Lothrop v. North American Air Charter, Inc.

95 F. Supp. 3d 90, 2015 U.S. Dist. LEXIS 38698, 2015 WL 1375748
CourtDistrict Court, D. Massachusetts
DecidedMarch 26, 2015
DocketCivil Action No. 13-13007-DPW
StatusPublished
Cited by19 cases

This text of 95 F. Supp. 3d 90 (Lothrop v. North American Air Charter, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lothrop v. North American Air Charter, Inc., 95 F. Supp. 3d 90, 2015 U.S. Dist. LEXIS 38698, 2015 WL 1375748 (D. Mass. 2015).

Opinion

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

I. BACKGROUND

This action arises from a plane crash on December 5, 2010 in Massachusetts. The flight originated in New York and was returning to New York after a stop in New Hampshire when the engine lost power. The airplane landing gear hit electrical transmission wires, causing the airplane to flip during its forced landing. Two of the passengers, Robert E. Lothrop and William Schley, died as a result of the accident. Another passenger and the pilot survived.

A Procedural Background

Robert S. Lothrop, Administrator of the Lothrop estate, and Kevin Earls, Adminis[94]*94trator of the Schley estate, brought actions against North American Air Charter, Inc. (“North American”), Airborne Maintenance, Inc. (“Airborne”), and Air Hamptons, Inc. (“Air Hamptons”) in both New York and Massachusetts state court. They claimed wrongful death of the decedents and loss of consortium due to negligence and breach of warranty and also brought a claim for product liability against Continental Motors, Inc. (“Continental Motors”).

North American removed the Massachusetts action to -federal court on the basis of federal diversity jurisdiction. However, plaintiff Earls and several defendants were citizens of New York. North American argued that Earls’ claims were fraudulently joined and therefore that Earls’ citizenship should be disregarded for jurisdictional purposes. North American made two arguments regarding fraudulent joinder: that the lawyer who signed the complaint on behalf of Earls was not admitted to practice in Massachusetts and that Earls had not paid the proper filing fees. I held that North American failed to show that Earls was fraudulently joined and I remanded the case to state court for resolution of North American’s state law objections to the inclusion of Earls in this action.

While the case was before me prior to remand, North American took steps to press its claim of lack of personal jurisdiction. North American filed an answer asserting the affirmative defense of lack of personal jurisdiction. North American’s memorandum in opposition to Lothrop’s motion to remand also asserted that Massachusetts courts lack personal jurisdiction over North American. In addition, the parties filed a report of a planning meeting in which North American proposed a discovery plan that included limited jurisdictional discovery before any merits discovery and motions to dismiss for lack of personal jurisdiction.

Once back in state court after remand, North American filed a motion titled “Motion to Strike,” claiming that the Earls case was never properly commenced. During a hearing on the motion to strike in Suffolk County Superior Court, counsel for Earls explained to Judge Locke that the plaintiffs had filed in New York concurrently with the action in Massachusetts because of North American’s contention that Massachusetts courts lack personal jurisdiction over North American. The motion to strike was denied by Judge Locke.

Ultimately, North American and Earls settled and Earls entered a stipulation of dismissal of his claims in state - court. North American then removed this action again to federal court. North American now presses for dismissal on the ground that there is no personal jurisdiction over it in Massachusetts. Lothrop continues to maintain that Massachusetts courts do, in fact, have personal jurisdiction over North American.

Meanwhile, Lothrop also moved to dismiss his claims against Continental Motors, Airborne Maintenance, and Air Hamptons, on the basis that Lothrop and these three settling defendants have settled in good faith and without fraud, collusion, or dishonesty. Lothrop presented problems including questionable liability, potential jurisdictional defenses, and perceived relative culpability, as reasons for the settlements with the three defendants. After reviewing the submissions and without objection from any party, I determined, following a hearing in this matter, that the settlements with the settling defendants were in good faith in accordance with Mass. Gen. Laws ch. 231B, § 4. I thereupon allowed defendants to be dismissed from this action. With the case in [95]*95that posture, I turn now to resolve the motion to dismiss for lack of personal jurisdiction pressed by the remaining defendant, North American.

II. ANALYSIS

A. Waiver

As a threshold matter, Lothrop argues that North American has waived its personal jurisdiction defense through its actions in this litigation.

1. Waiver by Omission

Lothrop first claims that North American has waived its personal jurisdiction defense by failing to include the defense in its motion before the state court. The proceedings before the state court were conducted, of course, under state procedural rules. Rule 12(g) of the Massachusetts Rules of Civil Procedure requires a party that makes a motion to dismiss to include in the motion any defense that may be raised by motion and prohibits a party from’ making a new motion based on an omitted defense or objection.1

Lothrop concedes that two of the grounds asserted in the motion to strike— failure to have the complaint signed by a Massachusetts attorney and impermissible joinder — are arguably not motions to dismiss under Rule 12, but are rather addressed by other rules. Rule 11 permits the striking of a pleading not signed by a Massachusetts lawyer and Rule 21 permits dropping an improperly joined party. He argues, however, that despite the motion to strike nomenclature, seeking to have the action dismissed for failure to pay the filing fee is a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted because there is no other rule of civil procedure that would permit dismissal for failure to pay a fee. In this connection, Lothrop cites Heendeniya v. Swiftwill, Inc., 2011 WL 7718431 at *2 (Mass.Super.2011) for the proposition that a party’s failure to pay the required fee results in dismissal. He argues that North American failed to include the defense of lack of personal jurisdiction in the earlier motion, that therefore North American has waived this defense, and that this motion to dismiss for lack of personal jurisdiction is barred under Rule 12(g).

North American counters that the motion to strike was directed to the argument that Earls had not properly commenced an action in the first instance and that any action by Earls was a nullity, not that the complaint failed to state a claim upon which relief could be granted. Rule 3 of the Massachusetts Rules of Civil Procedures requires a party to mail or file a complaint with the entry fee prescribed by law in order to commence a civil action. North American argues that the fact that the complaint could have been dismissed under Heendeniya for failure to pay a fee does not mean that dismissal is generally an appropriate response to failure to commence an action properly under Rule 3. In Heendeniya, North American observes, the plaintiff filed the action pro se accompanied by an Affidavit of Indigency seeking waiver of the filing fee. His filing of the affidavit meant that the action was properly commenced. Mass. Gen. Laws c.

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Cite This Page — Counsel Stack

Bluebook (online)
95 F. Supp. 3d 90, 2015 U.S. Dist. LEXIS 38698, 2015 WL 1375748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lothrop-v-north-american-air-charter-inc-mad-2015.