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Fawzy v. Wauquiez Boats SNC

United States District Court, D. Maryland

October 14, 2016

DR. AMR FAWZY, Plaintiff,
v.
WAUQUIEZ BOATS SNC, Defendant.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         Plaintiff Dr. Amr Fawzy (“Plaintiff” or “Fawzy”) has brought this “admiralty and maritime” action against Defendant Wauquiez Boats SNC (“Defendant” or “Wauquiez”), pursuant to 28 U.S.C. § 1333 and Rule 9(h) of the Federal Rules of Civil Procedure, alleging “a claim for the breach of a maritime contract, for products liability under the general maritime law, and pursuant to admiralty tort jurisdiction.” Verified Compl., ¶ 1, ECF No. 1.[1]At Plaintiff's request, this Court issued an Order of Issuance of Process of Maritime Attachment (ECF No. 4), authorizing the United States Marshals Service to seize a Wauquiez Pilot Saloon 48 sailboat owned by Defendant and located in Annapolis, Maryland. Via separate Order Appointing Substitute Custodian (ECF No. 5), this Court appointed the Master and crew of that vessel as substitute custodians of the property. Currently pending before this Court is Defendant's Motion to Dismiss Verified Complaint, Dissolve Orders of Attachment and Appointing Substitute Custodian, Release Vessel, and For Sanctions, Attorneys Fees, Costs, and Damages (ECF No. 12). This Court conducted a hearing[2] on the pending Motion on October 12, 2016. For the reasons stated herein, Defendant's Motion to Dismiss Verified Complaint, Dissolve Orders of Attachment and Appointing Substitute Custodian, Release Vessel, and For Sanctions, Attorneys Fees, Costs, and Damages (ECF No. 12) is GRANTED IN PART and DENIED IN PART. Specifically, the Verified Complaint shall be DISMISSED, the Orders of Attachment and Appointing Substitute Custodian shall be DISSOLVED, and the vessel shall be RELEASED. However, Defendant's request for sanctions, attorneys fees, costs, and damages shall be DENIED.

         BACKGROUND

         In ruling on a motion to dismiss, this Court must accept the factual allegations in the plaintiff's complaint as true and construe those facts in the light most favorable to the plaintiff. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Harris v. Publish Am., LLLP, No. RDB-14-3685, 2015 WL 4429510, at *1 (D. Md. July 17, 2015).

         Plaintiff Dr. Amr Fawzy (“Plaintiff” or “Dr. Fawzy”) is a citizen of the State of Massachusetts. Verified Compl., ¶ 2, ECF No. 1. Defendant Wauquiez (“Defendant” or “Wauquiez”) “is a foreign business entity duly organized and existing under the laws of France.” Id. at ¶ 3. “On or about June 15, 2011, [Dr. Fawzy] entered into a Sales Contract [Pl.'s Ex. 1] with [Wauquiez] to build a PILOT SALOON 55 vessel [(“Fawzy Vessel”)].” Id. at ¶ 4. On that same date, the parties entered into an “Addendum to Sales Contract” [Pl.'s Ex. 2], which provided “certain amendments and modifications to the terms of contract that required certain continuing obligations of both parties, ” including the use of the Fawzy Vessel by Wauquiez at the Cannes Boat Show in Cannes, France and the Genoa Boat Show at Genoa, Italy.[3] Id. at ¶ 5.

         The Fawzy Vessel was delivered to Dr. Fawzy in Port Camarque, France on December 20, 2011, but was delivered “without a certification of construction of the builder (or certificate of compliance), ” allegedly in violation of Clause 1.6 of the Sales Contract.” Id. at ¶ 6. “Over the next two years, including while fulfilling the terms of the added commitments for possession and use of the Fawzy Vessel, the Fawzy Vessel experienced numerous problems pertaining to the main sail, the foresail, and other components of the Fawzy Vessel, many of which only became apparent while the Fawzy Vessel was underway with [Dr. Fawzy] onboard, which resulted in great danger to [his] life.”[4] Id. at ¶ 7. Despite Wauquiez's “periodic attempts . . . to address the defects and make any required repairs or to effect any replacement of the defective components, the problems persisted.” Id. at ¶ 8.

         Therefore, Dr. Fawzy “retained counsel in France during the summer of 2013, who authored a demand letter” to Wauquiez on August 30, 2013 [Pl.'s Ex. 2]. Id. at ¶ 9. However, Wauquiez never responded to that letter of counsel. Id. at ¶ 10. Shortly thereafter, Dr. Fawzy filed suit in France against Wauquiez, “seeking return of the purchase price of the Vessel and other, related expenses caused by the repetitive but unsuccessful attempts to repair or replace the defective components.” Id. at ¶ 11. That suit remains pending. Id.

         Dr. Fawzy estimates that he has experienced damages in the amount of $1, 134, 132.27 USD, the sum of the vessel's purchase price ($1, 127, 323.95 USD) and the “cost of unexpected marine storage in France due to defective condition of Vessel's components” ($6, 808.32 USD). Id. at ¶ 12. Additionally, Dr. Fawzy claims that “Since August 30, 2013, prejudgment interest (at a rate of 6% per annum) has been incurred on the principal due in the amount of $211, 041.73” and that “the legal expenses and costs of prosecuting this claim may exceed $100, 000.” Id. at ¶¶ 14, 15. Therefore, Dr. Fawzy seeks a total award of $1, 445, 174.00 USD. Id. at ¶ 16.

         The United States Boat Show started on October 6, 2016 in Annapolis, Maryland. Mot. to Dismiss, p. 1, ECF No. 12. Wauquiez was displaying a brand new vessel at the show (“Wauquiez Vessel”). Id. That same day, Dr. Fawzy filed the Verified Complaint in this action (ECF No. 1). He claims that this is “a case of admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333, and is an admiralty and maritime claim within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure in that it involves a claim for the breach of a maritime contract, for products liability under the general maritime law, and pursuant to admiralty tort jurisdiction.” Verified Compl., ¶ 1, ECF No. 1.

         Also on October 6, 2016, upon motion of Dr. Fawzy, this Court issued an Order of Issuance of Process of Maritime Attachment, pursuant to Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure (ECF No. 4) and an additional Order appointing the Master and crew of the Wauquiez Vessel located in Annapolis, Maryland as the Substitute Custodian (ECF No. 5). The Waquiez Vessel was seized by the United States Marshals Service on October 7, 2016. Mot. to Dismiss, p. 1, ECF No. 12. Pursuant to this Court's Orders, “the general public, boat show staff, and others (except Wauquiez and its agents and dealers) were not permitted on board, ” which Wauquiez now contends “effectively ruin[ed] the boat show for and caus[ed] great embarrassment to Wauquiez.” Id. Following the close of the Boat Show, the Wauquiez Vessel was moved to Bert Jabin's Yacht Yard in Annapolis, Maryland, pursuant to this Court's Order (ECF No. 13).

         STANDARDS OF REVIEW

         I. Motion to Dismiss Verified Complaint for Lack of Maritime Jurisdiction

         Under 28 U.S.C. § 1333, United States District Courts have original and exclusive jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1); see also U.S. Const. art. III, § 2, cl. 1 (“The judicial power shall extend to . . . all Cases of admiralty and maritime Jurisdiction.”). A Motion to Dismiss a Complaint for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.” Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). A plaintiff carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).

         II. Motion to ...


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