah is

underscored by the fact that there is no provision in the Contracts that they be governed

by Utah law.

As alleged in the complaint, the Defendant holds itself out to the public as

creating a secondary market for the purchase of tax liens by individuals who normally

cannot compete with institutional investors, banks and hedge funds for the purchase of

tax liens:

Individuals have been buying tax lien certificates from counties for
centuries, but for the first time in history, individuals can participate on the
Secondary Market. Previously this was a world small investors could not
participate in. Not anymore. ... REI Holdings’ members gain entry to the
nation’s largest retail marketplace for tax lien certificates. Individual
investors can now access tax lien certificates that they could never
purchase before! Through REI Holdings’ exclusive relationships with large
institutional investors, hedge funds, banks, and brokers, members can
now tap into a space that was previously impenetrable.

www.rei-holdings.com, last accessed March 30, 2020. Although the Defendant claims

to unlock the door to this marketplace in Connecticut, it does so strictly on its own terms

which it imposes on buyers, such as the Plaintiff, through the use of a pre-printed, non-

negotiable form contract prepared entirely by the Defendant. The only terms of the

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Contracts which are variable are the blanks to be filled in with the name and address of

the purchaser/assignee and the purchase price.

Under these circumstances, it is clear that the Contracts are adhesion contracts,

"offered to the plaintiff on a 'take it or leave it' basis. The 'most salient feature [of

adhesion contracts] is that they are not subject to the normal bargaining processes of

ordinary contracts.' Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.

2d 219 (1988); see also Black's Law Dictionary (7th Ed. 1999) (defining adhesion

contract as '[a] standard form contract prepared by one party, to be signed by the party

in a weaker position, [usually] a consumer, who has little choice about the terms')."

Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 333, 885 A.2d 734 (2005).

See also, Rearden v. Windswept Farm, LLC, 280 Conn. 153, 162-63, 905 A.2d 1156

(2006). The term "contract of adhesion" "was first introduced into American legal

vocabulary by Professor Edwin Patterson, who noted that life insurance contracts are

contracts of adhesion because '[t]he contract is drawn up by the insurer and the insured,

who merely ‘adheres' to it, has little choice as to its terms.' E. Patterson, “The Delivery

of a Life-Insurance Policy,” 33 Harv.L.Rev. 198, 222 (1919)." Aetna Casualty & Surety

Co. v. Murphy, supra, at 416, overruled on other grounds by Arrowood Indemnity Co. v.

King, 304 Conn. 179, 39 A.3d 712 (2012). The greatly disproportionate bargaining

power of the Defendant and the Plaintiff is manifested in the pre-printed form Contracts.

Accordingly, the "tendency to give effect" to a forum selection clause in a contract does

not apply in the case at bar, where the forum selected by the parties is not reasonably

appropriate, and there is every indication that "the parties had such greatly

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disproportionate bargaining power that the agreement could be regarded as

unconscionable." Fairfield Lease Corp. v. Romano's Auto Service, supra, at 498.

Although the fact that the Contracts are contracts of adhesion does not

automatically render their forum selection clause unenforceable, the forum selection

clause is unenforceable in this particular case because it is unduly oppressive or

unconscionable.

[A] contract of adhesion is fully enforceable according to its terms ...
unless certain other factors are present which, under established legal
rules—legislative or judicial—operate to render it otherwise ... Generally
speaking ... there are two judicially imposed limitations on the enforcement
of adhesion contracts or provisions thereof. The first is that such a
contract or provision which does not fall within the reasonable
expectations of the weaker or ‘adhering’ party will not be enforced against
him ... The second—a principle of equity applicable to all contracts
generally-is that a contract or provision, even if consistent with the
reasonable expectations of the parties, will be denied enforcement if,
considered in its context, it is unduly oppressive or unconscionable."
(Citations omitted; internal quotation marks omitted.) Id., at 925; see ADC
Rig Services, Inc. v. JP Morgan Chase Bank, N.A., supra, 641 F.Sup.2d at
623 (adhesion contracts are not automatically unenforceable); Wallace v.
National Bank of Commerce, supra, 938 S.W.2d at 688 (“not all adhesion
contracts are unenforceable. Even if a contract is found to be adhesive, it
is enforceable unless it is unduly oppressive or unconscionable.”).

This approach is consistent with Connecticut law. “Although it is well
established that parties are free to contract for whatever terms on which
they may agree ... it is equally well established that contracts that violate
public policy are unenforceable ... [T]he question [of] whether a contract is
against public policy is [a] question of law dependent on the
circumstances of the particular case ...” (Citations omitted; internal
quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp.,
supra, 276 Conn. at 326–27.

“[T]he doctrine [of unconscionability] has both a procedural and a
substantive element, the former focusing on oppression or surprise due to
unequal bargaining power, the latter on overly harsh or one-sided
results ... The procedural element of an unconscionable contract

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generally takes the form of a contract of adhesion, which, imposed and
drafted by the party of superior bargaining strength, relegates to the
subscribing party only the opportunity to adhere to the contract or reject
it ... Substantively unconscionable terms may take various forms, but may
generally be described as unfairly one-sided ... The prevailing view is that
[procedural and substantive unconscionability] must both be present in
order for a court to exercise its discretion to refuse to enforce a contract or
clause under the doctrine of unconscionability.” (Citation omitted;
emphasis in original; internal quotation marks omitted.) Van Voorhies v.
Land/home Financial Services, Superior Court, judicial district of New
Haven, Docket No. CV 09 5031713 (September 3, 2010, Alexander, J.)
(50 Conn. L. Rptr. 630). “Substantive unconscionability is indicated by
contract terms so one-sided as to ‘shock the conscience’ ... [I]t is
important that courts not be thrust in the paternalistic role of intervening to
change contractual terms that the parties have agreed to merely because
the court believes the terms are unreasonable. The terms must shock the
conscience ... Alternatively, [s]ubstantive unconscionability consists of an
allocation of risks or costs which is overly harsh or one-sided and is not
justified by the circumstances in which the contract was made.” (Citation
omitted; internal quotation marks omitted.) Id.

FCT Elecs., LP v. Bank of Am., N.A., No. CV106002699, 2011 WL 4908850, at *6

(Conn. Super. Ct. Sept. 22, 2011). The Defendant drew the Plaintiff into Connecticut

(from his home in Pennsylvania) to purchase and enforce Connecticut municipal

property tax liens. To then drag the Plaintiff out of Connecticut, where he was certainly

prepared and fully expected to avail himself of the courts to enforce the liens he

believed he was purchasing, and force him clear across the country to Utah to pursue

his rights against the Defendant, would be unduly oppressive or unconscionable.

Accordingly, the forum selection clause in the adhesion Contracts is unenforceable.

D. The Plaintiff did not voluntarily relinquish or abandon the right to sue the
Defendant in Connecticut in the boilerplate waiver provision of the forum
selection clause.

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"It is well established that waiver is the 'intentional relinquishment or

abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58

S.Ct. 1019, 82 L.Ed. 1461 (1938); (internal quotation marks omitted) C.R. Klewin

Northeast, LLC v. Bridgeport, 282 Conn. 54, 86, 919 A.2d 1002 (2007). ... As our

Supreme Court has explained, '[a] necessary element to waiver is the requisite

knowledge of the right.... Waiver presupposes a full knowledge of an existing right or

privilege and something done designedly or knowingly to relinquish it.' (Citations

omitted.) Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 27, 392 A.2d 966 (1978).

'[W]here one lacks knowledge of a right there is no basis upon which a waiver of it can

rest.' (Internal quotation marks omitted.) Novella v. Hartford Accident & Indemnity Co.,

163 Conn. 552, 562, 316 A.2d 394 (1972). Accordingly, '[t]o determine the presence of

waiver, there must be evidence of intelligent and intentional action by the petitioner of

the right claimed to be waived.... It must be shown that the party understood its rights

and voluntarily relinquished them anyway.... Each case should be considered upon the

particular facts and circumstances surrounding that case, including the background,

experience and conduct of the party that is waiving its rights.' (Citations omitted;

internal quotation marks omitted.) Krevis v. Bridgeport, 262 Conn. 813, 823, 817 A.2d

628, on remand, 80 Conn.App. 432, 835 A.2d 123 (2003), cert. denied, 267 Conn. 914,

841 A.2d 219 (2004)." Worth Construction Co. v. Department of Public Works, 139

Conn. App. 65, 70-71, 54 A.3d 627 (2012).

A boilerplate waiver provision in a pre-printed adhesion contract is anything but a

voluntary relinquishment or abandonment of a known right. Other than citing the word

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"waiving" in the forum selection clause in the Contracts, the Defendant points to no

evidence or indicia whatsoever of the Plaintiff's voluntary relinquishment or

abandonment of his right to sue the Defendant in Connecticut. The Plaintiff's execution

of Contracts of adhesion is certainly no evidence of waiver.

E. Even viewing the Defendant's motion as being in the nature of a motion to
dismiss for forum non conveniens, the motion ought to be denied.

Since this Court retains the right to hear this case even in the face of the forum

selection clause in the Contracts, the Defendant's argument is more in the nature of a

motion to dismiss on the ground of forum non conveniens. Even when viewed through

that non-jurisdictional lens, however, the motion ought to be denied.

“ '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)." Deutsche

Bank AG v. Sebastian Holdings, Inc., No. FSTCV135014167S, 2014 WL 4056951, at *2

(Conn. Super. Ct. June 4, 2014). (Emphasis added.)

“ '[T]he overriding inquiry in a forum non conveniens motion is not whether some

other forum might be a good one, or even a better one than the [plaintiffs'] chosen

forum. The question to be answered is whether [the plaintiffs'] chosen forum is itself

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inappropriate or unfair because of the various private and public interest considerations

involved.... Accordingly, the trial court, in exercising its structured discretion, should

place its thumb firmly on the [plaintiffs'] side of the scale, as a representation of the

strong presumption in favor of the [plaintiffs'] chosen forum, before attempting to

balance the private and public interest factors relevant to a forum non conveniens

motion.' Picketts v. International Playtex, Inc., supra, 215 Conn. [490] at 500-502, 576

A.2d 518 [(1990)]." Durkin v. Intevac, Inc., supra, at 465.

In the case at bar, where the Defendant has made a conscious choice to register

to transact business in the State of Connecticut. In addition, where, as here, the

Plaintiff has come to Connecticut to purchase liens encumbering real property in the

State of Connecticut and to use the courts of this state to enforce those liens, the

Plaintiff's choice of this Court to sue the Defendant on various causes of action, all of

which arose in Connecticut, there is no private or public interest or consideration at all

which renders inappropriate or unfair the Plaintiff's choice of Connecticut as the forum

state. The Plaintiff's choice of Connecticut as the forum state is entirely appropriate and

ought not to be disturbed.

IV. Conclusion

The forum selection clause in the Contracts does not deprive the Court of

subject matter jurisdiction, and it does not exclude the exercise of this Court's

jurisdiction because it does not contain specific language of exclusion. The Contracts

are contracts of adhesion and the forum selection clause therein is not binding on the

Plaintiff. The Plaintiff did not voluntarily relinquish or abandon the right to sue the

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Defendant in Connecticut in the boilerplate waiver provision of the forum selection

clause. Finally, even viewing the Defendant's motion as being in the nature of a motion

to dismiss for forum non conveniens, the motion ought to be denied because there is no

private or public interest or consideration at all which renders inappropriate or unfair the

Plaintiff's choice of Connecticut as the forum state. For all of these reasons, the Plaintiff

respectfully submits that the Defendant's motion to dismiss for lack of subject matter

jurisdiction ought to be denied.

The Plaintiff, LARRY A. DEILEY

By: /s/ 305638
Jonathan J. Klein
Juris Number 305638
60 Lyon Terrace
Bridgeport, Connecticut 06604
(203) 330-1900
His Attorney

CERTIFICATION

I certify that a copy of the above was or will immediately be mailed or delivered

electronically on March 31, 2020 to all counsel of record and that written consent for

electronic delivery was received from all counsel of record who were or will immediately

be electronically served, at:

Gary J. Greene, Esq.
Greene Law, P.C.
11 Talcott Notch Road
Farmington, CT 06032
service@greenelawpc.com

Counsel for the Defendant, Neff Companies, LLC, d/b/a REI Holdings

/s/ 305638
Jonathan J. Klein

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Motion-Secondary: DEILEY, LARRY A. v. NEFF COMPANIES, LLC, D/B/A REI HOLDINGS

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