FSS INC v. HEYWARD et al

Filing 26

ORDER ON PLAINTIFF'S MOTION TO DISMISS COUNT III OF A-SQUARED AVIATION'S COUNTERCLAIMS re: 12 Motion to Dismiss By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
FSS, INC., DBA FRONT STREET
SHIPYARD,
PLAINTIFF
V.

ANDREW HEYWARD, AMY
HEYWARD, A SQUARED AVIATION
LLC, AND GADGET BOAT LLC,
DEFENDANTS

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CIVIL NO. 1:16-CV-641-DBH

ORDER ON PLAINTIFF’S MOTION TO DISMISS COUNT III OF
A-SQUARED AVIATION’S COUNTERCLAIMS
In this maritime law nonjury case, the plaintiff has moved to dismiss
Count III of the counterclaim against it, a counterclaim based upon Maine’s
Unfair Trade Practices Act, 5 M.R.S.A. § 205-A et seq. (Maine UTPA). Def.’s Mot.
to Dismiss Count III of A-Squared Countercl. (ECF No. 12). In Count III, the
defendant/counterclaim plaintiff seeks “an amount to be determined at
summary judgment or trial, plus all allowable pre- and post-judgment interest,
attorney fees and other allowable expenses” and other “just and equitable” relief.
Answer (ECF No. 8) at 8. The defendant/counterclaim plaintiff now concedes
that it cannot recover attorney fees under the UTPA because maritime law
preempts that remedy. Resp. to Mot. (ECF No. 19) at 1-2. But it contends that
Count III should otherwise remain, citing a decision by Judge Levy that, aside
from attorney fees, a “claim of unfair or deceptive practices brought under the

Maine UTPA is not preempted by federal admiralty law.” York Marine, Inc. v.
M/V Intrepid, 2016 WL 5372762 at *9 (D. Me. Sept. 26, 2016). The plaintiff
demurs, arguing that the York Marine statement is dictum and incorrect. Reply
to Resp. (ECF No. 22) at 2-4.
I GRANT

IN PART

the motion to dismiss, namely the Maine UTPA claim

insofar as it seeks attorney fees.
prejudice to its renewal later.

I DENY the motion otherwise, but without

At this stage of the case, I cannot determine

whether this dispute is other than an abstract and premature argument. In part,
the plaintiff challenges counterclaim Count III on the basis that the Maine UTPA
is punitive and contrary to the maritime law standard for punitive damages
recovery. But the defendant/counterclaim plaintiff denies any attempt to recover
punitive relief and says it is seeking only actual damages.

The plaintiff in

response seems to say that the standard of liability under the Maine UTPA is
different and thereby preempted.
In light of Judge Levy’s statement in York Marine, dictum or not, I will not
grant the plaintiff’s motion to dismiss apart from attorney fees. I will allow the
plaintiff to pursue the argument if the record on summary judgment or at trial
shows that it is more than an abstract argument.
SO ORDERED.
DATED THIS 31ST DAY OF MAY, 2017
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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