United States District Court, D. Massachusetts
KRIS J. BOHNENBERGER, and GEICO MARINE INSURANCE COMPANY f/k/a SEAWORTHY INSURANCE COMPANY as subrogee of ANDREW KLANE Plaintiffs,
MCBC HYDRA BOATS, LLC, and PLANTATION BOAT MART AND MARINA, INC., Defendants.
REPORT AND RECOMMENDATION ON DEFENDANT PLANTATION
BOAT MART AND MARINA, INC.'S MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION
Gail Dein, United States Magistrate Judge.
Kris J. Bohnenberger (“Bohnenberger”) is a
resident of Massachusetts and, along with plaintiff Geico
Marine Insurance Company f/k/a Seaworthy Insurance Company as
subrogee of Andrew Klane (“Geico”), has brought
this action against Plantation Boat Mart and Marina, Inc.
(“Plantation”). This action arises out of the
sale of a recreational motorboat (the “vessel”)
by Plantation to friends of Bohnenberger, Richard and Terry
Smith (“the Smiths”), for Bohnenberger's use.
The plaintiffs allege that due to the vessel's faulty
wiring, the vessel caught fire at Bohnenberger's dock in
Massachusetts. The fire destroyed the vessel and a second
boat tied to the same dock, the “Grady White”
owned by Andrew Klane, and also caused severe damage to the
dock itself. By their Second Amended Complaint
(“SAC”),  the plaintiffs have brought suit pursuant
to this court's admiralty jurisdiction, 28 U.S.C. §
1333, and asserted claims against the defendant for
negligence (Count I), strict liability (Count II), and breach
of warranty (Count III). (Docket No. 29 at Ex.
matter is before the court on “Defendant, Plantation
Boat Mart and Marina Inc.'s Motion to Dismiss for Lack of
Personal Jurisdiction” (Docket No. 25). By its motion,
Plantation contends that all of the plaintiffs' claims
must be dismissed pursuant to Fed.R.Civ.P. 12(b)(2) because
Plantation lacks sufficient contacts with Massachusetts to
support this court's exercise of personal jurisdiction
over it. As described below, this court finds that Plantation
is subject to this court's jurisdiction. Accordingly, and
for all the reasons detailed herein, this court recommends to
the District Judge to whom this case is assigned that
Plantation's motion to dismiss for lack of personal
jurisdiction be DENIED.
STATEMENT OF FACTS
of Review of Record
a motion to dismiss for want of personal jurisdiction, the
plaintiff ultimately bears the burden of persuading the court
that jurisdiction exists.” Astro-Med, Inc. v. Nihon
Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir. 2009), and
cases cited. “When a district court rules on a motion
to dismiss for lack of personal jurisdiction without holding
an evidentiary hearing, as in this case, the ‘prima
facie' standard governs its determination.”
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610,
618 (1st Cir. 2001). Under this standard, plaintiffs must
“demonstrate the existence of every fact required to
satisfy both the forum's long-arm statute and the Due
Process Clause of the Constitution.” Id.
(quotations and citation omitted). Thus, to meet their burden
in this case, plaintiffs must “proffer evidence which,
taken at face value, suffices to show all facts essential to
personal jurisdiction.” Baskin-Robbins Franchising
LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir.
2016). The court will “take the facts from the
pleadings and whatever supplemental filings (such as
affidavits) are contained in the record, giving credence to
the plaintiff's version of genuinely contested
facts.” Id. It will “then add to the mix
facts put forward by the defendants, to the extent that they
are uncontradicted.” N. Laminate Sales, Inc. v.
Davis, 403 F.3d 14, 24 (1st Cir. 2005) (quoting
Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002))
(additional quotations and citation omitted).
this standard to the instant case, the relevant facts are as
Bohnenberger is a resident of Mashpee, Massachusetts
(Bohnenberger Aff. ¶8) and is friends with Richard and
Terry Smith, a married couple who reside in Falmouth,
Massachusetts. (Smith Aff. ¶ 1; Bohnenberger Aff. ¶
Plaintiff Geico is a Virginia corporation with a principal
place of business in Alexandria, Virginia. (SAC ¶ 2).
Plantation Boat Mart & Marina, Inc., a boat dealership,
is a Florida corporation with a principal place of business
in Tavernier, Florida. (de la Torre Aff. ¶¶ 6, 8).
There is no dispute that Plantation is not registered to do
business in Massachusetts (Id. ¶ 11); has no
registered agent for services of process in Massachusetts
(Id. ¶ 13); maintains no office or bank account
in Massachusetts (Id. ¶¶ 10, 22); has
never had a mailing address or telephone listing in
Massachusetts (Id. ¶ 16); does not own or
lease, have interest in or use or possess any real or
personal property in Massachusetts (Id. ¶ 17);
has conducted no corporate meetings in Massachusetts
(Id. ¶ 15); and has had no officer or director
who was a resident of Massachusetts while holding that
position. (Id. ¶ 14).
February 2013, Bohnenberger attended the Miami Boat Show.
(Bohnenberger Aff. ¶ 3). There he spoke with and
provided his email address to an individual who identified
himself as the President of Hydrasports Custom Boats, LLC.
(Id. ¶ 4). On March 9, 2013, Bohnenberger
received an email at home in Massachusetts from a Plantation
salesperson named Scott Warnike (“Warnike”).
(Id. ¶ 8). Warnike wrote that he had heard from
the President of Hydrasports that Bohnenberger “ha[d]
some interest in the New 3400 CC [boat].” (Id.
¶ 9). Warnike's email was the first communication
between Plantation and Bohnenberger. (Id. ¶ 8).
Over the course of March and April 2013, Warnike and
Bohnenberger negotiated the terms of an agreement for the
sale of a 2013 Hydrasports 3400 cc boat (the
“vessel”) by email and phone. (Id.
¶ 10; Bohnenberger Aff. Ex. A). At least 14 emails were
exchanged and one phone call was made. (Id. Ex. A).
During the negotiations, Warnike offered to have Plantation
fly Bohnenberger to Florida to “sea trial” the
vessel. (Bohnenberger Aff. ¶ 11). Warnike agreed to take
Bohnenberger's current boat as a “trade in”
to offset the price of the vessel (Id. ¶ 12)
and offered to arrange for the transport of
Bohnenberger's trade-in boat from Massachusetts to
Florida, and the transport of the vessel from Florida to
Massachusetts. (Id. ¶¶ 13-14).
Bohnenberger and Warnike ultimately agreed that Bohnenberger
would arrange for the transport of the boats and Plantation
would reduce the purchase price accordingly. (Id.
¶ 14). Bohnenberger and Warnike also agreed that the
vessel would be outfitted with a larger “live
well” and an autopilot system. (Id. ¶ 23;
Bohnenberger Aff. Ex. A). The installation of the larger live
well required installation of either a larger or an
additional seawater pump. (Bohnenberger Aff. ¶ 24).
paid a $25, 000 deposit for the vessel, and Warnike referred
Bohnen-berger to a finance company in order to obtain
financing for the rest of the purchase. (Id.
¶¶ 15-16). When Bohnenberger was denied financing,
Warnike suggested that Bohnenberger have a friend apply for
the financing and purchase of the vessel. (Id.
¶ 18). Bohnenberger asked the Smiths to obtain financing
for the vessel, and the Smiths ultimately agreed. (Smith Aff.
¶¶ 2, 5). Bohnenberger gave Warnike the Smiths'
contact information. (Bohnenberger Aff. ¶ 20). At some
point before the sale of the vessel, Warnike and Richard
Smith spoke over the phone. (Smith Aff. ¶ 3). During
this call, Warnike represented that the vessel was “a
very good boat” and that “any and all warranty
work would take place in Massachusetts.”
(Id.). The Smiths' financing was approved
(Id. ¶ 6). Warnike emailed Bohnenberger a sales
contract to be executed by Richard Smith. (Bohnenberger Aff.
¶ 21). The plaintiffs have alleged that on April 29,
2013, Richard Smith executed the buyer's agreement for
the vessel at his home in Falmouth, Massachusetts “and
forwarded it back to Plantation.” (SAC ¶ 34). The
vessel, installed with the larger live well, was to be fully
operational and ready for pick up in Florida on the
agreed-upon date of May 15, 2013. (Bohnenberger Aff. ¶
Bohnenberger and Richard Smith arrived at Plantation on or
about 6:30 a.m. on May 15, 2013, the vessel was not ready for
pick up. (Smith Aff. ¶ 8). The live well installation
was not complete, the autopilot was not operational, and
Plantation employees were working on the vessel.
(Id. ¶¶ 8-9). While Bohnenberger and
Richard Smith waited, Warnike told Richard Smith again that
the vessel was “a great boat” and that Plantation
“was going to service the boat . . . in
Massachusetts.” (Id. ¶ 11). At 8:45 p.m.,
the vessel was ready to be transported back to Massachusetts,
but the live well installation was still not complete and the
autopilot system was not operational. (Id. ¶
13). Warnike promised to send a Plantation technician to
Massachusetts to complete the work. (Id. ¶14).
to the Vessel
days later, a Plantation employee named Kyle Rosenblatt
(“Rosenblatt”) arrived in Mashpee, Massachusetts
to make repairs to the boat. (Bohnenberger Aff. ¶ 31).
Rosenblatt told Bohnenberger that he was the Plantation
technician who would “fly around the country making
repairs to Hydrasport boats sold by Plantation” and
that “while he was in Massachusetts” he had
“stopped at another harbor” to make repairs to
another Hydrasport. (Bohnenberger Aff. ¶ 37). Rosenblatt
worked on the vessel for two days (Id. ¶ 32)
during which time he worked “with wiring
components” and had “every panel open, inside and
outside of the center console [of the vessel], exposing
electrical wiring.” (Id. ¶ 33). When
Rosenblatt could not make the autopilot functional,
Plantation arranged for Marine Electronic Installers
(“MEI”), a subcontractor of
Plantation, to service the vessel in Mashpee,
Massachusetts, in order to try to make the autopilot work
properly. (Id. ¶¶ 38-40). When the
representative from MEI was unable to fix the autopilot,
Plantation arranged for Bosun's Marine, in Mashpee,
Massachusetts, to fix the autopilot. (Id. ¶
41-43). Bosun's Marine was eventually successful in
making the autopilot functional. (Id. ¶ 44).
Plantation continued to maintain contact with Bohnenberger
and the vessel in Massachusetts. In March 2014, an issue
arose with the boat's spreader lights, and in response,
Plantation shipped replacements to Bohnenberger's
Massachusetts home. (Id. ¶¶ 46-48). In
April 2014, Bohnenberger informed Plantation about mold
and/or discoloration on the vessel's seat cushions, and
Plantation coordinated the replacement of the cushions by
three local Massachusetts companies - Bosun's Marine in
Mashpee, Massachusetts; Shamrock Boat Works of Waquoit,
Massachusetts; and Ocean Designs, Inc. of East Falmouth,
Massachusetts. (Id. ¶¶ 49-51).
October 11, 2015, the vessel was tied to Bohnenberger's
dock in Massachusetts and was connected to electrical shore
power. (See SAC ¶¶ 40-41). At
approximately 11:35 a.m., a wiring component on the vessel
allegedly malfunctioned, causing an electrical short, which
in turn ignited a fire. (Id. ¶¶ 42-43).
The plaintiffs allege that the electrical short occurred
between two wires that were not properly installed.
(Id. ¶ 42). The fire destroyed the vessel and
personal property on it, and spread to Bohnenberger's
dock and the Grady White which was also tied to the dock.
(Id. ¶¶ 44-46). The Grady White, which was
owned by Andrew Klane and insured by Geico, was destroyed by
the fire. (Id. ¶ 47; 50). The dock and its
electrical system sustained severe fire-related damage.