Metcalf v. Bay Ferries Ltd.

• Decision Date: 25 March 2013
• Docket Number: Civil Action No. 12–40075–TSH.
• Citation: 937 F.Supp.2d 147
• Parties: Kenneth G. METCALF and Nancy Metcalf, Plaintiffs v. BAY FERRIES LIMITED, Defendant.
• Court: U.S. District Court — District of Massachusetts

937 F.Supp.2d 147

Kenneth G. METCALF and Nancy Metcalf, Plaintiffs

v.BAY FERRIES LIMITED, Defendant.

Civil Action No. 12–40075–TSH.

United States District Court, D. Massachusetts.

March 25, 2013.

David F. Anderson, Carolyn M. Latti, Jonathan E. Gilzean, Latti & Anderson LLP, Boston, MA, for Plaintiffs.

Olaf Aprans, Thomas J. Muzyka, Clinton & Muzyka, P.C., Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON MOTIONS TO DISMISS AND STRIKE

HILLMAN, District Judge.

I. Procedural Background

This is a common law tort action for negligence brought by Kenneth Metcalf (“Mr. Metcalf”) and Nancy Metcalf (“Mrs. Metcalf”) (collectively “Plaintiffs”) against Bay Ferries (“Defendant”) for damages resulting from severe injuries suffered by Mr. Metcalf on August 14, 2009. There is complete diversity of citizenship between the parties, thus subject matter jurisdiction is appropriate under 28 U.S.C. § 1332. This litigation was initiated on June 12, 2012. Plaintiffs allege that Defendant was negligent in maintaining its ferry, HSC INCAT 059 “The CAT” and that this negligence led directly to Mr. Metcalf's injuries and resulting damages to Plaintiffs. Defendant moves to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), improper venue under Fed.R.Civ.P. 12(b)(3), and forum non conveniens. Plaintiffs oppose the motion to dismiss on all counts and additionally move to strike the affidavit of Donald Cormier (“Cormier”) attached to Defendant's motions to dismiss. Defendant opposes this motion to strike. For the following reasons, Defendant's motion to dismiss is denied on all grounds and Plaintiffs' motion to strike is allowed in part and denied in part.

II. Facts

a. Defendant's Inclusion of Extrinsic Evidence

Plaintiffs argue that Cormier's affidavit was (1) not properly supported by an oath, and (2) not based upon the personal knowledge necessary to support many of the statements included in the affidavit. Defendant avers that the affidavit was properly supported by oath, save only a minor error of phrasing, and that Cormier is competent to testify as to the matters asserted.

The Court rejects Plaintiffs' first argument. Plaintiffs seek to strike the affidavit in its entirety because the phrase “under the laws of the United States” was omitted from the signing oath. While technically a violation of 28 U.S.C. 1746, the Court cannot see how justice is served by rejecting the affidavit entirely for a minor oversight when there is no indication of bad faith on the part of Cormier. Moreover, Defendant has filed a second copy of the affidavit with this defect corrected.

Plaintiffs' second argument is more substantial. The affidavit in question contains several statements which are apparently unsupported by personal knowledge. Cormier does not claim to have been present at the time of Mr. Metcalf's injuries, nor when the Metcalf family booked tickets for the journey upon which Mr. Metcalf was injured and therefore can have no personal knowledge of these events. Additionally, many of the statements included in the affidavit are conclusory statements of law, rather than attestations of fact. Nevertheless other statements, such as those regarding the corporate structure of Defendant and the service history of The CAT, are supported by personal knowledge given Cormier's position as a senior officer of Defendant. Therefore, paragraphs 1, 7, 8, 14–18, 20–24 will not be considered by the Court with regard to any motion to dismiss. The affidavit's preamble, as well as paragraphs 2–6, 9–13 and 19 are permitted under Rule 56(c)(1), and will be considered where appropriate.

There is, however, one final wrinkle in the question of what facts this Court may properly consider. Rule 56(c)(4) establishes the standard for the admissibility of extrinsic affidavits in the context of motions for summary judgment. This standard is also applicable for some, but not all motions to dismiss. West Marine Products, Inc. v. Dolphinite, Inc., 2005 WL 1000259 at *1–*2 (D.Mass.2005); see also Cheyenne Arapaho Tribes of Okla. v. United States, 558 F.3d 592, 596 n. 3 (D.C.Cir.2009) (citing Gordon v. Nat'l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982) for the proposition that the standards set forth in Rule 56, were equally applicable in the context of a Rule 12(b)(1) motion to dismiss). This is true for motions to dismiss for lack of personal jurisdiction and forum non conveniens, but not for motions to dismiss for improper venue. See Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir.2009); West Marine, 2005 WL 1000259 at *1–*2. Although formally filed under Rule 12(b)(3), motions to dismiss for improper venue based on forum selection clauses are, in the First Circuit, considered using the same standard as Rule 12(b)(6) motions to dismiss. Rivera, 575 F.3d at 15. Accordingly, the Court will consider only those facts contained in the complaint or incorporated by reference, and will construe all such facts in the light most favorable to Plaintiffs. Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.2007). Conversely, documents that are neither contained in the complaint nor incorporated therein by reference must be excluded from consideration. Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001). Therefore, the Aff. of Donald Cormier (Docket No. 6–1) will be excluded—along with the subsequent affidavits filed by Defendant—from the Court's analysis of the motion to dismiss for improper venue.

b. Facts Considered by the Court¹

Plaintiffs are a married couple and both reside in Oxford, Massachusetts. Defendant is a Canadian corporation with a principle place of business in Charlottetown, Prince Edward Island, Canada. Defendant owned and operated The CAT as a commercial passenger and vehicle ferry between Maine and Nova Scotia at all times relevant to this dispute.² The CAT is a 319–foot-long catamaran vessel capable of carrying more than eight hundred passengers and two hundred automobiles. Defendant took delivery of The Cat in 2002 and operated it as a passenger ferry in the Gulf of Maine, between from 2002–2009. The CAT operated two routes, between Portland, Maine and Yarmouth, Nova Scotia, and between Bar Harbor, Maine and Yarmouth Nova Scotia. Although it operated entirely in Canadian and American territorial waters, The CAT was registered in the Bahamas. Defendant solicited business in Massachusetts through the use of various advertising media. In addition to internet ads on www. boston. com, Defendant advertised its services, including The CAT, on Boston area TV channels from March to September 2009. Plaintiffs aver that they were exposed by various media—including television, Triple–A regional publications, and the Worcester Telegram & Gazette—to Defendant's advertisements for The CAT prior to February 2009. Defendant's vessels did not regularly travel to Boston, Massachusetts, but did so on three separate occasions in 1999, 2002 and 2006 as part of a Nova Scotia Tourism Tradeshow. The CAT itself visited Boston for the latter two tradeshows, in 2002 and 2006.

In February 2009 Plaintiffs' daughter Nicole Green reserved by phone, passage for Plaintiffs' entire family on The CAT from Portland, Maine to Yarmouth, Nova Scotia in August 2009. The occasion for this journey was Mr. Metcalf's sixtieth birthday. Plaintiffs' reservation was confirmed via an email to Nicole Green from Defendant, although the email did not contain any explicit terms, conditions or limitations.

The Metcalf family drove to Portland, Maine on August 14, 2009 and entered a line of cars waiting to board The CAT. Immediately prior to driving onto the ferry Mr. Metcalf received physical tickets at a drive-through box office. Mr. Metcalf was handed a small folder of materials—characterized as an advertising jacket by Plaintiffs—containing: a boarding pass that identified each passenger by name; Canadian customs forms; advertising information; and a list of terms and conditions of passage. Both parties agree that the jacket containing these terms and conditions were given to Mr. Metcalf shortly before he drove onto The CAT.³ This jacket has no external indication that it contained terms and conditions. Such a notice appears on the bottom of the left interior panel of the jacket and the terms themselves are printed in small, dense but still quite legible print. The terms and conditions include twelve terms labeled (a)–( l ). In addition to waivers of liability, and agreements to obey crewmember instructions, the very last term, ( l ), is a forum selection clause that explicitly requires any dispute arising from passage on The CAT to be litigated in a Canadian court under the provincial laws of Nova Scotia and the federal laws of Canada.

After traveling across the Gulf of Maine without incident, Plaintiffs and their family prepared to disembark in Yarmouth, Nova Scotia. The Metcalf family began moving from The CAT's passenger deck to the lower vehicle deck, a journey which required them to use a stairwell. While traversing this staircase Mr. Metcalf fell, injuring his cervical spine. There were no witnesses except members of Mr. Metcalf's family (his wife, daughter, son-in-law, and grandchild). Mr. Metcalf initially received medical care from other ferry passengers with medical training. He was then taken first to Yarmouth Regional Hospital and then to Queen Elizabeth Hospital in Halifax,Nova Scotia for stabilization and intensive care. After six days of treatment in Canada, Mr. Metcalf was airlifted to Massachusetts for continuing medical care, and has not traveled any further afield than Boston, Massachusetts, since sustaining the injury. As a result of this fall, Mr. Metcalf fractured several of his cervical vertebrae and is now an incomplete C5–C7 tetraplegic, largely confined to a wheelchair. He requires some sixty hours of personal care attendance per week. This personal care is currently...