MEMORANDUM AND ORDER
This negligence action explorés the limits of this Court’s power to exercise in personam jurisdiction over a foreign defendant. It involves two Florida residents who planned an African safari vacation with a Massachusetts travel agent, only to become the victims of a tragic hot air balloon crash in the Serengeti. One victim was killed in the crash and the other, the deceased’s fiancée, sustained severe bodily injuries, allegedly due to the negligence of the balloon company. The deceased’s estate and the surviving victim now seek to hold the travel agent, balloon company, and its overseas booking agent liable in Massachusetts. Faced with two defendants’ motion to dismiss for lack of personal jurisdiction, the plaintiffs bear the burden of proving the defendants’ amenability to suit in this forum. E.g., Foster-Miller, Inc. v. Babcock & Wilcox Canada,
At the same time, the Court will address a motion to amend. Pis.’ Mot. Leave File Second Am. Compl., ECF No. 33.
I. INTRODUCTION
Florida residents Grace Weinberg (“Weinberg”), on her own behalf, and Joan Ward (“Ward”), as personal representative for the Estate of Harvey Marrón (“Marron”) brought action against a Massachusetts company, Grand Circle Travel, LLC d/b/a Overseas Adventure Travel (“Overseas Adventure”), a Tanzanian corporation, Tourism and Public Relations Services Limited trading as Serengeti Balloon Safaris (“Tourism Services”), and an English company, Serengeti Balloon Safaris, LTD (“Serengeti Balloon”), seeking compensatory and punitive damages on claims of strict liability, negligence, gross negligence, and recklessness. Compl. Jury Demand (“Compl.”), ECF No. 1.
Weinberg and Ward claim that Overseas Adventure, Tourism Services, and Serengeti Balloon are strictly liable under the Convention for Unification of Certain Rules for International Carriage by Air (“Montreal Convention”)
A. Procedural Posture
Weinberg and Ward filed this action on September 21, 2011. See Compl. On November 3, 2011, Overseas Adventure filed an answer to Weinberg and Ward’s complaint, denying the allegations. Def. Grand Circle Travel LLC’s Answer Pis.’ Compl., ECF No. 4. On November 16, 2011, Overseas Adventure filed a third-party complaint against Kibo Guides (TZ), Ltd. (“Kibo”). Def. Third-Party PI. Grand Circle LLC’s Third-Party Compl. Kibo Guides (TZ) LTD., ECF No. 5. Additionally, on November 16, 2011, Overseas Adventure filed an amended answer to Weinberg and Ward’s complaint and cross-claims against the Serengeti Defendants. Def. Grand Circle LLC’s Am. Answer Pis.’ Compl. Cross-cl. Defs. Tourism Pub. Relations Servs. Ltd. Trading as Serengeti Balloon Safaris & Serengeti Balloon Safaris Ltd., ECF. No. 6.
On January 30, 2012, the Serengeti Defendants moved to dismiss the complaint for lack of personal jurisdiction. Mot. Defs. Tourism Public Relations Servs. Ltd, Trading Serengeti Balloon Safaris Seren
Before the Court ruled on either of the pending motions, Weinberg and Ward filed an additional motion to amend. Pis.’ Mot Leave File Second Am. Compl. This second motion to amend incorporated the first proposed amended complaint as well as new claims against the Serengeti Defendants for violations of Massachusetts General Law chapter 93A and chapter 229. Id. at 2. The second motion also proposed a new defendant, Kibo Guides (TZ), Ltd., the same party that had been impleaded by the third-party complaint and dismissed by stipulation. Id.
B. Facts Alleged
In the fall of 2010, Marrón and Weinberg purchased a trip to Tanzania from Overseas Adventure at its Massachusetts office. Second Am. Compl. ¶ 10. As part of the package put together by Overseas Adventure, Weinberg and Marrón purchased tickets for a hot air balloon excursion. Id. Overseas Adventure advertises the African balloon trips with Tourism Services as safe and tranquil, and does not provide a warning to the purchasers of the flights that wind could and had previously caused a crash and serious injury. Compl. ¶ 9. After Weinberg and Marrón requested the tickets, Overseas Adventure booked the tickets through an African tour operator, Kibo. Defs.’ Mem. 3. Kibo subsequently requested a reservation for a balloon excursion with Tourism Services, which Tourism Services then confirmed by issuing a flight voucher to Kibo in Tanzania. Id.
During the morning of September 29, 2010, it was windy at the launch site, yet Tourism Services did not seek to assess the velocity of potentially dangerous crosswinds. Second Am. Compl. ¶ 20. One of the two balloons operated by the Serengeti Defendants scheduled to fly that morning did not fly because of the windy conditions. Id. ¶ 22. The passengers on the balloon that is the subject of this case were not informed of the other cancellation, nor were they counseled as to the heightened risk of a flight under windy conditions. Id. ¶ 23 Additionally, the balloon lacked basic safety equipment, such as passenger restraints for take-off and landing, launch site anemometers, a mechanism to rapidly deflate the balloon in the event of difficulties during flight, and it was flown by an inexperienced or “trainee” pilot. Id. ¶¶ 24-25. Nor did the balloon have an emergency locator beacon or GPS, a first aid kit for serious injuries, or sufficient drinking water in case of an emergency. Id. ¶ 24.
In their Second Amended Complaint, Weinberg and Ward allege that Overseas Adventure exercises direct control over Kibo and its personnel. Second Am. Compl. ¶ 3. Overseas Adventure hires Kibo tour guides, provides them with “Overseas Adventure” uniforms, trains, and supervises them. Id. Overseas Adventure determines and provides the “Kibo” tour guides’ pay, and has authority to terminate them.
As the balloon that carried Marrón and Weinberg attempted to descend, wind caused the basket of the balloon to crash into a tree, killing Marrón and a Danish passenger. Second Am. Compl. ¶ 26. The balloon then dragged the basket across the ground, hitting obstacles, and Weinberg’s arm became trapped in the rigging of the balloon. Id. ¶ 27. After the balloon landed, Weinberg, along with deceased Marrón, waited for hours in a remote area for rescue. Id. ¶ 28. Weinberg sustained lacerations to her face, arms and legs, and a broken wrist and arm, which required skin grafts. Id. ¶ 31.
II. ANALYSIS
A. Leave to Amend
Federal Rule of Civil Procedure 15(a) requires that consent to file an amended pleading be “freely given when justice so requires.’ ” Adorno v. Crowley Towing & Trans. Co.,
Weinberg and Ward’s motion to amend is not unduly delayed. Compare Feliciano-Hernandez v. Pereira-Castillo,
Nor are there allegations of bad faith or undue prejudice in the record. The Court, however, must examine each new count in the amended complaint for futility. See MacNeill Eng’g Co., Inc. v. Trisport, Ltd.,
B. The Prima Facie Standard for Personal Jurisdiction
The prima facie standard is the “most conventional” procedure to resolve a challenge to personal jurisdiction. Foster-Miller, Inc.,
1. The Court Lacks Personal Jurisdiction over the Serengeti Defendants
The Serengeti Defendants moved to dismiss for lack of personal jurisdiction. Defs.’ Mem. 1. The complaint pleaded that this Court’s jurisdiction is proper under the Montreal Convention. Compl. ¶ 8.
The Montreal Convention authorizes injured passengers to bring an action in five fora where subject matter jurisdiction exists:
(1) in the territory of one of the States Parties, or
(2) either before the court of the domicile of the carrier or its principal place of business, or
(3) where the carrier has a place of business through which the contract has been made, or
(4) before the court at the place of destination, or
(5) in the territory of a State Party in which, at the time of the accident, the passenger has his or her principal and permanent residence, and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
Montreal Convention art. 33. Where none of the places specified in Article 33 are in the United States, the court lacks treaty subject matter jurisdiction and must dismiss the case. See In re West Caribbean Airways, S.A.,
Even if plaintiffs establish subject matter jurisdiction under the Montreal Convention, the court still has to address the issue of personal jurisdiction.
As explained below, the facts of this case do not support the application of the Montreal Convention. Pflug v. Egyptair Corp.,
On the face of the complaint, however, Weinberg and Ward failed to plea the diversity jurisdiction of this Court.
“In determining whether a non-resident defendant is subject to its jurisdiction, a federal court exercising diversity jurisdiction ‘is the functional equivalent of a state court sitting in the forum state.’ ” Sawtelle v. Farrell,
“A district court may exercise authority over a defendant by virtue of either general or specific [personal] jurisdiction.” Massachusetts Sch. of Law at Andover v. American Bar Ass’n,
a. The Facts of This Case Do Not Support the Application of the Montreal Convention
Weinberg and Ward allege that jurisdiction and venue are proper in this Court under the Montreal Convention. Compl. ¶ 8. Both the United States and Tanzania are parties to the Montreal Convention, which applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.” Montreal Convention art. 1(1). According to the Montreal Convention, “[cjarriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention.” Id. art. 1(2). Accordingly, a hot air balloon tour within the country of Tanzania that was accidently swept by wind did not include an “agreed stopping place within the territory of another State” and is therefore not covered by the Montreal Convention. See Gustafson v. American Airlines, Inc.,
b. Weinberg and Ward’s Factual Assertions Concerning this Court’s Exercise of Personal Jurisdiction
Weinberg and Ward assert two arguments in support of this Court’s jurisdiction over the Serengeti Defendants. Pis.’ Mem. 4-14. First, they argue Kibo is an employee of Overseas Adventure under Massachusetts General Laws, chapter 149, section 148B
(1) The Employment Argument
Upon review of Massachusetts General Laws, chapter 149, section 148B,
(2) The Agency Argument to Support Attribution of Jurisdictional Contacts
“For purposes of personal jurisdiction, the actions of an agent may be attributed to the principal.” Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A.,
The essential question here is whether the relationship between Overseas Adventure and the Serengeti Defendants, however it is labeled, is sufficient to attribute Overseas Adventure’s in-state contacts with the Serengeti Defendants to exercise jurisdiction that comports with due process. See Jet Wine & Spirits, Inc. v. Bacardi & Co.,
Weinberg and Ward rely on Daynard to support their argument that this Court has specific jurisdiction over the Serengeti Defendants. Pls.’ Mem. 15. In Daynard, a Massachusetts professor filed suit against two law firms from two different states over a dispute concerning his fee in previous tobacco litigation. Daynard,
The facts that the Daynard court relied upon to find a joint venture or apparent agency relationship were as follows: the plaintiff worked with both firms by providing them advice, including advice to Scruggs while physically present in Massachusetts, as well as assistance provided from Massachusetts by phone and fax; the firms agreed to pay the plaintiff a share of the fees obtained from both firms; a Motley partner stated that the plaintiff was part of the “team”; and a Motley partner sent a letter to the Attorney General that stated both firms were to “work jointly on all of the state cases.” Id. at 58.
Here, Weinberg and Ward rely on three factual assertions to support their agency argument. See Pis.’ Mem. 12-14. First, they assert that the Overseas Adventure Handbook expressly states that Overseas Adventure is the Serengeti Defendants’ agent. Id. at 12. Second, the Serengeti Defendants are identified in the Handbook as the supplier of the balloon flight. Id. Third, Weinberg and Marrón reasonably believed that Overseas Adventure had full authority to book and confirm the balloon flight. Id. at 13-14.
With respect to the first assertion, Weinberg and Ward highlight that the Overseas Adventure Handbook states “[t]o the extent that [Overseas Adventure] is involved in booking air transportation for you, [Overseas Adventure] acts as an agent of the air carrier and not as your agent. For all other purposes, [Overseas Adventure] does not act as an agent for any party whatsoever.” Pls.’ Mem. 12; Pls.’ Mem., Ex. 2, Traveler’s Handbook (“Traveler’s Handbook”) 34, Overseas Adventure Travel General Terms Conditions ¶ 35, ECF. No. 29-4. Weinberg and Ward argue that, under the terms of the Travelers Handbook, Overseas Adventure is the agent of all “air carriers,” rather than the term “airlines” used elsewhere, thus a hot air balloon flight constitutes “air transportation” and Overseas Adventure was acting as the Serengeti defendant’s agent for the purposes of the Traveler’s Handbook. Pls.’ Mem. 12. This argument fails, however, because it is a misinterpretation of the Traveler’s Handbook, as it differenti
Although the purpose of an apparent agency analysis is to focus on conduct that “ ‘leads a third party to believe that the agent has authority and thus creates apparent authority to those persons who act upon it,’ ” Daynard,
Weinberg and Ward’s last two factual assertions are that Overseas Adventure purported to be the Serengeti Defendants’ agent by providing information about the balloon flight on one page of the Handbook and that Weinberg and Marrón reasonably believed Overseas Adventure to have full authority to book the tickets. Pls.’ Mem. 12-13. According to the Handbook, Weinberg and Marrón could book the balloon flight on-site or with Overseas Adventure forty-five days before departure. See Traveler’s Handbook 48. Weinberg and Marrón did purchase their tickets in advance with Overseas Adventure and did not pay any additional costs once they arrived in Tanzania. Pls.’ Mem. 13. By seeking to sell tickets for the balloon flight on behalf of the Serengeti Defendants, it is arguable that Weinberg and Marrón reasonably believed Overseas Adventure to be acting on behalf of Serengeti Defendants and relied on this relationship when they purchased the tickets. This apparent authority to sell such tickets on behalf of the Serengeti Defendants, however, does not amount to the extensive evidence alleged by the plaintiff in Daynard. Unlike Daynard, Weinberg and Marrón did not make direct contact with the Serengeti Defendants, nor were Weinberg and Marrón ever directly told that Overseas Adventure was working jointly with the Serengeti Defendants.
Weinberg and Ward also argue that by allowing them to board the balloon without additional payment, it is evident that Overseas Adventure had the authority to sell the balloon flights on behalf of the Serengeti Defendants. Pls.’ Mem. 14. A person ratifies an act by conduct when the conduct justifies a reasonable assumption that the person so consents. Restatement (Third) of Agency, § 4.01 (2006). “The sole requirement for ratification is a manifestation of assent or other conduct indicative of consent by the principal.” Id. § 4.01, cmt. b. Furthermore, “[u]nder Massachusetts law, ratification of agent’s acts may be express or implied and, as a general proposition, the principal must have full knowledge of all material facts.” Inn Foods, Inc. v. Equitable Coop. Bank,
It is arguable that by relying heavily on local and international booking agents, Pis.’ Mem., Ex. 6, Affidavit of Nigel Pogmore (“Aff. Nigel Pogmore”) ¶ 6, EOF. No. 29-6, the Serengeti Defendants manifested assent to the agents’ conduct on its
As the Court should “add to the mix facts put forward by the defendants, to the extent that they are uncontradicted,” Daynard,
Even so, in light of the restrictive approach to personal jurisdiction posited by the plurality opinion in McIntyre,
c. The Massachusetts Long-Arm Statute
To establish personal jurisdiction in Massachusetts, a plaintiff must show that the Massachusetts long-arm statute
The Court may sidestep the statutory inquiry and apply the constitutional analysis for determining specific jurisdiction because the Massachusetts Supreme Judicial Court has construed the Massachusetts long-arm statute “as an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States.” Daynard,
Specific personal jurisdiction exists when “there is a demonstrable nexus between a plaintiffs claims and a defendant’s forum-based activities, such as when the litigation itself is founded directly on those activities.” Massachusetts Sch. of Law at Andover,
(1) Relatedness
The claim underlying the litigation must arise directly out of, or relate to, the defendant’s forum-state activities. Foster-Miller, Inc.,
The hallmark of the relatedness analysis is the element of causation, Ticketmaster-New York, Inc.,
Employing the liberal “but for” approach of Tatro, Weinberg and Ward argue that the Serengeti Defendants’ use of travel agents and booking agents to obtain most of their customers satisfies the relatedness test. Pis.’ Mem. 21. Indeed, it appears that solicitation through agents does prove successful for the Serengeti Defendants, see Aff. Nigel Pogmore ¶¶ 5-7, and the possibility that one or more of its customers could be injured during one its many balloon flights certainly is foreseeable. It is thus arguable that Weinberg and Ward’s claim was “made possible by, [and] lies in the wake of [the Serengeti Defendants’] Massachusetts contact” through Overseas Adventure and that, but for such solicitation, Marron’s death and Weinberg’s injuries would not have occurred. Nowak v. Tak How Inv., Ltd.,
This relaxed application of the relatedness test, however, has been applied only when a foreign defendant directly targets Massachusetts residents in an ongoing effort to further a business relationship. See Nowak,
(2) Purposeful Availment
Regardless of this Court’s application of the “arising under” prong, Weinberg and Ward’s true difficulty in proving personal jurisdiction lies in whether the Serengeti Defendants’ contacts with Massachusetts — through Overseas Adventure — constitute purposeful availment.
The purposeful availment requirement ensures that jurisdiction is not premised on “random, isolated, or fortuitous” contacts with the forum state. Sawtelle,
Weinberg and Ward argue, relying on Nowak, that the Serengeti Defendants’ relationships with travel agents and ticket brokers are designed to bring Americans into Tanzania, including Massachusetts residents. Pls.’ Mem. 22. Weinberg and Ward cite Nowak,
Overseas Adventure’s official Handbook did provide a specific package involving the Serengeti Defendants’ balloon excursions. See Pis.’ Mem. 16; Traveler’s Handbook 48. Weinberg and Marron’s tickets were booked through Kibo by Overseas Adventure, followed by Kibo, which then contacted Tourism Services to request a booking and confirmation. See Defs.’ Mem. 8; Decl. Anthony Pascoe Supp. Mot. Dismiss Tourism and Pub. Relations Servs. Ltd. Trading as Serengeti Balloon Safaris (“Aff. Anthony Pascoe”) ¶¶ 18-19, ECF No. 23. Kibo’s involvement in the booking breaks the agency connection needed to prove that the Serengeti Defendants purposefully sought out Overseas Adventure to sell its tickets, thereby availing itself of the benefits of the Massachusetts connection. See id. Ex. 3-5, ECF Nos. 23-3 — 23-5 (including correspondence between Kibo and Serengeti Defendants without any indication of Overseas Adventure’s involvement).
While it certainly seems foreseeable that Kibo would seek out additional travel agents to sell the Serengeti Defendants’ tickets, mere “unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.” World-Wide Volkswagen Corp. v. Woodson,
(3) Reasonableness
The Court’s jurisdictional inquiry is not a mere “mechanical exercise,” Ticketmaster-New York, Inc.,
(1) the defendant’s burden of appearing, (2) the forum state’s interest in adjudicating the dispute, (3) the plaintiffs interest in obtaining convenient and effective relief, (4) the judicial system’s interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies.
With respect to the first factor — the defendant’s burden of appearing — the Serengeti Defendants validly argue that appearing in Massachusetts would be a significant burden on them because their employees reside and work in Tanzania and the evidence related to the accident is located in Tanzania. Defs.’ Mem. 15. Although the need to defend an action in a foreign jurisdiction “is almost always inconvenient and/or costly ... this factor is only meaningful where a party can demonstrate some kind of special or unusual burden.” Pritzker v. Yari,
The second factor — the forum state’s interest in adjudicating the dispute — also weighs in favor of the Serengeti Defendants. Both Weinberg and Ward are residents of Florida and the alleged tortious injuries and death occurred in Africa. See Donatelli,
The third and fourth factors — the interest of the plaintiff and the judicial system in convenient and effective relief— favor the Court’s exercise of jurisdiction. The First Circuit repeatedly has observed that “a plaintiffs choice of forum must be accorded a degree of deference with respect to the issue of its own convenience.” Sawtelle,
The final factor concerns the interests of affected states in promoting substantive social policies. As mentioned above, it is arguable that United States federal courts have a strong interest in protecting the rights of United States citizens from negligence that occurs abroad. On the other hand, Tanzania likely has an interest in protecting its visitors and seeking to protect and promote its businesses, including its tourism related businesses. As this Court decided in Nowak, this factor is likely neutral in the present analysis.
Although this Court concludes that it lacks jurisdiction over the Serengeti De
C. Analysis of Amended Claims
Having established its jurisdiction, the Court next must examine the individual claims in the amended complaint for futility. A claim added by amendment would be futile when the factual allegations (and reasonable inferences) are insufficient to meet each element necessary for recovery. MacNeill Eng’g Co., Inc.,
1. Count I: The Montreal Convention Does Not Apply
As discussed above, the Montreal Convention does not apply to the facts of this case. Supra Section II.B.l.a. Count I against Overseas Adventure is therefore futile, and the Court must DISMISS it.
2. Count II: Negligence of Overseas Adventure
To adequately state a claim for negligence, a plaintiff must plausibly allege “that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage.” Jupin v. Kask,
Whether a party has a duty of care is a question of law. Jupin,
As a general rule, travel agents are not “liable for the negligence or dangerous conditions of third-party hotel or travel operators.” Hofer v. Gap, Inc.,
It is true that a valid cause of action for negligent selection would require a rather unreasonable set of facts to prevail, but unreasonableness is the touchstone of negligence and at the heart of every allegation of a breach of duty. As usual, “the reasonable person standard is uniquely within the competence of the jury,” even when the facts are undisputed. Wilson v. Copen,
Taking all reasonable inferences in favor of Weinberg and Ward, the facts alleged are adequate to state a claim. Weinberg and Ward allege that Overseas Adventure breached their duty because it knew that the Serengeti Defendants had previously had a serious wind related accident, and that the safety precautions taken by the balloon operators were not adequate or reasonable for an accident in the Serengeti. E.g., Second Am. Compl. ¶¶ 18, 24, 25. It is a reasonable inference that not having water supplies or an emergency rescue plan was unwise (or worse) in an aerial adventure over the Serengeti. See id. ¶¶ 24, 42. Weinberg and Ward further allege that Overseas Adventure’s negligence caused their injuries and Weinberg and Marrón would not have taken the balloon flight absent Overseas Adventure’s representations. Id. ¶ 18, 26, 31-34.
The Court is not prepared to hold at this stage that these facts are implausible as matter of law, although the issue might be revisited after further discovery at summary judgment. Therefore, Weinberg and Ward have tentatively stated a claim for negligence against Overseas Adventure and the Court declines to conclude the negligence claim is necessarily futile.
3. Count III: Violations of Massachusetts General Laws Chapter 93A
Weinberg and Ward next allege that Overseas Adventure committed unfair and deceptive practices in violation of Massachusetts General Laws chapter 93A (“Chapter 93A”). Second Am. Compl. ¶¶ 45-57. To support this allegation, Weinberg and Ward point to their claims of negligence, several violations of 940
Overseas Adventure correctly contends that negligence alone will not give rise to liability under Chapter 93A. Overseas Adventure Mem. Opp’n Leave File Second Am. Compl. 9. A complete Chapter 93A claim may, however, be based on negligence where there are also unfair or deceptive acts. Darviris v. Petros,
The Attorney General promulgated 940 Mass.Code. Regs. 15.00 (the “Regulation”) pursuant to Chapter 93A to define and outlaw “certain unfair and deceptive practices in the sale of travel services to the public.” 940 Mass.Code. Regs. 15.00. The Regulation prohibits sellers of travel services from engaging in deceptive or misleading business practices, id. 15.03-04, including the following requirements:
No seller of travel services may fail to disclose information about a travel service it offers to sell, provide, contract for, or arrange, where such failure has the capacity or tendency to deceive or mislead a consumer, or has the effect of deceiving or misleading a consumer in any material respect; nor may a seller of travel services fail to disclose to a consumer any fact the disclosure of which may have influenced the consumer not to enter into a transaction.
940 Mass.Code. Regs. 15.04(1). A violation of any provision of the Regulation is an unfair or deceptive practice. Id. 15.01(1). Weinberg and Ward claim that they relied on Overseas Adventure’s representations as to the safety of the balloon ride, and that Overseas Adventure failed to disclose information (i.e., safety concerns or inadequacies) that might have influenced Weinberg and Marrón not to purchase tickets for the ride. Second Am. Compl. ¶¶ 47-51. Taking all reasonable inferences in favor of the nonmoving party, Weinberg and Ward sufficiently alleged facts to support their Chapter 93A claim. See Ruiz v. Bally Total Fitness Holding Corp.,
4. Count IV: Negligence of the Serengeti Defendants
As this Court lacks personal jurisdiction over the Serengeti Defendants, the claim of negligence against the Serengeti Defendants must be DISMISSED. See supra Section II.B.
5. Count V: Negligence of Kibo
The negligence claim against Kabo is subject to the same analysis as the negligence claim against Overseas Adventure. Granting that Kibo has a duty of care to travelers for which it purchases tickets, see supra Section II.C.l, Kibo could also, in theory, be liable for negligent selection. Weinberg and Ward allege that Kibo reserved and booked Serengeti Defendants balloon flights for Overseas Adventure, and that Kibo failed in its duty to investigate or warn of safety issues. Second Am. Compl. ¶¶ 63-66. Unlike the allegations against Overseas Adventure, Kibo
6. Count VI: Gross Negligence of Overseas Adventure, Kibo and Serengeti Defendants
In their amended complaint, Weinberg and Ward include a separate count for “gross negligence and reckless conduct.” Second Am. Compl. ¶¶ 67-73. Although merely a form of higher culpability negligence, gross negligence or recklessness may be filed as an independent claim. See e.g., Matsuyama v. Birnbaum,
Although Overseas Adventure does not explicitly argue that Weinberg and Ward fail to state a claim for gross negligence (as opposed to negligence), this Court holds that the facts alleged are insufficient to plead gross negligence. The complaint does not include allegations that are “appreciably higher in magnitude than ordinary negligence,” see Altman,
7. Counts VII and Count VIII: Massachusetts General Law Chapter 229
Massachusetts General Law chapter 229, section 2 (“the Wrongful Death Statute”) creates a statutory wrongful death claim with the same elements as negligence. 37A Mass. Practice § 28.2 (3d ed.). As discussed above, Weinberg and Ward adequately plead a claim for negligence, including that Overseas Adventure’s negligence caused Marron’s untimely death. These facts are sufficient to state a claim under the Wrongful Death Statute and demonstrate (taking all inferences in favor of the plaintiffs) that Count VII is not futile as a matter of law against Overseas Adventure. The Court has already rejected the negligence claims against Kibo and the Serengeti Defendants, and therefore only Overseas Adventure may be liable for wrongful death in this suit. See supra Sections II.B, II.C.4. The Court DISMISSES Count VII against Kibo and the Serengeti Defendants.
Section 6 of the Wrongful Death Statute provides that damages for statutory wrongful death actions also may be recovered for conscious suffering, to be paid to the estate of the deceased. Mass. Gen. Laws ch. 229, § 6. Although Section 6
8. Count IX: Negligent Misrepresentation
Negligent misrepresentation causing personal injury “is not, at this time, a recognized cause of action in Massachusetts.” Gianocostas v. Interface Group-Mass., Inc.,
III. CONCLUSION
A. Personal Jurisdiction
It seems unfair that the Serengeti defendants can reap the benefits of obtaining American business and not be subject to suit in our country. It is perhaps unfortunate that recent jurisprudence appears to “turn the clock back to the days before modern long-arm statutes when a [business], to avoid being hailed into court where a user is injured, need only Pilate-like wash its hands of a product by having [agents] market it,” Russell J. Weintraub, A Map Out of the Personal Jurisdiction Labyrinth, 28 U.C. Davis L.Rev. 531, 555 (1995), and that, in many circumstances, American consumers “may now have to litigate in distant fora — or abandon their claims altogether,” Arthur R. Miller, Inaugural University Professorship Lecture: Are They Closing the Courthouse Doors? 13 (March 19, 2012) (criticizing the plurality opinion in J. McIntyre Mach. v. Nicastro ), but this Court must follow the law as authoritatively declared. See also Case Note, A Throwback to Less Enlightened Practices: J. McIntyre Machinery, Ltd. v. Nicastro, 160 U. Pa. L.Rev. PENNUmbra 366 (2012), http:www.pennumbra.com/ casenotes/5-2012/Vosseler.pdf. For the reasons set forth above, this Court cannot exercise jurisdiction over the defendants, Serengeti Balloon and Tourism Services. The Serengeti Defendants’ motion to dismiss must therefore, and hereby is, GRANTED without prejudice.
B. Leave to Amend
As the amendment policy is a liberal one, the Court must give leave “freely when justice so requires.” Fed. R. Civ. Pro. 15(a); Foman,
Notes
. The Convention for Unification of Certain Rules for International Carriage by Air, Done at Montreal, May 28, 1999, ICAO Doc. 9740, reprinted S. Treaty Doc. No. 106-45,
. The Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), note following 49 U.S.C. § 40105 ("Warsaw Convention”) was the predecessor treaty to the Montreal Convention. As the Serengeti Defendants noted, the jurisdictional provisions of the Warsaw Convention, Article 28, and Montreal Convention, Article 33, are similar, except that the Montreal Convention adds a fifth jurisdiction in Article 33(2). The courts have held that the "case law interpreting provisions of the Warsaw Convention applies to cases interpreting 'substantively similar' provisions of the Montreal Convention.” Goodwin v. British Airways PLC, No. 09-10463-MBB,
. Weinberg and Ward mentioned that this is a diversity action in its response to the Serengeti Defendants' motion to dismiss. Pis.' Resp. Mot. Defs. Tourism Pub. Relations Servs. Ltd. Trading Serengeti Balloon Safaris & Serengeti Balloon Safari Ltd. Dismiss Lack Pers. Jurisdiction (''Pls.' Mem.”) 14-15 n. 6, ECF No. 29 (arguing that "from the face of the Complaint, it is certain that diversity jurisdiction exists and that the amount in controversy far exceeds the required amount of $75,000”).
. Weinberg and Ward do not argue that the Serengeti Defendants have sufficient direct contacts with Massachusetts to warrant this Court's exercise of general jurisdiction over them.
. Weinberg and Ward erroneously cite Massachusetts General Laws, chapter 151 A, section 2 to determine the independent contractor status of Kibo. See Pis.’ Mem. 4. This statute, while almost identical to Massachusetts General Laws, chapter 149, section 148B, is used by the Division of Unemployment Assistance. See Mass. Gen. Laws ch. 151A, § 2; College News Serv. v. Department of Indus. Accidents, No. 04-4559-A,
. The definition sections of Chapters 149 and 151 do not define the word "individual.” See Mass. Gen. Laws ch. 149, § 1; Mass. Gen. Laws. ch. 151A, § 1. In a 2008 Advisory Opinion, however, the Massachusetts Attorney General used a hypothetical to explain the application of the law:
For example, if painting company X cannot finish a painting job and hires painting company Y as a subcontractor to finish the painting job, provided that all of the individuals performing the painting are employees of company Y, then the Law does not apply. However, if painting company X hires individuals as independent contractors to finish the painting job, then this would be a violation of prong two and a misclassification under tire Law.
Attorney General's Fair Labor Division on Mass. Gen. Laws ch. 149, § 148B, Op. Att'y Gen. Mass. 5 (2008) (emphasis added) (noting "[tjhe Law is focused on the misclassification of individuals”).
. But see Arthur R. Miller, Inaugural University Professorship Lecture: Are They Closing the Courthouse Doors? (March 19, 2012) (www.law.nyu.edu/news/ECM_PRO_072088), excoriating the plurality decision:
The McIntyre plurality demanded that the defendant not only have contacts with the forum, but have targeted the forum, and intended to submit to jurisdiction in that forum. That constrained view, if it ultimately prevails, means that a corporate defendant — perhaps domestic as well as foreign — can structure its distribution system and have its products or services initially reach only one state while avoiding the jurisdiction in almost any other state to which they are then shipped by the distributor. Thus, in many circumstances injured customers and employees may not be able to sue where they purchase or receive defective products or services, or live, or were injured; rather, plaintiffs may now have to litigate in distant fora — or abandon their claims altogether.
Id. at 12-13.
. See also Meyersiek,
. Massachusetts General Laws, chapter 223A, section 3 states in its relevant part:
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's
(a) transacting any business in this commonwealth;
(b) contracting to supply services or things in this commonwealth;
(c) causing tortious injury by an act or omission in this commonwealth;
(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth^]