United States District Court, D. Maryland
DR. AMR FAWZY, Plaintiff,
WAUQUIEZ BOATS SNC, Defendant.
Richard D. Bennett United States District Judge.
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.
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 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.
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).
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. Id. at ¶ 5.
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.” 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.
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.
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.
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.
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
Motion to Dismiss Verified Complaint for Lack of Maritime
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.
Motion to ...