Ameral v. Intrepid Travel Party, Ltd.

• Decision Date: 03 September 2015
• Docket Number: Civil Action No. 14-14127-DJC
• Citation: 128 F.Supp.3d 382
• Parties: Caitlin Ameral, Karin Ameral and William Ameral, Plaintiffs, v. Intrepid Travel Party, Ltd., Intrepid US, Inc. and Peak Travel Adventure Group Limited, Defendants.
• Court: U.S. District Court — District of Massachusetts

128 F.Supp.3d 382

Caitlin Ameral, Karin Ameral and William Ameral, Plaintiffs,

v.Intrepid Travel Party, Ltd., Intrepid US, Inc. and Peak Travel Adventure Group Limited, Defendants.

Civil Action No. 14-14127-DJC

United States District Court, D. Massachusetts.

Signed September 3, 2015

John A. Kiernan, Ryan P. Kelley, Michael J. Smith, Bonner, Kiernan, Trebach & Crociata, LLP, Boston, MA, for Plaintiff.

Paul Michienzie, Michienzie & Sawin, LLC, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

CASPER

, United States District Judge

I. Introduction

Plaintiff Caitlin Ameral ("Plaintiff") and her parents Karin and William Ameral (collectively, "Plaintiffs") have filed this lawsuit against Defendants Intrepid Travel Party, Ltd. ("ITPL"), Intrepid US, Inc. ("Intrepid US") and Peak Travel Adventure Group, Ltd. ("Peak") (collectively, "Defendants") for claims arising out of injuries Plaintiff sustained while traveling on an ITPL trip in South Africa. Plaintiff asserts claims of breach of contract against ITPL (Count I), negligence against Intrepid US (Count II), negligence against ITPL (Count III), respondeat superior against ITPL (Count IV), negligence against Peak (Count V) and respondeat superior against Peak (Count VI). D. 1-1. Plaintiff's parents assert claims for loss of filial consortium against all Defendants (Counts VII and VIII). D. 1. Defendants have moved to dismiss Plaintiffs' claims for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted. D. 12, D. 14, D. 16. For the reasons stated below, the Court ALLOWS the motions to dismiss as to all Defendants.

II. Standard of Review

To meet their burden of establishing that the Court has personal jurisdiction over Defendants pursuant to Fed. R. Civ. P. 12(b)(2)

, 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." United States v. Swiss Am. Bank, Ltd. , 274 F.3d 610, 618 (1st Cir.2001) (citation and quotations omitted). The Court considers the facts alleged in the pleadings as well as the parties' supplemental filings. Sawtelle v. Farrell , 70 F.3d 1381, 1385 (1st Cir.1995). The Court will "take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiff's jurisdictional claim." Mass. Sch. of Law v. Am. Bar Ass'n , 142 F.3d 26, 34 (1st Cir.1998). The Court will then "add to the mix facts put forward by the defendants, to the extent that they are uncontradicted." Id.

In the First Circuit, a motion to dismiss on the basis of a forum-selection clause is analyzed as a motion to dismiss under Fed. R. Civ. P. 12(b)(6)

. SeeRivera v. Centro Médico de Turabo, Inc. , 575 F.3d 10, 15 (1st Cir.2009). In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court will dismiss a complaint that fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To state a plausible claim, a complaint need not contain detailed factual allegations, but it must recite facts sufficient to at least "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)." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. "A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ) (alteration in original). At bottom, a claim must contain sufficient factual matter that, accepted as true, would allow the Court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The evaluation of the sufficiency of a complaint is a two-step process. Cardigan Mountain School v. New Hampshire Ins. Co. , 787 F.3d 82, 84 (1st Cir.2015). First, the Court must "distinguish ‘the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).’ " García–Catalán v. United States , 734 F.3d 100, 103 (1st Cir.2013)

(quoting Morales–Cruz v. Univ. of P.R. , 676 F.3d 220, 224 (1st Cir.2012) ). The Court then must "determine whether the factual allegations are sufficient to support the reasonable inference that the defendant is liable." Id. (quoting Haley v. City of Boston , 657 F.3d 39, 46 (1st Cir.2011) ).

III. Factual Background

On August 22, 2013, Plaintiff, a resident of Cambridge, Massachusetts, logged on to a website maintained by ITPL. D. 1-1 ¶¶ 1, 27–30. ITPL is a tour operator organized under the laws of Australia with its principal place of business in Melbourne, Australia. Id. ¶ 7. ITPL's website contained information and prices for ITPL's global travel packages and featured an interactive platform for customers to identify their location and select packages. Id. ¶¶ 21–24. Plaintiff selected an itinerary that started in Johannesburg, South Africa and included a tour of Kruger National Park. Id. ¶ 29. Plaintiff then called the telephone number provided on the website and spoke with a representative of Intrepid US, a Delaware corporation based in California that serves as ITPL's booking agent. Id. ¶¶ 10, 30-33, 36. Plaintiff provided Intrepid US with her credit card information and Intrepid US booked Plaintiff's trip order over the telephone through its California office. Id. ¶ 33. Later that day, ITPL sent Plaintiff an email through Intrepid US confirming the dates and cost of her trip. Id. ¶ 41. The email contained a copy of the "Booking Conditions" governing the trip and an itinerary. Id.

Plaintiff traveled from Boston, Massachusetts to Johannesburg, South Africa on December 27, 2013. Id. ¶ 51. On December 29, 2013, Plaintiff was riding on an ITPL tour bus to Kruger National Park. Id. ¶ 54. The driver lost control of the bus, and the bus slid across the highway and landed in a ravine. Id. ¶¶ 69, 73. Plaintiff suffered severe and permanent injuries as a result of the collision. Id. ¶¶ 74-78.

IV. Procedural History

Plaintiffs instituted this action in Middlesex Superior Court on October 2, 2014. D. 1 at 1; D. 1-1 at 21. Defendants removed the case to this Court on November 10, 2014. D. 1. Defendants moved to dismiss on December 19, 2014. D. 12, D. 14, D. 16. The Court heard the parties on the pending motions and took these matters under advisement. D. 37.

V. Discussion

A. Personal Jurisdiction

There are two types of personal jurisdiction: general and specific. Cossaboon v. Me. Med. Ctr. , 600 F.3d 25, 31 (1st Cir.2010)

. Specific jurisdiction may be asserted when "a suit arises directly out of [defendant's] forum-based activities," while general jurisdiction "may be asserted in connection with suits not directly founded on [defendant's] forum-based conduct." Donatelli v. Nat'l Hockey League , 893 F.2d 459, 462–63 (1st Cir.1990). The due process clause "protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ " Burger King Corp. v. Rudzewicz , 471 U.S. 462, 471–72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Int'l Shoe Co. v. Washington , 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). A court may not assert jurisdiction unless "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World–Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

1. ITPL

a) Jurisdictional Allegations

The Court must first determine which contacts should be imputed to ITPL for purposes of assessing personal jurisdiction. Plaintiffs allege that ITPL solicited business in Massachusetts through its maintenance of an interactive website accessible in Massachusetts, D. 1-1 ¶¶ 20-27, and through the email ITPL sent to confirm the trip, id. ¶ 41. Plaintiffs argue that the Court should also impute Intrepid US's jurisdictional contacts to ITPL because Intrepid US is an agent of ITPL. D. 24 at 7-8. ITPL argues that Intrepid US was ITPL's booking agent, but not technically an agent "in the traditional legal sense." D. 30 at 1.

"For purposes of personal jurisdiction, the actions of an agent may be attributed to the principal." Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A. , 290 F.3d 42, 55 (1st Cir.2002)

. An agency relationship for purposes of personal jurisdiction is determined with reference to "[t]raditional common law concepts." Id. at 56. The "essential question ... is whether the relationship between [the defendants], however it is labeled, is sufficient to attribute [one defendant's] in-state contacts with the [the other defendant] to exercise jurisdiction that comports with due process." Weinberg v. Grand Circle Travel, LCC , 891 F.Supp.2d 228, 240 (D.Mass.2012). "In answering this question, the Court must determine: (1) whether the [alleged agents] were in an actual or apparent agency relationship with [the alleged principal] and (2) whether the [alleged principal] ratified [the alleged agents'] conduct. Id. at 240–41 (citing Daynard , 290 F.3d at 53–54 ).

At a minimum, ITPL and Intrepid US were engaged in an apparent agency relationship and ITPL ratified Intrepid US's conduct such that the Court may consider their combined contacts for purposes of specific jurisdiction over ITPL. The apparent agency analysis considers whether conduct "leads a third party to believe that the agent has authority and thus creates apparent authority to those persons who act upon it." Daynard , 290 F.3d at 56

(quoting H.G....