937 F. Supp. 2d 147
D. Mass.2013Background
- This is a diversity negligence action by Kenneth and Nancy Metcalf against Bay Ferries over injuries Mr. Metcalf suffered on The CAT in 2009.
- Defendant is a Canadian corporation with The CAT operating between Maine and Nova Scotia; Walter Massachusetts was advertised to and Plaintiffs booked passage.
- Plaintiffs allege Bay Ferries’ advertising and targeted Massachusetts activity created a nexus to Massachusetts and the injury.
- Plaintiffs previously pursued Nova Scotia litigation (started 2010) and Maine federal action (2012); Canadian recovery is capped and slow.
- Plaintiffs received a packet with terms and conditions (including a Canadian forum clause) immediately before boarding; extrinsic affidavits were contested and limited in consideration.
- Defendant moved to dismiss for lack of personal jurisdiction (12(b)(2)), improper venue (12(b)(3)), and forum non conveniens; Plaintiff moved to strike extrinsic affidavit(s).
- Court excluded certain extrinsic evidence for improper venue analysis and focused on complaint-incorporated facts for jurisdiction and forum non conveniens analysis.
- Court ultimately denied the motion to dismiss on all grounds and allowed in part/denied in part the motion to strike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Massachusetts has specific personal jurisdiction over Bay Ferries | Metcalfs show targeted MA advertising created nexus | Advertising alone insufficient to establish relatedness | Yes; MA specific jurisdiction established |
| Whether the case should be dismissed for forum non conveniens | Canada forum inadequate due to cap and travel burden | Canada is a suitable forum; forum non conveniens should apply | Not dismissible; equities balanced in plaintiff’s favor |
| Whether venue is proper despite a forum clause | Forum clause not properly communicated; contract formation unclear | Forum clause enforceable if reasonably communicated | Improper venue denied; clause enforceability considered with factual nuances at later stage |
| Whether extrinsic affidavit material can be considered on Rule 12(b)(3) motion | Affidavits not properly authenticated; cites support | Extrinsic evidence should be considered | Extrinsic affidavits excluded from improper-venue analysis; considered for other issues |
| Whether the court should strike the Cormier affidavit | Affidavit contains inadmissible statements | Affidavit otherwise admissible and probative | Partially granted; some paragraphs ignored, others allowed |
Key Cases Cited
- Ward v. Cross Sound Ferry, 273 F.3d 520 (2d Cir.2001) (enforceability of forum clauses depends on notice timing and access to terms)
- Lousararian v. Royal Caribbean Corp., 951 F.2d 7 (1st Cir.1991) (reasonableness of notice to passenger in forum clause analysis)
- Nowak v. Tak How Invs., 94 F.3d 708 (1st Cir.1996) (relatedness requires nexus; targeting residents can satisfy long-arm statute)
- Cossaboon v. Maine Med. Ctr., 600 F.3d 25 (1st Cir.2010) (advertising targeted at forum residents can establish jurisdiction; non-targeted ads may not)
- Shankles v. Costa Armatori, 722 F.2d 861 (1st Cir.1983) (notice and terms of passage affect enforceability of contract terms in maritime context)