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Copia Communications, LLC v. Amresorts, L.P.

United States District Court, E.D. Pennsylvania

September 8, 2017

COPIA COMMUNICATIONS, LLC,
v.
AMRESORTS, L.P., et al.

          MEMORANDUM RE: DEFENDANTS' MOTIONS TO DISMISS

          BAYLSON, J.

         I. Introduction

         Plaintiff Copia Communications, LLC (“Plaintiff”), a Massachusetts limited liability company, brings this action against defendants AM Resorts, L.P., a Pennsylvania limited partnership (“AMR”), and Seawind Key Investments Limited, a Jamaican company (“Seawind, ” and collectively, “Defendants”), for alleged breach of contract and associated torts[1] arising out of an agreement between Plaintiff and Seawind for the provision of internet services by Plaintiff (the “Contract”) at two of Seawind's Jamaican hotels, Secrets St. James Montego Bay and Secrets Wild Orchid Montego Bay (the “Resorts”). (See ECF 11, Amended Complaint, “Compl.”).

         Both Defendants contend that this dispute should not be litigated in the Eastern District of Pennsylvania, but for different reasons.

         On March 3, 2017, AMR moved to dismiss the Amended Complaint:

(1) under the common law doctrine of forum non conveniens,
(2) on the basis of international comity, and
(3) for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).

(ECF 13, “AMR Mot.”).

         Plaintiff filed its Opposition on April 3, 2017 (ECF 18, “Pl. AMR Opp'n), to which AMR filed a Reply on April 17, 2017 (ECF 21, “AMR Reply”). On June 20, 2017 (ECF 46), the Court issued an Order stating that this motion would be held under advisement, allowing the parties an opportunity to supplement the record regarding the status of a declaratory action brought by Seawind against Plaintiff in Jamaica, where it is currently pending.

         On August 8, 2017, Seawind moved, for a second time, [2] to dismiss the Amended Complaint for lack of personal jurisdiction (F.R.C.P. 12(b)(2)), insufficient process (F.R.C.P. 12(b)(4)), and insufficient service of process (F.R.C.P. 12(b)(5)). (ECF 53, “Seawind Mot.”). Plaintiff filed its Opposition on August 22, 2017 (ECF 55, “Pl. Seawind Opp'n”), and Seawind filed its Reply on August 29, 2017 (ECF 56, “Seawind Reply”).

         For the reasons stated below, Defendants' motions will be GRANTED.

         II. Factual Background and Procedural History

         The following facts are drawn from the Complaint and the parties' factual submissions. Because these motions concern jurisdictional issues, the Court may consult facts beyond those alleged in the Complaint. See Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 101 n.6 (3d Cir. 2004) (A motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) “is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdictional actually lies.”); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258-9 (1981) (motions to dismiss based on forum non conveniens should be resolved based on affidavits submitted by the parties).

         i. Corporate Structure

         A corporation known as the Apple Leisure Group, headquartered in Pennsylvania, is the parent company and common owner of AMR and AM Management Jamaica Resorts Limited (“AM Jamaica”), a Jamaican company. (AMR Mot., Ex. A, Declaration of Dennis Keleshain, “Keleshian Decl., ” ¶¶ 3, 7). AMR and AM Jamaica are therefore two of many affiliated companies within Apple Leisure Group, and each provide brand licensing, hotel management and assistance services to all-inclusive hotels located in the Caribbean and Central America. (Id.).

         AM Jamaica-but not AMR-did at one point enter into a hotel management agreement with Seawind, to provide management assistance services for the Resorts. (Id. ¶ 6, 9).

         Additionally, in June 2009, Seawind-but not AMR-entered into the Contract with Plaintiff for the provision of internet service at the Resorts, which is the bread and butter of Plaintiff's business. (Compl. ¶ 17).

         There is no similar contract between AMR and Seawind. (Keleshian Decl. ¶ 9).

         ii. Allegations in the Complaint

         Plaintiff, by and through its manager Darryl Wehmeyer (“Wehmeyer”), began negotiating the Contract with Seawind in April 2009. Plaintiff alleges that Wehmeyer engaged in negotiations with three individuals in particular: Pedro Morell (“Morell”), Manuel Carbajo (“Carbajo”), and Manuel Garcia (“Garcia”). (Compl. ¶ 11). Plaintiff alleges that “Morell and Carbajo are, or were during the relevant time, employees of [AMR], and Garcia is, or was during the relevant time, an employee of Seawind.” (Id.).

         Plaintiff alleges that as negotiations progressed, including through email exchanges between Morell and Wehmeyer, “it was clear to [Plaintiff] that [AMR] was the decision-maker for itself and for Seawind, as an alter ego of [AMR], in the negotiation process for the [C]ontract with [Plaintiff], ” and that AMR had “sufficient authority to bind both Defendants and to enter into the contract with [Plaintiff].” (Id. ¶¶ 13-14).[3]

         The Contract between Seawind and Plaintiff was executed on June 29, 2009 at Seawind's office in Jamaica.[4] (Id. ¶ 17; see ECF 11, Ex. E, the “Contract”). It is undisputed that Wehmeyer, on behalf of Plaintiff, and Michael McMorris, Managing Director of Seawind, were the only signatories on the Contract. (Contract at 11).

         Plaintiff alleges that, on August 25, 2009, it “received payment under the Contract from [AMR], ” (id. ¶ 25), and that, between 2010 and 2014, all obligations under the Contract were “performed in a workmanlike manner.” (Id. ¶ 28). Performance of the Contract took place entirely in Jamaica.

         Plaintiff alleges that Defendants violated the Contract when, on April 28, 2014, Emilio Huhn (“Huhn”)-who Plaintiff alleges was “an employee of [AMR]”-informed Plaintiff that it had decided to terminate the Contract with Plaintiff as of May 1, 2014, in violation of notice requirements and other provisions of the Contract. (Id. ¶ 29; Compl., Ex. J.).

         iii. Procedural History

         1. Massachusetts Action

         As Defendants point out throughout the briefing, Plaintiff does not bring the claims in the instant Complaint here for the first time. Rather, Plaintiff sued Defendants in the District of Massachusetts on July 18, 2014, asserting almost identical claims. On February 5, 2015, the district court dismissed that complaint for lack of personal jurisdiction with respect to both Defendants, holding that their contacts with Massachusetts failed to establish specific jurisdiction.[5] Specifically, the court stated that (1) “the contract was not ‘formalized and entered into' in Massachusetts[;]” (2) “the parties did not contemplate future consequences within Massachusetts[;]” (3) the contract did not subject Defendants to ‘substantial control and ongoing connection to' Massachusetts[;]” and (4) “Copia's claims do not arise out of any marketing efforts Defendants made in Massachusetts, ” and “to the extent that [AMR] maintains a website or conducts advertising which could reach Massachusetts, such efforts do not give rise to Copia's claims.” Copia I, 2015 WL 7621480, at *5. The First Circuit “easily affirm[d]” the district court. Commc'ns, LLC v. AMResorts, L.P., 812 F.3d 1, 2 (1st Cir. 2016) (hereinafter, “Copia II”).

         2. Jamaica Action

         On July 17, 2015, Seawind filed a declaratory judgment action against Plaintiff in the Supreme Court of Jamaica-Jamaica's trial court-seeking a declaration that the Contract was not breached, but rather “was properly terminated . . . by letter dated April 25th 2014 indicating a non-renewal of the Agreement by the Claimant, ” and that the contract “did not automatically renew.” (ECF13-3 at 28, “Claim Form”). Plaintiff did not respond to that complaint until after the First Circuit affirmed the dismissal of Copia I in August 2016.

         This Court initially deferred resolution of Seawind's motion to dismiss in part to allow the parties to submit additional information regarding the Jamaican action. (See ECF 46).

         On June 9, 2017, Seawind submitted a letter to the Court regarding the Jamaican action, namely that the action was pending in the Commercial Division of the Supreme Court of Judicature of Jamaica, Claim Number 2015 CD 00099, and that while the parties will not learn the name of the judge presiding over the case until one week before a trial or hearing, it will be one of four judges. Seawind noted that it “understand[s] that proceedings before the Commercial Division are typically completed within one year[.]” Seawind also provided a list of relevant events in the Jamaican action.

         Seawind submitted an additional letter on June 28, 2017, informing the Court that trial is set in the Jamaican action for October 23-26, 2017. (ECF 49 at 2).

         III. Discussion

         A. Seawind's Motion to Dismiss (ECF 53)

         Seawind moves to dismiss the Amended Complaint for both insufficient process and improper service of process, and for lack of personal jurisdiction. Plaintiff, as the party asserting the validity of service of process, bears the burden of proof on that issue, see Sims v. City of Philadelphia, 552 Fed. App'x 175, 177 (3d Cir. 2014), as well as on the issue of whether the Court may exercise general or specific jurisdiction over Seawind, Allaham v. Naddaf, 13-cv- 3564, 2015 WL 3421464, at *2 (E.D. Pa. May 28, 2015), aff'd, 635 Fed. App'x 32 (3d Cir. 2015).

         i. Insufficient Process (F.R.C.P. 12(b)(4))[6]

         Seawind argues that, despite the Court offering Plaintiff a chance to properly serve Seawind, the documents Plaintiff served on Seawind on July 18 and 19, 2017 are not true and correct copies of the operative Amended Complaint, in that they contain undisclosed revisions, and do not include true and correct copies of all exhibits attached to the Amended Complaint, namely Exhibits H through M. (Seawind Mot. at 6).

         Plaintiff's Opposition boils down to a request that the Court excuse any failure of process because, inter alia, (1) Seawind has been on notice of this litigation for many months (Pl. Opp'n at 2); (2) Plaintiff has made “good faith” attempts to and has properly served process on Seawind (id. at 12-13 (citing Pl. Seawind Opp'n, Exhs. A & B, Affidavits of Service)); (3) Plaintiff satisfied service requirements under Jamaican law, and by extension, F.R.C.P. 4(f)(2) (id. at 10); and (4) Seawind has not shown “actual prejudice” arising from any lack of process by Plaintiff (id. at 6). Plaintiff additionally argues that “good cause” exists such that it should have an opportunity to correct deficiencies (id. at 15-16), or, alternatively, that the Court should permit Plaintiff to serve Seawind by publication in a Jamaican newspaper. (Id. at 16-17).

         The Court agrees with Seawind that Plaintiff's insufficient process is inexcusable, notwithstanding the fact that Seawind had notice of the litigation. See Carter v. Keystone, No. 05-CV-311, 2007 WL 956430, at *1-2 (D. Del. Mar. 29, 2007) (dismissing claim when pro se plaintiff was offered “additional time and another opportunity” to comply with Rule 4(c) and failed to do so), aff'd, 278 Fed. App'x 141, 142 (3d Cir. 2008) (per curiam) (“Carter was given two opportunities to properly effect service of process . . . Carter, however, failed to comply with the requirements of Rule 4 on either occasion. Therefore, we see no error in the Magistrate Judge's order granting Marmon Keystone's motion under Rules 12(b)(4) and (5).”)

         The Court has already been lenient with Plaintiff regarding service (see ECF 45, 46), and Plaintiff has made no showing that good cause exists to excuse the present defect, which is not, as Plaintiff contends, a mere “error” that “may have been made in the transmittal of the copy” of the Amended Complaint (Pl. Opp'n at 16). As the portion of the served document pasted into Seawind's Motion (at page 17) shows, the served documents included newly inserted language into certain paragraphs of the purported Amended Complaint.

         Accordingly, F.R.C.P. 12(b)(4) is one basis for this Court's dismissal of ...


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