HORR, NOVAK & SKIPP, P.A.

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

JOANNE ELIZABETH VENA,

Plaintiff,

Case No.: 0:20-cv-61620-WPD

v.

FRASER YACHTS, BELLA MARINE

VENTURES, and M/Y KEIKI KAI,

Defendants.

_________________________/

BELLA MARINE’S MOTION TO QUASH SERVICE 

AND MOTION TO DISMISS AMENDED COMPLAINT

Defendant, BELLA MARINE VENTURES, LTD (hereinafter “BELLA MARINE”), files 

this Motion to Quash Service and Motion to Dismiss Plaintiff’s Amended Complaint for failure to 

state a cause of action against BELLA MARINE, and states as follows: 

INTRODUCTION

Plaintiff has failed to effect sufficient process against BELLA MARINE, and as such, 

service should be quashed.

Additionally, Plaintiff’s Amended Complaint fails to meet the pleading requirements of 

Federal Rules of Civil Procedure 8 and 12, and it should be dismissed. 

MEMORANDUM OF LAW

I. Plaintiff Failed to Effectuate Service

On November 17, 2020, the Court entered an order to show cause requiring Plaintiff to 

notify the Court of her efforts to serve process on Defendants by November 30, 2020. ECF 9.

On December 1, 2020, Plaintiff filed a return of service stating that substitute service was 

obtained against BELLA MARINE by serving “Britt Usher” who is alleged to be the “owners 

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wife” (sic). [ECF 15] BELLA MARINE is a limited company formed under the laws of the British 

Virgin Islands. Britt Usher is not, and has never been, authorized to accept service on behalf of 

BELLA MARINE, nor is she the wife of BELLA MARINE VENTURES, LTD, the owner of the 

vessel M/Y KEIKI KEI.

When a defendant raises a question as to the sufficiency of service generally, "it is the 

Plaintiff's burden to prove sufficient service." Am. Vintage Gun & Pawn, Inc. v. Hogan Mfg., LLC, 

2012 U.S. Dist. LEXIS 86340 (M.D. Fla. 2012) (citing United States v. Austin, 2011 U.S. Dist. 

LEXIS 108108 (S.D. Fla. 2011).

"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). A party may move for dismissal under Rule 12(b)(5) for 

insufficient service of process. Fed. R. Civ. P. 12(b)(5). "The applicable burden on a motion to 

dismiss for insufficient service of process under Rule 12(b)(5) is identical to that on a motion to 

dismiss for lack of personal jurisdiction under Rule 12(b)(2)." Absolute Trading Corp v. PDVSA 

Servs., Inc., No. 10-21371-CIV, 2010 WL 11451772, at *2 (S.D. Fla. 2010). "In the context of a 

motion to dismiss for lack of personal jurisdiction in which no evidentiary hearing is held, the 

plaintiff bears the burden of establishing a prima facie case of jurisdiction over the movant, non 

resident defendant." Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988); see also Meier v. Sun 

Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002). Where, as here, the defendant 

challenges jurisdiction by submitting affidavit evidence in support of its position, the burden 

traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction. Diamond 

Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010). "The burdenshifting framework established by the Eleventh Circuit for evaluating motions to dismiss for 

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personal jurisdiction requires the plaintiff to produce competent evidence in support of his 

jurisdictional claims once the defendant has rebutted the jurisdictional allegations in the 

complaint." In re Banco Santander Sec.-Optimal Litig., 732 F. Supp. 2d 1305, 1313 (S.D. Fla. 

2010), aff'd sub nom. Inversiones Mar Octava Limitada v. Banco Santander S.A., 439 F. App'x 

840 (11th Cir. 2011); Pyure Brands, LLC v. Nascent Health Sci. LLC, No. 1:18-cv-23357-UU, 

2019 U.S. Dist. LEXIS 227498, at *4-5 (S.D. Fla. 2019).

Federal Rule of Civil Procedure 4(h) governs service upon a corporation and provides:

(h) Serving a Corporation, Partnership, or Association. Unless 

federal law provides otherwise or the defendant's waiver has been 

filed, a domestic or foreign corporation, or a partnership or other 

unincorporated association that is subject to suit under a common 

name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for 

serving an individual; or

(B) by delivering a copy of the summons and of the 

complaint to an officer, a managing or general agent, 

or any other agent authorized by appointment or by 

law to receive service of process and—if the agent is 

one authorized by statute and the statute so 

requires—by also mailing a copy of each to the 

defendant; or

(2) at a place not within any judicial district of the United 

States, in any manner prescribed by Rule 4(f) for serving an 

individual, except personal delivery under (f)(2)(C)(i).

A plaintiff may effect service of process on individuals, corporations or partnerships either 

by following Florida law for service of process, or by delivering a copy of the summons and 

complaint in compliance with one of the means of service set forth in Rule 4. Porter v. Mainlands

Sections 1 & 2 Civic Assoc., 2015 U.S. Dist. LEXIS 192585, at *13 (S.D. Fla. 2015). Therefore, 

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in determining whether Plaintiff properly served the Defendants, the Court must examine the 

applicable Florida Statutes for service of process, as well as federal law. Id.

Service of process for corporations in Florida is governed by Florida Statute §48.081, 

which provides,

(1) Process against any private corporation, domestic or foreign, 

may be served:

(a) On the president or vice president, or other head of the 

corporation;

(b) In the absence of any person described in paragraph (a), 

on the cashier, treasurer, secretary, or general manager;

(c) In the absence of any person described in paragraph (a) 

or paragraph (b), on any director; or

(d) In the absence of any person described in paragraph (a), 

paragraph (b), or paragraph (c), on any officer or business 

agent residing in the state.

Fla. Stat. § 48.081.

Plaintiff’s service fails, as Britt Usher is not an officer of BELLA MARINE, nor is she a

shareholder, managing or general agent of BELLA MARINE. Additionally, Britt Usher has never 

been authorized to accept service on behalf of BELLA MARINE. See Affidavit of Eduardo 

Avayu, attached as Exhibit 1. As such, Plaintiff’s purported “substitute service” is insufficient 

under both Florida and Federal law.

Accordingly, Plaintiff has failed to effectuate service on BELLA MARINE, and the return 

of service filed by Plaintiff, ECF 15, should be quashed.

II. Standard for Motion to Dismiss 

A motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the 

legal sufficiency of a complaint. See Cal. Fin. LLC v. Perdido Land Dev. Co., Inc., 303 F. Supp. 

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3d 1306, 1309 (M.D. Fla. 2017). In order to survive a motion to dismiss, a complaint must “state 

a claim that is plausible on its face.” Bell Atl. Corp. V. Twombly, 550 U.S. 544, 557 (2007). A 

claim is plausible on its face when the plaintiff alleges enough facts for the court to draw the 

reasonable inference that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) Mere legal conclusions or recitation of the elements of a claim are not 

enough. Twombly, 550 U.S. at 555. While courts must accept all well-pleaded allegations within 

the complaint, Courts do not have to accept legal conclusions made in the complaint as true. Iqbal, 

556 U.S. at 678.

A complaint must also contain enough facts to demonstrate that the required elements exist. 

Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). “[C]onclusory allegations, 

unwarranted deductions of fact or legal conclusions masquerading as facts will not prevent 

dismissal.” Cornblatt v. Royal Caribbean Cruises Ltd., No. 16-CV-24755-KMM, 2017 WL 

7790229, at *1 (S.D. Fla. May 11, 2017)(quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 

1182, 1188 (11th Cir. 2002)). 

III. Jones Act Claims Fail

Plaintiff’s Amended Complaint alleges that she was an employee aboard the vessel, M/V 

KEIKI KAI, on August 10, 2017 while we was injured. She claims she hit her head on an open 

cabinet, which allegedly caused a mild traumatic brain injury. However, Plaintiff makes no 

mention of how the alleged open cabinet was left open or whose actions led to the cabinet to being 

left open. As such, she has failed to assert sufficient facts to state a claim for which relief may be 

granted.

Additionally, Plaintiff’s Amended Complaint fails to set forth even the basic elements of a 

claim for relief under the Jones Act against BELLA MARINE. The Jones Act provides the only 

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negligence remedy for an employee against his or her employer. Ivy v. Security Barge Lines, Inc., 

606 F.2d 524, 525 (5th Cir. 1979) 

Plaintiff alleges co-defendant Fraser Yachts and BELLA MARINE, “managed and 

operated” the Vessel. However, Plaintiff never alleges that she was an employee of BELLA 

MARINE or Fraser Yachts. Absent the employee/employer relationship, Plaintiff is not entitled to 

recover under the Jones Act for negligence, unseaworthiness, or maintenance and cure from 

BELLA MARINE. 

The claims as pleaded are only available against Plaintiff’s employer. Specifically, 46 

U.S.C.A. § 30104 states “seaman injured in the course of employment or, if the seaman dies from 

the injury, the personal representative of the seaman may elect to bring a civil action at law, with 

the right of trial by jury, against the employer.” 46 U.S.C.A. § 30104. She further alleges her injury 

was caused by the negligence of “the defendants” and the unseaworthiness of the vessel.

While she attributes fault of the Vessel’s Captain, she never alleges that the Captain was 

either employed by or an agent of BELLA MARINE. Further, she never alleges that the crew were 

employed by or agents of BELLA MARINE. 

As stated, Plaintiff’s Amended Complaint fails to assert an essential allegation that she was 

employed by BELLA MARINE at the time of her incident. In fact, she fails to assert that she was 

employed by any of the defendants allowing for recovery under the Jones Act in this case. Given 

the fact that the complaint lacks allegations of essential elements of the claims asserted, dismissal 

is proper. Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). 

Even if the Amended Complaint set forth the required elements to demonstrate entitlement 

to relief under the Jones Act, it fails to state any facts to support the claim of negligence or 

unseaworthiness. Instead, the allegations are mere conclusions which fail to put the defendants on 

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notice of the conditions which Plaintiff claims caused her purported injuries. Accordingly, the 

Amended Complaint fails to state a cause of action. 

IV. Plaintiff’s Maintenance and Cure Claims Fail

Under the general maritime law, maintenance and cure is owed to a seaman who becomes 

injured or ill in the service of the vessel. The duty of maintenance and cure is owed only by the 

seaman’s employer. Mahramas v. Am. Exp. Isbrandtsen Lines, Inc., 475 F.2d 165, 169 (2d Cir. 

1973). Here, Plaintiff has failed to allege that BELLA Marine (or Fraser Yachts) was her employer, 

and as such, has failed to state a cause of action. Indeed, Plaintiff has failed to identify her 

employer entirely. 

V. Amended Complaint is an Impermissible “Shotgun” Pleading

Plaintiff has asserted five “claims” against all named defendants without distinguishing 

which Defendants are purportedly liable under each theory of liability.

The Eleventh Circuit has repeatedly held that shotgun pleadings are improper when it “is 

virtually impossible to know which allegations of fact are intended to support which claim(s) for 

relief.” See Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 

1996) (citing Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991)).

In the Eleventh Circuit, courts have identified four primary categories of shotgun 

pleadings: 1) pleadings with multiple counts where each count adopts the allegations of all 

preceding counts; 2) pleadings that rely on conclusory and vague allegations not tied to any cause 

of action; 3) pleadings that fail to separate out its various causes of action and claims for relief; 

and 4) a pleading that asserts numerous claims against multiple defendants without specifying 

which defendants are responsible for which acts or omissions. Weiland v. Palm Beach Cty. 

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Sheriff’s Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015). Plaintiff’s Amended Complaint falls 

into the fourth category.

In the instant matter, Plaintiff has combined theories of negligence under the Jones Act, 

unseaworthiness, and maintenance and cure against all named defendants. However, Plaintiff does 

not specify which facts are intended to support which legal theories or which claims are asserted 

against each defendant. 

Accordingly, Plaintiff’s amended complaint should be dismissed as an impermissible 

shotgun pleading.

WHEREFORE, Defendant, BELLA MARINE, respectfully requests this Court quash the 

service on Defendant BELLA MARINE and/or dismiss Plaintiff’s Amended Complaint, for failure 

to state a cause of action for which relief may be granted, for inadequate service, and for such 

further relief as this Court deems just and proper. 

DATED this 23rd day of December, 2020.

Respectfully submitted,

 /s/ Craig P. Liszt

Craig P. Liszt

Florida Bar No. 63414

cliszt@admiral-law.com

Jonathan W. Skipp

Florida Bar No. 710570

jskipp@admirl-law.com

HORR, NOVAK & SKIPP, P.A.

Attorneys for Defendant Bella Marine Ventures

Two Datran Center, Suite 1700

9130 South Dadeland Blvd.

Miami, FL 33156

Telephone: (305) 670-2525 

Facsimile: (305) 670-2526

Primary E-Mail Address: service@admiral-law.com

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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on December 23, 2020, we electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. We also certify that the foregoing document 

is being served this day on all counsel of record or pro se parties identified on the attached Service 

List in the manner specified, either via transmission of Notices of Electronic Filing generated by 

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized 

to receive electronic Notices of Electronic Filing.

Respectfully submitted,

 /s/ Craig P. Liszt

Craig P. Liszt

Florida Bar No. 63414

cliszt@admiral-law.com

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SERVICE LIST

Joanne Elizabeth Vena

2017 PMB 177, PO Box 1133

Richmond, Henrico Va 23218

Miami, FL 33256

Tel: 203-357-5453

Pro Se Plaintiff

MICHAEL J. BRADFORD

Florida Bar No. 184314

JULIE A. AIELLO

Florida Bar No. 085808

MARSHALL DENNEHEY WARNER

COLEMAN & GOGGIN

201 E. Kennedy Blvd., Suite 1100

Tampa, Florida, 33602

Phone: 813-898-1800

Facsimile: 813-221-5026

Attorneys for Defendant, Fraser Yachts

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