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Bellisario v. Clarks Landing Marina of Annapolis

January 5, 2006


The opinion of the court was delivered by: Ambrose, Chief District Judge.



Plaintiff purchased a pleasure craft, believing it to be a seaworthy vessel, and later discovered that it had significant defects. He sued the seller, the engine manufacturer, the company who did repair work on the engines and the marine surveyor. A variety of Motions to Dismiss are now pending. For the reasons set forth below, all claims have either been withdrawn or are dismissed. This case is closed.


Plaintiff Joseph Bellisario ("Bellisario") resides in Allegheny County, Pennsylvania. In April of 2003, Bellisario purchased a 1997 Sea Ray 500 Sundancer ("the Vessel") from Defendant Clarks Landing Marina of Annapolis, Inc. ("Clarks Landing). Prior to completing the sale, Bellisario retained the services of Defendant Art Johnson ("Johnson"), a marine surveyor, to perform an inspection of the Vessel. After consummation of the sale, Bellisario learned that the Vessel had significant problems both with the engines and the clean water tank.

He subsequently filed suit against Clarks Landing, Johnson, Detroit Diesel Corporation ("Detroit Diesel") - the engine manufacturer, and Johnson & Towers ("J&T") - who had previously performed repair work on the engines. Bellisario set forth claims for breach of contract, breach of warranty and misrepresentation. Jurisdiction was based upon the diversity of citizenship.

Defendant J&T has filed a Motion to Dismiss For Lack of Subject Matter Jurisdiction (Docket No. 2).*fn1 J&T represents that it is incorporated in the Commonwealth of Pennsylvania. See Docket No. 2, Ex. B. As Bellisario is a Pennsylvania resident, J&T reasons, complete diversity is lacking.

Bellisario does not dispute J&T's argument. Rather, he raises two alternatives. He asks this Court to transfer the case to the Second Circuit Court of the State of Maryland. Yet he offers me no authority on which to base a transfer. Bellisario asks, as an alternative, to dismiss the claims only against J&T. See Docket No. 11, p .5. Although Bellisario does not reference Rule 41(a) of the Federal Rules of Civil Procedure, I will treat his request to dismiss the action against J&T as a Motion under Rule 41(a). Rule 41(a) permits a plaintiff to dismiss an action, without order of Court, at any time before the defendant has filed an answer or motion for summary judgment. J&T has neither filed an answer nor a motion for summary judgment. Accordingly, I will consider Bellisario to have withdrawn his claim against J&T. This withdrawal is without prejudice. J&T's Motion to Dismiss is therefore denied as moot.

Without J&T named as a Defendant, complete diversity jurisdiction exists. Because I previously granted Bellisario's Motion to Dismiss claims against Clarks Landing and Detroit Diesel, see Docket Nos. 8-2 and 9,*fn2 the claim remains only as to Defendant Johnson - the marine surveyor. Bellisario asserts three claims against Johnson - breach of contract, breach of express warranty and breach of implied warranty. Johnson seeks a dismissal of these claims. See Docket No. 15. He argues that language set forth in the survey report ("the Report") specifically precludes the assertion of Bellisario's claims. For the reasons set forth below, I agree.


In deciding a Motion to Dismiss, all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1988). I may dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957). In ruling on a motion for failure to state a claim, I must look to "whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide the defendants with adequate notice to frame an answer." Colburn, 838 F.2d at 666.

While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n.2 (1977). Moreover, the plaintiff must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See Fed. R. Civ. P. 8(2)(a) and Conley, 355 U.S. at 45-46. Matters outside the pleadings should not be considered. This includes "any written or oral evidence in support of or opposition to the pleadings that provides some substantiation for and does not merely reiterate what is said in the pleadings." Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 1366 (West 1990).


The parties agree that, on or about April 1, 2003, Johnson performed a "Pre Purchase Survey" of the Vessel and provided Bellisario a Report on the same. In that Report, Johnson estimated the market value of the Vessel to be $435,000.00 with the replacement value at $900,000.00. Bellisario claims that he relied upon Johnson's representations in this regard, adjudged the Vessel to be "fit for navigation" and "seaworthy," and completed ...

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