United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
Dennis Saylor IV Dated United States District Judge
action arises out of an injury suffered by a seaman aboard a
vessel. Plaintiff Matthew Bobola has filed suit under the
Jones Act and general maritime law against the vessel F/V
Expectation; the vessel's owner, Nordic Fisheries, Inc.;
captain Karl Kaughman; first mate Lester Feltis; and engineer
Robert Stewart. The complaint alleges that Bobola was injured
while working onboard the vessel due to defendants'
negligence. It also alleges that defendants harassed him when
he sought medical treatment. The complaint asserts claims for
(1) negligence under 46 U.S.C. § 30103 and 46 U.S.C.
§ 30104 (the Jones Act), (2) intentional infliction of
emotional distress, (3) maintenance and cure, and (4)
unseaworthiness. Bobola is now incarcerated and proceeding
have moved to dismiss the complaint for insufficient service
of process. They have also moved to dismiss the claims
against the individual defendants for failure to state a
claim upon which relief can be granted, and the claims
against the vessel for failure to establish in rem
following reasons, defendants' motion to dismiss will be
granted in part and denied in part.
otherwise noted, the facts are set forth as alleged in the
Expectation is a fishing vessel that is owned by Nordic
Fisheries, Inc., a company headquartered in New Bedford,
Massachusetts. (Compl. ¶ 5). On October 10, 2013, Bobola
was working aboard the vessel as a full-share deckhand.
(Id. ¶ 10). While on deck, Bobola was
“waiting for the starboard ‘drag' to be set
onto the deck, ” when a “swinging club stick
smashed [his] elbow into the side of the cutting box.”
(Id. ¶¶ 11-12). The club hit him with such
force that it ripped the sleeve off of his durable oil coat,
deeply bruised his elbow, and caused swelling. (Id.
¶ 12). At the time of the incident, the ship was in
gear, “steaming forward” at sea. (Id.
the incident, Bobola experienced “extreme pain.”
(Id. ¶ 13). He told another crew member that he
thought he may need to return to port in order to receive
medical treatment. (Id.). The crew member told him
“[y]ou don't want to do that, ” and
immediately told the vessel's first mate, Feltis, what
Bobola had said. (Compl. Ex. A ¶ 3). According to the
complaint, the next morning, Feltis approached Bobola and
made a “veiled threat, ” warning him that
“rough weather could result in a fall over the rail and
being lost at sea, ” so Bobola should “watch what
[he] say[s].” (Compl. ¶ 14). Feeling threatened,
Bobola worked through the pain for the next four days.
(Id. ¶ 15). During that time, the vessel's
captain, Kaughman, insisted that Bobola keep pace with the
other crewmen. (Id.). When Bobola could not keep
pace due to his injury, Kaughman made the rest of the crewmen
work longer hours, which “result[ed] in crew animosity
toward [Bobola].” (Id.).
days after his injury, Bobola requested that the ship return
to port. (Id. ¶ 16). According to the
complaint, in response, Kaughman and the vessel's
engineer, Stewart, berated Bobola in front of the crew,
calling him a “crybaby” for requesting medical
care. (Id.). Kaughman warned Bobola that he should
leave quickly once they arrived at port, because the crew was
angry and wanted “to kick [his] ass.” (Compl. Ex.
A ¶ 7). The complaint also alleges that Kaughman and
Stewart “orchestrated the crew's animosity toward
the plaintiff, ” and then stated that they “could
not guarantee the plaintiff's safety from the irate
crew.” (Compl. ¶ 17). The next day, October 16,
2013, the vessel arrived at port. (Compl. Ex. A
arriving at port, Bobola left the ship immediately and went
to a hospital where he was treated and received painkillers.
(Compl. ¶ 18). While allegedly “doped up” on
painkillers, Bobola went to Nordic Fisheries, where he
discussed the incident with Marc Buron of Nordic.
(Id.). During their meeting, Buron asked Bobola what
he thought should or should not have happened, and also asked
him to sign something that he could not read or understand
because he was “doped up.” (Id.; Compl.
Ex. A ¶ 10). Buron then paid Bobola a one-quarter share
instead of a full share. (Compl. ¶ 18).
to this suit, Bobola was incarcerated in New Hampshire in
early 2014. (Id. ¶ 19). The complaint alleges
that he is “functionally illiterate” and has
reduced cognitive abilities. (Id. ¶ 20; Pl.
Mem. ¶ 8).
incarcerated, Bobola filed the complaint in this action on
July 24, 2015, in the United States District Court for the
District of New Hampshire. On November 10, 2015, Magistrate
Judge Johnstone ordered Bobola to file by December 11, 2015,
either a notice of voluntary dismissal or a motion requesting
that the court serve process on defendants. On December 7,
2015, Bobola filed a motion requesting that the court serve
defendants. On January 20, 2016, the court sent Bobola five
blank summons forms, directing him to complete and return
them to the court within thirty days. Bobola completed the
summons forms, and defendants were finally served on February
5, 2016. (Def. Mem. 5).
November 9, 2015, Bobola moved to transfer venue to the
District of Massachusetts. Defendants opposed the transfer,
but the court granted the motion on April 4, 2016, after
defendants were served.
motion to dismiss, the Court “must assume the truth of
all well-plead[ed] facts and give . . . plaintiff the benefit
of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st
Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77
(1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). That is, “[f]actual allegations must be enough
to raise a right to relief above the speculative level, . . .
on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at
555 (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement, ' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if the complaint fails to set forth
“factual allegations, either direct or inferential,
respecting each material element necessary to sustain
recovery under some actionable legal theory.”
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.
2008) (quoting Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
document filed by a pro se party “is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation
marks omitted); see also Fed. R. Civ. P. 8(e)
(“Pleadings must be construed so as to do
justice.”). However, while pro se complaints
are accorded an “extra degree of solicitude”,
Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991),
they still must “set forth factual allegations, either
direct or inferential, respecting each material element
necessary to sustain recovery under some actionable legal
theory.” Gooley v. Mobil Oil Corp., 851 F.2d
513, 515 (1st Cir. 1998).
have moved to dismiss the complaint on three grounds. First,
they contend that the complaint should be dismissed as to all
defendants under Fed.R.Civ.P. 12(b)(5) because Bobola failed
to complete service of process within 90 days after filing
the complaint as required by Fed.R.Civ.P. 4(m). Second, they
contend that the claims against the individual defendants
should be dismissed under Fed.R.Civ.P. 12(b)(6) because
negligence claims under the Jones Act can proceed against
only a vessel's owner, in this case Nordic Fisheries.
Third, they contend that the complaint should be dismissed as
to the vessel because Bobola has failed to perfect an in
rem claim against the F/V Expectation.
Insufficient Service of Process
plaintiff must serve defendants with process within 90 days
of filing a complaint. Fed.R.Civ.P. 4(m). If a plaintiff
fails to serve process within that period, then a court
“must dismiss the action without prejudice against that
defendant or order that service be made within a specified
time.” Id. If, however, “the plaintiff
shows good cause for the failure, [a] court must extend the
time for service for an appropriate period.”
here filed the complaint on July 24, 2015. On November 10,
2015, approximately 109 days after the complaint was filed,
the District Court in New Hampshire informed plaintiff that
he needed to request that the court serve defendants, or
voluntarily dismiss the action, by December 11, 2015.
Plaintiff requested that the court serve defendants before
that deadline, and they were served on February 5, 2016,
approximately 196 days after the complaint was filed. Because
plaintiff failed to serve defendants within 90 days of July
24, 2015, he must show good cause for failing to complete
service within the deadline.
plaintiff has failed to serve process, “the burden of
demonstrating the requisite good cause rest[s] upon
[him].” United States v. Ayer, 857 F.2d 881,
884-85 (1st Cir. 1988).
[G]ood cause is likely (but not always) to be found when the
plaintiff's failure to complete service in timely fashion
is a result of a third person['s actions], typically the
process server, the defendant has evaded service of the
process or engaged in misleading conduct, the plaintiff has
acted diligently in trying to effect service or there are
understandable mitigating circumstance, or the plaintiff is
proceeding pro se or in forma pauperis.
Pro se status or any of the other listed
explanations for a failure to make timely service, however,
is not automatically enough to constitute good cause for
purposes of Rule 4(m).
McIsaac v. Ford, 193 F.Supp.2d 382, 383 (D. Mass.
2002) (quoting Alan Wright & Arthur Miller, Federal
Practice and Procedure § 1137 (3d ed. 2002));
see Martello v. United States, 133 F.Supp.3d 338,
345 (D. Mass. 2015) (concluding that plaintiff failed to
establish good cause because he was not proceeding pro
se and did not show diligence in attempting to effect
service; however, exercising discretion to grant extension
because case would effectively be dismissed with prejudice
due to running of statute of limitations).
collectively, plaintiff's pro se status,
incarceration, admittance to the Residential Treatment Unit
at the prison in December 2014, mistaken belief about when
service must be effectuated, and limited cognitive abilities
together establish good cause for missing the service
deadline. (Pl. Mem. ¶¶ 6-9). Furthermore, it
appears that plaintiff did not intentionally delay service.
the circumstances, plaintiff has demonstrated good cause for
his failure to serve defendants before the 90-day deadline
imposed by Fed.R.Civ.P. 4(m). Accordingly, defendants'
motion to dismiss the complaint for insufficient service of
process pursuant to Fed.R.Civ.P. 12(b)(5) will be denied.