United States District Court, E.D. Virginia, Norfolk Division
THOMAS P. GILFILLAN, Plaintiff,
DEBBIE CHEELY and JOHN CHEELY, d/b/a FULL THROTTLE MARINE SERVICE, Defendants.
REPORT AND RECOMMENDATION
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE
Thomas P. Gilfillan ("Plaintiff") brought this
action in admiralty seeking damages from Defendants Debbie
Cheely and John Cheely d/b/a Full Throttle Marine Service
("Defendants") related to an alleged contract to
repair the starboard engine of a 53'9" motor vessel
(the "Vessel")- Plaintiff alleges that Defendants
failed to properly repair the engine over the course of
several months. The Complaint asserts claims for breach of
contract, breach of the implied warranty of workmanlike
performance, and negligent repair of a vessel (a maritime
tort). Compl. 7-11 (ECF No. 1 at 7-11) . The parties are now
before the court on Defendants' Motion to Dismiss for
failure to state a claim. (ECF No. 13). Defendants argue that
no enforceable contract for repairs to the starboard engine
ever existed between the parties and that Plaintiff has not
established a tort claim upon which relief may be granted.
See Defs.' Mem. Supp. Mot. Dismiss (ECF No. 14).
district court referred the Motion pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Federal Rule of Civil Procedure
72(b). The parties submitted briefing and the court heard
argument on October 9, 2018. For the reasons detailed below,
the undersigned now recommends that Defendants' Motion to
Dismiss be DENIED.
Statement of the Case
considering a motion to dismiss, "a court must accept
all allegations in the complaint as true and must draw all
reasonable inferences in favor of the plaintiff."
Silverman v. Town of Blackstone, 843 F.Supp.2d 628,
631 (E.D. Va. 2012) . So construed, the facts of this case
are as follows.
2016, Plaintiff was looking into purchasing the Vessel from
its prior owner ("Seller"). Plaintiff hired a
professional marine surveyor to conduct a pre-sale survey of
the Vessel. Compl. ¶ 5 (ECF No. 1 at 2). During the
survey's sea trial component, the Vessel's port
engine experienced a total mechanical failure. Id.
Seller then engaged Full Throttle Marine Service ("Full
Throttle"), a mobile vessel servicer and marine repairer
owned and operated by Defendants, to repair the port
engine. In April 2017, after repairs to the port
engine were complete but with the Vessel sale still pending,
Plaintiff retained Full Throttle to survey the starboard
engine. During the sea trial, the starboard engine
experienced problems as well. Seller again contracted with
Full Throttle to complete the necessary repairs on the
starboard engine. On June 1, 2017, after repairs to the
starboard engine were complete, Plaintiff completed his
purchase from Seller. Compl. ¶¶ 6-10.
continued to experience problems with the starboard engine
post-purchase. The engine broke down twice between June 1,
2017 and August 24, 2017 and Plaintiff contacted Full
Throttle each time regarding repairs. Compl. ¶¶
11-14. Full Throttle made repairs each time, apparently
without requesting or receiving payment from Plaintiff.
August 24, 2017, the starboard engine broke down again.
Plaintiff contacted Full Throttle, which diagnosed the
problem as a faulty rocker arm it had installed during an
earlier repair. Full Throttle said it would replace the
rocker arm set at its own expense but requested that
Plaintiff pay $150 for the oil change that would be required
after the repair was complete. Full Throttle at this time
promised to return the Vessel to good working order.
Plaintiff agreed to this charge, paid it, and Full Throttle
made the repairs. Compl. ¶¶ 15-17.
September 3, 2017, after the rocker arm replacement was
complete, Plaintiff took the Vessel out once again, and once
again the starboard engine broke down. Plaintiff investigated
the engine compartment and discovered metal shards under the
starboard engine. Plaintiff contacted Full Throttle and
informed them of the failure and the metal shards. Full
Throttle returned ten days later to examine the engine and
eventually concluded that the entire starboard engine block
would have to be replaced. Full Throttle said it would cover
the cost and that it would follow up the next day. Compl.
September 21, 2017, Defendant John Cheely left a voicemail
with Plaintiff seeking to discuss the engine change-out.
Plaintiff returned the call but was unable to reach him. The
next day, another Full Throttle employee informed Plaintiff
that Full Throttle would no longer work on the Vessel. Compl.
few months without contact from Full Throttle, Plaintiff
sought an estimate on repairs to the starboard engine from
another servicer. Before undertaking the repairs, Plaintiff
hired another marine surveyor to examine the starboard engine
and determine the cause of failure. The surveyor completed
the inspection on April 26, 2018 and submitted a Final Report
The report detailed extensive damage to the starboard engine
which the surveyor attributed to water intrusion caused by
weld failure in an exhaust mixing manifold due to excessive
heat. The report suggests that the failure was caused by
improper installation of the rocker arm assembly during
repairs, relying in part on Full Throttle's apparent
"admission" to that effect. Id. Plaintiff
paid the new servicer to complete the repairs and now claims
that Defendants are liable for the cost. Compl. ¶¶
Standard of Review
pleading that states a claim for relief must contain ... a
short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To
survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), wa complaint must contain
sufficient factual matter, accepted as true, to * state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the ...