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ACE American Insurance Co. v. Oyster Harbors Marine, Inc.

United States District Court, D. Massachusetts

February 23, 2018

ACE AMERICAN INSURANCE CO. a/s/o ERIC SLIFKA, Plaintiff,
v.
OYSTER HARBORS MARINE, INC., et al. Defendants.

          MEMORANDUM AND ORDER ON FLORIDA BOW THRUSTER, INC.'S MOTIONS TO DISMISS

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Plaintiff Ace American Insurance Co. (“Ace”), as subrogee of Eric Slifka, initiated this action against Oyster Harbors Marine, Inc. (“Oyster Harbors”) concerning a vessel that was sold by Oyster Harbors to Slifka and later sustained fire damage. Additional parties have since joined the case, including the vessel's manufacturer, Regulator Marine, Inc. (“Regulator”), the distributor and installer of the vessel's bow thruster, Florida Bow Thrusters, Inc. (“Florida Bow”), and the manufacturer of the bow thruster, Vetus Maxwell, Inc. (“Vetus Maxwell”). Currently pending before the Court are Florida Bow's motions to dismiss Vetus Maxwell's crossclaims against it for lack of personal jurisdiction and improper venue [ECF No. 52] and for failure to state a claim [ECF No. 56]. For the reasons that follow, the Court GRANTS the motion to dismiss for lack of personal jurisdiction and improper venue [ECF No. 52] and DENIES the motion to dismiss for failure to state a claim as moot. [ECF No. 56].

         I. BACKGROUND

         In June 2011, Oyster Harbors, located in Massachusetts, agreed to purchase a 34-foot yacht later named “E=mc2” (the “Vessel”) from Regulator, the Vessel's manufacturer. [ECF No. 7 at ¶¶ 6-8] (“Complaint”). The sale included the installation of a Vetus Maxwell brand bow thruster on the Vessel. Compl. ¶ 17; [ECF No. 65-6 at ¶¶ 6-8]. Regulator engaged Florida Bow, a distributor of Vetus Maxwell products, to perform the installation, which was completed prior to the Vessel being transported to Massachusetts. [ECF No. 45 at 15-16]; [ECF No. 53-1 at ¶¶ 20-21]; [ECF No. 65-6 at ¶¶ 6, 8, 15]. Shortly after completing the purchase of the Vessel, Oyster Harbors sold the Vessel to Slifka. Compl. ¶¶ 6-7. A few years later, on or around July 11, 2014, Slifka was operating the Vessel in the Nantucket Harbor when a fire ignited onboard. Id. ¶¶ 9-10. After noticing a burning odor and seeing smoke near the Vessel's center console, Slifka moored the Vessel, turned off the battery, and boarded another boat that was passing by. Id ¶¶ 10-12. Although the fire severely burned the Vessel, no other person or property appears to have been injured or damaged. Id. ¶ 13.

         Ace, as subrogee of Slifka, brought the initial lawsuit against Oyster Harbors pursuant to this Court's admiralty and maritime jurisdiction, 28 U.S.C. § 1333(1), seeking to recover at least $200, 000 for the damage to the Vessel and asserting claims for breach of the implied warranty of fitness for a particular purpose and the implied warranty of merchantability, negligence, and strict liability. Compl. ¶¶ 19-34. Oyster Harbors then filed a third-party complaint against Regulator for breach of warranty, indemnification, and contribution. [ECF No. 10 at ¶¶ 9-22]. Following an inspection of the Vessel by the parties on July 15, 2016, Ace's expert determined that the Vessel's bow thruster was the likely cause of the fire. [ECF No. 34 at 1]. The parties suspended the examination of the evidence to notify Florida Bow and Vetus Maxwell of the potential claims against them and to invite them to participate in the proceedings. Id. at 2. On July 27, 2016, the Court granted the parties' joint motion to stay the action for 60 days. [ECF Nos. 33, 35]. Regulator eventually filed a fourth-party complaint against Florida Bow and Vetus Maxwell, asserting claims for breach of warranty, negligence, strict liability, common law indemnification, and contribution.[1] [ECF No. 41]. Vetus Maxwell in turn filed counterclaims for common law indemnification and contribution against Regulator, a crossclaim for common law indemnification against Oyster Harbors, and crossclaims for express and implied contractual indemnification, common law indemnification, contribution, and breach of contract against Florida Bow. [ECF No. 45]. On February 13, 2018, the Court held a hearing on Florida Bow's pending motion to dismiss Vetus Maxwell's crossclaims against it for lack of personal jurisdiction and improper venue.[2]

         II. LEGAL STANDARD

         Where, as here, a party asserts grounds for dismissal that are based both on the merits and on jurisdictional deficiencies, the jurisdictional questions must be resolved prior to reaching the merits. See Bell v. Hood, 327 U.S. 678, 682 (1945) (“Whether the complaint states a cause of action on which relief could be granted . . . must be decided after and not before the court has assumed jurisdiction over the controversy.”); accord Zeus Projects Ltd. v. Perez y Cia. de P.R., Inc., 187 F.R.D. 23, 27 (D.P.R. 1999) (citing Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1445, at 344 (2d ed. 1990)) (“A federal court must have personal jurisdiction over a third-party defendant before it may adjudicate the third-party claim.”).

         Vetus Maxwell, as the crossclaim plaintiff, “has the burden of establishing that jurisdiction over the defendant lies in the forum state.” Ferrara v. Voyport II, LLC, No. 16-12024, 2017 WL 1347672, at *4 (D. Mass. Apr. 7, 2017) (quoting Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28, 34 (1st Cir. 2016)). Here, the Court will employ the “prima facie method” for determining whether Vetus Maxwell has met its burden, as it is the most common approach and the one that both Vetus Maxwell and Florida Bow adopted in briefing this motion. Id (quoting Baskin-Robbins, 825 F.3d at 34) (citations and internal quotation marks omitted); see [ECF Nos. 53 at 9; 65 at 8]. Under this standard, Vetus Maxwell must “proffer evidence which, taken at face value, suffices to show all facts essential to personal jurisdiction.” Bohnenberger v. MCBC Hydra Boats, LLC, No. 16-11368, 2017 WL 3976566, at *1 (D. Mass. Sept. 7, 2017) (quoting Baskin-Robbins, 825 F.3d at 34). 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 plaintiffs version of genuinely contested facts.” Id (quoting Baskin-Robbins, 825 F.3d at 34). It will then “add to the mix facts put forward by the [defendant], to the extent that they are uncontradicted.” Id (quoting N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 (1st Cir. 2005)). Notwithstanding the liberality of the prima facie approach, the Court will not “credit conclusory allegations or draw farfetched inferences.” Newman v. Eur. Aeronautic Def & Space Co. EADS N.V., No. 09-10138, 2011 WL 2413792, at *1 (D. Mass. June 16, 2011) (quoting Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994)).

         III. DISCUSSION

         A. Jurisdictional Facts

         Florida Bow is a family-owned corporation organized and existing under the laws of the State of Florida with its principal office in Florida. [ECF No. 53-1 at ¶¶ 2, 5]. It has never had an office in Massachusetts; been registered to do business in Massachusetts; maintained a registered agent for service of process in Massachusetts; listed a mailing address or telephone number in Massachusetts; owned or leased property in Massachusetts; held corporate meetings in Massachusetts; or had an officer or director who was a resident of Massachusetts while holding such position. Id at ¶¶ 6-16.

         Florida Bow acknowledges, however, that it ships to and installs some products in Massachusetts. According to Vetus Maxwell, between May 2009 and May 2017, Florida Bow shipped “various parts and products” to Massachusetts on 84 separate occasions, some of which included product installations performed by its employees for whom Florida Bow had obtained nationwide liability insurance. [ECF No. 65 at 5-6, 9, 14]. Florida Bow also admits that its website advertises its installation and servicing of bow thrusters nationwide, and that it occasionally participates in boating trade shows in Massachusetts. [ECF No. 68 at 1]. Vetus Maxwell adds that Florida Bow's website displays at least one customer testimonial written by a Massachusetts resident, and that it suggests that Florida Bow attends trade shows in other New England states that market to Massachusetts residents. [ECF No. 65 at 6].

         With regard to the sale of the Vessel, Regulator contracted Florida Bow for the purchase and installation of the Vetus Maxwell bow thruster for the price of $6, 000. [ECF No. 53-1 at ¶¶ 20-23]. A work order, which identified Oyster Harbors and its Massachusetts address as the customer and shipping destination, was affixed to the Vessel at the time that Florida Bow installed the bow thruster. [ECF No. 65-6 at ¶ 9-11]. On or around June 27 or 28, 2011, Florida Bow performed the installation at Regulator's facility in Edenton, North Carolina but Florida Bow was not involved in transporting the Vessel to Oyster Harbors. [ECF No. 53-1 at ¶¶ 20-24]. The Vessel was one of three Regulator yachts on which Florida Bow installed a bow thruster for sale to Oyster Harbors in 2011. [ECF No. 65-6 at ¶ 15].

         B. Personal Jurisdiction Generally

         In an admiralty case, “the personal jurisdiction analysis includes a twist not present in diversity cases, although ultimately there is no practical difference in the way in which the Court proceeds towards its determination.” Bohnenberger, 2017 WL 3976566, at *4 (quoting Zeus Projects Ltd., 187 F.R.D. at 28). Where the Court's subject matter jurisdiction is based on admiralty, “the court's jurisdiction over [the] parties is national in scope, ” meaning that “the Due Process Clause of the Fifth Amendment, and not the Fourteenth Amendment, controls.” Id. (citing Pike v. Clinton Fishpacking, Inc., 143 F.Supp.2d 162, 166 (D. Mass. 2001)). “[U]nder the Fifth Amendment, a plaintiff need only show that the defendant has adequate contacts with the United States as a whole, rather than with a particular state.” Id (quoting United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001)).

         Notwithstanding the Court's broad jurisdictional reach under the Fifth Amendment, the Court's power over a defendant is limited by the requirement that a defendant “must be served pursuant to a federal statute or a Civil Rule.” Zeus Projects Ltd., 187 F.R.D. at 28 (citing United Elec. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1085 (1st Cir. 1992)); see Swiss Am. Bank, Ltd., 274 F.3d at 618. Although there is “no federal statute providing for service on defendants in admiralty cases, ” Zeus Projects Ltd., 187 F.R.D. at 29, Rule 4 of the Federal Rules of Civil Procedure provides that service may be accomplished on a defendant that is “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Bohnenberger, 2017 WL 3976566, at *4 (quoting Fed.R.Civ.P. 4(k)(1)). Accordingly, the Court must determine whether Florida Bow may be haled into a court of general jurisdiction in Massachusetts.

         “In Massachusetts, a court may exercise personal jurisdiction over a foreign defendant if such jurisdiction is authorized by state statute and its exercise does not offend the Due Process Clause of the Fourteenth Amendment.” Id. (quoting Pike, 143 F.Supp.2d at 166); see Zeus Projects Ltd., 187 F.R.D. at 29 (“[T]he Court returns to the familiar realm of minimum contacts, the long-arm statute, and the Fourteenth Amendment.”). Because the First Circuit has generally treated “the limits of Massachusetts' long-arm statute as coextensive with those of the Due Process Clause, ” Copia Commc'ns, LLC v. AM Resorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016), the Court may “sidestep the statutory inquiry and proceed directly to the constitutional analysis.” Evans Cabinet Corp. v. Kitchen Int'l, Inc., 593 F.3d 135, 146 (1st Cir. 2010).[3]

         There are two types of personal jurisdiction: general and specific. See United Elec. Workers, 960 F.2d at 1088. General jurisdiction exists “when the litigation is not directly founded on the defendant's forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state.” Saeed v. Omex Sys., Inc., No. 16-11715, 2017 WL 4225037, at *2 (D. Mass. Sept. 22, 2017) (quoting United Elec. Workers, 960 F.2d at 1088). To establish specific jurisdiction, the plaintiff must show that “the cause of action arises directly out of, or relates to, the defendant's forum-based contacts.” Pritzker v. Yari, ...


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