Prince Hotel, S.A. v. Blake Marine Group

858 F. Supp. 2d 1287, 2012 WL 870157, 2012 U.S. Dist. LEXIS 33719
CourtDistrict Court, S.D. Alabama
DecidedMarch 13, 2012
DocketCivil Action No. 11-0537-WS-M
StatusPublished
Cited by2 cases

This text of 858 F. Supp. 2d 1287 (Prince Hotel, S.A. v. Blake Marine Group) is published on Counsel Stack Legal Research, covering District Court, S.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prince Hotel, S.A. v. Blake Marine Group, 858 F. Supp. 2d 1287, 2012 WL 870157, 2012 U.S. Dist. LEXIS 33719 (S.D. Ala. 2012).

Opinion

ORDER

WILLIAM H. STEELE, Chief Judge.

This matter comes before the Court on four overlapping Motions to Dismiss (docs. 19, 20, 22, 23) filed by defendants, Eli Zatezalo and Blake Marine Group. The Motions have been briefed and are now ripe for disposition.

[1290]*1290I. Relevant Background.

A. The Complaint.

On September 16, 2011, plaintiff, Prince Hotel, S.A., filed a Complaint (doc. 1) in this District Court against defendants, Blake Marine Group, Inc. and Eli Zatezalo. On its face, the Complaint predicates federal jurisdiction on 28 U.S.C. § 1332, with Prince seeking damages in excess of $75,000 and alleging complete diversity of citizenship between plaintiff and defendants.

The underlying factual allegations are straightforward. Prince alleges that it operates a hotel in Port au Prince, Haiti, and that it contracted to provide accommodations at that facility to Blake Marine employees from February 25, 2010 through May 22, 2010. (Doc. 1, ¶¶ 4, 9, 11.) According to the Complaint, defendant Zatezalo (the President of defendant Blake Marine) provided Prince with a Blake Marine check that he had written in the amount of $62,359.60 drawn on First National Bank of Baldwin County in Fairhope, Alabama, in payment for lodging services on or about April 21, 2010. (Id., ¶ 12.) The Complaint alleges that this check was returned for “not sufficient funds (NSF),” but that defendants failed and refused to make alternate payment arrangements or even to discuss the matter with Prince. (Id., ¶¶ 12-13.) Plaintiffs final bill to defendants included the $62,359.60 returned check, as well as invoices for $7,137.50 and $1,080. (Id., ¶ 13.) Defendants never paid a dime of these obligations, and apparently never made any effort to do so, aside from passing the worthless check signed by Zatezalo on a Blake Marine bank account in Alabama.

Based on these allegations, Prince brings claims against defendants for misrepresentation and fraud based on violation of Alabama § 34-15-19 (obtaining food, lodging or other accommodations by fraud or misrepresentation), and for violation of Alabama Code § 6-5-285 (right of action for holder of worthless check, draft or order to recover “such damages, both punitive and compensatory, including a reasonable attorney fee, as the jury or court trying the case may assess”). The Complaint claims as damages the $62,359.60 amount of the worthless check, plus the sums of $7,137.50 and $1,080.00 for the other invoices (as set forth in Prince’s final bill), as well as unspecified punitive damages, attorney’s fees and costs. (Id. at 12.)

B. The Prior Lawsuit.

Significantly, this case is not the first time that Prince has sued Blake Marine and Zatezalo in this District Court over this hotel bill and worthless check. On August 6, 2010, Prince filed suit against these same defendants based on the same incident. The suit was styled Prince Hotel, SA v. Blake Marine Group, Inc. and Eli Zatezalo, Civil Action 10-0424-WS-M (the “Prior Lawsuit”). In that complaint, however, Prince did not assert that there was complete diversity of citizenship, nor did it otherwise invoke the provisions of 28 U.S.C. § 1332. Instead, the lone jurisdictional allegation in the Prior Lawsuit was that “[tjhis complaint arises under ATCA [Alien Tort Claims Act]. The jurisdiction of this court is founded on federal question jurisdiction.” (Civil No. 10-424, doc. 1, ¶ 2.) This Court sua sponte raised the question of subject-matter jurisdiction and, after briefing, found that § 1331 “does not supply subject matter jurisdiction over this action.” See Prince Hotel, SA v. Blake Marine Group, 2010 WL 5279975, *3 (S.D.Ala. Dec. 16, 2010). On that basis, the Court dismissed the Prior Lawsuit without prejudice for lack of jurisdiction. This Court did not consider or decide whether diversity jurisdiction would have been proper, for the simple reason that Prince never raised it.

[1291]*1291Prince appealed. On appeal, it argued for the first time that this Court should have found diversity jurisdiction over the Prior Lawsuit pursuant to § 1332. The Eleventh Circuit summarily rejected this argument without addressing its merits, as follows: “Prince Hotel states that although it did not request the District Court to exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1332, the facts presented in the complaint clearly indicated the same.... Neither Prince Hotel’s complaint nor its brief to the district court— specifically addressing subject-matter jurisdiction — mentioned § 1332 or diversity jurisdiction. Accordingly, we decline to address the issue.” Prince Hotel, SA v. Blake Marine Group, 433 Fed.Appx. 706, 706 n. 2 (11th Cir.2011). The appeals court affirmed the dismissal of the Prior Lawsuit for lack of subject-matter jurisdiction, finding that the Alien Tort Statute, 28 U.S.C. § 1350, had no application to Prince’s claims and that federal question jurisdiction did not lie. Two and a half months after the Eleventh Circuit affirmed the dismissal without prejudice of the Pri- or Lawsuit, Prince filed the Complaint in this action, this time grounding jurisdiction on the diversity provisions of § 1332.

C. Service of Process.

When the Complaint was filed in this case, the Court promptly issued its standard Service Order (doc. 2). The Service Order provided, inter alia, that “[i]f within forty-five (45) days after the filing of the Complaint, Plaintiff has not effected service ..., Plaintiff shall file with the Court a notice describing the action taken by Plaintiff to effect service and the result thereof.” (Doc. 2, at 1.) That 45-day period passed without Prince filing the required notice.1

Nonetheless, plaintiff was not idle as to service of process. To the contrary, Prince made arrangements with the U.S. Marshals Service to serve the Summons and Complaint on Blake Marine and Zatezalo, at their addresses on file with the Alabama Secretary of State.2 On December 6, 2011, however, the Marshals Service filed a “Process Receipt and Return” (doc. 15) reflecting the following: (i) Blake Marine was no longer at the address given; (ii) the Marshals Service was unable to locate Zatezalo; and (iii) persons interviewed by the Marshals Service in that neighborhood indicated that Blake Marine and Zatezalo “had moved to an unknown location in Louisiana.” (Doc. 15, at 4.) The Marshals Service did not furnish Prince with any further information as to defendants’ whereabouts, and apparently did not learn anything more in its investigation.

The next day after learning that the Marshals Service had been unable to serve process on defendants, Prince’s counsel established contact with and retained a private process server in Baton Rouge, Loui[1292]*1292siana to attempt to serve defendants there. (Doc. 29, Exh. 6.)3

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Bluebook (online)
858 F. Supp. 2d 1287, 2012 WL 870157, 2012 U.S. Dist. LEXIS 33719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prince-hotel-sa-v-blake-marine-group-alsd-2012.