# Arnold

> District Court, M.D. Florida · June 30, 2026

URL: https://www.frixlaw.com/law-library/cases/11372304

## Case

- **Full name:** James Arnold and Cheryl Arnold v. Fountaine Pajot Company
- **Court:** District Court, M.D. Florida
- **Decided:** June 30, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11372304. Public record. Not legal advice.