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”) initially brought this “admiralty
and maritime” action against Defendant Wauquiez Boats
SNC (“Defendant” or “Wauquiez”) on
October 6, 2016, alleging that a vessel he contracted to buy
from Wauquiez was defective. (ECF No. 1.) Proceedings in this
Court moved quickly thereafter, with an Order for the Process
of Maritime Attachment and Garnishment issued that same day,
pursuant to Rule B of the Supplemental Rules for Certain
Admiralty and Maritime Claims of the Federal Rules of Civil
Procedure. (ECF No. 4.) Five days later on October 11, 2016,
Wauquiez filed a Motion to Dismiss the Verified Complaint and
Dissolve the Order of Attachment. (ECF No. 12.) The next day,
this Court held a hearing on the Motion. (ECF No. 15.)
Unbeknownst to this Court, on October 14, 2016-one hour
before this Court issued a Memorandum Opinion and Order
granting the Motion to Dismiss for lack of subject matter
jurisdiction (ECF Nos. 19, 20)-Plaintiff filed an Amended
Complaint (ECF No. 17). Rather than alerting this Court,
though, Plaintiff filed an appeal to the United States Court
of Appeals for the Fourth Circuit. Fawzy v. Wauquiez
Boats SNC, 873 F.3d 451 (4th Cir. 2017).
Fourth Circuit then remanded the case back to this Court,
finding that this Court's Order dismissing the Original
Complaint left the Amended Complaint unaddressed.
Id. Subsequently, Plaintiff filed a Second Amended
Complaint. (ECF No. 36.) On November 2, 2017, Defendant filed
a Motion to Dismiss the Second Amended Complaint, arguing in
part that Plaintiff still has not established subject matter
jurisdiction. (ECF No. 38.) Also currently pending before
this Court is Defendant's Motion for Leave to File a
Reply to Plaintiff's Opposition. (ECF No. 42.) The
parties' submissions have been reviewed and no hearing is
necessary. See Local Rule 105.6 (D. Md. 2016). For
the following reasons, Defendant's Motion to Dismiss (ECF
No. 38) is GRANTED and Defendant's Motion for Leave to
File a Reply (ECF No. 42) is DENIED AS MOOT.
Fawzy is a citizen of the State of Massachusetts. (Second Am.
Compl., ECF No. 36 at ¶ 2.) Defendant Wauquiez is
“a foreign business entity duly organized and existing
under the laws of France.” (Id. at ¶ 3.)
Around June 15, 2011, Plaintiff entered into a contract with
Defendant “to build a PILOT SALOON 55 vessel”
(the “Vessel”). (Id. at ¶ 4.) At
the same time, the parties entered into an “Addendum to
Sales Contract” that “provided for certain
amendments and modifications to the terms of the contract
that required certain continuing obligations of both
parties.” (Id. at ¶ 5.) These obligations
included that the delivery of the Vessel by Wauquiez to Fawzy
would be at Port St. Louis du Rhone, France. (ECF No. 1-1.)
Further, Fawzy agreed that the Vessel would be available to
Wauquiez for participation in the Genoa Boat Show at Genoa,
Italy and the Cannes Boat Show in Cannes, France.
(Id.) After participation in the shows, Wauquiez
would “redeliver” the Vessel to Fawzy.
September of 2011, Fawzy made the final payment to Wauquiez
for the Vessel. (Id. at ¶ 7.) However, Wauquiez
never delivered the Vessel to Fawzy prior to the shows.
(Id. at ¶ 8.) Rather, the Vessel was not
delivered to Fawzy until December of 2011. (Id. at
¶¶ 10-11.) Fawzy claims that when Wauquiez
delivered the Vessel to Fawzy, Wauquiez knew that there were
“some problems” with the Vessel and that it was
potentially unsafe for Fawzy to sail it back across the
Atlantic Ocean to Boston, Massachusetts. (Id. at
¶¶ 12-13.) On his travels home, Fawzy and his crew
then “experienced a calamitous failure of the boom that
subjected them to a near death experience” when
“[t]he boom and main sail were rendered inoperable, and
the Vessel was forced to drift at the mercy of the Atlantic
Ocean for much of the remainder of the voyage.”
(Id. at ¶ 14.) Despite Wauquiez's periodic
attempts over the next three years to address various defects
with the Vessel, the problems persisted. (Id. at
¶¶ 16-19.) Subsequently, Fawzy retained counsel who
“authored a demand letter” to Wauquiez on August
30, 2013. (Id. at ¶ 20.) After Wauquiez did not
respond, Fawzy filed suit in France for breach of the Sales
Contract, breach of warranty, negligent design and
construction, strict liability, and “metal
distress.” (Id. at ¶ 22.) As of the time
of the filing of the Second Amended Complaint in this case,
that suit was still pending. (Id. at ¶ 24.)
October 6, 2016, Plaintiff Fawzy brought an “admiralty
and maritime” action in this Court against Defendant
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 maritime contract, for products liability
under the general maritime law, and pursuant to admiralty
tort jurisdiction.” (Verified Compl., ECF No. 1 at
¶ 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
the Vessel. This Court also entered an additional Order
appointing the Master and crew of the Wauquiez Vessel located
in Annapolis, Maryland as the Substitute Custodian. (ECF No.
5.) Subsequently, Defendant filed a Motion to Dismiss the
Verified Complaint, Dissolve Orders of Attachment and
Appointing Substitute Custodian, Release Vessel, and For
Sanctions, Attorneys Fees, Costs, and Damages. (ECF No. 12.)
On October 12, 2016, this Court held a hearing on the Motion
to Dismiss pursuant to Rule E(4)(f) of the Supplemental Rules
for Certain Admiralty and Maritime Claims Federal Rule of
days later, on October 14, 2016, this Court issued a
Memorandum Opinion and Order dismissing Plaintiff's
Complaint for lack of jurisdiction, denied Defendant's
request for sanctions, and closed this case. Fawzy v.
Wauquiez Boats SNC, 2016 WL 6031940, No. RDB-16-3363 (D.
Md. Oct. 14, 2016). Unbeknownst to this Court, however,
roughly an hour before issuing the Memorandum Opinion and
Order, Plaintiff filed an Amended Complaint under Federal
Rule of Civil Procedure 15. (ECF Nos. 17, 19, 20.) Rather
than alerting this Court, Plaintiff filed an appeal to the
United States Court of Appeals for the Fourth Circuit.
Fawzy v. Wauquiez Boats SNC, 873 F.3d 451 (4th Cir.
2017). On appeal, the Fourth Circuit determined that Fawzy
had properly filed his Amended Complaint as a matter of right
under Federal Rule of Civil Procedure 15, “render[ing]
the original complaint ‘of no effect.'”
Id. at 455 (quoting Young v. City of Mt.
Rainer, 238 F.3d 567, 573 (4th Cir. 2001)). Accordingly,
the court held that “[b]ecause the district court's
order dismissing the original complaint left the operative
complaint unaddressed, the order was not a final order, but
rather an interlocutory one, and we have no appellate
jurisdiction to review it.” Id. (citing 28
U.S.C. § 1291 (conferring jurisdiction to the United
States Courts of Appeals for “all final
decisions of the district courts of the United States,
” subject to certain exceptions) (emphasis added)).
the Fourth Circuit dismissed Plaintiff's appeal, this
Court entered an Order directing the Plaintiff to file a
Second Amended Complaint. (ECF No. 35.) The Order further set
deadlines for Defendant's Response and Plaintiff's
Reply. (Id.) On October 25, 2017, Plaintiff filed
his Second Amended Complaint, alleging breach of maritime
contract/charter party (Count I), strict products liability
(Count II), negligent design and construction of vessel
(Count III), failure to warn under general maritime law
(Count IV), intentional misrepresentation (Count V),
intentional infliction of emotional distress (Count VI), and
negligent infliction of emotional distress under general
maritime law (Count VII). He seeks a total reward of $1, 746,
103.42 for the cost of the Vessel's purchase price,
various other expenses, prejudgment interest, legal expenses
and costs, and monetary damages for personal injury and
emotional distress. (Id. at ¶¶ 25-30.)
Subsequently, Defendant filed a Motion to Dismiss. (ECF No.
38.) After Plaintiff filed a Response in Opposition (ECF No.
41), Defendant filed a Motion for Leave to File a Reply to
the Opposition (ECF No. 42).
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 under Rule
12(b)(1) for lack of subject matter jurisdiction challenges a
court's authority to hear the matter brought by a
complaint. See Davis v. Thompson, 367 F.Supp.2d 792,
799 (D. Md. 2005). Under Rule 12(b)(1), the plaintiff bears
the burden of proving, by a preponderance of the evidence,
the existence of subject matter jurisdiction. Demetres v.
East West Const., Inc., 776 F.3d 271, 272 (4th Cir.
2015); Lovern v. Edwards, 190 F.3d 648, 654 (4th
Cir. 1999). A challenge to jurisdiction under Rule 12(b)(1)
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
Defendant has filed a Motion for Leave to File a Reply to
Plaintiff's Opposition. (ECF No. 42). Following the
Fourth Circuit's remand, this Court held a teleconference
with the parties. As a result of the teleconference, this
Court issued an Order directing that after Plaintiff filed
his Second Amended Complaint, Defendant would have the
opportunity to file a Response and Plaintiff a Reply to that
Response. (ECF No. 35.) No. further reply was contemplated by
this Court, notwithstanding the fact that Defendant filed its
Response in the form of a Motion to Dismiss. In light of the
fact that the Defendant's Motion to Dismiss shall be
GRANTED for the reasons set forth, the Defendant's Motion
for Leave to File a Reply to Plaintiff's Opposition (ECF
No. 42) is DENIED AS MOOT.
the Defendant's Motion to Dismiss, Wauquiez argues, once
again, that Plaintiff has not established maritime
jurisdiction as required for this Court to exercise
jurisdiction. As subject matter jurisdiction is a
threshold issue, this Court must first ...