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Bobola v. F/V Expectation

United States District Court, D. Massachusetts

September 2, 2016



          F. Dennis Saylor IV Dated United States District Judge

         This 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 pro se.

         Defendants 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 jurisdiction.

         For the following reasons, defendants' motion to dismiss will be granted in part and denied in part.

         I. Background

         Unless otherwise noted, the facts are set forth as alleged in the complaint.

         A. Factual Background

         The F/V 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. ¶ 11).

         After 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.).

         Five 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 ¶ 9).

         After 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).

         Unrelated 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).

         B. Procedural Background

         While 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).

         On 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.

         II. Legal Standard

         On a 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)).

         A 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).

         III. Analysis

         Defendants 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.

         A. Insufficient Service of Process

         A 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.” Id.

         Plaintiff 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.

         When a 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).

         Taken 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.

         Under 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.

         B. Failure ...

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