United States District Court, E.D. Pennsylvania
MEMORANDUM RE: DEFENDANTS' MOTIONS TO
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 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
Defendants contend that this dispute should not be litigated
in the Eastern District of Pennsylvania, but for different
March 3, 2017, AMR moved to dismiss the Amended Complaint:
(1) under the common law doctrine of forum non
(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.”).
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.
August 8, 2017, Seawind moved, for a second time,
 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”).
reasons stated below, Defendants' motions will be
Factual Background and Procedural History
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).
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.).
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,
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).
is no similar contract between AMR and Seawind. (Keleshian
Decl. ¶ 9).
Allegations in the Complaint
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.”
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. ¶¶
Contract between Seawind and Plaintiff was executed on June
29, 2009 at Seawind's office in
(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).
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.
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.).
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
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
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.
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
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
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).
Seawind's Motion to Dismiss (ECF 53)
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).
Insufficient Process (F.R.C.P.
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).
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).
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).”)
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.
F.R.C.P. 12(b)(4) is one basis for this Court's dismissal