Arnold

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES ARNOLD and

CHERYL ARNOLD,

Plaintiffs,

v. Case No. 8:26-cv-1134-VMC-SPF

FOUNTAINE PAJOT COMPANY,

Defendant.

/

ORDER

This matter is before the Court on consideration of

Defendant Fountaine Pajot S.A.’s Motion to Quash Service of

Process, Set Aside State Court Clerk’s Default, and to Dismiss

Plaintiffs’ Complaint (Doc. # 23), filed on May 14, 2026.

Plaintiffs James Arnold and Cheryl Arnold responded on June

15, 2026 (Doc. # 36), and Fountaine Pajot S.A. replied. (Doc.

# 41). The Motion is granted, and the case is dismissed

without prejudice.

I. Background

The Arnolds initiated this Magnuson-Moss Warranty Act

(“MMWA”) breach of warranty case against “Fountaine Pajot

Company” in state court on June 24, 2025. (Doc. # 1-1). The

case concerns an allegedly defective boat manufactured by

“Fountaine Pajot” and sold by a non-party, Atlantic Cruising

Yachts, to the Arnolds. (Id. at 1-3). The Arnolds purported

to perfect service through “service of process by

publication” in August 2025 on “Fountaine Pajot Company”

(Doc. # 25 at 2), while Fountaine Pajot S.A. insists it has

never been properly served. (Doc. # 23 at 2-7).

When Fountaine Pajot S.A. did not file an answer to the

complaint, the state court entered Clerk’s default against

Fountaine Pajot in September 2025. (Doc. # 25 at Id.).

Subsequently, Fountaine Pajot S.A. appeared in state court

and removed the case to this Court. (Doc. # 1).

Now, Fountaine Pajot S.A. moves to quash service of

process, to set aside the state court’s entry of clerk’s

default, and to dismiss the complaint. (Doc. # 23). Fountaine

Pajot S.A. argues dismissal is appropriate because there was

insufficient service of process, this Court lacks personal

jurisdiction over it regardless, there is a mandatory forum

selection clause requiring litigation in France, and the

complaint fails to state a claim. (Id.).

In support of its service and personal jurisdiction

arguments, Fountaine Pajot S.A. has provided the declaration

of its customer service manager, Alexandre Derche. (Doc. #

23-1). According to Mr. Derche, “Fountaine Pajot S.A. is and

was French société anonyme, organized under the laws of

France, with its principal place of business in Aigrefeuille,

France.” (Id. at 2). “Fountaine Pajot S.A. was the

manufacturer of the vessel referenced in [the Arnolds’]

Complaint.” (Id. at 1). “‘Fountaine Pajot Company’ is not a

real company, is not a fictitious name under which Fountaine

Pajot S.A. conducts business, and is not the correct name of

the entity that built the vessel referenced in the [Arnolds’]

Complaint.” (Id. at 2).

All Fountaine Pajot S.A.’s vessels are manufactured in

France. (Id.). “Fountaine Pajot S.A. did not sell the vessel

at issue in this litigation to the Arnolds. Fountaine Pajot

sold the vessel to Atlantic Cruising Yachts, LLC (‘ACY’) in

France on July 26, 2023. ACY then sold the vessel to the

Arnolds in the United States.” (Id.). “Fountaine Pajot S.A.

does have a distribution/licensing arrangement with ACY, who

then works with many brokers and dealers throughout the United

States to sell boats manufactured by Fountaine Pajot. All of

those dealers also sell boats manufactured by other

companies.” (Id.). “ACY is not an agent of Fountaine Pajot

S.A.” and “the delivery of and payment for the vessels as

well as the transfer of title occurs in France.” (Id. at 3).

“Fountaine Pajot S.A. has never been incorporated,

licensed, or qualified to conduct business in the state of

Florida” and “has never maintained any officers or directors

and has never had an office, branch office, or comparable

facility in the state of Florida, nor anywhere else in the

United States.” (Id.). Fountaine Pajot S.A.: (1) “has never

engaged in substantial and not isolated activities in the

state of Florida, or anywhere else in the United States”;

“does not operate, conduct, engage in or carry on a business

venture in the state of Florida or anywhere else in the United

States”; “does not and did not own, use, lease, mortgage, or

have any other lien or interest in real property in the state

of Florida, has never maintained a mailing address or place

of business in the state of Florida, and otherwise has no

connections with state of Florida”; “does not manufacture,

sell, lease, or solicit orders for vessels in the United

States, or any of its territories, including Florida”; and

“has no assets in the United States.” (Id. at 4). Finally,

“Fountaine Pajot S.A. has never maintained a registered agent

in the state of Florida or any other state, and has never

been subject to service of process in Florida, or any other

state” and “has never authorized any person or entity to

accept service of process on its behalf outside of France.”

(Id.).

The Arnolds have responded to the Motion (Doc. # 36),

and Fountaine Pajot S.A. replied. (Doc. # 41). The Motion is

ripe for review.

II. Discussion

Among numerous other arguments, Fountaine Pajot moves to

dismiss the complaint for insufficient service of process

under Federal Rule of Civil Procedure 12(b)(5). (Doc. # 23 at

2). “[A] motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(5) challenges the method of service.” Oppenheimer v.

Robison, No. 1:20-cv-152-TFM-N, 2020 WL 4018280, at *1 (S.D.

Ala. July 16, 2020). “The plaintiff has the ultimate burden

of proving adequate service.” Raheem v. Dep’t of Revenue CSE,

No. 3:18-cv-743-BJD-PDB, 2019 WL 13546156, at *13 (M.D. Fla.

Aug. 16, 2019), report and recommendation adopted, No. 3:18-

cv-743-BJD-PDB, 2019 WL 13546157 (M.D. Fla. Sept. 27, 2019).

“To do so, he must ‘demonstrate that the procedure employed

satisfied the requirements of the relevant portions of Rule

4 and any other applicable provision of law.’” Id. (citation

omitted).

The Court “may make factual findings necessary to

resolve motions to dismiss for lack of personal jurisdiction,

improper venue, and ineffective service of process.” Bryant

v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). “In assessing

the validity of service of process, ‘the standards of proof

governing motions to dismiss for lack of personal

jurisdiction’ are applicable.” Kammona v. Onteco Corp., 587

F. App’x 575, 578 (11th Cir. 2014) (citation omitted). “When

a defendant raises through affidavits, documents or testimony

a meritorious challenge to personal jurisdiction, the burden

shifts to the plaintiff to prove jurisdiction by affidavits,

testimony or documents.” Sculptchair, Inc. v. Century Arts,

Ltd., 94 F.3d 623, 627 (11th Cir. 1996) (citation omitted).

“Service of process is a jurisdictional requirement: a court

lacks jurisdiction over the person of a defendant when that

defendant has not been served.” Pardazi v. Cullman Med. Ctr.,

896 F.2d 1313, 1317 (11th Cir. 1990).

In its Motion, Fountaine Pajot S.A. argues that it was

never properly served, such that this Court lacks personal

jurisdiction over it. It maintains that the Arnolds did not

perfect service properly under the Hague Convention, to which

both France and the United States are signatories. (Doc. # 23

at 3, 6-7). Although service by mail was “not inherently

improper” under Article 10 of the Hague Convention and Florida

law, there “is no evidence that the clerk of court in Pinellas

County addressed the envelope or sent the process,” as

required by Florida Statute § 48.197. (Id. at 7); see also

Fla. Stat. § 48.197(1)(b)(3)(b) (“Service of process may be

effectuated in a foreign country upon a party, other than a

minor or an incompetent person, as provided in any of the

following: . . . Using any form of mail that the clerk

addresses and sends to the party and which requires a signed

receipt.” (emphasis added)).

Additionally, Fountaine Pajot S.A. argues that service

was not properly perfected under Florida Statute § 48.161,

noting that the Arnolds’ affidavit of compliance “does not

comply with the statute, either substantively or

procedurally.” (Doc. # 23 at 3-6); see also Fla. Stat. §

48.161(3) (“The affidavit of compliance must set forth the

facts that justify such substituted service and must contain

sufficient facts showing: (a) That due diligence was

exercised in attempting to locate and effectuate personal

service on the party; and (b) To the extent applicable, the

party’s nonresidence, or concealment, or that the party is a

business entity for which substituted service is otherwise

authorized by law. The party effectuating service does not

need to allege in its original or amended complaint the facts

required to be set forth in the affidavit of compliance.”).

Fountaine Pajot S.A. notes that the affidavit of compliance

does not satisfy the requirements of § 48.161(3) because it

merely “makes a conclusory allegation that the [Arnolds]

exercised due diligence.” (Doc. # 23 at 4). Likewise, the

Arnolds did not file the affidavit of compliance within the

required 40 days. (Id. at 5); see Fla. Stat. § 48.161(3) (“An

affidavit of compliance of the party effectuating service or

such party’s attorney must be filed within 40 days after the

date of service on the Secretary of State or within such

additional time as the court allows.”).

In response, the Arnolds argue unconvincingly that

Fountaine Pajot Company exists and is a separate entity than

Fountaine Pajot S.A. (Doc. # 36 at 5-6). According to the

Arnolds, the “plain language of the [warranty] clearly states

that [Fountaine Pajot Company] and not [Fountaine Pajot S.A.]

manufactured, warranted, and services the vessel.” (Id. at

6). Based on the assumption that Fountaine Pajot S.A. is not

a party to this case, the Arnolds argue that Fountaine Pajot

S.A. “has no standing to challenge service or default” because

Fountaine Pajot S.A. “has no connection to [Fountaine Pajot

Company], the party named in the” warranty. (Id. at 7). The

Arnolds do not argue that service was ever properly perfected

on Fountaine Pajot S.A.

The Court finds that Fountaine Pajot S.A. is the proper

party to this case because it is the manufacturer and

warrantor of the Arnolds’ vessel. As Mr. Derche explains in

his declaration, “Fountaine Pajot Company” is not a “real

company” and is not Fountaine Pajot S.A.’s “fictitious name,”

let alone the entity that manufactured the Arnolds’ vessel at

issue in this case. (Doc. # 23-1 at 1-2). While the English

translation of the warranty refers to “Fountaine Pajot

Company” (Doc. # 23-2), this does not contradict Mr. Derche’s

declaration. It appears the use of “Fountaine Pajot Company”

in the translated warranty is a descriptor of Fountaine Pajot

S.A. for purposes of identification, rather than an official

corporate designation. Furthermore, the original French

version of the warranty does not refer to a “Fountaine Pajot

Company,” instead descriptively calling it “le Chantier

Fountaine Pajot”: “the Fountaine Pajot shipyard.” (Doc. # 41-

1). Importantly, the warranty provides: “Warranty conditions

have been drawn up in French. Translations which have been

made of them are of an informative nature. In the event of

difficulties in interpretation, the French version prevails.”

(Doc. # 23-2 at 2). Thus, the Arnolds have failed to

contradict the declaration of Mr. Derche. In short, there is

only one “Fountaine Pajot” entity that manufactured and

warranted the Arnolds’ vessel, and it is Fountaine Pajot S.A.

Because Fountaine Pajot S.A. is the proper Defendant in

this case, the Court rejects the Arnolds’ argument that

Fountaine Pajot S.A. lacks standing to challenge service. And

the Arnolds have raised no argument in their response

asserting that they properly served Fountaine Pajot S.A.

(Doc. # 36). As the Arnolds have not contested Fountaine Pajot

S.A.’s persuasive arguments that it was never properly

served, the Arnolds have abandoned such argument. See Barnes

v. AstraZeneca Pharms. LP, 253 F. Supp. 3d 1168, 1171 (N.D.

Ga. 2017) (“When an argument is raised upon [a] motion to

dismiss that a claim is subject to dismissal, and the non-

moving party fails to respond to such an argument, such claims

are deemed abandoned and subject to dismissal.” (citation

omitted)). Having abandoned that argument, the Arnolds have

not carried their burden of establishing that service was

proper.

The Court agrees with Fountaine Pajot S.A. that it has

not been properly served within the Federal Rule of Civil

Procedure 4 deadline. Thus, the Court lacks personal

jurisdiction over Fountaine Pajot S.A. Pardazi, 896 F.2d at

1317. The case must be dismissed without prejudice for

insufficient service of process. If the Arnolds intend to

initiate a new action against Fountaine Pajot S.A., they

should be mindful of the facts outlined in Mr. Derche’s

declaration (Doc. # 23-1), as well as the Eleventh Circuit’s

previous rulings that district courts in Florida lacked

personal jurisdiction over Fountaine Pajot S.A. See Schulman

v. Inst. for Shipboard Educ., 624 F. App’x 1002, 1006 (11th

Cir. 2015) (holding that the “district court lacked general

personal jurisdiction over Fountaine-Pajot under the Fifth

Amendment”); Bluewater Trading LLC v. Fountaine Pajot, S.A.,

335 F. App’x 905, 907 (11th Cir. 2009) (holding that the

district court lacked both general and specific jurisdiction

over Fountaine Pajot under Florida’s long-arm statute).

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Fountaine Pajot S.A.’s Motion to Quash Service

of Process, Set Aside State Court Clerk’s Default, and

to Dismiss Plaintiffs’ Complaint (Doc. # 23) is GRANTED.

(2) This case is dismissed without prejudice for

insufficient service of process.

(3) The Clerk is directed to CLOSE this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

30th day of June, 2026.

tiie 9r. Munnbey CneeZB.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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