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Gilfillan v. Cheely

United States District Court, E.D. Virginia, Norfolk Division

October 18, 2018

THOMAS P. GILFILLAN, Plaintiff,
v.
DEBBIE CHEELY and JOHN CHEELY, d/b/a FULL THROTTLE MARINE SERVICE, Defendants.

          REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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).

         The 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.

         I. Statement of the Case

         In 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.

         In late 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.[1] 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.

         Plaintiff 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.

         On 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.

         On 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. ¶¶ 19-23.

         On 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. ¶ 24.

         After a 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 (ECF No.

         19-1). 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. ¶¶ 26-31.

         II. Standard of Review

         ''A 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 ...


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