Dubois v. Maritimo Offshore Pty Ltd., No. 3:15-cv-01114 (JAM)

454 F.Supp.3d 173

Richard DUBOIS et al., Plaintiffs,

v.MARITIMO OFFSHORE PTY LTD. et al., Defendants.

No. 3:15-cv-01114 (JAM)

United States District Court, D. Connecticut.

Signed April 17, 2020

Robert A. Ziegler, Taryn D. Martin, Law Office of Robert A. Ziegler, Plainville, CT, for Plaintiffs.

Carol A. Crossett, Tully Rinckey, PLLC, New York, NY, Francis D. Burke, Mangines & Burke, LLC, West Hartford, CT, Adam S. Mocciolo, Pullman & Comley, Bridgeport, CT, Eliot B. Gersten, Jonathan A. Kaplan, Pullman & Comley, P.C., Hartford, CT, Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MARITIMO USA'S MOTION TO DISMISS

Jeffrey Alker Meyer, United States District Judge

This case concerning a boat deal gone bad has limped back into port, offloading one piece of judicially-cognizable cargo: claims made against defendant Maritimo USA.¹ Intrepid readers of the Court's prior dispatch from this litigation odyssey, Dubois v. Maritimo Offshore Pty Ltd. , 422 F. Supp. 3d 545 (D. Conn. 2019), will recall that the vessel at issue in this case—the Game Changer —was built by Maritimo Offshore Pty Ltd., an Australian company, and sold to Richard and Sheila Dubois in a deal allegedly brokered by Edwin Fairbanks and Fairbanks Yacht Group LLC. Michael Flors—who is the Dubois' son—ultimately acquired an equitable interest in the vessel and is the sole remaining plaintiff in the case.

Maritimo USA had previously been something of a ghost ship in this case, not appearing until late 2019 in response to a renewed order of this Court finding it in default. Doc. #189. Having persuaded me not to enter a default judgment against it, Maritimo USA now moves to dismiss all claims against it on two grounds. First, it argues that Flors lacks standing. Second, it argues that the statute of limitations has run on the remaining claims. Although I agree with part of Maritimo USA's first argument, I am not able, at this stage of the case, to evaluate the second. I will therefore grant the motion to dismiss in part and deny it in part.

BACKGROUND

The background in this case has been set forth at length in the Court's prior ruling. See Dubois , 422 F. Supp. 3d. at 551-555. As relevant here, the operative complaint alleges that Maritimo USA was a manufacturer, builder, seller, and/or repairer of the Game Changer and played a part in selling the vessel to Richard and Sheila Dubois, that David Northrop was the general manager and president of Maritimo USA, and that John McCarthy was Maritimo USA's director of product and customer support. Doc. #73 at 2 (¶¶ 4-5).

The complaint sets forth a series of misrepresentations allegedly made by Northrop and McCarthy in their dual capacities as executives of Maritimo USA and as agents for Maritimo Offshore Pty Ltd. ("Maritimo Australia"), the vessel's original manufacturer. These representations included statements about the quality of the vessel, warranties about repairs for defects, and assurances that Edwin Fairbanks, another defendant in this action, would perform certain necessary repairs and upgrades to the vessel. See id. at 6-8 (¶¶ 24-29). After Fairbanks did not make the requested repairs and upgrades, the complaint alleges that Northrop, again in both his Maritimo USA and Maritimo Australia capacities, promised that Maritimo Australia would do the work to the necessary degree of workmanship, through the good offices of Maritimo USA's employee McCarthy. This promise was also, allegedly, a misrepresentation. See id. at 10-13 (¶¶ 48-68).

Against Maritimo USA, the complaint pleads six counts including breach of contract; negligent misrepresentation; breach of express and implied warranties under state common law and the Magnuson-Moss Act, 15 U.S.C. § 2301, et seq. ; negligence; breach of warranty of workmanlike performance; and violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-110a, et seq.

This lawsuit was filed on July 21, 2015. See Doc. #1. Initially, the plaintiffs were successful in serving only the Fairbanks defendants (Edwin Fairbanks and his business, Fairbanks Yacht Group LLC). Doc. #7. It was more difficult to serve Maritimo Australia and Maritimo USA. Plaintiffs began by mailing waiver of service packages to Maritimo USA's listed Michigan address in July 2015, Doc. #17-1 at 1, but allegedly learned later that month that the company had mysteriously dissolved and vacated the premises shortly after the lawsuit commenced, id. at 4. Subsequent filings indicate that Maritimo USA's dissolution papers were signed by Northrop just three days after the lawsuit was filed. Doc. #80-8 at 1.

In November 2015, plaintiffs filed an affidavit of service as to both Maritimo Australia and Maritimo USA. See Doc. #40. The sworn affidavit from a process server declared that he had served McCarthy as corporate representative of both Maritimo Australia and Maritimo USA at a boat show in Florida. Doc. #40. In December 2015, plaintiffs filed a motion for default entry against both Maritimo defendants for failure to appear. Six days later, Maritimo Australia, but not Maritimo USA, entered an appearance and filed an objection disputing the adequacy of service of process. Docs. #49, #52.

In response, the Court entered an order as follows: "ORDER. The motion for default entry (Doc. # 45) is DENIED. Defendant Maritimo Offshore PTY LTD. [that is, Maritimo Australia] shall file an answer or other responsive pleading by December 24, 2015." Doc. #55. This order, however, was incomplete. Although Maritimo Australia had appeared in order to dispute the adequacy of service of process, there was no appearance or activity by Maritimo USA in response to the motion for default entry. The lack of any mention of Maritimo USA went unremarked upon by any party or counsel at the time, and in the meantime Maritimo Australia was served to the satisfaction of all parties pursuant to the Hague Service Convention. Docs. #57, #60.

Three years later, following my entry of an omnibus ruling addressing multiple pending motions and, among other things, dismissing Maritimo Australia from the action, 422 F. Supp. 3d 545, I entered an order sua sponte vacating my prior order denying the motion for default entry as to Maritimo USA, explaining that "the Court appears to have overlooked the failure of defendant Maritimo USA to object to the motion for default entry. The Court understands that defendant Maritimo Australia denies any relationship to defendant Maritimo USA. Accordingly, the Court VACATES in part its prior order denying the motion for default entry and GRANTS the motion for default entry as to defendant Maritimo USA only." Doc. #189.

In accordance with the usual two-step process in which the filing and granting of a motion for default entry precedes the filing of a motion for default judgment, see City of New York v. Mickalis Pawn Shop, LLC , 645 F.3d 114, 128 (2d Cir. 2011), plaintiff Flors (who, by this point, was the sole remaining plaintiff in the case) duly filed a motion for default judgment on October 15, 2019, Doc. #191. Maritimo USA appeared ten days later, represented by the same counsel as Maritimo Australia, and objected to entry of default judgment on grounds it had not been timely served with process, claiming, among other things, that the process served on McCarthy was invalid as to Maritimo USA because McCarthy was not an employee or agent of Maritimo USA. Doc. #193.

On December 12, 2019, I vacated the default entry against Maritimo USA and denied Flors' motion for default judgment as moot, concluding in relevant part that "Maritimo USA has demonstrated that its default was not willful, and that its defense on the basis of failure to serve is not so meritless as to independently justify retaining the default entry." Doc. #198. But I declined "Maritimo USA's suggestion that it dismiss the claims against it sua sponte. Maritimo USA may move to dismiss the claims presently pending against it by filing a motion to dismiss ..." Ibid.

Maritimo USA then filed a motion to dismiss on two grounds: that Flors did not have standing and that the statute of limitations barred his claims. Doc. #201. Although Maritimo USA's motion to dismiss does not cite Rule 12 of the Federal Rules of Civil Procedure, its motion is cognizable under Rule 12(b)(1) (lack of subject-matter jurisdiction) and Rule 12(b)(6) (failure to state a claim for which relief can be granted).

DISCUSSION

The standard that governs a motion to dismiss under Rules 12(b)(1) and 12(b)(6) is well established. A complaint may not survive unless it alleges facts that, taken as true, give rise to plausible grounds to sustain subject-matter jurisdiction and a plaintiff's claims for relief. See, e.g. , Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Kim v. Kimm , 884 F.3d 98, 103 (2d Cir. 2018) ; Lapaglia v. Transamerica Cas. Ins. Co. , 155 F.Supp.3d 153, 155-56 (D. Conn. 2016).

Standing

Article III of the Constitution limits the jurisdiction of the federal courts to "Cases" and "Controversies." U.S. CONST. art. III, § 2, cl. 1. For a federal court to have subject matter jurisdiction over a case, a plaintiff must show that he has "standing"—that is, an injury in fact that was caused by the defendant and for which a court has authority to furnish relief. See Town of Chester, N.Y. v. Laroe Estates, Inc. , ––– U.S. ––––, 137 S. Ct. 1645, 1650, 198 L.Ed.2d 64 (2017). "Standing is not dispensed in gross," and "a plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Ibid.

In my prior ruling concerning Flors' claims as to all defendants except Maritimo USA, I held that Flors "may not claim standing in his own right based on the harms visited solely upon a corporate entity that he owns or controls," but "the allegations of the complaint and the parties' factual submissions are sufficient to establish at this initial pleading stage that Flors has acquired a partial ownership...