Killion v. Commonwealth Yachts

• Decision Date: 16 February 2006
• Docket Number: No. CIV.A. 04-40256-FDS.,CIV.A. 04-40256-FDS.
• Citation: 421 F.Supp.2d 246
• Parties: Robert J. KILLION, Jr., Plaintiff, v. COMMONWEALTH YACHTS and Mainship Corporation, Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 246

421 F.Supp.2d 246

Robert J. KILLION, Jr., Plaintiff, v. COMMONWEALTH YACHTS and Mainship Corporation, Defendants.

No. CIV.A. 04-40256-FDS.

United States District Court, D. Massachusetts.

February 16, 2006.

COPYRIGHT MATERIAL OMITTED

Peter M. Durney, Cornell & Gollub, Boston, MA, for Mainship Corporation, Defendant.

Brandon S. Killion, John M. Wozniak, Wozniak & Padula, P.C., Mendon, MA, for Robert J. Killion, Jr., Plaintiff.

Robert. S. White, Bourgeois, Dresser & White, Worcester, MA, for Commonwealth Yachts, Defendant.

MEMORANDUM AND ORDER ON MOTION TO DISMISS OF DEFENDANT MAINSHIP CORPORATION

SAYLOR, District Judge.

This action arises out of the purchase by Robert J. Killion, Jr., of an allegedly defective boat manufactured by Mainship Corporation. Killion purchased the boat, a Mainship 390 Trawler, from Commonwealth Yachts, Inc., after meeting with representatives of both Commonwealth and Mainship at a boat show in Annapolis, Maryland.

Both Mainship and Commonwealth moved to dismiss the case on grounds of lack of personal jurisdiction. Because Mainship's motion involved additional factual allegations, the Court treated the motions separately. On August 25, 2005, it granted Commonwealth's motion to dismiss for lack of personal jurisdiction. For the reasons set forth below, Mainship's motion will also be granted.

I. Factual Background

The following is a recitation of the facts submitted and properly supported by the plaintiff, with certain additional facts proffered by defendant that are not genuinely contested. See Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n, 142 F.3d 26, 34 (1st Cir.1998).¹

Killion is a resident of Princeton, Massachusetts. Mainship is a manufacturer of power boats; it is incorporated in New Jersey and has places of business in both Florida and Georgia. Commonwealth is a yacht broker and a dealer of Mainship trawlers; it is incorporated, and has a principal place of business, in Virginia.

Killion attended a boat show in Annapolis, Maryland, in October 2001. Commonwealth was an exhibitor at the boat show. A representative of Mainship was also present. The show ran from October 14 until October 16.

While at the boat show, Killion met with representatives of Commonwealth and Mainship and discussed with them the features of a 2002 model Mainship Trawler.² At some point, he began negotiating the purchase of the vessel; Killion described his negotiations with Bill Berger, a representative of Commonwealth, as "extensive." Although these negotiations commenced at the show, the sale was not consummated at that time. Killion states that, once he returned to Massachusetts, he received "numerous" telephone calls at his home or business from Berger. He also received at least two faxes, including two contracts (one pertaining to a vessel with guardrails, the other without) and a Purchase Agreement.³ The Purchase Agreement indicates that it was faxed on October 16, 2001. Killion countersigned the Purchase Agreement and faxed it back to Commonwealth.⁴

The vessel was manufactured by Mainship in 2001 and 2002 in Florida. Killion took possession of it at Commonwealth's facility in Gloucester Point, Virginia. According to Killion, he picked up the vessel in Virginia because Commonwealth informed him that if he were to take delivery in Massachusetts, "they would be infringing on other sellers in the area."

According to Commonwealth's president, Harry Barritt, Commonwealth has never marketed nor sold any boat or other product in Massachusetts, nor has it ever sent any employees to Massachusetts.

According to Michael Hankins, Director of Customer Relations for Mainship and Luhrs Corporation (Mainship's parent company), Mainship has no authorized dealerships in Massachusetts and is not registered to do business in the state. Hankins also stated that Mainship authorized a repair of the swim platform of Killion's vessel; the work was performed at DiMillo's Old Port Marina Yacht Sales in Maine.

Killion submitted an affidavit, dated June 15, 2005, attesting that (1) on September 28, 1999, he received a fax from Mainship containing information about Mainship's trawler;⁵ (2) that Scituate Yachts, located in Massachusetts, was an authorized Mainship dealer in 1998 and was such a dealer for approximately three years; (3) that Russo Marine, which is located in Massachusetts, became an authorized Mainship dealer after Scituate and was such a dealer in 2001 when it had a new Mainship vessel for sale;⁶ (4) that in the fall of 2000, Russo Marine gave Killion a demonstration ride in a 390 Mainship Trawler; and (5) that the Mainship dealership that purports to serve Massachusetts customers at present is DiMillo's, which is located in Maine.⁷

Mainship also submitted an affidavit of James Krueger, its Director of Marketing and Sales, who stated that Mainship has never conducted business in Massachusetts. According to Krueger, neither Scituate Yachts nor Russo Marine were dealers at the time Killion purchased the vessel, although each were at one time independent contractors for Mainship; he also stated that its dealership for the New England area at the time of the sale to Killion was located in Maine.⁸

II. Procedural Background

Killion commenced this action in Worcester Superior Court by filing a complaint against both defendants on October 5, 2004, alleging fraud, breach of contract, breach of warranty, and for violation of Mass. Gen. Laws chapter 93A.⁹ Mainship answered the complaint in state court and then removed the case to this Court on December 13, 2004, on the basis of diversity jurisdiction. Killion amended his complaint on December 28, 2004. Commonwealth filed a motion to dismiss for lack of personal jurisdiction on January 19, 2005.

On February 11, 2005, Killion filed an amended complaint, which Mainship answered on March 14, 2005. Mainship then moved the Court to dismiss the complaint for lack of personal jurisdiction, improper venue, and forum non conveniens, or, in the alternative, to transfer the case to the Eastern District of Virginia.

On August 25, 2005, the Court granted Commonwealth's motion to dismiss for lack of personal jurisdiction. The Court now turns to its analysis of the present motion.

III. Analysis

A. Timing of Motion to Dismiss

The first question to be addressed is whether the Court should consider the motion at all. Under Fed.R.Civ.P. 12(b), a motion for lack of jurisdiction over the person and for improper venue should be made before the filing of an answer. 5C CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1361 (2005). Mainship argues that the Court should nonetheless consider and grant the motion. Killion has not opposed the motion on this basis, nor has he argued or attempted to make a showing that he has suffered any prejudice or hardship.

In any event, Mainship raised an affirmative defense of lack of personal jurisdiction in its answer. The Court notes that "federal courts have allowed untimely motions if the defense has been previously included in the answer." Id.; see also Gerakaris v. Champagne, 913 F.Supp. 646, 650-51 (D.Mass.1996) (noting defendant's inclusion of the defense in his answer); Stein v. Kent State Univ. Bd. of Trustees, 994 F.Supp. 898, 901, (N.D.Ohio 1998), aff'd 181 F.3d 103, 1999 WL 357752 (6th Cir.1999) (table decision). Given the posture of the case, the Court will treat the transgression as immaterial and consider the motion. See also Fed.R.Civ.P. 12(h)(1) (saving certain Rule 12(b) defenses from waiver). Alternatively, the Court will exercise its discretion to treat the motion as a preliminary hearing under Rule 12(d) and consider it on the merits. See id.

B. Personal Jurisdiction

The Court next turns to the question of whether Killion has made a prima facie showing of in personam jurisdiction with respect to Mainship.

"To hear a case, this Court must have personal jurisdiction over the parties, `that is, the power to require the parties to obey its decrees.'" Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.2002) (quoting United States v. Swiss American Bank, Ltd., 191 F.3d 30, 35 (1st Cir.1999)). "A district court, faced with a motion to dismiss for lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(2), `may choose from among several methods for determining whether plaintiff has met [its] burden' of proving the court's personal jurisdiction over the defendant." Northern Laminate Sales, Inc. v. Davis, 403 F.3d 14, 22 (1st Cir.2005) (quoting Daynard, 290 F.3d at 50-51). The prima-facie method is the most common of these methods. Northern Laminate, 403 F.3d at 22. It "permits the district court `to consider only whether the plaintiff has proffered evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.'" Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995) (quoting Boit, 967 F.2d at 675). The prima-facie method is appropriate here because the jurisdictional ruling does not involve materially conflicting versions of the relevant facts. See Foster-Miller, 46 F.3d at 145-46 (describing the preponderance-of-the-evidence and likelihood standards).

Under the prima-facie method, the Court "must accept the plaintiff's (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing." Id. The plaintiff

must do more than simply surmise the existence of a favorable factual scenario; he must verify the facts alleged through materials of evidentiary quality. Thus, allegations in a lawyer's brief or legal memorandum are insufficient, even under the relatively relaxed prima facie standard, to establish jurisdictional facts.

Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir.2001). However, the Court is not required "to credit conclusory allegations or draw farfetched inferences." Massachusetts School of Law, 142...