Colon-Perez v. Metan Marine

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

RENE COLON PEREZ, his wife

PRISCILLA BACO BAGUE and the

conjugal partnership between them

Plaintiffs/Counter-Defendants CIVIL 17-2170CCC

vs

METAN MARINE, INC.; MICHAEL J.

BORRELLI

Defendants/Counter-Claimants

OPINION AND ORDER

Before the Court are defendants Metan Marine Restoration, Inc. (“Metan

Marine”) and Michael J. Borrelli’s (together the “defendants”) Motion to Dismiss

the Amended Complaint for Lack of Personal Jurisdiction or for Venue Transfer

(d.e. 7) filed on November 7, 2017 and plaintiffs’ René Colón Pérez (“Colón”),

his wife Priscila Bacó Bagué (“Bacó”) and the conjugal partnership between

them’s (together the “plaintiffs”) Opposition to Motion to Dismiss (d.e. 11). For

the reasons set forth below, defendants’ Motion to Dismiss or for Venue

Transfer is DENIED, in part, and GRANTED, in part.

FACTUAL AND PROCEDURAL BACKGROUND

This action involves the restoration of a classic Bertram boat (the

“vessel”). Plaintiffs hired Metan Marine to restore the vessel largely because

of their familial relationship with Borrelli, director of Metan Marine and domestic

partner of the mother of Colón and Bacó’s son’s fiancée. The parties met in

February 2016, prompting Borrelli to visit Puerto Rico to inspect the vessel later

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that month. During this visit, Borrelli and Colón negotiated the Statement of

Work (the “contract”) and agreed to Metan Marine restoring the vessel. During

the following months, Borrelli and Colón coordinated the transportation of the

vessel to Jacksonville, Florida, where Borrelli picked it up and took it to Metan

Marine’s facilities in Massachusetts. Metan Marine determined that the

vessel’s hull needed to be replaced, which required additional work and

expenses. Colón consented to this change, but Borrelli allegedly increased the

price of other components in the process without consulting the vessel owners

and the project also took longer than Borrelli represented.

On September 1, 2017, Colón and Bacó sued Metan Marine and Borrelli.

Their complaint was amended on October 30, 2017, after Colón wired Borrelli

a portion of the project’s cost and Borrelli allegedly failed to provide sufficient

evidence of the progress achieved to validate the delay. They brought claims

sounding in breach of contract under Puerto Rico law against defendants for

unilaterally changing the price of the vessel’s restoration, destroying it in the

process, and negligently or willfully misrepresenting Metan Marine’s ability to

restore it. d.e. 6, ¶¶ 31-51). They also brought a breach of contract claim

under admiralty law. (d.e. 6, ¶¶ 52-55).

On November 11, 2017, Borrelli and Metan Marine moved to dismiss for

lack of personal jurisdiction and due to insufficient contacts, in the alternative,

to change venue to the District of Massachusetts. They also claim that

Massachusetts is convenient for the parties, witnesses, and in the interest of

justice because that is where the Metan Marine employees who worked on

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Colón’s vessel are, the vessel itself is still in Metan Marine’s facilities in

Massachusetts, and the consultants who recommended replacing its hull are

in Rhode Island and New Jersey.

Plaintiffs’ opposition of December 1, 2017 argues that this Court has

personal jurisdiction over defendants. Plaintiffs contend that Borrelli’s trip to

Puerto Rico to inspect the vessel and his emails to Colón show he purposefully

availed himself of the laws of Puerto Rico by conducting business here and are

sufficiently related to their underlying claims. As to venue change, they

contend that litigating in Massachusetts is not convenient enough to warrant

altering their choice of forum.

DISCUSSION

I. Personal Jurisdiction

A. Legal Standard

“To hear a case, a court must have personal jurisdiction over the parties,

‘that is, the power to require the parties to obey its decrees.’” Astro-Med,

Inc. v. Nihon Kohden America, Inc. 591 F.3d 1, 8 (1st Cir. 2009) (quoting

United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir. 1999)).

Personal jurisdiction comes in “two varieties, general and specific. General

personal jurisdiction … is broad in its ambit: it is the power of a forum-based

court … over a defendant ‘which may be asserted in connection with suits not

directly founded on [that defendant's] forum-based conduct . . .’).” Pritzker v.

Yari, 42 F.3d 53 (1st Cir. 1994) (citing Donatelli v. National Hockey League,

893 F.2d 459, 462-63 (1st Cir. 1990)). “General jurisdiction exists when the

CIVIL 17-2170CCC 4

litigation is not directly founded on the defendant's forum-based contacts, but

the defendant has nevertheless engaged in continuous and systematic activity,

unrelated to the suit, in the forum state.” United Elec. Workers v. 163 Pleasant

St. Corp., 960 F.2d 1080, 1088 (1st Cir. 1992).

“Specific personal jurisdiction, by contrast, is narrower in scope and may

only be relied upon ‘where the cause of action arises directly out of, or relates

to, the defendant's forum-based contacts.’” Pritzker v. Yari, 42 F.3d at 60

(quoting United Elec. Workers, 960 F.2d at 1088-89). When determining

whether a federal court may assert specific jurisdiction over foreign parties,

“[t]he Supreme Court has held that the Due Process Clause of the Fourteenth

Amendment limits the power of a court to render a valid personal judgment

against a nonresident defendant.” Eon Corp. v. AT&T Mobility, LLC,

879 F. Supp. 2d 194, 201 (D.P.R. 2012) (referring to Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 131 S. Ct. 2846, 2853, 180 L. Ed. 2d

796 (2011); World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291,

100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)). Consequently, “[t]he proper exercise

of specific [personal] jurisdiction hinges on satisfaction of two requirements:

[1], that the forum in which the federal district court sits has a long-arm statute

that purports to grant jurisdiction over [] defendant; and [2], that the exercise

of jurisdiction pursuant to that statute comports with the strictures of the

Constitution.” Pritzker, 42 F.3d at 60 (referring to Ticketmaster-New York, Inc.

v. Alioto, 26 F.3d 201, 204 (1st Cir. 1994); United Elec., Radio and Mach.

CIVIL 17-2170CCC 5

Workers of America v. 163 Pleasant Street Corp., 960 F.2d 1080, 1086

(1st Cir. 1992); Hahn v. Vermont Law Sch., 698 F.2d 48, 51 (1st Cir. 1983).

This diversity suit also involves a federal question given plaintiffs’

assertion of admiralty claims (d.e. 6, ¶¶ 52-55). For admiralty claims, “[t]he

limits on the court's personal jurisdiction are based in the Due Process clause

of the Fifth Amendment, not in the Fourteenth Amendment as is true for

diversity cases.” Zeus Projects Ltd. v. Perez y Cia. de Puerto Rico, Inc.

187 F.R.D. 23, 28-30 (D.P.R. 1999) (referring to 163 Pleasant Street, 960 F.2d

at 1085; Lorelei Corp. v. County of Guadalupe, 940 F.2d 717, 719

(1st Cir. 1991); Toledo v. Ayerst–Wyeth Pharmaceutical, Inc., 852 F. Supp. 91,

102 (D.P.R. 1993); Colon v. Gulf Trading Co., 609 F. Supp. 1469,

1472 (D.P.R. 1985)). Nonetheless, “ultimately there is no practical difference

in the way in which the Court proceeds towards its determination” of whether

there is specific jurisdiction because “the defendant[s] must be served pursuant

to a federal statute or Civil Rule.” Zeus Projects Ltd, 187 F.R.D. at 28-30;

see also Bohnenberger v. MCBC Hydra Boats, LLC, 2017 WL 397656,

*4 (D. Mass. 2017). Given there is no federal statute providing for service on

defendants, courts “return[] to the familiar realm of minimum contacts, the

long-arm statute, and the Fourteenth Amendment.” Zeus Projects Ltd,

187 F.R.D. 23 at 29.

The First Circuit has repeatedly held that Puerto Rico’s long-arm statute

is “coextensive with the reach of the Due Process Clause.” Carreras v. PMG

Collins, LLC., 660 F.3d 549, 552 (1st Cir. 2011); see also Pritker, 42 F.3d

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at 60. Whether asserting specific jurisdiction over Borrelli and Metan Marine

comports with Due Process thus depends on the nature of their contacts with

Puerto Rico and whether these were sufficient to give them “fair warning” that

they could be sued there. See Burger King Corp. v. Rudzecwicz,

471 U.S. 462, 472, 105 S. Ct. 2174, 2182, 85 L. Ed. 2d 528 (1985).

To make this determination, courts conduct a tripartite analysis. See

Massachusetts Sch. of Law at Andover, Inc. v. American Bar Ass'n,

142 F.3d 26, 35 (1st Cir. 1998); Ticketmaster, 26 F.3d at 206:

First, an inquiring court must ask whether the claim that undergirds

the litigation directly relates to or arises out of the defendant's

contacts with the forum. Second, the court must ask whether

those contacts constitute purposeful availment of the benefits and

protections afforded by the forum's laws. Third, if the proponent's

case clears the first two hurdles, the court then must analyze the

overall reasonableness of an exercise of jurisdiction in light of a

variety of pertinent factors that touch upon the fundamental

fairness of an exercise of jurisdiction. An affirmative finding on

each of the three elements of the test is required to support a

finding of specific jurisdiction.

Afunday Charters, Inc. v. Spencer Yachts, Inc., 261 F. Supp. 3d 257

(D.P.R. 2017) (citing Phillips Exeter Acad. v. Howard Phillips Fund,

196 F.3d 284, 288 (1st Cir. 1999)).

Since defendants moved to dismiss for lack of personal jurisdiction under

Rule 12(b)(2), “the plaintiff[s] ultimately bear[] the burden of persuading the

court that jurisdiction exists.” Astro-Med, Inc. v. Nihon Kohden America, Inc.,

591 F.3d 1, 8 (1st Cir. 2009). An evidentiary hearing was not held, so the

“plaintiff need only make a prima facie showing that defendants are subject to

personal jurisdiction.” Eon Corp., 879 F. Supp. 2d at 201. The Court

CIVIL 17-2170CCC 7

“accept[s] the plaintiff's (properly documented) evidentiary proffers as true for

the purpose of determining the adequacy of the prima facie jurisdictional

showing.” Astro-Med, Inc., 591 F.3d at 8 (quoting Adelson v. Hananel,

510 F.3d 43, 49 (1st Cir. 2007)). It “accept[s] those facts as true, irrespective

of whether the defendant disputes them, and in so doing, construe[s] them in

the light most congenial to the plaintiff's jurisdictional claim… The facts put

forward by the defendant ‘become part of the mix only to the extent that they

are uncontradicted.’” Id. “Once it has been decided that a defendant

purposefully established minimum contacts within the forum State, these

contacts may be considered in light of other factors to determine whether the

assertion of personal jurisdiction would comport with ‘fair play and substantial

justice.’” Burger King Corp., 471 U.S. at 477, 105 S. Ct. at 2184, 85 L. Ed. 2d

528 (1985) (quoting “International Shoe Co. v. Washington, 326 U.S. at 320,

66 S. Ct. at 160.).

The Court now turns to the constitutional analysis.

B. General Jurisdiction

Colón and Bacó did not argue that Borrelli or Metan Marine have the

ongoing and continuous contacts required for general jurisdiction. Nor could

they – Metan Marine is a Massachusetts corporation with its principal place of

business in Massachusetts. (d.e. 7, p. 11). The company is not authorized to

do business in Puerto Rico, has never had offices in Puerto Rico, does not own

or use property in Puerto Rico, has never had any directors or employees

domiciled in Puerto Rico, does not have bank accounts in Puerto Rico, and has

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never contracted with Puerto Rico residents until Colón and Bacó. Id. Borrelli

in turn is a Massachusetts resident who does not own or use property in Puerto

Rico and has no bank accounts in Puerto Rico. Id. The Court does not have

general jurisdiction over Borrelli or Metan Marine.

C. Specific Jurisdiction

We begin our analysis by evaluating Borrelli and Metan Marine’s

“minimum contacts related to the plaintiff’s claims.” See International Shoe

Co., 326 U.S. at 316, 66 S. Ct. at 160, 90 L. Ed. 95. Contrary to defendants’

position, we note from the outset that Borrelli’s contacts with Puerto Rico can

be imputed to Metan Marine. See Jet Wine & Spirits, Inc. v. Bacardi,

298 F.3d 1, 7-8 (1st Cir. 2002) (stating: “[plaintiff] may rely in whole or in part

on actions imputed to [corporate defendant] through its agents—as indeed it

must, because any action legally attributed to a corporation is that of one agent

or another.”); see also Int’l Shoe Corp, 326 U.S. at 316-317 (stating: “since the

corporate personality is a legal fiction…, it is clear that … ‘presence’ without,

as well as within, the state . . . can be manifested only by activities carried on

its behalf by those who are authorized to act for it”).1

Borrelli’s contacts also serve as a basis for jurisdiction over him

individually given that he was personally involved in the alleged breaches of

contract and tortious conduct. See Alvarado-Morales v. Digital Equipment

1The case defendants rely on, Platten v. HF Bermuda Exempted Ltd.,

437 F.3d 118 (1st Cir. 2006), involves whether a subsidiary’s employee’s acts

may be imputed on the corporate principal for jurisdictional purposes, not the

acts of the corporation’s officer an agent as in the instant case.

CIVIL 17-2170CCC 9

Corp., 843 F.2d 613, 617 (1st Cir. 1988) (finding jurisdiction over the individual

officers or directors of a corporation cannot be imputed from jurisdiction over

the corporation, absent independent, personal involvement).

1. Relatedness

Relatedness “asks whether ‘the claim[s] underlying the litigation . . .

directly arise out of, or relate to, the defendant's forum-state activities.’”

Astro-Med, Inc., 591 F.3d 1, 9 (quoting N. Laminate Sales, Inc. v. Davis,

403 F.3d 14, 25 (1st Cir. 2005)). “There must be more than just an attenuated

connection between the contacts and the claim; the defendant's in-state

conduct must form an ‘important, or [at least] material, element of proof’ in the

plaintiff's case.” Phillips v. Prairie Eye Center, 530 F.3d 22, 27 (1st Cir. 2008)

(quoting Harlow, 432 F.3d at 61). In this Circuit, “[t]he relatedness test is a

‘flexible, relaxed standard.’” Adelson, 652 F.3d at 81 (1st Cir. 2011) (quoting

N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 25 (1st Cir. 2005)).

As to Colón and Bacó’s breach of contract claims, the Court looks at

whether “the defendant's activity in the forum state was instrumental either in

the formation of the contract or its breach.” Adams v. Adams, 601 F.3d 1, 6

(1st Cir. 2010). Since their tort claim alleges willful or negligent deceit related

to the restoration contract, “the two claims are sufficiently connected that the

difference is of no concern.” See Phillips, 530 F.3d at 27; see also Jet Wine

& Spirits, Inc., 298 F.3d at 10 (noting that when an intentional tort involves the

formation of a contract “the two inquiries begin to resemble each other.”).

CIVIL 17-2170CCC 10

Borrelli made several contacts with Puerto Rico in relation to the vessel’s

restoration that are material to plaintiffs’ proof. He visited Puerto Rico to

inspect the vessel on February 26, 2019. (d.e. 7, ¶ 17). Plaintiffs provided

seven email messages showing Borrelli reached out to them in Puerto Rico

during the subsequent four months to finalize the terms of their agreement.

(d.e. 11-2, ¶ 5). Borrelli contacted Colón from his email account at Metan

Marine to provide him pictures and videos of Metan Marine’s past

engagements, a proposal for the vessel’s restoration, and a quote to

coordinate its transportation from Puerto Rico to Jacksonville, FL. All of

Borrelli’s contacts were done on behalf of Metan Marine and for the purpose

of negotiating and executing the contract. These contacts were integral to the

formation of the contract and also formed part of his alleged deceit. Where a

defendant’s contacts with Puerto Rico were integral to the formation of a

contract, they are related to plaintiff’s claims. See Rodriguez v. Dixie Southern

Indus., Inc., 113 F. Supp. 2d 242, 251-52 (D.P.R. 2000).

The Court finds that Borrelli and Metan Marine’s contacts with Puerto

Rico satisfy the relatedness test.

2. Purposeful Availment

This factor focuses on whether “defendant's in-state contacts [] represent

a purposeful availment of the privilege of conducting activities in the forum

state, thereby invoking the benefits and protections of that state's laws and

making the defendant's involuntary presence before the state's courts

foreseeable.” Astro-Med, Inc., 591 F.3d at 10 (quoting N. Laminate Sales,

CIVIL 17-2170CCC 11

403 F.3d at 25). “The cornerstones upon which the concept of purposeful

availment rest[s] are voluntariness and foreseeability.” Daynard, 290 F.3d

at 61 (quoting Sawtelle v. Farrell, 70 F.3d 1381, 1392 (1st Cir. 1995)).

“Voluntariness requires that the defendant's contacts with the forum state

‘proximately result from actions by the defendant himself’…The contacts must

be deliberate, and not based on the unilateral actions of another party…

Foreseeability requires that the contacts with the forum state be of a nature

that the defendant could reasonably anticipate being hailed into court there.”

Adams, 601 F.3d (quoting Phillips, 530 F.3d at 28).

Colón submitted a sworn statement alleging that Borrelli made “constant

unsolicited approaches” to restore his vessel and that “on his own initiative and

without [their] request or approval, decided to … fly to Puerto Rico [to] inspect

the vessel.” (d.e. 11-1 ¶¶ 6-7). Borrelli refutes this assertion, averring that it

was Colón and his son who approached him to restore the vessel. (d.e. 7-1,

¶ 17). At this juncture, the Court cannot definitively tell whether defendants’

contacts with Puerto Rico resulted from plaintiffs’ unilateral activity. Given that

plaintiff’s assertions are supported, the Court must take them as true, even

when Borrelli refutes them. Astro-Med, Inc., 591 F.3d at 8. Even if plaintiffs

potentially started discussions of the vessel’s restoration with Borrelli, Borrelli’s

continued correspondence to finalize a proposal, complete the transaction,

request payments, and facilitate the vessel’s transportation from San Juan to

Florida (d.e. 11-2, ¶¶ 3, 5) “do[] not amount to the kind of unilateral action that

makes the forum-state contacts involuntary.” See Nowak v. Tak How

CIVIL 17-2170CCC 12

Investments, Ltd., 94 F.3d 708, 717 (1st Cir. 1996). Thus, the Court finds that

defendants’ contacts with Puerto Rico were voluntary for purposes of personal

jurisdiction.

Borrelli’s voluntary visit to Puerto Rico and his subsequent emails to

finalize the proposal does not end the purposeful availment inquiry. The Court

must determine whether these contacts with Puerto Rico are sufficient for the

defendants to have foreseen the possibility of being sued in Puerto Rico.2

This district has found foreseeability of being sued in Puerto Rico for

breach of contract against an individual defendant where the CEO’s contacts

with Puerto Rico were instrumental in the formation of the contract. See Zeus

Projects Ltd., 187 F.R.D. at 32. Borrelli’s trip to inspect the vessel and

negotiation of the contract were sufficient contacts for him to reasonably have

anticipated being sued individually in Puerto Rico.

In terms of Metan Marine, this district has found foreseeability to be sued

in Puerto Rico against a corporation when the underlying contract entailed

ongoing contacts with Puerto Rico throughout the agreement. See, e.g. New

Comm Wireless v. SprintCom, Inc., 213 F. Supp. 2d 61 (D.P.R. 2002) (finding

defendants could foresee being sued in Puerto Rico where Roaming Service

2 Plaintiff’s reference to Metan Marine’s profile on Better Business Bureau

is irrelevant to the Court’s analysis (d.e. 11, p. 9). Colón and Bacó do not

allege relying on the website in hiring Metan Marine for their vessel’s

restoration. This purported contact with Puerto Rico is not related to any of

their claims, failing the first prong of the personal jurisdiction analysis. See,

e.g. Carreras v. PMG Collins, LLC, 660 F.3d 549, 554 (1st Cir. 2011) (finding

contacts that have no bearing on formation or breach of an agreement

immaterial to a claim of specific jurisdiction).

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Agreement was a long-term contract required in order for defendants to provide

services within Puerto Rico). Similarly, when the nature of the contract entails

a substantial connection to Puerto Rico, defendant can foresee being sued

there. See Pritzker, 42 F.3d at 62. The contract at issue does not share either

of these characteristics. The contract was to be performed entirely in

Massachusetts and the nature of the agreement did not require further

contacts with Puerto Rico apart from communications with Colón.

These communications into Puerto Rico are by themselves insufficient

for Metan Marine to have foreseen being sued there. See Phillips v. Prairie

Eye Ctr., 530 F.3d 22, 29 (1st Cir. 2008) (stating:“[i]t stretches too far to say

that [corporate defendant], by mailing a contract with full terms to

Massachusetts for signature and following up with three e-mails concerning the

logistics of signing the contract, should have known that it was rendering itself

liable to suit in Massachusetts.”). Borrelli’s promotion of Metan Marine’s

services by emailing Colón past restoration projects alone are also insufficient

for Metan Marine to have foreseen litigation in Puerto Rico. See Carreras v.

PMG Collins, LLC, 660 F.3d 549, 555-56 (1st Cir. 2011) (finding that marketing

communications targeting forum that are not part of a broad marketing effort

does not meet the ‘purposeful availment’ element of specific jurisdiction).

However, courts “look to evidence of telephone or electronic

communication when a defendant has not been physically present in the forum

state because it serves as evidence that the defendant ‘reached into the

forum.’” Adams, 601 F.3d at 7 (quoting Swiss Am. Bank, 274 F.3d at 622)

CIVIL 17-2170CCC 14

(emphasis added). In this case, the Court “must look beyond [] formalistic

measures and evaluate the nature of the contacts and, relatedly, the degree

to which they represent a purposeful availment of the forum's protections and

benefits.” Pritzker, 42 F.3d at 62. Additionally, foreseeability has been met for

a breach of contract claim when defendant derives economic benefits from the

forum. See Pritzker, 42 F.3d at 62-63.

The Court finds that Borrelli’s visit to Puerto Rico to inspect the vessel,

integral to the formation of the contract, in addition to his subsequent electronic

communications to Puerto Rico on behalf of Metan Marine, are significant

contacts for the company to have foreseen being sued there. With the

formation of the restoration contract taking place in Puerto Rico and Colón’s

payments coming from Puerto Rico, Metan Marine derived a monetary benefit

from there. The need to return the vessel to Puerto Rico, although unclear

which party ultimately beard responsibility for it, also suggests Metan Marine

should have anticipated some contact with Puerto Rico until that occurrence.

Addressing plaintiffs’ claim of negligent or willful deceit, “[t]he threshold

showing for purposeful availment is lower in the tort context for the simple

reason that a tortfeasor does not often purposely avail himself of the

protections of the laws of a forum state… Even so, a tort plaintiff must make

some showing as to voluntariness and foreseeability to ensure ‘that personal

jurisdiction is not premised solely upon a defendant's random, isolated, or

fortuitous contacts with the forum state.’ Rodriguez v. Samsung Electronics

Co., Ltd., 827 F. Supp. 2d 47, 52 (quoting Sawtelle, 70 F.3d at 1391). Plaintiffs

CIVIL 17-2170CCC 15

have made such a showing. The aforementioned analysis of the voluntary

nature of Borrelli and Metan Marine’s contacts applies to plaintiffs’ tort claim.

In terms of determining the foreseeability of plaintiffs’ tort claim, Colón and

Bacó allege that Borrelli’s statements “induced them to believe Defendants

would restore their Vessel to mint condition” and that they “feel they were

fooled and taken advantage of by someone they trusted.” (d.e. 6, ¶¶ 43, 46).

Plaintiffs assert in essence that Borrelli’s alleged misrepresentations caused

their pecuniary harm. Borrelli and Metan Marine thus could foresee that the

effects of their alleged misrepresentations would be felt by plaintiffs in Puerto

Rico and that they consequently could be sued there. See Saturn Mgmt.

LLC v. GEM-Atreus Advisors, LLC, 754 F. Supp. 2d 272, 280 (D. Mass. 2010).

The Court finds that plaintiffs have made a prima facie showing for the

‘purposeful availment’ factor for their breach of contract and tort claims.

3. Reasonableness

“Once a prima facie showing is made with respect to the existence of

minimum contacts, it becomes the defendant's burden to demonstrate that the

assertion of jurisdiction would be unreasonable.” Rivera v. Bank One,

145 F.R.D. 614, 625 (D.P.R. 1993). To determine whether exercising

jurisdiction over a non-resident defendant is reasonable courts consider a set

of ‘gesalt factors’. See Astro-Med, 591 F.3d at 10. These factors include “the

defendant's burden of appearing, the forum state's interest in adjudicating the

dispute, the plaintiff's interest in obtaining convenient and effective relief, the

interstate judicial system's interest in obtaining the most efficient resolution of

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the controversy, and the shared interest of the several States in furthering

fundamental substantive social policies.” Burger King Corp., 471 U.S. at 477.

“The factors serve to assist the court in achieving substantial justice. In a close

case, they can tip the constitutional balance of the court's analysis.” Mohajer

v. Monique Fashions, 945 F. Supp. 23, 28 (D.P.R. 1996) (referring to

Ticketmaster, 26 F.3d at 209).

Plaintiffs have shown that Borrelli and Metan Marine’s burden of

appearing in Puerto Rico would not make jurisdiction over them unreasonable.

As evidenced from his email communications with Colón, Borrelli travels on

business for Metan Marine’s projects. (d.e. 11-2). The First Circuit has held

that “the need to travel to New York and Puerto Rico creates no especially

ponderous burden for business travelers.” Pritzker, 42 F.3d at 64. With daily

flights available between Boston and Puerto Rico typically an hour longer than

flights between New York and Puerto Rico, Borrelli and Metan Marine would

not be unduly burdened by appearing in Puerto Rico. Puerto Rico’s interest in

adjudicating this dispute is sufficient given its interest in providing redress to

its residents when they have been injured. See Rivera, 145 F.R.D. at 625;

see also Sawtelle, F.3d 1381 at 1395. Since plaintiffs reside and work in

Puerto Rico, it is clearly more convenient for them to litigate the case here. See

Rivera, 145 F.R.D. at 625. Neither party provides a significant social policy

that weighs heavily in either direction. Given that the majority of the potential

witnesses are located in or near Massachusetts, the defendants have shown

CIVIL 17-2170CCC 17

that the most efficient resolution of this controversy would be ensured if the

case were litigated there; this factor favors Borrelli and Metan Marine.

After balancing the relative significance of each factor, defendants have

not met their burden of showing that it would violate due process to subject

them to suit in this jurisdiction.

Nonetheless, the court agrees with defendants that it would be more

efficient to resolve the dispute in Massachusetts. Having established sufficient

contacts for purposes of personal jurisdiction, the Court finds that changing the

venue to the District of Massachusetts would be convenient and in the interest

of justice. See Albion v. YMCA Camps Letts, 171 F.3d 1, 2 (1st Cir. 1999)

(finding that transfer of venue under Section 1404(a) is inappropriate where

there is absence of personal jurisdiction).

II. Transfer of Venue

A. Legal Standard

Section 1404(a) allows “a district court to transfer any civil action to any

other district or division where it might have been brought” “for the convenience

of the parties and witnesses” and “in the interest of justice.” 28 U.S.C.

§ 1404(a). “A determination of venue under § 1404(a) lies in the sound

discretion of the district court.” Rivera-Carmona v. American Airlines,

639 F. Supp. 2d 194, 197 (D.P.R. 2009). “In the typical case not involving a

forum-selection clause, a district court considering a § 1404(a) motion . . . must

evaluate both the convenience of the parties and various public-interest

CIVIL 17-2170CCC 18

considerations.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of

Texas, 134 S. Ct. 568, 581, 187 L. Ed. 2d 487 (2013).

Among the private interest factors to consider, the Supreme Court has

listed “the relative ease of access to sources of proof; availability of compulsory

process for attendance of unwilling, and the cost of obtaining attendance of

willing, witnesses . . .; and all other practical problems that make trial of a case

easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1055 (1947) (superseded by

statute on other grounds). Public interest factors to consider include the

administrative difficulties that follow for courts when litigation is piled up in

congested centers instead of being handled at its origin; that jury duty is a

burden that ought not to be imposed upon the people of a community which

has no relation to the litigation; and that there is a local interest in having

localized controversies decided at home. See Id. at 508-09, 67 S. Ct. 839.

These factors are not exhaustive and merely suggest the range of relevant

considerations. Royal Bed & Spring Co. v. Famossul Industria e Comercio de

Moveis Ltda., 906 F.2d 45, 52 (1st Cir. 1990).

“The burden of proof rests with the party seeking transfer as there is a

strong presumption in favor of the plaintiff's choice of forum.” Rivera-Carmona,

639 F. Supp. 2d at 197.

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B. Analysis

“Since ‘transfer [according to § 1404(a)] must be to a jurisdiction where

the action could have been brought in the first place’ the court will, as a

threshold matter, inquire as to whether jurisdiction and venue are proper in the

transferee court.” Marel Corp. v. Encad Inc., 178 F. Supp. 2d 56 (D.P.R. 2001)

(quoting Reyes v. Supervisor of Drug Enforcement Admin.,

834 F.2d 1093, 1095 (1st Cir. 1987). “[Courts] are not required to determine

the best venue, merely a proper venue.” Astro-Med, Inc., 591 F.3d at 12.

Undoubtedly, this case could have been brought in the District of

Massachusetts. The instant action involves diverse parties and alleges

damages of $654,000.00, giving the District of Massachusetts subject matter

jurisdiction over the case. The District of Massachusetts also has personal

general jurisdiction over defendants, as Borrelli resides in Massachusetts and

Metan Marine is a Massachusetts corporation with its principal place of

business there. (d.e. 6, ¶¶ 5-6). Venue in the District of Massachusetts is also

proper under the general venue statute 28 U.S.C. § 1391(b)(1) given that both

defendants reside in Massachusetts.

Having met these threshold issues, the Court addresses the remaining

factors and finds that defendants have met their burden.

1. Convenience of the Parties

Colón and Bacó are correct that usually there is a “strong presumption

in favor of the plaintiff’s choice of forum.” Astro-Med, Inc. v. Nihon Kohden

Am., Inc., 591 F.3d 1, 13 (1st Cir. 2009). Nonetheless, “if the operative events

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did not take place in the plaintiffs' chosen district, then courts generally place

less importance on this factor . . . even where . . . plaintiffs reside[] there.”

Demers, Jr. v. Pilkington N. Am., Inc., No. 10-CV-296-JL, 2010 WL 4683780,

at *6 (D.N.H. Nov. 10, 2010); see also Moore’s § 111.13[1][c][iii]. “[T]he situs

of the operative events in a lawsuit generally bears on the transfer decision []

insofar as it impacts the other factors, such as the location of witnesses and

evidence.” Id.

The defendants provide the following operative events which weigh in

favor of transfer: the performance of the restoration contract took place in

Massachusetts; all renovation work on plaintiff’s vessel took place in

Massachusetts; any purported breach took place in Massachusetts; the vessel

itself is still in Massachusetts; and all of defendants’ employees who worked

on the vessel and who would be material witnesses are in Massachusetts.

2. Convenience of the Witnesses and Private Interest Factors

When considering a motion to transfer venue, “[t]he most important factor

in deciding whether to transfer an action is the convenience of witnesses.”

Demers, Jr., 2010 WL at *6; see also Bowen v. Elanes New Hampshire

Holding, LLC, 166 F. Supp. 3d 104, 108-109 (D. Mass. 2015); Atari v. UPS,

Inc., 211 F. Supp. 2d 360, 362 (D. Mass. 2002). Including the parties, there

are a total of thirteen witnesses. Only two of them, plaintiffs, reside in Puerto

Rico. Plaintiff’s son, who would testify on the initiation of the parties’

negotiation, resides in Massachusetts. From the remainder of the potential

witnesses, plaintiffs will likely call all those who worked on the vessel or were

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involved in recommending to replace its hull, seven in total. As already

indicated, all of defendants’ employees who worked on the vessel’s restoration

and are likely material witnesses, four in total, are all located in Massachusetts.

Importantly, district courts give the convenience for non-party witnesses

even greater weight. See., e.g. Aquatic Amusement Assocs., Ltd. v. Walt

Disney World Co., 734 F. Supp. 54, 57 (N.D.N.Y. 1990); Nieves v. American

Airlines, 700 F. Supp. 769, 772 (S.D.N.Y. 1988); Zinky Elecs., LLC v. Victoria

Amplifier Co., No. CIV.A. 09-CV-26JCH, 2009 WL 2151178, at *4 (D. Conn.

June 24, 2009). Three non-party witnesses, two who consulted on the

restoration project, and the lead designer, reside in Rhode Island and New

Jersey, respectively. It is more convenient for the Rhode Island residents to

commute to the district court in Massachusetts, by train or driving, than

traveling to Puerto Rico, which requires either a connecting flight or commuting

to Massachusetts to fly to San Juan. Should they need to testify, the Rhode

Island residents would be unable to return to their workplace or home after

participating in proceedings if forced to travel to Puerto Rico. And although

flying from New Jersey to Puerto Rico is not so burdensome, it is considerably

cheaper to drive from New Jersey to Massachusetts. When taking these

witnesses in to consideration, this factor weighs strongly in favor of transfer.

Discovery for these non-party witnesses would also be more economical for

both parties if the case were litigated in Massachusetts, which furthers the

factor of trying the case inexpensively.

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The Court need not go further. Taking these factors into account,

transferring the case to Massachusetts serves the interests of justice.

CONCLUSION

For the reasons stated, defendants’ motion (d.e. 7) is DENIED, as to the

request for dismissal, and GRANTED, as to the request to transfer venue to

the District of Massachusetts. The clerk SHALL forthwith transfer venue to that

District and close the action in ours.

SO ORDERED.

At San Juan, Puerto Rico, on April 4, 2018.

S/CARMEN CONSUELO CEREZO

United States District Judge