North Sails Group, LLC v. Boards & More GMBH ( 2021 )

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NORTH SAILS GROUP, LLC v. BOARDS
AND MORE GMBH ET AL.
(SC 20338)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiff, N Co., sought to recover damages from the defendants, B Co.
and E Co., for breach of a trademark licensing agreement, pursuant to
which B Co. was granted a worldwide license to use N Co.’s trade name
and certain of its trademarks in connection with certain products B Co.
manufactured. N Co. is a Delaware company with its principal place of
business in Connecticut, whereas B Co. and E Co. have their principal
places of business in Austria and Germany, respectively. From 1990 to
2000, N Co. and B Co.’s predecessor were parties to a prior version of
the licensing agreement. In 2000, after a period of negotiations during
which B Co. sent various communications to N Co. in Connecticut, B
Co. and N Co. executed a new licensing agreement, which continued
from year to year until terminated. Pursuant to that agreement, B Co.
agreed to maximize the production, marketing and sale of the licensed
products and to send N Co. royalty payments at a bank in Wisconsin.
The agreement also contained a choice of law provision designating
Wisconsin law as controlling the agreement, but the agreement did
not require that B Co. perform any of its contractual obligations in
Connecticut. N Co. alleged that, in 2018, B Co., at the direction of E
Co., violated the licensing agreement by launching its own trademark,
which it used to replace N Co.’s trademarks for use with the licensed
products. The trial court granted the defendants’ motion to dismiss for
lack of personal jurisdiction and rendered judgment for the defendants.
That court concluded that, because the defendants’ alleged actions
occurred in Europe, the defendants lacked sufficient minimum contacts
with Connecticut such that the exercise of personal jurisdiction over
them would offend principles of due process. On the plaintiff’s appeal,
held that the trial court correctly determined that the exercise of personal
jurisdiction over the defendants would violate due process, as N Co.
failed to establish that B Co., by virtue of its long-term contractual
relationship with N Co., had sufficient minimum contacts with Connecti-
cut, and, accordingly, properly granted the defendants’ motion to dis-
miss: considering the totality of the circumstances, including prior nego-
tiations, contemplated future consequences, the terms of the parties’
contract and the parties’ actual course of dealing, this court could not
conclude that B Co. had purposefully availed itself of the benefits of
doing business in Connecticut such that it should have been foreseeable
that it could be sued in this state, especially when the licensing agree-
ment did not envision an interactive, highly regulated relationship or
anticipate a relationship for a specific amount of time; moreover, despite
the nearly twenty year business relationship between B Co. and N Co.,
there was no evidence that either B Co. or its predecessor initiated
contact with N Co. in Connecticut, and B Co.’s purposeful contact
with the forum was limited to a single visit to Connecticut by its chief
executive officer in 2003 and occasional communications sent to N Co.
in Connecticut that were ancillary to the performance of the contract,
rather than demonstrative of continuous collaboration between the par-
ties, such that N Co. did not establish that, during the course of their
relationship, B Co. had contacts with or continuing obligations in Con-
necticut; furthermore, B Co.’s physical presence in Connecticut was
insubstantial and sporadic, it did not conduct business or maintain
offices, employees, property or an agent for service of process in Con-
necticut, aside from the chief executive officer’s single visit to Connecti-
cut, all meetings and negotiations between representatives of N Co. and
B Co. and its predecessor occurred in Europe or states other than
Connecticut, and the fact that B Co. knew that N Co. would perform
its contractual obligations in Connecticut was of no consequence, as it
is well established that it is the forum contacts of a defendant, not a
plaintiff, that are relevant to the minimum contacts analysis; in addition,
the licensing agreement did not contemplate performance in Connecticut
but, rather, drew a connection to Wisconsin via its choice of law provi-
sion and by requiring that B Co. send royalty payments to a bank located
there, and, although the licensing agreement gave N Co. certain oversight
over B Co.’s production of the licensed products, including the rights
to receive samples of and to inspect the products and quality control
test data, the parties’ course of dealing called into question the extent
to which N Co. exercised those limited rights.
(Two justices dissenting in one opinion)
Argued November 15, 2019—officially released August 20, 2021**
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of New Haven and trans-
ferred to the Complex Litigation Docket; thereafter, the
case was transferred to the judicial district of Hartford,
Complex Litigation Docket, where the court, Moukawsher,
J., granted the defendants’ motion to dismiss and ren-
dered judgment thereon, from which the plaintiff
appealed. Affirmed.
Jeffrey R. Babbin, with whom were Ariela C. Anhalt,
Adam S. Lurie, pro hac vice, and, on the brief, Kate Z.
Machan, pro hac vice, for the appellant (plaintiff).
Christopher J. Gaspar, pro hac vice, with whom were
John W. Cerreta and, on the brief, Bryan J. Orticelli,
for the appellees (defendants).
Jeffrey J. White and Denis J. O’Malley filed a brief
for the Connecticut Business and Industry Association
as amicus curiae.
Opinion
D’AURIA, J. This appeal requires us to consider
whether, consistent with due process, a court of this
state may properly exercise personal jurisdiction over
the foreign national defendant in this breach of contract
action when the resident plaintiff has alleged that its
long-term, contractual relationship with the defendant
created sufficient minimum contacts with Connecticut.
The plaintiff, North Sails Group, LLC, appeals from the
judgment of dismissal for lack of personal jurisdiction
over the defendants, Boards and More GmbH (B&M)
and Emeram Capital Partners GmbH (Emeram).1 The
plaintiff claims that the trial court improperly con-
cluded that exercising personal jurisdiction over the
defendants would violate their right to due process.
Although we recognize that this is a close case, we
conclude that the plaintiff has failed to demonstrate
that the defendants had sufficient minimum contacts
with Connecticut, and, thus, we affirm the judgment of
the trial court.
‘‘A motion to dismiss tests, inter alia, whether, on
the face of the record, the court is without jurisdiction.’’
(Internal quotation marks omitted.) Dorry v. Garden,
313 Conn. 516, 521, 98 A.3d 55 (2014). ‘‘Because a juris-
dictional challenge presents a question of law, our
review is plenary.’’ Samelko v. Kingstone Ins. Co., 329
Conn. 249, 257, 184 A.3d 741 (2018). When, as in the
present case, ‘‘the defendant challenging the court’s
personal jurisdiction is a foreign corporation or a non-
resident individual, it is the plaintiff’s burden to prove
the court’s jurisdiction.’’ Cogswell v. American Transit
Ins. Co., 282 Conn. 505, 515, 923 A.2d 638 (2007). In
deciding a jurisdictional question raised by 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 man-
ner most favorable to the pleader.’’ (Internal quotation
marks omitted.) Dorry v. Garden, supra, 521. In most
instances, the motion must be decided on the complaint
alone. However, when ‘‘the complaint is supplemented
by undisputed facts established by affidavits submitted
in support of the motion to dismiss . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits and/or other evi-
dence submitted in support of a defendant’s motion to
dismiss conclusively establish that jurisdiction is lack-
ing, and the plaintiff fails to undermine this conclusion
with counteraffidavits . . . or other evidence, the trial
court may dismiss the action without further proceed-
ings. . . . If, however, the defendant submits either no
proof to rebut the plaintiff’s jurisdictional allegations
. . . or only evidence that fails to call those allegations
into question . . . the plaintiff need not supply count-
eraffidavits or other evidence to support the complaint
. . . but may rest on the jurisdictional allegations
therein.’’ (Internal quotation marks omitted.) Angersola
v. Radiologic Associates of Middletown, P.C., 330 Conn.
251, 274–75, 193 A.3d 520 (2018).
In the present case, there are no disputed facts rele-
vant to our minimum contacts analysis. Rather, the
court’s task is to determine whether the plaintiff has
advanced sufficient allegations and evidence to estab-
lish minimum contacts. If it has not, the plaintiff simply
has not met its burden.
Consistent with these principles, we consider the fol-
lowing facts as alleged in the complaint and those facts
contained in the affidavits and exhibits submitted in
support of the defendants’ motion to dismiss and the
plaintiff’s opposition thereto, none of which creates a
dispute regarding a relevant jurisdictional fact. The
plaintiff is a limited liability company registered in Dela-
ware, with its principal place of business in Milford,
Connecticut. B&M is a limited liability company char-
tered under the laws of Austria, with its principal place
of business in Molln, Austria. Emeram is a private equity
investment limited liability company, with its principal
place of business in Munich, Germany. Neither B&M
nor Emeram has ever appointed or maintained an agent
for service of process in Connecticut. Neither of the
defendants maintains any offices, employees, or real or
personal property, including computers, in Connecti-
cut; nor do they transact any business in Connecticut.
B&M’s only sales in the United States are to Boards &
More, Inc. (B&M USA), an American company incorpo-
rated and located in the state of Washington. B&M and
B&M USA are sister entities, both wholly owned subsid-
iaries of Boards and More Beteiligungs GmbH, which,
in turn, is a wholly owned subsidiary of Boards and
More Holding GmbH, a German limited liability com-
pany that is the top level operational business within
the Boards and More group of companies.2
On October 1, 1990, the plaintiff entered into a trade-
mark licensing agreement with B&M’s predecessor,
North Sails Windsurfing GmbH (NSW). NSW subse-
quently assigned all of its interests in the licensing
agreement to B&M.3 On October 1, 2000, the plaintiff
and B&M terminated the October 1, 1990 agreement and
substituted for it the trademark and licensing agreement
that gave rise to the present action (licensing agree-
ment). Pursuant to the licensing agreement, the plaintiff
granted B&M a worldwide license to use certain trade-
marks the plaintiff owned, as well as the trade name,
‘‘North Surf,’’ which the plaintiff also owned (collec-
tively, North Marks), in the manufacture and distribu-
tion of certain B&M windsurfing, kitesurfing and associ-
ated products (licensed products).4 In exchange, B&M
agreed ‘‘to use its best good faith effort to maximize
the production, marketing and sale’’ of the licensed
products. B&M also agreed to pay quarterly license fees
to a bank account the plaintiff designated—JP Morgan
Chase Bank, in Milwaukee, Wisconsin. The licensing
agreement provided that it would be governed by and
construed in accordance with the laws of the state
of Wisconsin, excluding its choice of law rules. The
agreement provided that it would continue from year
to year until terminated or canceled as a result of one of
a number of occurrences listed in § 8 of the agreement.
Emeram is not a party to the agreement.5
The plaintiff alleges that, as of the date on which the
complaint was filed, B&M, at the direction of Emeram
and in violation of the licensing agreement, launched
its own trademark (B&M trademark) and replaced the
North Marks with the B&M trademark for use with the
licensed products to be released in the autumn of 2018.
The plaintiff claims that the defendants’ actions caused
it harm because, due to the licensing agreement, B&M
had established a global distribution network for the
licensed products, while, at the same time, the plaintiff
had refrained from manufacturing, producing and dis-
tributing any products that would compete with the
licensed products. The plaintiff further alleges that,
because of insufficient lead time provided by B&M,
the plaintiff lacked sufficient time to partner with a
competing company to manufacture and to distribute
similar North Marks products.
The plaintiff brought this action alleging breach of
contract as to both defendants. The trial court subse-
quently granted the defendants’ motion to dismiss for
lack of personal jurisdiction, concluding that, although
Connecticut’s long arm statute, General Statutes § 52-
59b, ‘‘likely’’ would support the exercise of jurisdiction,
principles of due process would not. Stating that ‘‘[t]he
current constitutional standard on specific jurisdiction
is just a year old,’’ the court concluded that the case was
governed by the decision of the United States Supreme
Court in Bristol-Myers Squibb Co. v. Superior Court,
U.S. , 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017).6
Applying Bristol-Myers Squibb Co., the court concluded
that, because the actions that allegedly constituted a
breach of contract had occurred in Europe, not in Con-
necticut, the defendants lacked sufficient minimum
contacts with Connecticut, and the exercise of personal
jurisdiction over them would offend principles of due
process. The plaintiff appealed from the trial court’s
judgment to the Appellate Court, and the appeal was
transferred to this court. See General Statutes § 51-199
(c); Practice Book § 65-1.
I
‘‘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 vio-
late constitutional principles of due process.’’ (Internal
quotation marks omitted.) Samelko v. Kingstone Ins.
Co., supra, 329 Conn. 256. In the present case, because
we agree with the trial court that the exercise of per-
sonal jurisdiction over the defendants would violate
due process, we need not address whether § 52-59b
would support the exercise of jurisdiction over them.7
We must determine whether this court may constitu-
tionally exercise specific jurisdiction over B&M by vir-
tue of the contract between the plaintiff and B&M. See
footnote 5 of this opinion. For a forum state to exercise
personal jurisdiction over a nonresident defendant, due
process requires that the defendant must ‘‘have certain
minimum contacts with [the forum] such that the main-
tenance of the suit does not offend traditional notions
of fair play and substantial justice.’’ (Internal quotation
marks omitted.) International Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). The
United States Supreme Court has recognized two forms
of personal jurisdiction: general and specific. The pres-
ent case involves only specific jurisdiction, which
requires that the plaintiff demonstrate both that B&M
has minimum contacts with the forum and that the
lawsuit arises out of or relates to those contacts. See
Bristol-Myers Squibb Co. v. Superior Court of Califor-
nia, supra, 137 S. Ct. 1780.8 ‘‘Once it has been decided
that a defendant purposefully established minimum
contacts within the forum [s]tate, these contacts may
be considered in light of other factors to determine
whether the assertion of personal jurisdiction would
comport with fair play and substantial justice.’’ (Internal
quotation marks omitted.) Burger King Corp. v. Rud-
zewicz, 471 U.S. 462, 476, 105 S. Ct. 2174, 85 L. Ed. 2d
528 (1985) (Burger King).9
As explained, it is the plaintiff’s burden to establish
that a defendant has sufficient minimum contacts with
the forum. See, e.g., Cogswell v. American Transit Ins.
Co., supra, 282 Conn. 515; see also Bank Brussels Lam-
bert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779,
784 (2d Cir. 1999). The plaintiff’s jurisdictional argu-
ment rests on its contract with B&M. The United States
Supreme Court has stated that ‘‘an individual’s contract
with an out-of-state party alone [cannot] automatically
establish sufficient minimum contacts in the other par-
ty’s home forum . . . .’’ (Emphasis omitted.) Burger
King Corp. v. Rudzewicz, supra, 471 U.S. 478. Rather,
we must evaluate the totality of the circumstances,
including ‘‘prior negotiations and contemplated future
consequences, along with the terms of the contract and
the parties’ actual course of dealing . . . in determin-
ing whether the defendant purposefully established
minimum contacts within the forum.’’ Id., 479.
It is well established that, in evaluating the totality
of the circumstances, it is the defendant’s contacts with
the forum state, not those of the plaintiff, that are rele-
vant. See, e.g., Walden v. Fiore, 571 U.S. 277, 284, 134
S. Ct. 1115, 188 L. Ed. 2d 12 (2014) (‘‘[T]he relationship
must arise out of contacts that the ‘defendant himself’
creates with the forum [s]tate. . . . We have consis-
tently rejected attempts to satisfy the defendant-
focused ‘minimum contacts’ inquiry by demonstrating
contacts between the plaintiff (or third parties) and the
forum [s]tate.’’ (Citations omitted; emphasis omit-
ted.)).10 In the present case, we conclude that, despite
the parties’ long-term relationship, the plaintiff has
failed to establish that, considering the totality of the
circumstances, B&M’s contacts with Connecticut weigh
in favor of jurisdiction.
A
The seminal case regarding minimum contacts in a
contract dispute, undertaking this totality of the circum-
stances analysis, is Burger King. In Burger King, the
court concluded that the single contract between the
parties, considered with all the attendant circumstances,
was sufficient to subject the defendant to specific juris-
diction in the forum state. Burger King Corp. v. Rud-
zewicz, supra, 471 U.S. 478–79. The court clarified, how-
ever, that ‘‘an individual’s contract with an out-of-state
party alone [cannot] automatically establish sufficient
minimum contacts in the other party’s home forum,’’
rejecting ‘‘the notion that personal jurisdiction might
turn on ‘mechanical’ tests . . . .’’ (Citations omitted;
emphasis in original.) Id., 478. To determine whether
a single contract suffices to establish the minimum con-
tacts necessary for the exercise of specific jurisdiction
over a nonresident defendant, courts review the totality
of the circumstances surrounding that relationship to
determine whether the defendant, by its actions, pur-
posefully has availed itself of the benefits of the forum
state. See, e.g., Stuart v. Spademan, 772 F.2d 1185,
1192–94 (5th Cir. 1985); id., 1194 (reviewing ‘‘the totality
of the facts’’ in determining that parties’ interactions
leading up to patent assignment agreement did not give
rise to sufficient minimum contacts to support exercise
of personal jurisdiction); Combustion Engineering,
Inc. v. NEI International Combustion, Ltd., 798 F.
Supp. 100, 105 (D. Conn. 1992) (observing that ‘‘due
process inquiry rests upon the totality of the circum-
stances’’). Courts have repeatedly rejected reliance on
any single factor and instead have examined all aspects
of the contractual relationship between the parties,
evaluating the ‘‘extent, nature, and quality’’ of the non-
resident defendant’s contacts with the forum state. Con-
sulting Engineers Corp. v. Geometric Ltd., 561 F.3d
273, 281 (4th Cir. 2009); see id., 281–82 (finding no
jurisdiction over nonresident defendant and rejecting
claim that choice of law clause providing that forum
state’s law governed contract was dispositive).
The United States Supreme Court explained in
Burger King that the goal of the inquiry is to determine
whether the contract and its surrounding circumstances
demonstrate that the nonresident defendant ‘‘reach[ed]
out beyond one state and create[d] continuing relation-
ships and obligations with citizens of another state
. . . .’’ (Internal quotation marks omitted.) Burger
King Corp. v. Rudzewicz, supra, 471 U.S. 473. Under
those circumstances, the nonresident defendant is
understood to have purposefully availed itself of the
benefit of its activities in the forum state, and ‘‘it may
well be unfair to allow [it] to escape having to account
in [the forum state] for consequences that arise proxi-
mately from such activities; the [d]ue [p]rocess [c]lause
may not readily be wielded as a territorial shield to
avoid interstate obligations that have been voluntarily
assumed.’’ Id., 474. As one court has aptly summarized
it, the purposeful availment inquiry ‘‘represents a rough
quid pro quo: when a defendant deliberately targets its
behavior toward the society or economy of a particular
forum, the forum should have the power to subject the
defendant to judgment regarding that behavior. . . .
The cornerstones of this inquiry are voluntariness and
foreseeability.’’ (Citation omitted; internal quotation
marks omitted.) C.W. Downer & Co. v. Bioriginal
Food & Science Corp., 771 F.3d 59, 66 (1st Cir. 2014).11
The significance to the inquiry of both voluntariness
and foreseeability is evident in the court’s explanation
of the principles underlying the ‘‘ ‘purposeful availment’ ’’
requirement; Burger King Corp. v. Rudzewicz, supra,471 U.S. 475; which ‘‘ensures that a defendant will not
be haled into a jurisdiction solely as a result of random,
fortuitous, or attenuated contacts . . . or of the unilat-
eral activity of another party or a third person . . . .
Jurisdiction is proper . . . [when] the contacts proxi-
mately result from actions by the defendant [itself] that
create a substantial connection with the forum [s]tate.
. . . Thus [when] the defendant deliberately has
engaged in significant activities within a [s]tate . . . or
has created continuing obligations between [itself] and
residents of the forum . . . [it] manifestly has availed
[itself] of the privilege of conducting business there,
and because [its] activities are shielded by the benefits
and protections of the forum’s laws it is presumptively
not unreasonable to require [it] to submit to the burdens
of litigation in that forum as well.’’ (Citations omitted;
emphasis added; footnotes omitted; internal quotation
marks omitted.) Id., 475–76.
In determining minimum contacts in a contracts case,
courts must take a ‘‘highly realistic approach that recog-
nizes that a contract is ordinarily but an intermediate
step serving to tie up prior business negotiations with
future consequences which themselves are the real
object of the business transaction. . . . It is these fac-
tors—prior negotiations and contemplated future con-
sequences, along with the terms of the contract and
the parties’ actual course of dealing—that must be
evaluated in determining whether the defendant pur-
posefully established minimum contacts with the
forum.’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Id., 479.
The court’s minimum contacts analysis of the single
contract at issue in Burger King illustrates well the
application of these principles. In concluding that the
contract between the plaintiff, Burger King, a Florida
corporation, and the defendant, a resident of Michigan,
created sufficient minimum contacts between the
defendant and Florida to support the exercise of juris-
diction over the defendant in Florida, the court consid-
ered all of the circumstances surrounding the contrac-
tual relationship between the parties. Id., 464–66, 479–80.
The court began its analysis with the fact that it was
the defendant who initiated contact with Burger King
by applying for a franchise in the Detroit, Michigan
area. Id., 479. The court viewed that fact as evidencing
the purposefulness of the defendant’s actions, noting
that he ‘‘deliberately reach[ed] out beyond Michigan
and negotiated with a Florida corporation for the pur-
chase of a long-term franchise and the manifold benefits
that would derive from affiliation with a nationwide
organization.’’ (Internal quotation marks omitted.) Id.,
479–80. During the negotiation period, the defendant
had several significant contacts with Burger King—his
business partner attended management training courses
in Florida, and the defendant and his partner negotiated
the proposed franchise agreement not only with Burger
King’s local Michigan office but also with its corporate
headquarters in Miami, Florida. Id., 466–67.
The court also considered it significant that the par-
ties created a ‘‘carefully structured [twenty year] rela-
tionship that envisioned continuing and [wide reaching]
contacts with Burger King in Florida,’’ thus establishing
a substantial connection with the forum state. Id., 480.
The terms of the contract strengthened that connection.
Specifically, in the contract, the defendant agreed to
send monthly payments directly to the plaintiff’s head-
quarters in Florida; id.; and ‘‘to submit to the national
organization’s exacting regulation of virtually every
conceivable aspect of [his] operations.’’ Id., 465. The
contract also provided that the franchise relationship
was established in Miami and governed by Florida law.
Id., 466. As for the parties’ actual course of dealing,
the court observed that, although the Michigan office
handled the day-to-day monitoring of franchisees; id.;
‘‘[w]hen problems arose over building design, [site
development] fees, rent computation, and the [defen-
dant’s] defaulted payments . . . the Michigan office
was powerless to resolve [the] disputes’’ and could
serve only as an intermediate link to the corporate
headquarters in Miami. Id., 481. The court emphasized
more than once the significance of the defendant’s sub-
mission to the ‘‘long-term and exacting regulation of
his business’’ by Burger King. Id., 480; see also id., 465.
His agreement to submit to the oversight of Burger
King provided yet another example of the defendant’s
connections to the forum state.
The parties’ actual course of dealing further rein-
forced the contacts between the defendant and the
forum. Specifically, the court pointed to the ‘‘continu-
ous course of direct communications by mail and by
telephone’’ between the parties regarding disputes that
arose during the course of the contracting involving
building design, site development fees, rent computa-
tion, and the defaulted payments. Id., 481. In addition
to relying on the sheer quantity and consistency of
communications between the parties, the court consid-
ered the substance of those communications, which
‘‘confirmed that [decision-making] authority was vested
in the Miami headquarters . . . .’’ Id., 480–81.
Significantly, the court in Burger King considered
all of the previously mentioned factors in arriving at
its conclusion that the nonresident defendant had suffi-
cient minimum contacts with Florida—no single fact
was dispositive. The dissent in the present case, never-
theless, contends that Burger King stands for the prop-
osition that there is a distinction between merely enter-
ing into a contract and entering into a contractual
relationship, with the latter creating a ‘‘presumpt[ion]’’
of minimum contacts.12
But Burger King itself actually rejected such a pre-
sumption, beginning its analysis by specifically rejecting
a presumption that ‘‘an individual’s contract with an
out-of-state party alone can automatically establish suf-
ficient minimum contacts . . . .’’ (Emphasis omitted.)
Id., 478. The court did not limit this holding to single
transaction contracts or exclude long-term contracts
but explained that, in all contract cases, the minimum
contacts inquiry must focus on the parties’ negotiations
and contemplated future consequences, the terms of
the contract, and the parties’ actual course of dealing.
Id., 479. Then, in a critical footnote, the court indicated
that it was not creating a presumption in favor of juris-
diction that was based merely on the existence of a
long-term franchise agreement: ‘‘We do not mean to
suggest that the jurisdictional outcome will always be
the same in franchise cases. Some franchises may be
primarily intrastate in character or involve different
[decision-making] structures, such that a franchisee
should not reasonably anticipate out-of-state litigation.
. . . For these reasons, we reject Burger King’s sugges-
tion for ‘a general rule, or at least a presumption, that
participation in an interstate franchise relationship’ rep-
resents consent to the jurisdiction of the franchisor’s
principal place of business.’’13 (Citation omitted.) Id.,
485 n.28. Thus, the United States Supreme Court, in the
very case both this majority and the dissent are arguing
about, rejected a presumption for long-term franchise
agreements that would favor jurisdiction the dissent
contends Burger King supports. We see no reason why
there should be a presumption in favor of jurisdiction
for other long-term contractual relationships that the
court rejected for franchise relationships, which are
arguably long-term in nature.
What then is to be made of the language in Burger
King that the dissent relies on to argue that ‘‘knowingly
entering into a long-term contractual relationship with a
forum resident presumptively gives rise to the minimum
contacts necessary for jurisdiction to attach’’? Careful
consideration of that portion of the decision in Burger
King in its proper context yields the answer. The court
stated: ‘‘[When] the defendant deliberately has engaged
in significant activities within a [s]tate . . . or has cre-
ated continuing obligations between [itself] and resi-
dents of the forum . . . [it] manifestly has availed
[itself] of the privilege of conducting business there,
and because [its] activities are shielded by the benefits
and protections of the forum’s laws it is presumptively
not unreasonable to require [it] to submit to the burdens
of litigation in that forum as well.’’ (Citations omitted;
internal quotation marks omitted.) Burger King Corp.
v. Rudzewicz, supra, 471 U.S. 475–76. The dissent claims
that this language means that, ‘‘[w]hen a commercial
entity knowingly and voluntarily chooses to become
business partners with a resident of a state, and follows
through by engaging in a long-term relationship, it nec-
essarily accepts a connection with the state itself—
its laws, economy, transportation and communication
infrastructure, and other residents—in all sorts of ways,
both predictable and unexpected, such that it should
reasonably anticipate the possibility that a contract
related dispute may be adjudicated by that state’s
courts.’’14 (Emphasis omitted.) This is an inaccurate
summary of the quoted language. Burger King does
not say that voluntarily entering into a long-term con-
tractual relationship creates minimum contacts but,
rather, makes clear that minimum contacts exist under
those circumstances in which the defendant ‘‘has engaged
in significant activities within a [s]tate . . . or has cre-
ated continuing obligations between [itself] and resi-
dents of the forum . . . .’’ (Citations omitted; internal
quotation marks omitted.) Burger King Corp. v. Rud-
zewicz, supra, 475–76. Although many long-term con-
tractual relationships will result in such continuing obli-
gations, the dissent appears to assume that all long-term
contracts presumptively create ‘‘obligations between [a
defendant] and residents of the forum . . . .’’ (Internal
quotation marks omitted.) Part II A of the dissenting
opinion, quoting Burger King Corp. v. Rudzewicz,
supra, 476. Not all long-term contractual relationships
will lead to significant activities within the forum or
continuing obligations between the defendant and resi-
dents of the forum. If there are such ‘‘significant activi-
ties’’ or ‘‘ ‘continuing obligations,’ ’’ then the exercise
of jurisdiction over the defendant is reasonable. Burger
King Corp. v. Rudzewicz, supra, 476. But immediately
prior to the language the dissent quotes, the court in
Burger King made clear that ‘‘[t]he unilateral activity of
those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact
with the forum [s]tate. The application of that rule will
vary with the quality and nature of the defendant’s activ-
ity, but it is essential in each case that there be some
act by which the defendant purposefully avails itself of
the privilege of conducting activities within the forum
[s]tate, thus invoking the benefits and protections of its
laws.’’ (Internal quotation marks omitted.) Id., 474–75.
Applying these legal principles, the court in Burger
King concluded that, on the basis of the defendant’s
‘‘voluntary acceptance of the long-term and exacting
regulation of his business from Burger King’s Miami
headquarters,’’ it was ‘‘presumptively reasonable for
[the defendant] to be called to account [in the forum]
for such injuries.’’ Id., 480. This analysis makes clear
that minimum contacts did not presumptively exist
merely because of the existence of a long-term contrac-
tual relationship but because the contract specifically
contemplated, and the defendant agreed to, the defen-
dant’s continuing interaction with and obligations to
the forum and its residents. Read in context, it is clear
that a defendant does not create continuing obligations
to ‘‘the residents of the forum’’ by merely entering into
a long-term contractual relationship with one of that
forum’s residents. The existence of the contractual rela-
tionship alone—whether long-term or not—is evidence
only of contact with the plaintiff, not with the forum.
In that circumstance, the defendant’s only connection
to the forum is that the plaintiff resides there, which
is precisely the kind of random and fortuitous contact
that courts caution against relying on to conclude that
jurisdiction is proper. The defendant presumably would
have entered into the contractual relationship regard-
less of where the plaintiff was located.
Thus, a court applying Burger King must look to
all of the surrounding circumstances of a contractual
relationship to determine whether a defendant has pur-
posefully availed itself of the benefits of doing business
in the forum state such that it should have been foresee-
able that it could be sued in that state. The inquiry is
a very practical and realistic one. Our review of the
pertinent facts persuades us that, in the present case,
the answer to that question is no.15
B
In the present case, to establish minimum contacts,
the plaintiff relies heavily on the long-term relationship
between the parties. Specifically, the previous licensing
agreement with B&M’s predecessor lasted for ten years,
from 1990 to 2000,16 and the October, 2000 licensing
agreement provided that it would automatically ‘‘con-
tinue from year to year thereafter until terminated’’ as
a result of one of a number of occurrences listed in § 8 of
the agreement. Although the 2000 licensing agreement
permitted yearly renewal, unlike the agreement at issue
in Burger King, it did not anticipate a relationship for a
specific amount of time. In Burger King, the defendant
entered into a ‘‘carefully structured [twenty year] rela-
tionship that envisioned continuing and [wide reaching]
contacts with Burger King in Florida.’’ Burger King Corp.
v. Rudzewicz, supra, 471 U.S. 480. The court determined
that the defendant’s ‘‘voluntary acceptance of the long-
term and exacting regulation of his business from
Burger King’s Miami headquarters’’ established pur-
poseful availment. Id. In the present case, the defendant
did not voluntarily accept a carefully structured, long-
term contract but, rather, accepted a contract that
allowed it to terminate or cancel the contract on a
yearly basis. Also, as we discuss subsequently in this
opinion, the contract in the present case is distinguish-
able from the exacting nature of the contract in Burger
King, which supported the court’s determination of
purposeful availment; the contract in the present case
did not envision an interactive, highly regulated rela-
tionship.
We recognize, however, that the duration of a con-
tractual relationship is a factor in considering minimum
contacts. Nevertheless, it is not the length of the rela-
tionship, but the quality of the relationship—i.e., the
extent the defendant has purposefully reached into the
forum—that matters most for determining forum con-
tacts. Other factors have been held to carry greater
weight: ‘‘[A]ctions in the negotiation and performance
of the . . . agreement are more important factors to
consider than the duration of the contract in determin-
ing whether [there are minimum contacts]. . . . [In
prior cases, courts have explained that] the quality
rather than the quantity of the contacts is the proper
subject of review. Similarly, [the court] should focus
. . . on the quality of the parties’ relationship, rather
than the duration of the relationship.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Calphalon Corp. v. Rowlette, 228 F.3d 718, 722
(6th Cir. 2000); see Burger King Corp. v. Rudzewicz,
supra, 471 U.S. 479 (after rejecting presumption that
contract alone creates minimum contacts, court held
that ‘‘[i]t is these factors—prior negotiations and con-
templated future consequences, along with the terms
of the contract and the parties’ actual course of deal-
ing—that must be evaluated in determining whether the
defendant purposefully established minimum contacts
within the forum’’); Freudensprung v. Offshore Techni-
cal Services, Inc., 379 F.3d 327, 344–45 (5th Cir. 2004)
(minimum contacts were lacking despite approximately
three year contractual relationship, including extensive
communication, when contract performance was to
occur outside forum); IDS Publishing Corp. v. Reiss
Profile Europe, B.V., Docket No. 2:16-CV-00535, 2017
WL 4217156, *7 (S.D. Ohio September 19, 2017) (‘‘despite
the [parties’] [l]icense [agreement] being in place for
more than ten years, the [c]ourt’s focus is on the quality
of the parties’ relationship rather than its duration’’).
But see Mississippi Interstate Express, Inc. v. Transpo,
Inc., 681 F.2d 1003, 1007 (5th Cir. 1982) (acknowledging
that court’s holding—that contractual relationship that
foresees plaintiff unilaterally conducting activity in
forum creates minimum contacts—conflicts with those
of other federal courts of appeals).
In evaluating the quality of a defendant’s contacts,
courts have considered the parties’ actual course of
dealings, the location of performance, the quality and
quantity of any communications, the terms of the par-
ties’ contract, including any forum selection clause, and
whether the defendant reached into the forum, includ-
ing whether the defendant initiated contact. See, e.g.,
Calphalon Corp. v. Rowlette, supra, 228 F.3d 722–23;
see also Halliburton Energy Services, Inc. v. Ironshore
Specialty Ins. Co., 921 F.3d 522, 544 (5th Cir. 2019);
Sangha v. Navig8 ShipManagement Private Ltd., 882
F.3d 96, 102–103 (5th Cir. 2018); Universal Leather,
LLC v. Koro AR, S.A., 773 F.3d 553, 560 (4th Cir. 2014),
cert. denied, 576 U.S. 1035, 135 S. Ct. 2860, 192 L. Ed.
2d 896 (2015); Freudensprung v. Offshore Technical
Services, Inc., supra, 379 F.3d 344–45.
For example, courts have found minimum contacts
in cases involving long-term contractual relationships
when other substantial contacts existed or arose during
the course of the relationship. See, e.g., C.W. Downer &
Co. v. Bioriginal Food & Science Corp., supra, 771 F.3d
67 (four year contractual relationship was not of ‘‘short
duration,’’ especially in light of extensive collaboration
on projects showing continued and wide reaching con-
tacts in forum); CFA Institute v. Institute of Chartered
Financial Analysts of India, 551 F.3d 285, 295 and n.17
(4th Cir. 2009) (thirteen year contractual relationship
between plaintiff and nonresident defendant that included
significant collaboration supported conclusion that licens-
ing agreement established sufficient minimum contacts,
with special weight given to fact that defendant initiated
contact); PKWare, Inc. v. Meade, 79 F. Supp. 2d 1007,
1014–15 (E.D. Wis. 2000) (six year contractual relation-
ship, in addition to quantity and quality of contacts,
including numerous communications regarding busi-
ness dealings and choice of law provision designating
Wisconsin law as controlling, supported conclusion that
licensing-trademark agreement established sufficient
minimum contacts); Eaton Corp. v. Maslym Holding
Co., 929 F. Supp. 792, 797–98 (D.N.J. 1996) (ten year
contractual relationship, regular communications
between parties, several visits by defendant’s represen-
tatives to plaintiff in forum state, royalty payments
defendant made to plaintiff in forum state, and defen-
dant’s purchase of ‘‘parts’’ from plaintiff’s plant in forum
constituted sufficient minimum contacts).
Despite the long-term nature of the agreement at
issue, B&M’s contacts case are significantly weaker
than the defendants’ contacts in the foregoing cases
and in Burger King. In fact, in the life of a contractual
relationship of the length involved here, it is difficult
to imagine fewer contacts between the defendant and
the forum. Besides the long-term nature of the contrac-
tual relationship, the plaintiff relies on the following
forum contacts: (1) B&M knowingly entered into a con-
tract with the Connecticut based plaintiff; (2) B&M
negotiated the contract by sending communications to
the plaintiff in Connecticut; (3) the contract contem-
plated and even mandated that the plaintiff would per-
form its own obligations under the contract in Connecti-
cut, which would result in Connecticut’s being the locus
of any harm the plaintiff would suffer as a consequence
of a breach of the contract;17 (4) B&M maintained a
nearly twenty year business relationship with the plain-
tiff in Connecticut, including a visit to the forum and
sending hundreds of reports, payments, and other com-
munications to Connecticut; and (5) B&M breached
the contract by contacting and injuring the plaintiff in
Connecticut.
These contacts, however, do not focus on B&M’s
purposeful contact with the forum, which is limited to a
single visit to the forum after the contract was executed,
and occasional, ancillary communications. The other
forum contacts relied on by the plaintiff either are not
proper considerations under our minimum contacts
analysis or do not weigh in favor of jurisdiction. Unlike
the plaintiffs in C.W. Downer & Co., CFA Institute,
PKWare, Inc., and Eaton Corp., the plaintiff here has
not established that, during the course of the long-term
contractual relationship, B&M had contacts with or con-
tinuing obligations to the forum showing that it purpose-
fully availed itself of the protections of the forum. When
the plaintiff’s own contacts with the forum (e.g., contacts
(1), (3) and (5), as previously discussed) are removed
from the analysis, as case law demands, what remains,
in addition to the length of the contract, is a single
visit to the forum after the contract was executed, and
occasional, ancillary communications. We conclude
that, unlike the plaintiffs in C.W. Downer & Co., CFA
Institute, PKWare, Inc., and Eaton Corp., the plaintiff
in the present case has not established that, during the
course of the parties’ long-term contractual relation-
ship, B&M had contacts with or continuing obligations
to the forum showing that it purposefully availed itself
of the benefits and protections of the forum.
For example, the plaintiff, which bears the burden
of establishing jurisdiction, did not allege, let alone offer
evidence to establish, that B&M purposefully ‘‘reached
out’’ to the forum state by initiating contact with the
plaintiff. Although the parties’ negotiated over the
licensing agreement prior to and after its execution,
the record contains nothing to show either that B&M
or its predecessor initiated the original licensing agree-
ment or that B&M initiated the October, 2000 licensing
agreement.18 The absence of this evidence weighs
against a conclusion that B&M established minimum
contacts with the forum. See, e.g., Diamond Healthcare
of Ohio, Inc. v. Humility of Mary Health Partners, 229
F.3d 448, 451 (4th Cir. 2000) (minimum contacts were
lacking when plaintiff initiated and negotiated contract
between parties in forum state); Vetrotex CertainTeed
Corp. v. Consolidated Fiber Glass Products Co., 75 F.3d
147, 151–52 (3d Cir. 1996) (minimum contacts were
lacking when defendant did not solicit contract or initi-
ate business relationship); IDS Publishing Corp. v.
Reiss Profile Europe, B.V., supra, 2017 WL 4217156, *7
(‘‘there is no admissible evidence that [the defendant]
solicited the [l]icense [agreement] from [the plaintiff]’’);
see also RLB & Associates, Ltd. v. Aspen Medical Pty.,
Docket No. 2:15-cv-123, 2016 WL 344925, *5 (D. Vt. Janu-
ary 27, 2016) (‘‘[t]he case law is clear that [when] . . .
a defendant does not actively initiate contacts in a state,
a court does not ordinarily exercise jurisdiction over
that defendant, unless there is some other evidence
of minimum contacts with the forum state’’ (internal
quotation marks omitted)). A defendant also may reach
into a forum through physical presence in that forum.
Physical presence may include maintaining offices,
employees, real or personal property, or an agent for
service of process in the forum state, none of which
B&M maintains in the present case. See, e.g., Universal
Leather, LLC v. Koro AR, S.A., supra, 773 F.3d 557 (one
factor in determining minimum contacts is whether
defendant maintained offices or property in forum
state). Physical presence also may include traveling to
the forum to negotiate, execute, or perform the con-
tract. See, e.g., id., 562 (that defendant visited forum
at least six times for business meetings with plaintiff
supported jurisdiction because defendant ‘‘repeatedly
reached into the forum state to transact business during
[in person] visits there’’ (internal quotation marks omit-
ted)); CFA Institute v. Institute of Chartered Financial
Analysts of India, supra, 551 F.3d 295 (defendant’s visit
to forum to approach plaintiff about business venture
prior to parties’ entering into license agreement sup-
ported conclusion that sufficient minimum contacts
existed).
In the present case, the plaintiff argues that it estab-
lished B&M’s physical presence in the forum through
the affidavit of the plaintiff’s president and chief execu-
tive officer, Thomas A. Whidden, which the plaintiff
submitted in opposition to the defendants’ motion to
dismiss. In the affidavit, Whidden averred that ‘‘[B&M]
representatives have made phone calls, sent faxes and
[e-mails], and mailed letters to me hundreds of times
at my Connecticut numbers and address concerning our
ongoing contractual relationship and related business
matters. . . . This included phone calls and a personal
visit to me at my Connecticut office by Yves Marchand,
[chief executive officer of B&M].’’ (Citation omitted.)
In support of this last assertion, the affidavit includes
as an exhibit a fax from Whidden to Stephan Guter at B&
M stating that Marchand intended to visit Connecticut
in 2003.
Although Whidden’s affidavit establishes that Marchand
made a single visit to Connecticut, a single visit to the
forum is of minimal weight when considered under the
totality of the circumstances, especially when, as here,
the defendant did not initiate contact, and the contract
does not require performance by the defendant in the
forum. See, e.g., Moncrief Oil International, Inc. v.
OAO Gazprom, 481 F.3d 309, 312 (5th Cir. 2007) (single
visit to forum by defendant’s executive was of minimal
weight when ‘‘the defendant did not perform any of
its obligations in Texas, the contract did not require
performance in Texas, and the contract [was] centered
outside of Texas’’); GMAC Real Estate, LLC v. E.L.
Cutler & Associates, Inc., 472 F. Supp. 2d 960, 962,
965 (N.D. Ill. 2006) (there were insufficient minimum
contacts when defendant attended single meeting in
forum state and contract did not require performance
in forum state); see also Sneha Media & Entertainment,
LLC v. Associated Broadcasting Co. P Ltd., 911 F.3d
192, 199 (4th Cir. 2018) (single business meeting in
forum was insufficient to establish minimum contacts);
CEM Corp. v. Personal Chemistry, AB, 55 Fed. Appx.
621, 625 (4th Cir. 2003) (‘‘[o]ne visit to the state . . .
would not put [the defendant] on notice that it ‘should
reasonably anticipate being haled into court’ in North
Carolina’’); R.L. Lipton Distributing Co. v. Dribeck
Importers, Inc., 811 F.2d 967, 970 (6th Cir. 1987) (‘‘one
or two visits during five years by [the defendant’s] per-
sonnel’’ were ‘‘sporadic and insubstantial contacts’’ that
‘‘by themselves [could not] support a finding of personal
jurisdiction’’).19
Rather, the exhibits the parties submitted demon-
strate that, with the exception of this single visit, meet-
ings between the parties regarding the licensing agree-
ment occurred outside of Connecticut. For example,
Whidden traveled to Europe to represent the plaintiff
during negotiations. The plaintiff’s exhibits also demon-
strate that, from 1997 to 2000, the board of directors
of NSW, B&M’s predecessor, held meetings at Cape
Hatteras, North Carolina, in New York City and in
Orlando, Florida, but not in Connecticut. Representa-
tives of the plaintiff attended the meetings, and the
previous licensing agreement appears to have been at
issue at the meetings. The plaintiff’s exhibits also reflect
a planned meeting before the new 2000 licensing agree-
ment between the plaintiff and one of the board mem-
bers of NSW, and Mistral Sports Group GmbH, in Dus-
seldörf, Germany.20 The plaintiff also refers to a meeting
Whidden attended in Europe. Accordingly, like the trial
court, we conclude that the plaintiff, which has the
burden of establishing minimum contacts, has failed to
establish that B&M reached into Connecticut through
its physical presence in the forum.
To the extent the plaintiff relies on its conduct in the
forum to establish physical presence in the forum, as
discussed previously, it is well established that it is the
forum contacts of the defendant, not the plaintiff, that
are relevant in determining minimum contacts. See, e.g.,
Walden v. Fiore, supra, 571 U.S. 284 (‘‘[T]he relationship
must arise out of contacts that the ‘defendant himself’
creates with the forum [s]tate. . . . We have consis-
tently rejected attempts to satisfy the defendant-
focused ‘minimum contacts’ inquiry by demonstrating
contacts between the plaintiff (or third parties) and the
forum [s]tate.’’ (Citations omitted; emphasis omitted.));
Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163,
1169 (9th Cir.) (‘‘[t]he cornerstone of the due process
inquiry is an analysis of the defendant’s contacts with
the selected forum’’), cert. denied, 549 U.S. 1076, 127
S. Ct. 723, 166 L. Ed. 2d 560 (2006); see also Burger
King Corp. v. Rudzewicz, supra, 471 U.S. 474 (‘‘[t]he
unilateral activity of those who claim some relationship
with a nonresident defendant cannot satisfy the require-
ment of contact with the forum [s]tate’’ (internal quota-
tion marks omitted)). The United States Supreme Court
explicitly has rejected reliance on a defendant’s knowl-
edge that a plaintiff has ‘‘strong forum connections’’
because this type of ‘‘analysis impermissibly allows a
plaintiff’s contacts with the defendant and forum to
drive the jurisdictional analysis.’’ (Internal quotation
marks omitted.) Walden v. Fiore, supra, 289.
Nevertheless, the plaintiff argues that B&M purpose-
fully reached into the forum because it knew that the
plaintiff performed its obligations under the contract
in Connecticut and suffered harm caused by the breach
of contract in Connecticut.21 The fact that B&M was
aware, as the dissent states, that ‘‘[the plaintiff] would
perform its obligations from and suffer any conse-
quences in Connecticut’’ is not relevant to our minimum
contacts analysis. See Walden v. Fiore, supra, 571 U.S.
289. None of the plaintiff’s forum contacts—its perfor-
mance in the forum, its use of the royalty funds in the
forum, its sales and marketing in the forum, any harm
it suffers in the forum—is relevant to determining
whether the defendant has minimum contacts with the
forum. The plaintiff’s reliance on these facts seems to
stem from a belief that it is reasonable that a corpora-
tion should expect that, if it voluntarily enters into a
long-term contractual relationship with another corpo-
ration, it will likely be subject to jurisdiction (for inci-
dents involving the contractual relationship) in that
other corporation’s home state. Although such a con-
cern may factor into determining the reasonableness
of the exercise of jurisdiction over the defendant in the
forum, it is not a proper concern for the minimum
contacts analysis. See id.Even among cases involving long-term contractual
relationships, we have found none—and the plaintiff
has not pointed us to any—in which courts have found
minimum contacts when there was insufficient evi-
dence that the defendant initiated contact, there was
insufficient evidence of physical presence in the forum,
and the contract did not contemplate performance by
the defendant in the forum. See, e.g., Freudensprung
v. Offshore Technical Services, Inc., supra, 379 F.3d
344–45 (minimum contacts were lacking despite approxi-
mately three year contractual relationship, including
extensive communication, when contract performance
was to occur outside forum); IDS Publishing Corp. v.
Reiss Profile Europe, B.V., supra, 2017 WL 4217156, *7
(minimum contacts were lacking despite more than ten
year contractual relationship during which plaintiff ini-
tiated contact, defendant never was physically present
in forum, and licensing agreement contemplated exploi-
tation of markets outside forum).
In the present case, the October, 2000 licensing agree-
ment granted B&M a worldwide license to certain trade-
marks and required B&M to use its best good faith
efforts to produce, market, and sell the licensed prod-
ucts. The agreement did not explicitly contemplate per-
formance in Connecticut. Rather, the terms of the licensing
agreement create a connection to Wisconsin but are
void of any reference to Connecticut. For example, the
agreement included a choice of law provision designat-
ing Wisconsin law as controlling the agreement and
required B&M to send its royalty fees to a Wisconsin
bank. The agreement also provided that ‘‘[a]ll notices
for the purposes of [the] agreement’’ had to be sent to
the secretary and general counsel for the plaintiff in
Sheboygan, Wisconsin.
Although a choice of law clause is not dispositive,
those three contractual provisions raise serious ques-
tions regarding the foreseeability that B&M could be
haled into court in Connecticut. See CutCo Industries,
Inc. v. Naughton, 806 F.2d 361, 366–67 (2d Cir. 1986)
(‘‘a choice of law provision in a contract does not consti-
tute a voluntary submission to personal jurisdiction’’
but deserves ‘‘some weight’’ when determining whether
personal jurisdiction exists); see also K-V Pharmaceu-
tical Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 593–94
(8th Cir. 2011) (considering directions in parties’ con-
tract for payments to be sent to plaintiff in determining
whether minimum contacts existed); cf. Vetrotex Cer-
tainTeed Corp. v. Consolidated Fiber Glass Products
Co., supra, 75 F.3d 152 (jurisdiction was lacking when
defendant did not initiate contact and sent payments
to plaintiff in different forum). Under similar circum-
stances, when the choice of law provision designated
another forum and the defendant had an insufficient
physical presence within the forum, courts have found
insufficient minimum contacts. See, e.g., Halliburton
Energy Services, Inc. v. Ironshore Specialty Ins. Co.,
supra, 921 F.3d 543–44 (minimum contacts with forum
were lacking when defendant insurer had ‘‘virtually no
connections’’ to forum and insurance policy at issue
was governed by New York law); Tidy Car Interna-
tional, Inc. v. Firestine, 810 F. Supp. 199, 205 (E.D.
Mich. 1993) (there were insufficient contacts with Mich-
igan when defendant never visited forum and choice of
law provision designated New York law as controlling).
Additionally, the parties’ course of dealings shows that
B&M, despite having a worldwide license, never con-
ducted any business in Connecticut. See Halliburton
Energy Services, Inc. v. Ironshore Specialty Ins. Co.,
supra, 544 (terms of contract and parties’ actual course
of dealing must be considered in determining whether
minimum contacts exist).
The fact that not only did B&M not perform its con-
tractual obligations in Connecticut, but also that the
contract did not require it to do so, weighs heavily
against finding minimum contacts. Courts have held
that defendants have not reached out and thus purpose-
fully availed themselves of the forum if the contract
does not contemplate, and the parties’ course of deal-
ings does not show, performance in the forum state.
See, e.g., id. (jurisdiction was lacking when defendant
did not negotiate contract in Texas, performance did
not occur in Texas, and contract’s choice of law provi-
sion designated New York law as controlling); Sangha
v. Navig8 ShipManagement Private Ltd., supra, 882
F.3d 103 (‘‘a defendant does not have minimum contacts
with a state when it does not have a physical presence
in the state, it did not conduct business in the state,
and the contract underlying the business transaction
was not signed in the state and did not call for perfor-
mance in the state’’); International Energy Ventures
Management, L.L.C. v. United Energy Group, Ltd., 818
F.3d 193, 213 (5th Cir. 2016) (minimum contacts were
lacking when ‘‘(1) [the defendant] did not negotiate the
agreement in Texas, (2) [it] did not travel to Texas
because of that agreement, and (3) the unwritten agree-
ment did not require performance in Texas’’); Diamond
Healthcare of Ohio, Inc. v. Humility of Mary Health
Partners, supra, 229 F.3d 451 (contacts were insuffi-
cient to support jurisdiction, and ‘‘[n]ot only did [the
plaintiff] initiate the contractual relationship in Ohio,
but the resulting agreement contemplated the bulk of
the contract’s performance . . . in . . . Ohio’’); Iowa
Electric Light & Power Co. v. Atlas Corp., 603 F.2d 1301,
1303–1304 (8th Cir. 1979) (‘‘entering into a contract with
a forum resident does not provide the requisite contacts
between a defendant and the forum state . . . [espe-
cially] when all elements of the defendant’s perfor-
mance are to take place outside of the forum’’ (citation
omitted)), cert. denied, 445 U.S. 911, 100 S. Ct. 1090,
63 L. Ed. 2d 327 (1980). A lack of performance in the
forum undermines jurisdiction because, if the defen-
dant never attempted to ‘‘exploit any market for its
products in the [forum] state . . . but rather had con-
tact with the state only because the plaintiff chose to
reside there,’’ the defendant has not purposefully
availed itself of the benefits and protections of the
forum’s laws. (Internal quotation marks omitted.) Cal-
phalon Corp. v. Rowlette, supra, 228 F.3d 722–23.
Thus, despite the length of the contractual relation-
ship, the lack of evidence regarding whether B&M initi-
ated contact and B&M’s physical presence in the forum
or performance of the contract in the forum, coupled
with the terms of the contract, belies any contention
that B&M purposefully availed itself of the benefits and
protections of Connecticut’s laws. Specifically, the
plaintiff has failed to demonstrate—and this court can-
not perceive—how B&M has received those benefits
and protections when it has operated its business and
performed its obligations under the licensing agreement
completely outside the forum. The defendant never
attempted to ‘‘ ‘exploit any market for its products’ ’’
in Connecticut. Id., 722.
It is true that, after signing the October, 2000 licensing
agreement the defendant sent the agreement to Con-
necticut, where it was executed by the plaintiff. For
purposes of jurisdiction, however, the fact that B&M
mailed the contract to the plaintiff in Connecticut is of
little consequence in determining whether minimum
contacts exist. Such limited contact is ancillary to the
execution of the contract. See, e.g., Freudensprung v.
Offshore Technical Services, Inc., supra, 379 F.3d 344(‘‘the combination of . . . engaging in communica-
tions related to the execution and performance of the
contract, and the existence of a contract between the
nonresident defendant and a resident of the forum are
insufficient to establish the minimum contacts’’); see
also Jones v. Artists Rights Enforcement Corp., 789
Fed. Appx. 423, 426 (5th Cir. 2019) (‘‘[a]n exchange
of communications in the course of developing and
carrying out a contract . . . does not, by itself, consti-
tute the required purposeful availment of the benefits
and protections of [a forum state’s] law’’ (internal quota-
tion marks omitted)); Stuart v. Spademan, supra, 772
F.2d 1193 (‘‘an exchange of communications between
a resident and a nonresident in developing a contract
is insufficient of itself to be characterized as purposeful
activity invoking the benefits and protection of the
forum state’s laws’’).
Nevertheless, the plaintiff points to other communi-
cations between itself and B&M that it claims, when
considered alongside the long-term nature of the con-
tractual relationship, establish minimum contacts. The
plaintiff argues that the continuing and regular commu-
nications between them demonstrate that B&M pur-
posefully availed itself of the benefits of its in-state
activities. It is true that the parties communicated regu-
larly and consistently regarding the contract, including
communications regarding B&M’s payment of royalties.
Most of the evidence submitted shows that the parties
communicated via e-mail and fax on a quarterly basis
when B&M provided the plaintiff with its quarterly roy-
alty report, as required by the agreement. The parties
also communicated via e-mail regarding the alleged
breach of contract at issue. The plaintiff also submitted
some evidence that the parties communicated via tele-
phone on other occasions. Despite this evidence, we
conclude that the parties’ communications do not weigh
in favor of jurisdiction because they were ancillary to
the performance of the contract rather than demonstra-
tive of continuous collaboration between the parties.
Additionally, even if the parties’ communications weighed
in favor of jurisdiction, the lack of evidence that B&
M reached out to the forum or performed any of its
contractual obligations in the forum militates against
jurisdiction.
In the minimum contacts analysis, some courts find
consistent and continuing communications between the
parties to favor a finding of jurisdiction, regardless of
the substance of the communications. See, e.g., Cre-
ative Calling Solutions, Inc. v. LF Beauty Ltd., 799
F.3d 975, 980 (8th Cir. 2015) (after defendant initiated
contact with plaintiff, parties e-mailed and phoned each
other for close to two years); Johnson Worldwide Asso-
ciates, Inc. v. Brunton Co., 12 F. Supp. 2d 901, 907 (E.D.
Wis. 1998) (‘‘routine correspondence regarding the licens-
ing agreement’’ over long-term contractual relationship,
as well as visits to forum, supported jurisdiction). Nev-
ertheless, these cases do not hold that consistent and
continuing communication by itself is sufficient to jus-
tify jurisdiction but, rather, consider it as one factor in
the totality of the circumstances analysis. See, e.g., Far
West Capital, Inc. v. Towne, 46 F.3d 1071, 1077 (10th
Cir. 1995) (‘‘[i]t is [well established] that phone calls
and letters are not necessarily sufficient in themselves
to establish minimum contacts’’). Thus, even if we
adopted this approach, these cases are distinguishable
because they involved continuous communication cou-
pled with other significant contacts, such as reaching
out to the forum.22 In the present case, evidence of
other contacts is lacking, such as initiating contact or a
sufficient physical presence in the forum, which weighs
against a finding of minimum contacts despite the com-
munications between the parties.
Other courts have determined that use of the mail
and telephone communications are ‘‘ancillary’’ to the
contract’s execution and performance and do not con-
stitute a purposeful availment of the benefits and pro-
tections of the forum. See, e.g., Reynolds v. Interna-
tional Amateur Athletic Federation, 23 F.3d 1110, 1119
(6th Cir.) (‘‘[t]he use of interstate facilities such as the
telephone and mail is a secondary or ancillary factor and
cannot alone provide the minimum contacts required
by due process’’ (internal quotation marks omitted)),
cert. denied, 513 U.S. 962, 115 S. Ct. 423, 130 L. Ed.
2d 338 (1994); Scullin Steel Co. v. National Railway
Utilization Corp., 676 F.2d 309, 314 (8th Cir. 1982)
(same); see also Michigan Coalition of Radioactive
Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1177
(6th Cir. 1992) (‘‘[t]elephone conversations and letters
are insufficient to fulfill’’ purposeful availment require-
ment); Roth v. Garcia Marquez, 942 F.2d 617, 622 (9th
Cir. 1991) (‘‘ordinarily use of the mails, telephone, or
other international communications simply [does] not
qualify as purposeful activity invoking the benefits and
protection of the [forum] state’’ (internal quotation marks
omitted)). Under this approach, the parties’ communi-
cations in implementing the contract carry minimal
weight and do not, as the dissent suggests, ‘‘go a long
way’’ in establishing minimum contacts.
In this endeavor, courts often will evaluate the weight
of communications between the parties, considering
not only the extent of the communications but also their
quality and substance. See, e.g., Universal Leather, LLC
v. Koro AR, S.A., supra, 773 F.3d 560 (considering ‘‘the
nature, quality and extent of the parties’ communica-
tions about the business being transacted’’ and requiring
substantial collaboration (internal quotation marks
omitted)); CFA Institute v. Institute of Chartered
Financial Analysts of India, supra, 551 F.3d 295 (pre-
contractual negotiations initiated by defendant, corre-
spondence and collaboration between parties during
thirteen year contractual relationship and visits by
defendant to forum state evidenced nature of business
relationship); Calphalon Corp. v. Rowlette, supra, 228
F.3d 723 (‘‘phone, mail, and fax contact with [the plain-
tiff] in Ohio . . . occurred solely because [the plaintiff]
chose to be headquartered in Ohio, not because [the
defendants] sought to further [their] business and cre-
ate ‘continuous and substantial’ consequences there’’).
For example, ‘‘informational communications in fur-
therance of [a contract between a resident and a nonres-
ident do] not establish the purposeful activity necessary
for a valid assertion of personal jurisdiction over [the
nonresident defendant].’’ (Internal quotation marks
omitted.) Vetrotex CertainTeed Corp. v. Consolidated
Fiber Glass Products Co., supra, 75 F.3d 152; accord
Sunbelt Corp. v. Noble, Denton & Associates, Inc., 5
F.3d 28, 32 (3d Cir. 1993). The substance of the commu-
nications weighs in favor of jurisdiction when it evinces
collaboration regarding the business and is not merely
incidental or ancillary to performance of the contract.
See Rice v. Karsch, 154 Fed. Appx. 454, 463–64 (6th Cir.
2005) (finding that communications were ‘‘ ‘ancillary’ ’’
when phone, mail, and e-mail contacts in forum occurred
only because plaintiff was located there, not because
defendant sought to further personal business or to
create continuous and substantial consequences there);
see also John Crane, Inc. v. Shein Law Center, Ltd.,
891 F.3d 692, 696 (7th Cir. 2018) (weighing communica-
tions on basis of whether ‘‘[t]he communications were
not incidental to other conduct’’).
Burger King itself suggests that communications
between parties weigh in favor of jurisdiction when
they involve collaboration between the parties, and the
focus is on the quality and not the quantity of the com-
munications. Specifically, the court in Burger King
noted that the parties ‘‘carried on a continuous course
of direct communications by mail and by telephone’’
regarding disputes over building design, site develop-
ment fees, rent computation, and the defaulted pay-
ments because the plaintiff in Florida was granted all
decision-making authority under the parties’ contract.
Burger King Corp. v. Rudzewicz, supra, 471 U.S. 481.
The defendant was required to communicate with the
plaintiff in Florida to obtain permission for almost all
business decisions, with this level of oversight being
central to the underlying contract. Id. Those communi-
cations reflected extensive collaboration regarding the
business, thereby supporting a determination that the
defendant had reached out to the forum.
We recognize that, recently, the United States
Supreme Court in Walden v. Fiore, supra, 571 U.S. 277,
explained that, ‘‘although physical presence in the forum
is not a prerequisite to jurisdiction . . . physical entry
into the [s]tate—either by the defendant in person or
through an agent, goods, mail, or some other means—
is certainly a relevant contact.’’ (Citation omitted.) Id.,
285. The court’s consideration of direct communica-
tions between the parties is consistent with the recogni-
tion by the court in Burger King of technological
changes in modes of communication: ‘‘[I]t is an inescap-
able fact of modern commercial life that a substantial
amount of business is transacted solely by mail and
wire communications across state lines, thus obviating
the need for physical presence within a [s]tate in which
business is conducted.’’ Burger King Corp. v. Rudzew-
icz, supra, 471 U.S. 476. That observation has become
only more true in the thirty-six years since the Burger
King decision, as the globe shrinking evolution of digi-
tal communications has made it ever easier for an entity
to conduct business without once setting foot in the
forum state.
Nevertheless, although it recognized that direct com-
munication between the parties is a relevant factor, the
court in Walden clarified that the ‘‘ ‘minimum contacts’
analysis [must look] to the defendant’s contacts with
the forum [s]tate itself, not the defendant’s contacts
with persons who reside there. . . . To be sure, a
defendant’s contacts with the forum [s]tate may be
intertwined with his transactions or interactions with
the plaintiff or other parties. But a defendant’s relation-
ship with a plaintiff or third party, standing alone, is
an insufficient basis for jurisdiction. . . . Due process
requires that a defendant be haled into court in a forum
[s]tate based on his own affiliation with the [s]tate,
not based on the ‘random, fortuitous, or attenuated’
contacts he makes by interacting with other persons
affiliated with the [s]tate.’’ (Citations omitted.) Walden
v. Fiore, supra, 571 U.S. 285–86. Thus, the court in
Walden recognized that it is the substance of the com-
munication that is central to the analysis—whether the
defendant was purposefully reaching out to the forum
rather than communicating within the forum merely
because the plaintiff happens to reside there. See Cal-
phalon Corp. v. Rowlette, supra, 228 F.3d 723 (holding
that contacts with forum are ‘‘random, fortuitous, and
attenuated’’ if they occur merely because plaintiff is
located in forum (internal quotation marks omitted)).
In the present case, although it is true that the parties’
communications involved their contractual relation-
ship, unlike in Burger King, there is limited evidence
of any continuous or extensive collaboration regarding
the parties’ businesses or the licensing agreement. Not
only is the level of oversight and control significantly
less than it was in Burger King, but continuous commu-
nication was not necessary for B&M to run its business.
B&M did not have to receive permission from the plain-
tiff in Connecticut for its business decisions before
acting. Thus, the nature of the communications in the
present case is substantively different from the commu-
nications in Burger King, which were essential to the
performance of the contract in that case. The quality
and substance of the communications in this case do not
show that B&M purposely availed itself of the forum.
Rather, as we discuss subsequently in this opinion, the
evidence shows that these communications were ancil-
lary or incidental to the contractual relationship, and
occurred in Connecticut merely because the plaintiff
happened to be located in the forum.
Most telling, the parties submitted exhibits appended
to their affidavits that show the nature of these commu-
nications. Some communications involved the negotia-
tion and signing of the licensing agreement, which, as
already discussed, are considered ancillary to the con-
tract and do not support jurisdiction. The purpose of
many of the other communications was to forward the
royalty reports. Contrary to the dissent’s contention,
these royalty reports were not ‘‘central and essential’’
to B&M’s performance of the contract. These reports,
which essentially are receipts, were what case law
describes as ‘‘ancillary’’ to the contract, with B&M’s
sending the reports to the plaintiff in Connecticut not
to avail itself of the forum but merely because of the
plaintiff’s location in the forum. See, e.g., Diamond
Healthcare of Ohio, Inc. v. Humility of Mary Health
Partners, supra, 229 F.3d 452 (contract requirement
that defendant send plaintiff certain information was
ancillary and did not justify jurisdiction). Because the
contract made no reference to Connecticut in requiring
B&M to forward these reports to the plaintiff, B&M
would have been required to send the reports regardless
of where the plaintiff was located, thereby rendering
this contact between the parties ‘‘fortuitous’’ under the
case law. See, e.g., Calphalon Corp. v. Rowlette, supra,228 F.3d 723 (holding that contacts in forum are ‘‘ran-
dom, fortuitous, and attenuated’’ if they occur merely
because plaintiff is located in forum (internal quotation
marks omitted)); Johnson v. UBS AG, Docket No. 2:20-
cv-00357-MCS-JC, 2020 WL 6826477, *4 (C.D. Cal. Novem-
ber 12, 2020) (‘‘ ‘[w]hen a defendant’s relationship to
the forum state arises from the fortuity of where the
plaintiff resides . . . it does not provide the basis for
specific jurisdiction there’ ’’), aff’d, 860 Fed. Appx. 531(9th Cir. 2021). That does not mean that these reports
were not important to the plaintiff. Under governing
case law, a contact is ancillary or fortuitous if it is not
the result of a defendant’s deliberate engagement in
significant activities within the forum or its having con-
tinuing obligations with the forum. See Burger King
Corp. v. Rudzewicz, supra, 471 U.S. 475–76; Diamond
Healthcare of Ohio, Inc. v. Humility of Mary Health
Partners, supra, 229 F.3d 452; Calphalon Corp. v. Row-
lette, supra, 228 F.3d 722–23. Here, the contract did not
envision that B&M would deliberately engage in activity
in Connecticut or have continuous obligations within
Connecticut. Any link to Connecticut was merely
because of the plaintiff’s location in the forum, which
was a matter of happenstance that could have changed
at any time. By contrast, for example, the contract envi-
sioned B&M’s making payments of royalties to the plain-
tiff in Wisconsin, which was not fortuitous or happen-
stance.23
The parties also exchanged correspondence regard-
ing the dispute that led to the current litigation. Commu-
nications in advance of litigation or during litigation
are considered incidental and are afforded little weight
in determining whether minimum contacts exist because
they encourage dispute resolution. See, e.g., Pro Axess,
Inc. v. Orlux Distribution, Inc., 428 F.3d 1270, 1278
n.5 (10th Cir. 2005) (in determining whether purposeful
availment has occurred, recriminations between parties
in advance of litigation are afforded less weight so as
to encourage informal resolution of disputes); Sheldon
v. Khanal, Docket No. 07-2112-KHV, 2007 WL 4233628,
*5 (D. Kan. November 29, 2007) (‘‘[The] [d]efendants’
communications into Kansas were incidental to the res-
olution of the bankruptcy proceeding, the completion
of the judicial sale and the satisfaction of the mortgage
[all of which related to the property at issue]. The quality
of these contacts [cuts] against the [c]ourt’s exercise
[of] personal jurisdiction over [certain of the defen-
dants]. . . . None of the matters, communications or
transactions between [the] plaintiffs and [those defen-
dants] created a substantial connection to the [s]tate
of Kansas [that] would permit the [c]ourt to exercise
personal jurisdiction over [those defendants].’’ (Cita-
tion omitted.)).
Thus, nothing about the proffered communications
shows that B&M was purposefully reaching into the
forum. Rather, these communications show that B&M
communicated within Connecticut only because the
plaintiff was located there. These communications do
not show substantial collaboration regarding the busi-
ness, as in Burger King, in which the communications
were necessary under the contract for approval of
almost all business decisions. Burger King Corp. v.
Rudzewicz, supra, 471 U.S. 481. Here, the communica-
tions were ancillary and incidental to the performance
of the contract. Accordingly, B&M’s communications
with the plaintiff do not show that it purposefully
availed itself of the benefits and protections of the
forum.
Finally, the plaintiff contends that the parties entered
into a carefully structured contractual relationship,
although the plaintiff does not rely on any particular
provision of the contract in support of this argument.24
Unlike in Burger King, however, the contract at issue
does not envision continuing and wide reaching con-
tacts into the forum by the defendant. It is true that
various provisions in the licensing agreement give the
plaintiff oversight over some aspects of B&M’s produc-
tion of the licensed products, which are owned, pro-
duced, marketed, and sold by B&M but contain the
plaintiff’s trademarks and trade name. The agreement
provides the plaintiff ‘‘the right, at reasonable times, to
inspect the [l]icensed [p]roducts, the premises of B&M
on which such products are manufactured or stored,
and all quality control test data of B&M pertaining
thereto in order to determine and [ensure] that all
[l]icensed [p]roducts conform to the quality standards
established herein.’’ The agreement also gives the plain-
tiff the right to receive, when it deems it necessary,
samples of the licensed products, as well as examples
of advertising and promotional materials and quality
control test data to determine whether the licensed
products conform to quality standards contained in the
licensing agreement. The agreement further provides
that, if the plaintiff notifies B&M that the licensed prod-
ucts do not comply with those quality standards, B&M
is obligated to correct any defects. The plaintiff also
may request an audit of B&M’s books and records as
they relate to the licensed products. At the end of each
fiscal year, B&M is obligated to provide the plaintiff
with a set of financial statements demonstrating B&M’s
financial status. The parties’ course of dealings shows
that B&M e-mailed the plaintiff quarterly financial state-
ments and royalty reports.
These provisions do not create a ‘‘carefully structured
[long-term] relationship that envisioned continuing and
[wide reaching] contacts’’ in Connecticut with ‘‘exacting
regulation’’ of the defendant’s business, as in Burger
King Corp. v. Rudzewicz, supra, 471 U.S. 465, 480. From
its offices in Florida, Burger King imposed many
requirements on franchisees and, thus, controlled the
defendant’s daily operations. Among other things,
Burger King regulated the defendant’s accounting and
insurance practices, hours of operation, building layout,
service and cleanliness standards, as well as the range,
quality, appearance, size, taste, and processing of menu
items. Id., 465 n.4. It was not Burger King’s relationship
with and authority over the defendant, however, that
weighed in favor of jurisdiction; see id., 475–76 (focus
is on defendant’s contacts with forum, not plaintiff’s
contacts with forum); but the fact that its control over
his business required him to consistently and continu-
ously reach out to Florida to obtain authorization for
the operation of his business, thereby establishing pur-
poseful availment and providing him with notice that
he could be sued in Florida.
By contrast, the October, 2000 licensing agreement
does not grant the plaintiff significant decision-making
authority over aspects of B&M’s business. See id., 485
n.28 (‘‘[s]ome franchises may . . . involve different
[decision-making] structures, such that a franchisee
should not reasonably anticipate out-of-state litiga-
tion’’). The contract requires only that B&M use its best,
good faith efforts in marketing and selling the licensed
products, which, with the exception of the inclusion of
the plaintiff’s trademarks and trade name, are owned
by B&M. It does not require B&M to conduct its business
in any particular fashion or require it to comply with
any decisions the plaintiff makes regarding its business
operations beyond those relating to the use of the trade-
marks and trade name. Although the agreement permits
the plaintiff to inspect B&M’s premises and the licensed
products, as well as to audit B&M, these oversight mea-
sures do not highly regulate B&M’s business—and cer-
tainly not in the same way Burger King possessed
almost complete control and authority over the defen-
dant’s restaurant in Burger King. Rather, the agree-
ment’s oversight provisions regulate only B&M’s use of
the plaintiff’s trademarks and trade name. Although the
licensing agreement requires B&M to obtain approval
from the plaintiff as to the design of certain licensed
products, the plaintiff is not authorized to regulate the
daily operations of B&M’s business. Unlike in Burger
King, in which the defendant consistently and continu-
ously had to reach out to Florida to obtain authorization
for the operation of his business, B&M was not required
to reach out to Connecticut to run its business. Rather,
the limited supervisory contractual provisions, such as
the right to inspect and the right to receive royalty
reports, are ancillary and incidental to the licensing
agreement. As discussed previously, it was the actual
payment of the royalties and the use of the trademark
that were the critical components of the agreement.
Courts have found oversight provisions similar to those
in the present case to be ancillary and not to support
jurisdiction. See, e.g., Diamond Healthcare of Ohio,
Inc. v. Humility of Mary Health Partners, supra, 229
F.3d 452 (contract requirement that defendant send
plaintiff certain information was ancillary and did not
justify jurisdiction); Guinness Import Co. v. Mark VII
Distributors, Inc., 153 F.3d 607, 614 (8th Cir. 1998)
(‘‘[T]here was no evidence that [the foreign entity] exer-
cised control over the distribution of its products in
the United States or controlled the importer’s decisions
as to distribution. All distributorship decisions were
made by the distributor and the importer . . . .’’);
RLB & Associates, Ltd. v. Aspen Medical Pty., supra,
2016 WL 344925, *6 (minimum contacts were lacking
when contract ‘‘did not regulate where [the] [p]laintiff
worked, the hours it worked, the manner in which it
approached potential clients, or the amount of time it
devoted to providing its services’’).
Moreover, the parties’ course of dealing calls into
question the extent to which the plaintiff exercised its
limited oversight rights under the licensing agreement.
For example, one of the plaintiff’s own exhibits reveals
that the first time it attempted to exercise its auditing
rights under the licensing agreement was sometime in
2017. Cf. Burger King Corp. v. Rudzewicz, supra, 471
U.S. 480. We find no evidence in the record rebutting
this statement. That is not to say that we require regular
exercise of contractual rights to inspect. Rather, it is
well established that, in addition to the terms of the
contract itself, the parties’ actual course of dealing is
relevant to the determination of whether minimum con-
tacts exist. See id., 478 (considering ‘‘the terms of the
contract and the parties’ actual course of dealing’’). We
acknowledge, however, that, even if a contract term is
not carried out, the terms of the contract may show
that the parties contemplated the defendant’s contact
with or continuing obligation to the forum, which would
weigh in favor of jurisdiction. See K-V Pharmaceutical
Co. v. J. Uriach & CIA, S.A., supra, 648 F.3d 594. We
merely conclude that none of the contract provisions
at issue weighs in favor of jurisdiction in this case.
In summary, considering the totality of the circum-
stances, we conclude that the plaintiff has failed to
establish that B&M has sufficient minimum contacts
with Connecticut to justify the exercise of personal
jurisdiction. Because the plaintiff failed to satisfy its
burden regarding minimum contacts, we do not need
to determine whether personal jurisdiction would be
reasonable. See Vetrotex CertainTeed Corp. v. Consoli-
dated Fiber Glass Products Co., supra, 75 F.3d 154 n.9.
Therefore, we affirm the trial court’s judgment of dis-
missal for lack of personal jurisdiction.
II
The dissent disagrees with our holding, arguing that
we improperly apply the relevant standard. The plain-
tiff, however, had the burden of establishing minimum
contacts, and its allegations and proof were modest at
best. Even when we apply the favorable motion to dis-
miss standard, as we must, the plaintiff has failed to
satisfy its burden of proof. To overcome this failure,
the dissent seeks to supplement the plaintiff’s argu-
ments with those of its own—specifically, the dissent
relies on (1) sales made by the plaintiff and B&M’s
sister entity within the forum, (2) speculation regarding
who initiated the October, 2000 agreement, (3) the
potential availability to B&M of remedies under the
Connecticut Unfair Trade Practices Act (CUTPA), Gen-
eral Statutes § 42-110a et seq., and (4) provisions in
the contract regarding litigation support. Although the
dissent is correct that we must conduct a de novo
review of the record to determine whether the plaintiff
satisfied its burden, there is a difference between con-
ducting a de novo review of the record to address the
legal arguments raised by the parties and addressing
new, legal arguments that have not been raised, for
which the record is insufficient. Under the latter circum-
stance, the applicable legal standards do not require
this court to consider every possible legal argument the
plaintiff could have made and infer from any void in
the record jurisdictional facts needed to resolve these
unraised legal arguments in favor of the plaintiff.
Rather, the plaintiff’s failure to raise such legal argu-
ments goes to whether it satisfied its burden of proof.
We briefly address the dissent’s arguments to the extent
we have not done so already.
A
The dissent’s claim that, ‘‘at this stage in the proceed-
ings, the plaintiff need only make a prima facie showing
that jurisdiction is proper,’’ contradicts our well estab-
lished legal standard. In Designs for Health, Inc. v.
Miller, 187 Conn. App. 1, 201 A.3d 1125 (2019), the only
case from this state that the dissent cites for this ‘‘prima
facie’’ standard, the dispositive (and only) jurisdictional
fact at issue—whether the defendant had signed the
contract containing a forum selection cause—was dis-
puted, with both parties offering competing evidence
on the issue. This is not true of the present case. The
Appellate Court in Designs for Health, Inc., explained
that a plaintiff’s burden is lowered to require only a
prima facie showing to survive a motion to dismiss if
jurisdictional facts are disputed and an evidentiary
hearing is not held. The plaintiff would then be required
at trial to satisfy its burden of establishing jurisdiction
by a preponderance of the evidence. Designs for Health,
Inc. v. Miller, supra, 14.
The dissent contends that the prima facie standard
applies whenever a ‘‘defendant challenges the trial
court’s personal jurisdiction but no evidentiary hearing
is requested or held.’’ It was in fact true in Designs for
Health, Inc., that neither party requested a hearing and
that the trial court did not hold one, but that was hardly
the point. The point was that the jurisdictional fact
(whether the defendant signed the contract) was dis-
puted, and no hearing was held. In that circumstance,
the trial court could neither resolve the disputed fact
itself nor hold the plaintiff to the burden of proof that
would apply at trial (i.e., a preponderance of the evi-
dence).
In the present case, there are no disputed facts rele-
vant to our minimum contacts analysis, and the plaintiff
does not mention a ‘‘prima facie’’ standard or how it
helps its argument.25 Contrary to the dissent’s argument,
under our well established standard, a fact is not dis-
puted simply because the defendant’s evidence con-
flicts with the plaintiff’s allegations. If that were the rule,
then a defendant could never have a case dismissed for
lack of personal jurisdiction unless the plaintiff’s factual
allegations were insufficient. Our rules and case law
permit a defendant to contest jurisdictional allegations,
thereby requiring a plaintiff to offer proof to support
them.
The cases from other jurisdictions the dissent cites,
including from the United States Court of Appeals for
the Second Circuit, support our analysis. These cases,
like Designs for Health, Inc., involved disputed issues
of jurisdictional facts whereby both parties offered
competing evidence and no evidentiary hearing was
held, thus implicating the prima facie standard. See K-
V Pharmaceutical Co. v. J. Uriach & CIA, S.A., supra,648 F.3d 592 (citing to cases such as Dever v. Hentzen
Coatings, Inc., 380 F.3d 1070, 1072–73 (8th Cir. 2004),
cert. denied, 543 U.S. 1147, 125 S. Ct. 1304, 161 L. Ed.
2d 108 (2005), that make clear that plaintiff has prima
facie burden to allege sufficient facts to support juris-
diction, that defendant may test this prima facie show-
ing through affidavits and exhibits, after which, if defen-
dant has raised meritorious challenge to jurisdiction,
burden shifts back to plaintiff to provide counterevide-
nce, otherwise plaintiff fails to meet its burden);
Intercon, Inc. v. Bell Atlantic Internet Solutions, Inc.,
205 F.3d 1244, 1247 (10th Cir. 2000) (‘‘[When] . . .
there has been no evidentiary hearing, and the motion
to dismiss for lack of jurisdiction is decided on the
basis of affidavits and other written material, the plain-
tiff need only make a prima facie showing that jurisdic-
tion exists. . . . If the parties present conflicting affi-
davits, all factual disputes must be resolved in the
plaintiff’s favor, and the plaintiff’s prima facie showing
is sufficient notwithstanding the contrary presentation
by the moving party.’’ (Emphasis added; internal quota-
tion marks omitted.)); see also Ins. Corp. of Ireland,
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 716, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982) (Powell,
J., concurring in the judgment) (plaintiff offered evi-
dence in support of allegations to meet prima facie
standard); Guidry v. United States Tobacco Co., 188
F.3d 619, 625 (5th Cir. 1999) (‘‘[w]hen a court rules on
a motion to dismiss for lack of personal jurisdiction
without holding an evidentiary hearing . . . the non-
moving party need only make a prima facie showing,
and the court must accept as true the nonmov[ant’s]
allegations and resolve all factual disputes in its favor’’
when both parties offer evidence regarding disputed
jurisdictional facts). But see Grand Entertainment Group,
Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 483 (3d
Cir. 1993) (case was not clear as to whether both parties
presented evidence).
B
The dissent also takes issue with our holding that
the plaintiff has failed to allege that B&M had a physical
presence in the forum. The dissent contends that B&M
has conducted business in Connecticut through its sis-
ter entity, B&M USA, arguing that B&M reached into
the forum because B&M USA marketed and sold the
licensed products in Connecticut. In this court, the
plaintiff does not make this argument.26 Because the
dissent does not consider it abandoned, we briefly
address the issue, which, at any rate, fails factually
and legally.
The allegations and evidence show that B&M USA
sold the licensed products in the forum and that the
plaintiff advertised and offered for sale the licensed
products in the forum. Nothing in the record shows that
B&M itself made any sales in Connecticut, however.
Although a foreign corporation’s decision to sell prod-
ucts in the forum may support jurisdiction, B&M did
not make any sales in the forum, unless the sales by
B&M USA or the plaintiff can be imputed to it.
The dissent contends that these sales can indeed be
imputed to B&M because both B&M USA and the plain-
tiff are part of B&M’s distribution channel. The case
law the dissent cites, however, does not support this
assertion. The record is void of any direct link between
B&M USA and B&M—likely because the plaintiff did
not argue, let alone try to allege or establish, this factual
issue. Although the contract contemplates that B&M
may sell the licensed products through distributors, no
specific distributors are listed, and there is no allegation
or evidence that B&M USA is B&M’s distributor. The
only evidence is that B&M USA is the distributor for
its parent company, which is a separate and distinct
entity from B&M. Additionally, contrary to the dissent’s
assertion, the fact that B&M made sales to B&M USA
in Washington does not create a reasonable inference
that B&M USA was B&M’s distributor of the licensed
products in Connecticut. There is no evidence or allega-
tion that B&M sold the licensed products to B&M USA
or that B&M USA then sold those products in Connecti-
cut as B&M’s distributor.27 The plaintiff never sought
to allege or prove that B&M USA is B&M’s distributor.
Cf. Beverly Hills Fan Co. v. Royal Sovereign Corp., 21
F.3d 1558, 1565 (Fed. Cir.) (there were allegations in
complaint that defendants purposefully shipped prod-
uct into forum through established distribution chan-
nel), cert. dismissed, 512 U.S. 1273, 115 S. Ct. 18, 129
L. Ed. 2d 917 (1994).
The record also does not demonstrate that the plain-
tiff is part of B&M’s distribution channel: the plaintiff
never sought to show that it was part of that channel.28
The contract specifically envisions that B&M will sell
and distribute the licensed product. There is no refer-
ence in the contract to the plaintiff’s marketing or sell-
ing the licensed products. The contract does not envi-
sion the plaintiff acting as part of any established
distribution channel. In the absence of this connection,
as we explain throughout this opinion consistent with
binding precedent, the plaintiff’s own conduct in the
forum cannot serve as a basis for minimum contacts.
C
The dissent also asserts that B&M has received the
protections of Connecticut law because of its ability to
sue under CUTPA. The dissent is correct that foreign
companies have been allowed to raise CUTPA claims
against residents of the forum. What is unclear, and
what the dissent provides no support for, is the proposi-
tion that this potential ability to bring a CUTPA claim
means that any corporation that enters into a contrac-
tual agreement with a Connecticut resident avails itself
of the protections of the forum. By this logic, any juris-
diction that has an unfair trade practices law has juris-
diction over any foreign corporation that enters into
any contract with any resident. The plaintiff does not
advance this debatable question of law in support of
its minimum contacts claim. Additionally, even if we
assume that the potential ability to raise a CUTPA claim
creates minimum contacts, it is unclear whether a for-
eign corporation retains this ability when the contract
it has negotiated contains a choice of law provision
designating another jurisdiction’s law as controlling.
We are not aware of any decision by this court or the
Appellate Court holding that a choice of law provision
designating another forum’s law as controlling never-
theless preserves a defendant’s ability to bring a
CUTPA claim.
D
Finally, the dissent asserts that the contractual provi-
sions29 regarding the plaintiff’s right to inspect the prod-
ucts establish minimum contacts because they require
B&M to ship products and advertising materials into
Connecticut for inspection on demand. The licensing
agreement, however, requires only that B&M provide
the plaintiff with sample products and advertising mate-
rials, and allows the plaintiff to inspect its products.
The licensing agreement does not specifically require
B&M to send anything to Connecticut. But ‘‘[w]here
else’’ other than Connecticut, the dissent demands?
‘‘Exactly the point’’ is our answer. B&M only would
have had to send these products and materials to Con-
necticut as a byproduct of the plaintiff’s being located
in Connecticut, not because B&M purposefully sought
to avail itself of the forum. As with the royalty reports,
under the terms of the contract, B&M would have been
required to send these materials to wherever the plain-
tiff was located. This is precisely what case law defines
as ‘‘ancillary’’ or ‘‘fortuitous’’ contacts. Additionally, the
fact that the plaintiff may inspect those products in
Connecticut is not relevant to our minimum contacts
analysis, as that involves the plaintiff’s own contacts
with the forum, not the defendant’s contacts. See, e.g.,
Walden v. Fiore, supra, 571 U.S. 290–91.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and PALMER,
McDONALD and MULLINS, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** August 20, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
‘‘GmbH’’ stands for ‘‘Gesellschaft mit beschränkter Haftung,’’ which, in
German, means ‘‘company with limited liability.’’ (Internal quotation marks
omitted.) TMT North America, Inc. v. Magic Touch GmbH, 124 F.3d 876,
879 n.1 (7th Cir. 1997).
2
The plaintiff has not argued in this court that B&M USA is a subsidiary
or agent of B&M.
3
It is unclear from the record when the assignment occurred, except that
it happened sometime prior to the execution of the October, 2000 licensing
agreement.
4
B&M’s license was exclusive as to some products and nonexclusive as
to others.
5
As to Emeram, the plaintiff’s sole theory of liability is that it is the alter
ego of B&M. The plaintiff’s claim that specific jurisdiction exists as to
Emeram depends, therefore, on whether jurisdiction exists as to B&M. Even
if we assume that Emeram were the alter ego of B&M, our conclusion
that the exercise of specific jurisdiction over B&M does not comport with
principles of due process compels the same conclusion as to Emeram.
6
Although the trial court’s statement could be read to suggest that it
interpreted Bristol-Myers Squibb Co. to establish a new standard for specific
jurisdiction, in subsequently denying the plaintiff’s motion to reargue or to
reconsider the judgment of dismissal, the court made clear that it had not
done so. Specifically, the trial court explained that its decision ‘‘did not
turn on a belief that the [United States] Supreme Court changed the basic
underlying applicable standard. Instead, the [trial] court relied on the court’s
latest articulation of it.’’
7
Despite determining that there were insufficient minimum contacts to
comport with due process, the trial court concluded that the defendants’
contacts with the forum ‘‘likely’’ satisfied the long arm statute, § 52-59b.
Although the plaintiff acknowledges that whether there are sufficient con-
tacts to satisfy the long arm statute and due process are two distinct issues,
it argues that it is ‘‘ ‘rare’ ’’ for a defendant’s contacts with a forum to satisfy
the long arm statute but not due process. Even if the plaintiff were correct
that such an occurrence is rare, we are aware of no rule holding that, if
the state’s long arm statute is satisfied, due process likewise is satisfied.
Additionally, because the parties do not dispute on appeal the trial court’s
this issue.
8
Because the plaintiff’s argument in favor of specific jurisdiction rests
on the contractual relationship between the parties, the relatedness prong
does not turn on the location of the actions that constitute the breach of
the contract. To the contrary, as long as the cause of action arises from a
contractual relationship that establishes sufficient minimum contacts with
the forum, the relatedness prong is satisfied. See Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 482–83, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985);
id., 483 (breach of contract claim brought by resident plaintiff that entered
into contract with nonresident defendant is one that is ‘‘related to the
contacts that [the defendant] established’’ in forum state (internal quotation
marks omitted)). Accordingly, because Bristol-Myers Squibb Co. v. Superior
Court of California, supra, 137 S. Ct. 1773, relied on by the defendants,
involved tort claims, it is not helpful in the determination in the present
case of whether the plaintiff’s cause of action arose out of the alleged
Connecticut contacts.
9
Because we conclude that the plaintiff failed to demonstrate that B&M
has created sufficient minimum contacts with Connecticut such that a Con-
necticut court’s exercise of specific jurisdiction over B&M comports with
due process, we do not consider whether jurisdiction would be reasonable.
See, e.g., Vetrotex CertainTeed Corp. v. Consolidated Fiber Glass Products
Co., 75 F.3d 147, 154 n.9 (3d Cir. 1996).
10
Although Walden was a torts case, not a breach of contract case, Walden
makes abundantly clear when discussing this requirement that the focus on
the defendant’s contacts applies in contract cases not only because it cites
to Burger King, a breach of contract case, but also because it is consistent
with the analysis in Burger King. Walden v. Fiore, supra, 571 U.S. 284; see
also Burger King Corp. v. Rudzewicz, supra, 471 U.S. 475 (‘‘[j]urisdiction
is proper . . . [when] the contacts proximately result from actions by the
defendant himself that create a ‘substantial connection’ with the forum
[s]tate’’ (emphasis altered)); U.S. Bank National Assn. v. Bank of America
N.A., 916 F.3d 143, 151 (2d Cir. 2019) (applying Walden to contract case
and requiring focus to be on defendant’s contacts with forum); InfoSpan,
Inc. v. Emirates NBD Bank PJSC, 903 F.3d 896, 902–903 (9th Cir. 2018)
(The court cited Walden and Burger King in explaining that, in contracts
case, ‘‘[t]wo principles animate the defendant-focused [minimum contacts]
inquiry. . . . First, the relationship between the nonresident defendant, the
forum, and the litigation must arise out of contacts that the defendant himself
creates with the forum [s]tate. . . . Second, the minimum contacts analysis
examines the defendant’s contacts with the forum [s]tate itself, not the
defendant’s contacts with persons who reside there. . . . It follows that a
defendant’s relationship with a plaintiff or third party, standing alone, is an
insufficient basis for jurisdiction.’’ (Citations omitted; internal quotation
marks omitted.)); Gulf Coast Bank & Trust Co. v. Designed Conveyor Sys-
tems, L.L.C., 717 Fed. Appx. 394, 399 (5th Cir. 2017) (applying Walden to
breach of contract claim).
11
The facts of the present case—involving a licensing agreement between
a resident plaintiff and a foreign national defendant—are hardly unique to
Connecticut. It is therefore remarkable that, on this federal constitutional
question, the parties have provided so little out-of-state guidance. Our
research, like that of the dissent, reveals that it is plentiful.
12
The dissent notes that courts have held there to be insufficient minimum
contacts in cases involving contracts for onetime product sales or short-
term service contracts. That is correct. These holdings, however, do not
stand for the proposition that, when a contract is for an ongoing relationship,
there automatically are sufficient minimum contacts. The existence of one
does not require the exclusion of the other.
13
The dissent contends that this footnote does not relate to the minimum
contacts analysis because of where it ‘‘appears’’ in the opinion. The language
of the footnote belies this argument, however. Specifically, it states that
‘‘[s]ome franchises may . . . involve different [decision-making] structures,
such that a franchisee should not reasonably anticipate out-of-state litiga-
tion.’’ (Emphasis added.) Burger King Corp. v. Rudzewicz, supra, 471 U.S.
485 n.28. This ‘‘reasonably anticipate out-of-state litigation’’ language relates
to the minimum contacts inquiry. Id., 474.
14
In addition to its reliance on Burger King, the dissent asserts that the
Supreme Court similarly held in McGee v. International Life Ins. Co., 355
U.S. 220, 222, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), that minimum contacts
exist when ‘‘a defendant knowingly entered into a long-term relationship
with a forum resident . . . even when the defendant’s contacts with the
forum state were limited to that one relationship and even when they fully
depended on the fact that the plaintiff happened to reside in the forum.’’
McGee, however, is distinguishable, as it involved a life insurance contract
under which the defendant offered to insure the plaintiff’s decedent, a
California resident, in California. Moreover, McGee predates Burger King
and Walden.
The dissent also relies on the more recent case of Ford Motor Co. v.
Montana Eighth Judicial District Court, U.S. , 141 S. Ct. 1017, 209
L. Ed. 2d 225 (2021). Ford Motor Co., however, specifically cites to the
portion of Walden v. Fiore, supra, 571 U.S. 277, that explains that ‘‘[the
court’s] ‘minimum contacts’ analysis looks to the defendant’s contacts with
the forum [s]tate itself, not the defendant’s contacts with persons who reside
there. . . . Accordingly, [the court has] upheld the assertion of jurisdiction
over defendants who have purposefully ‘reach[ed] out beyond’ their [s]tate
and into another by, for example, entering a contractual relationship that
‘envisioned continuing and [wide reaching] contacts’ in the forum [s]tate
. . . .’’ (Citations omitted.) Id., 285; see Ford Motor Co. v. Montana Eighth
Judicial District Court, supra, 1025.
15
Plainly, Connecticut has a general interest in ‘‘providing a forum in
which [its] residents can seek redress for injuries caused by out-of-state
actors.’’ (Internal quotation marks omitted.) Benton v. Cameco Corp., 375
F.3d 1070, 1079 (10th Cir. 2004), cert. denied, 544 U.S. 974, 125 S. Ct. 1826,
161 L. Ed. 2d 723 (2005). However, consideration of the impact of this court’s
constitutional determination of minimum contacts on this state’s businesses
and its economy is not appropriate. This is especially so when the parties
have the freedom to contract, including the freedom to negotiate the inclu-
sion of a forum selection clause in their agreement. See Burger King Corp.
v. Rudzewicz, supra, 471 U.S. 472 n.14.
16
Even if we assume that the contacts of B&M’s predecessor may be
attributed to B&M, we conclude that the plaintiff still has failed to satisfy
its burden of establishing minimum contacts. We observe, however, that
there appears to be a split of authority regarding whether a nonresident
predecessor’s minimum contacts may be imputed to a nonresident defendant
in all cases or only in certain circumstances. See, e.g., Patin v. Thoroughbred
Power Boats, Inc., 294 F.3d 640, 653 (5th Cir. 2002) (jurisdictional contacts
of predecessor corporation may properly be imputed to its successor corpo-
ration, consistent with due process); Williams v. Bowman Livestock Equip-
ment Co., 927 F.2d 1128, 1132 (10th Cir. 1991) (court may impute predeces-
sor’s contacts to successor only if forum law would hold successor liable
for actions of its predecessor); Gentry v. Kaltner, Docket No. 17-CV-8654
(KMK), 2020 WL 1467358, *7 (S.D.N.Y. March 25, 2020) (predecessor’s con-
tacts may be imposed on defendant only when successor liability is estab-
lished); Berninger v. Amada America, Inc., Docket No. 1:06-CV-886 (FJS/
RFT), 2008 WL 4518739, *3 (N.D.N.Y. September 30, 2008) (‘‘in certain cir-
cumstances, a defendant can inherit its predecessor’s jurisdictional status,
although it is not clear whether minimum contacts are one of those circum-
stances’’); Huth v. Hillsboro Ins. Management, Inc., 72 F. Supp. 2d 506, 511
n.4 (E.D. Pa. 1999) (‘‘[p]laintiffs must be permitted to establish jurisdiction
over successor corporation based [on] its predecessor’s contacts with the
forum’’ (internal quotation marks omitted)).
17
The dissent also asserts that B&M purposefully availed itself of the
benefits of Connecticut law because Connecticut law ‘‘helped to ensure
. . . the ability of [the plaintiff] to carry out its everyday business functions
and contractual performance on which B&M’s contract relied.’’ As explained
throughout this opinion, however, the plaintiff’s performance in the forum
is not relevant to whether sufficient minimum contacts exist to support
personal jurisdiction.
18
Contrary to the dissent’s assertion, we never state that it is difficult to
establish minimum contacts in the absence of the defendant’s initiation of
contact or that the issue of initiation is dispositive. We mention the issue
of which party initiated the contract merely as an example of a factor case
law indicates a plaintiff might rely on to help sustain its burden of proof
that a defendant has reached into the forum. The plaintiff in the present
case has not sought to make this argument or to advance such evidence.
19
We recognize that the dissent cites to other cases that have held that
a single visit to the forum can weigh in favor of jurisdiction. However, in
all of the federal court of appeals cases the dissent cites, the visit to the
forum by the defendant or one of its employees either was essential to the
underlying contract (e.g., training regarding the products at issue) or led to
or involved negotiation of the contract at issue. This leaves the dissent with
only district court and state court cases to support its view that a single
visit to the forum, which was not necessary for the fulfillment of the contract,
nonetheless suffices to establish minimum contacts. Those cases are at odds
with the federal court of appeals decisions in Sneha Media & Entertainment,
LLC, Moncrief Oil International, Inc., CEM Corp. and R.L. Lipton Distribut-
ing Co. that we have cited.
In the present case, we know very little about Marchand’s single visit to
Connecticut, which occurred after the parties had negotiated and executed
the licensing agreement, and was not required for B&M’s performance of
the agreement. Cf. Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819–20
(8th Cir. 1994) (single visit to forum weighs in favor of jurisdiction when
contract performance occurs solely in forum state). In light of the scarcity
of evidence about the purpose of the visit, and consistent with the case law
we cite, we cannot conclude that this visit to the forum was anything other
than ancillary and of little significance. Thus, despite the parties’ long-
term contractual relationship, B&M’s physical presence in the forum was
insubstantial and sporadic at best, with only one visit to the forum, which
distinguishes the present case from those that involve long-term contractual
relationships in which other substantial contacts existed or arose during
the course of the parties’ relationship.
20
Although the plaintiff appears to rely on exhibits that concern this
meeting with Mistral Sports Group, the record does not make clear the
precise relationship between Mistral Sports Group and NSW.
21
Similarly, the dissent relies heavily on the fact that ‘‘B&M made a volun-
tary, informed choice to enter into a long-term contractual relationship with
[the plaintiff], and it did so knowing full well that [the plaintiff] would
perform its principal obligations under the contract—including filing, pro-
cessing, maintaining, and protecting the parties’ rights to and the value of
the North Marks trade name—from its headquarters in Milford.’’
22
The dissent disagrees that these cases require the coupling of other
significant contacts with continuous communications to establish minimum
contacts, but the case law it relies on belies this point. For example, although
the primary case on which the dissent depends, Grand Entertainment
Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476 (3d Cir. 1993), did
rely, in part, on communications between the parties in determining that
jurisdiction exists, those were not the only contacts with the forum. See
id., 482–83. In addition to twelve communications by the defendants to the
forum and more than fifty additional communications between the parties’
agents within a short period of time, the defendants ‘‘engaged in negotiations
for an agreement that would have created rights and obligations among
citizens of the forum and contemplated significant ties with the forum.’’ Id.As explained throughout this opinion, the contract in the present case did
not envision or require significant ties with Connecticut or significant over-
sight by the plaintiff from Connecticut.
23
The contention by the plaintiff and the dissent that B&M knew that
this money would be used by the plaintiff in Connecticut is unavailing. As
discussed, the actions of the plaintiff are irrelevant to our minimum contacts
analysis. See, e.g., Walden v. Fiore, supra, 571 U.S. 289. Additionally, the
fact that the plaintiff resided in the forum was ‘‘fortuitous’’ under the case
law and does not show that B&M was intentionally reaching into the forum,
especially when it did not send the payments to the forum.
24
The plaintiff argued, at least by implication, that there were minimum
contacts because the parties entered into a carefully structured contractual
relationship. Specifically, the plaintiff cited and quoted Burger King; Burger
King Corp. v. Rudzewicz, supra, 471 U.S. 480 (specific jurisdiction existed
when defendant ‘‘entered into a carefully structured [twenty year] relation-
ship that envisioned continuing and [wide reaching] contacts with [the
plaintiff] in [the forum state]’’); after arguing that the parties entered into
a contract that required the plaintiff to perform in Connecticut.
25
For example, as discussed in more detail in footnote 27 of this opinion,
B&M offered evidence to refute the plaintiff’s allegation that B&M USA was
its agent or subsidiary. The plaintiff offered no counterevidence, and, thus,
this issue was not in dispute. Only if the plaintiff had offered counterevidence
on this issue would it be deemed in dispute, thereby requiring either an
evidentiary hearing or application of the prima facie standard to that factual
issue. Thus, in the present case, in which B&M offered evidence on an issue
of fact and the plaintiff failed to offer countering evidence, no jurisdictional
facts are in dispute, and the prima facie standard does not apply. The plaintiff
merely has failed to satisfy its burden.
26
We note that B&M has never stated that B&M USA sold the licensed
products in Connecticut. Rather, citing to the affidavit of its parent com-
pany’s chief executive officer, Till Eberle, it represented only that B&M USA
sold a small percentage of product (0.006% of its total sales) in Connecticut.
In the same affidavit, Eberle averred that B&M USA distributed various
branded products in Canada and the United States, including multiple differ-
ent product lines. Thus, it is not clear if the licensed products at issue in
the present case were the products sold in Connecticut by B&M USA, and
the plaintiff has failed to advance any allegations or to offer any evidence
that would allow this court to attribute B&M USA’s forum contacts to B&
M. Thus, this arguably ambiguous fact need not be resolved for purposes
of deciding this case.
Additionally, we see no reason to respond to the dissent’s legal argument
for attributing B&M USA’s sales in Connecticut to B&M—the so-called
‘‘stream of commerce’’ theory. First, the plaintiff has not advanced this
theory either in the trial court or on appeal, and B&M has not had a chance
to brief whether this doctrine should apply in the present case. Second, the
contours of this theory are far from clear. See Beverly Hills Fan Co. v.
Royal Sovereign Corp., 21 F.3d 1558, 1566 (Fed. Cir.) (explaining that there
exists split of authority over exact requirements for application of stream
of commerce theory, with some jurisdictions requiring more than merely
placing product in stream of commerce while others do not require additional
conduct), cert. dismissed, 512 U.S. 1273, 115 S. Ct. 18, 129 L. Ed. 2d 917 (1994).
27
The plaintiff could have set forth allegations and offered evidence to
establish that B&M USA and B&M were involved in an agency or alter ego
relationship, thereby imputing the forum contacts of B&M USA to B&M.
See Dickson Marine, Inc. v. Panalpina, Inc., 179 F.3d 331, 338–39 (5th
Cir. 1999) (declining to ignore corporate form and to attribute contacts of
company to foreign sister entity when one was not parent of other, one
does not control other, and there was no evidence of existence of agency
relationship). The plaintiff, however, set forth no allegations in this regard
and failed to offer any competing evidence to refute B&M’s evidence that
there was no agency relationship. Thus, there is no evidence on this record
that B&M USA was B&M’s agent.
28
Here again, the dissent will not hold the plaintiff to its burden of proof
and generalizes about the applicability of distinguishable case law. Specifi-
cally, the dissent broadly asserts that, ‘‘[u]nder the [parties’] licensing agree-
ment, B&M acquired the right to use North Sails’ valuable, market leading
trade name to advertise and promote B&M’s own products. And, when B&M
markets and sells its products in a state using the North Sails trade name,
that is about as fundamental of a contact as there can be. B&M is reaching
out to Connecticut consumers, displaying the brand here, and staking a
claim against anyone else who might try to use the brand in Connecticut
without authorization, all while earning royalties on Connecticut sales for
North Sails.’’ (Emphasis added.) Although sales by a defendant in the forum
might arguably constitute a fundamental contact with the forum, no such
fundamental contact occurred here. Even when we construe the allegations
and evidence in the light most favorable to the plaintiff, we conclude that
it has failed to satisfy its burden in this respect. This is the danger of
advancing arguments the parties do not advance: the record was not built
by either side with this argument in mind.
29
The dissent also relies on the fact that the licensing agreement obligates
B&M to assist the plaintiff, should the latter either initiate or be drawn into
litigation regarding North Marks, and requires B&M to indemnify and defend
the plaintiff under certain circumstances. Neither party raised this argument,
and, thus, we do not consider it. Nevertheless, we note that the case on
which the dissent relies, Samelko v. Kingstone Ins. Co., supra, 329 Conn.
249, is distinguishable in that this court held in Samelko that the duty to
defend or assist in litigation provision of the insurance policy at issue
created minimum contacts on the part of the defendant insurer because the
underlying action stemmed from its alleged breach of this provision. Id.,
272. In the present case, unlike in Samelko, the underlying action does not
stem from B&M’s duty to defend or assist in litigation.