The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
SEAPLANE ENTERPRISES LLC and )
NIELSON BROWN, )
)
Plaintiffs, )
) Civil Action No.
v. ) 23-10707-FDS
)
CHEN TSUI TUE and DIANA QIAN, )
)
Defendants. )
_______________________________________)
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS
SAYLOR, C.J.
This is a dispute arising out of a motor vehicle collision. Plaintiffs Neilson Brown and
Seaplane Enterprises LLC have brought suit against Chen Tsui Tue, Diana Qian, Avis Car Rental
LLC, and Mercury Insurance Services LLC, seeking reimbursement for property damage.
Jurisdiction is based on diversity of citizenship.
Defendant Qian has moved to dismiss the complaint against her for failure to state a
claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). For the following
reasons, the motion will be granted.
I. Background
A. Factual Background
The facts are set forth as alleged in the first amended complaint (“FAC”).
According to the amended complaint, on May 22, 2022, Neilson Brown parked his 2017
Mercedes van, with an attached trailer and boat, on the side of the road on Route 6 in
Provincetown, Massachusetts. (FAC ¶¶ 8-10). Brown was parked legally and had his hazard
lights flashing. (Id. ¶ 10).
Earlier that same day, Chen Tsui Tue and Diana Qian rented a 2021 Honda Accord from
Avis Car Rental LLC and drove the vehicle to Provincetown. (Id. ¶¶ 11, 13). Chen was the
driver and Qian was the insurance policy holder. (Id. ¶¶ 11-12). While driving the vehicle, Chen
collided with the parked vehicles, “causing significant damage.” (Id. ¶13-14). According to the
police report, Chen “told the officer who arrived on scene that he was traveling approximately 55
miles per hour at the time” of the collision. (Id. ¶14).
The complaint also alleges that Brown used the boat involved in the collision “for
marketing purposes for his business Seaplane located in Provincetown.” (Id. ¶ 16). In fact,
“Seaplane’s online sales, and all local marketing, depend heavily on photos captured on [that]
[b]oat in Provincetown.” (Id. ¶ 17). As a result, the collision “not only caused significant
property damage, but it took the [b]oat out of commission causing significant damage to online
sales of Seaplane.” (Id. ¶ 20). The complaint contends that Brown and Seaplane have incurred
at least $108,044 in damages. (Id. ¶¶ 21-22).
B. Procedural Background
On January 16, 2023, plaintiffs Seaplane Enterprises LLC and Neilson Brown filed this
action in the Barnstable County Superior Court against defendants Chen Tsui Tue, Diana Qian,
Avis Car Rental LLC, and Mercury Services LLC. On April 3, 2023, Chen and Qian removed
the action to this court pursuant to 28 U.S.C. § 1441(a) and § 1446.
On April 17, 2023, plaintiffs filed an amended complaint against all four defendants. The
amended complaint asserts five counts: (1) a negligence claim against Chen Tue Tiu, (2) a
negligent entrustment claim against Diana Qian, (3) a request for declaratory judgment against
Mercury Instance Services LLC, (4) a request for a determination of liability against Avis Car
Rental LLC, and (5) a request to impose a finding of joint and several liability against all
defendants.
Qian has moved to dismiss for failure to state a claim upon which relief can be granted
under Fed. R. Civ. P. 12(b)(6).
II. Standard of Review
On a motion to dismiss, the court “must assume the truth of all well-plead[ed] facts and
give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level, . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the complaint fails to set
forth “factual allegations, either direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301,
305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,
6 (1st Cir. 2005)).
III. The Claim for Negligent Entrustment (Count 2)
Count 2 alleges that “[p]laintiffs have suffered personal property and business damages”
as a “direct result of the negligent entrustment” by defendant Qian. (FAC ¶ 33). Qian contends
that the complaint fails to state a claim for negligent entrustment because it does “nothing more”
than “merely recit[e] . . . the elements of the cause of action.” (Docket No. 12, 5). Plaintiffs
have not opposed Qian’s motion.
Under Massachusetts law, in order to prevail on a claim of negligent entrustment, “the
plaintiff must establish that (1) the defendant entrusted a vehicle to an incompetent or unfit
person whose incompetence or unfitness was the cause of the plaintiff's injuries; (2) the persons
who owned and controlled the vehicle gave specific or general permission to the operator to
drive the automobile; and (3) the defendant had actual knowledge of the incompetence or
unfitness of the operator to drive the vehicle.” Picard v. Thomas, 60 Mass. App. Ct. 362, 369
(2004); see also Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 92 n.7 (1st Cir. 2007).
Here, the complaint simply asserts in conclusory fashion that “[a]s Mr. Chen’s wife, Ms.
Quin had direct and actual knowledge of his incompetence and inability to drive the Honda
Accord.” (FAC ¶ 31). The complaint offers no plausible factual allegations to suggest that Chen
was “incompetent or unfit” to drive or that Quin knew of Chen’s alleged incompetence. The
complaint does not allege, for example, that “Chen was not properly licensed to drive, that he
had a poor driving record or any prior accidents, was habitually intoxicated or under the
influence of any intoxicating substances, or that he was afflicted with any medical condition
making him unfit to drive.” (Docket No. 12, 5). Accordingly, the motion to dismiss Count 2
will be granted.
A. The Claim for Joint and Several Liability (Count 5)
Count 5 alleges that defendant Qian is “jointly and severally liable to [p]laintiffs” with
the other named defendants as a “joint tortfeasor.” (FAC ¶ 45). Because the complaint fails to
state a claim against Qian for negligent entrustment and does not allege any other claims against
her, she is not a “tortfeasor” subject to joint and several liability in this action. As a result, the
motion to dismiss Count 5 as to defendant Qian will be granted.
IV. Conclusion
For the foregoing reasons, the motion to dismiss of defendant Diana Qian is GRANTED.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: February 22, 2024 Chief Judge, United States District Court