ACE AMERICAN INSURANCE COMPANY v. FUJIFILM SMART SURFACES, LLC et al

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 12/1/11. 12/1/11 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ACE AMERICAN INSURANCE COMPANY
v.
FUJIFILM SMART SURFACES, LLC,
et al.

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CIVIL ACTION

NO. 11-3435

MEMORANDUM
Bartle, J.

December 1, 2011
Plaintiff Ace American Insurance Company, as subrogee

of Joseph P. Morris and Marybeth Morris, filed this action
against the defendants Fujifilm Smart Surfaces, LLC ("Fujifilm")
and Carr Creek Marina ("Marina") for breach of contract,
negligence, breach of warranty, and breach of bailment in
connection with damage to a yacht and sail boat at the Marina.
Plaintiff brings its action under the Suits in Admiralty Act, 46
U.S.C. § 30901, et seq. and alternatively under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671 et seq.
Before the court is the motion of the Marina to dismiss
the complaint as well as Fujifilm's cross-claim for lack of
subject matter jurisdiction for failure to name as a defendant
the United States, rather than the Marina.

Plaintiff has also

moved to amend its complaint to substitute the United States as a
party if this court lacks jurisdiction over the complaint because
of this omission.

Fujifilm seeks leave to amend its cross-claim

to name the correct party and/or to join third party defendant,
that is, the United States.
I.
As the Marina makes a facial challenge to the court's
subject matter jurisdiction, we will accept as true all well
pleaded facts set forth in the complaint.

Gould Elecs., Inc. v.

United States, 220 F.3d 169, 176 (3d Cir. 2000).
Plaintiff alleges that Joseph Morris and his wife owned
a 42 ft. sailing yacht.

Applied to its hull was a silicone-based

anti-fouling coating which Dr. Morris had developed while working
for the Navy and which he had further developed with Fujifilm
after he had retired from that position.

Following Dr. Morris'

death in September, 2008, the yacht was put up for sale.
Fujifilm agreed to remove its proprietary coating from the yacht
and recoat it at its own expense.

While in Fujifilm's care, the

yacht was moved from one onshore location at the Marina to
another to facilitate the removal of the old coating and the
application of the new.

Before the recoating had been completed,

the vessel "toppled off" the jackstands on which it rested.

This

caused substantial damage to the yacht as well as to an adjacent
sail boat.1
The complaint states that the Marina is a division of
the United States Navy Morale, Welfare and Recreation Department

1. The plaintiff apparently paid for the property damage to the
yacht, and it now seeks to recover from those allegedly
responsible for the damage.
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and operates the Marina in Annapolis, Maryland.
Compl.

See ¶ 8 of the

A contract between the Marina and Joseph Morris entitled

"Boat Haul, Wash, Launch and Storage Agreement," dated
November 20, 2007, identifies the Marina as a "Naval Support
Activity Annapolis, MWR Department."

The agreement further

provides that Morris:
agrees to indemnify and hold harmless the
United States, the Department of the Navy,
its military and civilian personnel from any
liability in the leasing of mooring or
storage facilities and use of any mooring or
storage facility equipment. It is also
expressly understood that Patron [Morris]
shall indemnify and hold harmless Navy
Morale, Welfare and Recreation Division, the
installation's Morale, Welfare and Recreation
activity, the MWR Marina, and its personnel,
in the event that negligence or other fault
of the MWR Marina caused or contributed to
the loss or claim.
II.
It is undisputed that the Marina is an agency or
operation of the United States, specifically a part of the
Department of the Navy.2

It is well established that the United

States as a sovereign is immune from suit except to the extent it
has expressly waived that immunity.
445 U.S. 535, 538 (1980).

United States v. Mitchell,

Under the Suits in Admiralty Act,

2. The proposed First Amended Complaint restates ¶ 8 of the
Complaint to read:
Defendant United States is, upon information and
belief, the owner of Carr Creek Marina, which is
operated by the United States Navy Morale, Welfare and
Recreation Department and located at 89 Bennion Road,
Annapolis, MD 21402.
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Congress has authorized a civil action in admiralty in personam
to be brought against the United States or a federally owned
corporation only and not otherwise.

46 U.S.C. § 30904; Petition

of the United States, 367 F.2d 505, 511 (3d Cir. 1966).

For

admiralty jurisdiction to attach for a tort, the wrong must have
happened on navigable waters or on land caused by a vessel on
navigable waters.

See Grubart, Inc. v. Great Lakes Dredge & Dock

Co., 513 U.S. 527, 534 (1995).
According to the complaint, the incident did not occur
on navigable waters.

Instead, the damage to the vessels arose

out of activity that took place on land while the vessels were on
land.

Further, the United States has not been sued.

Consequently, this court has no jurisdiction over this action
under the Suits in Admiralty Act for any claims in tort.

Id.

Alternatively, plaintiff has sued the Marina under the
Federal Tort Claims Act, which also waives the Government's
sovereign immunity to the extent set forth.
§§ 1346(b)(1), 2674.
the United States.

See 28 U.S.C.

The only proper defendant under the Act is
No agency or employee of the federal

government may be sued.

See 28 U.S.C. § 2679(a), (b)(1).

In addition, a plaintiff may not institute an action
against the United States for any property loss or personal
injury or death arising out of the negligence or wrongful act or
omission of any government employee acting within the scope of
his or her employment without first having presented a claim to
the appropriate federal agency.

See 28 U.S.C. §§ 2401(b) and
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2675.

Failure to do so deprives this court of subject matter

jurisdiction.
2003).

Roma v. United States, 344 F.3d 352, 362 (3d Cir.

Since plaintiff has failed to make an administrative

claim before bringing this lawsuit, this court lacks subject
matter jurisdiction over all claims cognizable under the Federal
Tort Claims Act.
Plaintiff also asserts claims in the nature of a breach
of a marine contract.

The only contract brought to the court's

attention is the "Boat Haul, Wash, Launch and Storage Agreement"
between the Marina and Joseph Morris.

See ¶ 8 of the Compl.

Under the Contract Disputes Act, 41 U.S.C. §§ 7101 et seq., an
administrative claim under a maritime contract is a predicate to
any lawsuit on a contract to which the Government is a signatory.
Bethlehem Steel Corp. v. Avondale Shipyards, Inc., 951 F.2d 92,
93-94 (5th Cir. 1992).

As the Court of Appeals for the Federal

Circuit has explained, "before an action involving a maritime
contract to which the Government is a party may proceed to
district court, the contractor or agency must first present a
claim to the contracting officer."

Dalton v. Southwest Marine,

Inc., 120 F.3d 1249, 1251 (Fed. Cir. 1997); see also 41 U.S.C.
§ 7103.

Again, plaintiff has failed to plead that it has

followed the required administrative procedures.

As a result,

its contract claims must be dismissed for lack of subject matter
jurisdiction.

See Bethlehem Steel, 951 F.2d at 93-94.

Finally, plaintiff pleads a claim for breach of
bailment.

To the extent it sounds in tort, the court lacks
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subject matter jurisdiction because of plaintiff's failure to
file an administrative claim as required under the Federal Tort
Claims Act.

See 28 U.S.C. § 2675.

To the extent it is a

contract claim, it must be dismissed for want of jurisdiction
because plaintiff did not make an administrative filing as
mandated by the Contract Disputes Act.

Bethlehem Steel, 951 F.2d

at 93-94.
III.
Plaintiff moves to file an amended complaint if its
complaint does not survive.

The proposed amended complaint,

which seeks to substitute the United States as a defendant in
place of the Marina, does not remedy the jurisdictional
deficiencies noted above and amounts to a futile exercise.

See

Fed. R. Civ. P. 15; Foman v. Davis, 371 U.S. 178, 182 (1962).
Accordingly, the motion to amend the complaint will be denied.
The defendant Fujifilm has also moved for leave to
amend its cross-claim to name the United States in place of the
Marina and/or to join the United States as a third party
defendant.

For the reasons stated above, the motion fails since

no administrative claims against the United States were first
presented under either the Federal Tort Claims Act or the
Contract Disputes Act and the United States has not otherwise
waived its sovereign immunity.
IV.
The court will grant the motion of defendant Marina to
dismiss the complaint and cross-claim for lack of subject matter
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jurisdiction.

It will deny the motion of the plaintiff to file

an amended complaint and the motion of Fujifilm to amend its
cross-claim and to name the United States as a third party
defendant.

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