Campbell v. Johnson & Towers, Inc.

• Decision Date: 01 November 1999
• Docket Number: C.A.No. 2:99-0266-23.
• Citation: 123 F.Supp.2d 329
• Court: U.S. District Court — District of South Carolina
• Parties: Carroll A. CAMPBELL, Jr. and William H. Monckton, IV, Plaintiffs, v. JOHNSON & TOWERS, INC., Bramble Engine Power, Inc. and Tolchester Marina, Inc. Defendants.

123 F.Supp.2d 329

Carroll A. CAMPBELL, Jr. and William H. Monckton, IV, Plaintiffs, v. JOHNSON & TOWERS, INC., Bramble Engine Power, Inc. and Tolchester Marina, Inc. Defendants.

C.A.No. 2:99-0266-23.

United States District Court, D. South Carolina, Charleston Division.

November 1, 1999.

Scott Bluestein, Raley & Bluestein, Columbia, SC, Elizabeth H. Campbell, Nexsen, Pruet, Jacobs & Pollard, Columbia, SC, William H. Monckton, VI, Myrtle Beach, SC, for plaintiffs.

John H. Tiller, Sinkler & Boyd, Charleston, SC, for defendant Johnson & Towers, Inc.

Edward D. Buckley Jr., Young, Clement, Rivers & Tisdale, Charleston, SC, for defendants Bramble Engine Power, Inc, Tolchester Marina, Inc.

ORDER

DUFFY, District Judge.

This matter is before the court upon Defendants Bramble Engine Power and Tolchester Marina's motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), or in the alternative to dismiss for improper venue pursuant to Rule 12(b)(3). The plaintiffs filed this lawsuit in admiralty against the defendants on January 29, 1999. Both plaintiffs are South Carolina residents. The lawsuit alleges negligence, breach of express warranty, breach of implied warranty, breach of contract, misrepresentation, breach of warranty of merchantability, breach of warranty of fitness for a particular purpose, and fraudulent misrepresentation, all arising out of a contract for the repower of the plaintiffs' vessel, the M/V SECOND LADY.

I. FACTUAL BACKGROUND

On or about November 1996, Plaintiff Monkton received by mail, at his Myrtle Beach, South Carolina residence, a Johnson & Towers brochure promoting the sale, service, and installation of Detroit Diesel engines in his and Plaintiff Campbell's 41-foot Hatteras yacht, the M/V SECOND LADY. The brochure described the proposed engines and proclaimed that Johnson & Towers would manage a "turnkey" repower of the vessel at one of Johnson & Towers' "select locations." Upon receipt of the brochure, Monkton contacted Johnson & Towers on or about December 2, 1996 to discuss the installation of the new engines, and the terms of the repower, both described in the brochure. Again on December 27, 1996, Monkton contacted Johnson & Towers to discuss the brochure and the repower of the vessel.

During this time period, Monkton also received telephone calls from Johnson & Towers regarding the repower. During one of these telephone calls to Monkton, Paul Findeison, an agent and representative of Johnson & Towers, made an appointment to fly to Myrtle Beach to view the vessel and assess her suitability for the proposed engines. At that time, Defendant Bramble was an authorized Detroit Diesel dealer and installer. Bramble operated out of Defendant Tolchester's premises.¹

On January 8, 1997, Findcison along with an alleged representative of Bramble/Tolchester arrived in Myrtle Beach, South Carolina for the sole purpose of surveying and measuring the boat for the engines described in the brochure, and soliciting the plaintiffs to repower their vessel with the proposed engines. Monkton picked the two men up from the Myrtle Beach airport and then drove them to the vessel, which was located in Georgetown, South Carolina. According to Monkton, Findeison and the Bramble/Tolchester representative surveyed the boat, measured her engine room, and described in great detail to Monkton how the engines listed in the brochure would improve the vessel's performance. After the defendants' representatives concluded their inspection of the boat, Monkton took them to lunch to further discuss the repowering of the vessel, and then returned the two representatives to the airport for their return flight.

Shortly thereafter, Findeison mailed a repower proposal to Monkton in Myrtle Beach, South Carolina. The repower proposal included the brochure earlier sent to Monkton, which outlined the terms of the proposed repower of the boat. Shortly after receiving Johnson & Towers' proposal, Bramble/Tolchester faxed to Monkton in South Carolina a more detailed repower proposal outlining the terms of the proposed repower of the boat. In accordance with its brochure and the terms of the proposal, Johnson & Towers chose the Bramble/Tolchester site as the "select location" to perform the repower of the boat.

After receiving the seven-page repower proposal from Bramble/Tolchester in South Carolina, the plaintiffs continued contract negotiations with Johnson & Towers and Bramble/Tolchester. Monkton completed the negotiations started on January 8, 1999 for the contract to repower the boat from his office in Myrtle Beach, South Carolina. The negotiations consisted of Monkton making numerous telephone calls to Bramble/Tolchester and Johnson & Towers from South Carolina. Additionally, throughout the contract negotiations, Monkton received several telephone calls in South Carolina from Bramble/Tolchester and Johnson & Towers. Thereafter, the parties orally entered into the contract in question.

Johnson & Towers also recommended Debis Financial Services² for the financing of the repower, and Johnson & Towers made the financing arrangements for the plaintiffs as part of the "turn-key" repower offered in its proposal. Monkton claims that he informed the defendants that time was of the essence because bill fishing season started in the middle of May, and told defendants they did not want to repower the vessel unless the work could be completed by May 15, 1997. On or about March 5, 1997, the vessel was delivered to Tolchester's premises for the installation of the new engines. On March 27, 1997, Bramble/Tolchester sent to Monkton in Myrtle Beach an invoice for the sale and installation of the engines in question, a genset, and two air conditioning units.

During the repower, Monkton alleges that he made numerous telephone calls to the defendants to check on the status of the repower. He also claims that the defendants also made numerous telephone calls to Monkton regarding the repower. According to the plaintiffs, as part of the financing arrangements, Johnson & Towers instructed the plaintiffs to make payment directly to Bramble. Bramble mailed all bills and invoices to Monkton at his office in Myrtle Beach, South Carolina. The plaintiffs either mailed checks drawn on South Carolina banks for payment of these bills and invoices to Bramble or wired the funds from South Carolina banks.

The installation of the engines was thereafter completed, although the details of the timing and the facts surrounding the installation are in dispute. All of the installation work occurred at Bramble/Tolchester's principal (and only) place of business, Chestertown, Maryland. The repower, however, was not completed by the date allegedly agreed upon — May 15, 1997, and according to the plaintiffs, the vessel was not returned in the same condition it was in when the defendants received it, in that the vessel had numerous problems and was filthy dirty. Despite its condition, plaintiffs took delivery of the vessel on about July 25, 1997 to avoid any further delay.

In December of 1997, after navigating the vessel in the waters of the State of South Carolina, Monkton noticed problems in the work done by the defendants. Specifically, Monkton discovered cracks in the vessels' infrastructure and immediately notified Charles I. Shirley, Bramble/Tolchester's Senior Sales Associate, of these problems. The plaintiffs then hired T. Fred Wright, Jr. a qualified marine surveyor, to survey the vessel and assess her damage. On or about January 14, 1998, and again on February 24, 1998, Wright surveyed the vessel at the Hague Marina in Myrtle Beach and discovered numerous problems.

During his resurvey on February 24, 1998, Wright states that another surveyor, Dave Lennox, attended the survey and surveyed the vessel on behalf of Johnson & Towers, Bramble, and Tolchester. Wright also attests that on both October 16, 1998, and March 19, 1999, he resurveyed the vessel, at which time another surveyor, Bill Major, attended and surveyed the vessel. Plaintiffs claim that Bramble/Tolchester sent at least one of these additional surveyors to South Carolina to assess the alleged damage.³

To date, a determination has not been made whether the M/V SECOND LADY can even be repaired. The engines must be removed, and a qualified naval architect must inspect the vessel to determine whether the damage has rendered the vessel a constructive total loss. The vessel is currently dry-docked at The Hague Marina in Myrtle Beach, South Carolina. The plaintiffs have retained the marina to remove the vessel's engines.

At the time of the installation, Bramble and Tolchester were both Maryland corporations. Neither was registered to do business in South Carolina. All of these defendants' employees were residents of either Maryland or Pennsylvania. Neither Bramble, Tolchester, nor any of their owners, had ever owned or rented property within South Carolina. The only property owned by Bramble and Tolchester was located in Maryland.

As a single corporation, Bramble/Tolchester is a Maryland corporation which is not licensed to do business in South Carolina, and conducts its business within Maryland. The only property owned by Bramble/Tolchester is located in Maryland.

II. PERSONAL JURISDICTION

Once personal jurisdiction is contested, the plaintiff has the burden of showing that jurisdiction is proper. Umbro U.S.A. v. Goner, 825 F.Supp. 738, 739 (D.S.C.1993). However, at the pre-trial stage only a prima facie showing is required. Brown v. Inv. Mgt. and Research, 323 S.C. 395, 475 S.E.2d 754 (1996). See Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56 (4th Cir.1993). The allegations of the complaint are sufficient to make a determination and are accepted as true. Springs Indus., Inc. v. Gasson, 923 F.Supp. 823, 825 (D.S.C.1996) (citations omitted). Yet, a court may consider any affidavits submitted by the parties. Brown, 475 S.E.2d at 755.

In order to...