Weinberg v. Grand Circle Travel, LCC, Civil Action No. 11–11676–WGY.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: YOUNG
• Citation: 891 F.Supp.2d 228
• Parties: Grace WEINBERG and Joan Ward, as personal representative for the Estate of Harvey Marron, Plaintiffs, v. GRAND CIRCLE TRAVEL, LCC d/b/a Overseas Adventure Travel, Tourism and Public Relations Services Limited trading as Serengeti Balloon Safaris; and Serengeti Balloon Safaris, Ltd., Defendants.
• Docket Number: Civil Action No. 11–11676–WGY.
• Decision Date: 19 September 2012

891 F.Supp.2d 228

Grace WEINBERG and Joan Ward, as personal representative for the Estate of Harvey Marron, Plaintiffs,
v.
GRAND CIRCLE TRAVEL, LCC d/b/a Overseas Adventure Travel, Tourism and Public Relations Services Limited trading as Serengeti Balloon Safaris; and Serengeti Balloon Safaris, Ltd., Defendants.

Civil Action No. 11–11676–WGY.

United States District Court,
D. Massachusetts.

Sept. 19, 2012.

[891 F.Supp.2d 233]

Tonya J. Bond, George M. Plews, Jeffrey A. Townsend, Plews Shadley Racher & Braun LLP, Indianapolis, IN, Thomas R. Murphy, Law Offices of Thomas R. Murphy, LLC, Salem, MA, for Plaintiffs.

Deborah A. Elsasser, Andrew J. Harakas, Clyde & Co. U.S. LLP, New York, NY, Kathleen M. Guilfoyle, Christopher Robert Howe, Campbell, Campbell, Edwards & Conroy, PC, Mark B. Lavoie, McDonough, Hacking & Lavoie, LLC, Boston, MA, for Defendants.

MEMORANDUM AND ORDER
YOUNG, District Judge.

This negligence action explores the limits of this Court's power to exercise in personam jurisdiction over a foreign defendant. It involves two Florida residents who planned an African safari vacation with a Massachusetts travel agent, only to become the victims of a tragic hot air balloon crash in the Serengeti. One victim was killed in the crash and the other, the deceased's fiancée, sustained severe bodily injuries, allegedly due to the negligence of the balloon company. The deceased's estate and the surviving victim now seek to hold the travel agent, balloon company, and its overseas booking agent liable in Massachusetts. Faced with two defendants' motion to dismiss for lack of personal jurisdiction, the plaintiffs bear the burden of proving the defendants' amenability to suit in this forum. E.g., Foster–Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir.1995); see J. McIntyre Mach., Ltd. v. Nicastro, ––– U.S. ––––, 131 S.Ct. 2780, 2786–87, 180 L.Ed.2d 765 (2011) (plurality decision); S. Wilson Quick, Staying Afloat in the Stream of Commerce: Goodyear, McIntyre, and the Ship of Personal Jurisdiction, 37 N.C.J. Int'l L. & Com. Reg. 547 (2011); see also Richard B. Kock, Jr.,

[891 F.Supp.2d 234]

A Non–Resident Defendant Is Only Subject to the Jurisdiction of a State Where That Defendant Displays Intentional, Forum–Directed Conduct and Purposefully Avails Him or Herself of the Benefits and Protections of That State's Laws: J. McIntyre Machinery, Ltd. v. Nicastro, 50 Duq. L.Rev. 199 (2012).

At the same time, the Court will address a motion to amend. Pls.' Mot. Leave File Second Am. Compl., ECF No. 33.

I. INTRODUCTION

Florida residents Grace Weinberg (“Weinberg”), on her own behalf, and Joan Ward (“Ward”), as personal representative for the Estate of Harvey Marron (“Marron”) brought action against a Massachusetts company, Grand Circle Travel, LLC d/b/a Overseas Adventure Travel (“Overseas Adventure”), a Tanzanian corporation, Tourism and Public Relations Services Limited trading as Serengeti Balloon Safaris (“Tourism Services”), and an English company, Serengeti Balloon Safaris, LTD (“Serengeti Balloon”), seeking compensatory and punitive damages on claims of strict liability, negligence, gross negligence, and recklessness. Compl. Jury Demand (“Compl.”), ECF No. 1.

Weinberg and Ward claim that Overseas Adventure, Tourism Services, and Serengeti Balloon are strictly liable under the Convention for Unification of Certain Rules for International Carriage by Air (“Montreal Convention”) ¹ for damages arising from the death of Marron and the bodily injuries of Weinberg during a hot air balloon ascension in Tanzania. Id. at 6. They also claim that Overseas Adventure was negligent in failing to perform an adequate investigation of safety issues concerning Tourism Services. Id. at 6–7. Further, they claim that the Tourism Services and Serengeti Balloon (collectively referred to as the “Serengeti Defendants”) were grossly negligent in causing the death of Marron and bodily injuries of Weinberg. The Serengeti Defendants subsequently moved to dismiss for lack of personal jurisdiction, claiming that this Court does not have personal jurisdiction over them.

A. Procedural Posture

Weinberg and Ward filed this action on September 21, 2011. See Compl. On November 3, 2011, Overseas Adventure filed an answer to Weinberg and Ward's complaint, denying the allegations. Def. Grand Circle Travel LLC's Answer Pls.' Compl., ECF No. 4. On November 16, 2011, Overseas Adventure filed a third-party complaint against Kibo Guides (TZ), Ltd. (“Kibo”). Def. Third–Party Pl. Grand Circle LLC's Third–Party Compl. Kibo Guides (TZ) LTD., ECF No. 5. Additionally, on November 16, 2011, Overseas Adventure filed an amended answer to Weinberg and Ward's complaint and cross-claims against the Serengeti Defendants. Def. Grand Circle LLC's Am. Answer Pls.' Compl. Cross-cl. Defs. Tourism Pub. Relations Servs. Ltd. Trading as Serengeti Balloon Safaris & Serengeti Balloon Safaris Ltd., ECF. No. 6.

On January 30, 2012, the Serengeti Defendants moved to dismiss the complaint for lack of personal jurisdiction. Mot. Defs. Tourism Public Relations Servs. Ltd, Trading Serengeti Balloon Safaris Serengeti

[891 F.Supp.2d 235]

Balloon Safari, LTD, Dismiss Lack Personal Jurisdiction, ECF No. 21; Mem. Defs. Tourism Pub. Relations Servs. Ltd. Trading as Serengeti Balloon Safaris & Serengeti Balloon Safaris Ltd. Supp. Mot. Dismiss Lack Personal Jurisdiction. (“Defs.' Mem.”), ECF No. 22. On January 31, 2012, Overseas Adventure stipulated and agreed that the third-party action involving Kibo be dismissed. Stipulation Dismissal Without Prejudice Third–Party Claims Only, ECF. No. 25. Weinberg and Ward subsequently moved to amend their complaint to include additional facts allegedly linking the Serengeti Defendants, explaining how Marron and Weinberg booked their balloon excursion, and facts relevant to this Court's jurisdiction. Pls.' Mot. Leave Am. Compl. 2, ECF No. 31.

Before the Court ruled on either of the pending motions, Weinberg and Ward filed an additional motion to amend. Pls.' Mot Leave File Second Am. Compl. This second motion to amend incorporated the first proposed amended complaint as well as new claims against the Serengeti Defendants for violations of Massachusetts General Law chapter 93A and chapter 229. Id. at 2. The second motion also proposed a new defendant, Kibo Guides (TZ), Ltd., the same party that had been impleaded by the third-party complaint and dismissed by stipulation. Id.

B. Facts Alleged

In the fall of 2010, Marron and Weinberg purchased a trip to Tanzania from Overseas Adventure at its Massachusetts office. Second Am. Compl. ¶ 10. As part of the package put together by Overseas Adventure, Weinberg and Marron purchased tickets for a hot air balloon excursion. Id. Overseas Adventure advertises the African balloon trips with Tourism Services as safe and tranquil, and does not provide a warning to the purchasers of the flights that wind could and had previously caused a crash and serious injury. Compl. ¶ 9. After Weinberg and Marron requested the tickets, Overseas Adventure booked the tickets through an African tour operator, Kibo. Defs.' Mem. 3. Kibo subsequently requested a reservation for a balloon excursion with Tourism Services, which Tourism Services then confirmed by issuing a flight voucher to Kibo in Tanzania. Id.

During the morning of September 29, 2010, it was windy at the launch site, yet Tourism Services did not seek to assess the velocity of potentially dangerous cross-winds. Second Am. Compl. ¶ 20. One of the two balloons operated by the Serengeti Defendants scheduled to fly that morning did not fly because of the windy conditions. Id. ¶ 22. The passengers on the balloon that is the subject of this case were not informed of the other cancellation, nor were they counseled as to the heightened risk of a flight under windy conditions. Id. ¶ 23 Additionally, the balloon lacked basic safety equipment, such as passenger restraints for take-off and landing, launch site anemometers, a mechanism to rapidly deflate the balloon in the event of difficulties during flight, and it was flown by an inexperienced or “trainee” pilot. Id. ¶¶ 24–25. Nor did the balloon have an emergency locator beacon or GPS, a first aid kit for serious injuries, or sufficient drinking water in case of an emergency. Id. ¶ 24.

In their Second Amended Complaint, Weinberg and Ward allege that Overseas Adventure exercises direct control over Kibo and its personnel. Second Am. Compl. ¶ 3. Overseas Adventure hires Kibo tour guides, provides them with “Overseas Adventure” uniforms, trains, and supervises them. Id. Overseas Adventure determines and provides the “Kibo” tour guides' pay, and has authority to terminate them.

[891 F.Supp.2d 236]

Id. Apparently, the Kibo tour guides also report to Overseas Adventure. Id. A contract between the two companies provides that Overseas Adventure owns the camping equipment used by Kibo personnel and supplies Kibo drivers with Overseas Adventure uniforms. Id.

As the balloon that carried Marron and Weinberg attempted to descend, wind caused the basket of the balloon to crash into a tree, killing Marron and a Danish passenger. Second Am. Compl. ¶ 26. The balloon then dragged the basket across the ground, hitting obstacles, and Weinberg's arm became trapped in the rigging of the balloon. Id. ¶ 27. After the balloon landed, Weinberg, along with deceased Marron, waited for hours in a remote area for rescue. Id. ¶ 28. Weinberg sustained lacerations to her face, arms and legs, and a broken wrist and arm, which required skin grafts. Id. ¶ 31.

II. ANALYSISA. Leave to Amend

Federal Rule of Civil Procedure 15(a) requires that consent to file an amended pleading be “freely given when justice so requires.' ” Adorno v. Crowley Towing & Trans. Co., 443 F.3d 122, 127 (1st Cir.2006) (citing Fed. R. Civ. Pro. 15(a)). This liberal amendment policy applies unless the plaintiff exhibited bad faith, undue delay, the amendment would work undue prejudice on the...