Mock trial decision

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Catamaran Drowning of Cruise Passenger

This case is based upon an actual incident, but is changed to simplify the facts and law for the purpose of our Mock Trial.  You may apply Florida law instead of maritime law.

Trial Decision:

Each student (juror) must write a Trial Decision and post on the Canvas Module “Mock Trial” link.  The Trial Decision should be no more than 3 pages, double spaced. 

Students may discuss this case with classmates, but not with persons outside this class.  Each student must write their own trial decision.

Use the facts, evidence and law presented by the attorneys at the Mock Trial.  You may look at the case materials in the “Mock Trial Materials” folder on Canvas, if you wish. 

Due by midnight on  Friday, April 16

Issues and Teams:

Issue 1:

Are Plaintiffs Nicole Woodley, Woodley’s minor children and Clarice Lee entitled to damages for Negligent Infliction of Emotional Distress?

Plaintiffs’ Attorney:                                                                Defendants’ Attorney:

Paige Messerell                                                                       Katelynn Walker

Issue 2:

Was Royal Caribbean Cruises, Ltd. negligent or in breach of contract in their duty of care, duty to warn and misrepresentation to the Plaintiffs?

Plaintiff:                                                                                  Defendants’ Attorney:

Payton Perez                                                                           Linda Robinson                                                                                 

Issue 3:

Was Out Island Charters (the Catamaran operators) negligent or in breach of contract in their duty of care, duty to warn and misrepresentation to the Plaintiffs?  [Ignore the issue of proper jurisdiction and venue.]

Plaintiffs’ Attorney:                                                                Defendants’ Attorney:

Gregory Nestor                                                                       Jennifer Bell

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-20692-KMM

NICOLE WOODLEY, individually and as mother and

guardian of minors K. W., M. W., and C.W., JR.;
CLARICE LEE, individually; and BARRINGTON L.
SIBBLIS, as personal representative of the Estate of

BARBARA SIBBLIS,

Plaintiffs,
vs.

ROYAL CARIBBEAN CRUISES, LTD., a Liberian
Corporation,

Defendant.

____________________________________/

SECOND AMENDED COMPLAINT FOR MARITIME WRONGFUL DEATH AND

PERSONAL INJURY DAMAGES WITH DEMAND FOR JURY TRIAL

Plaintiffs NICOLE WOODLEY, individually and as mother and guardian of minors

K.W., M.W.; and C.W., JR.; CLARICE LEE, individually; and BARRINGTON L.

SIBBLIS, as personal representative of the Estate of BARBARA SIBBLIS, sue Defendant

ROYAL CARIBBEAN CRUISES LTD. a Liberian Corporation (“ROYAL CARIBBEAN”

or “RCCL”) and allege as follows:

INTRODUCTION

1. On or about February 20, 2019, NICOLE WOODLEY, BARBARA SIBBLIS

and CLARICE LEE along with minors K.W., M.W. and C.W. JR. were paying

passengers on a Royal Caribbean cruise ship, the Adventure of the Seas.

2. As part of the cruise experience, ROYAL CARIBBEAN offered passengers,

including the Plaintiffs and BARBARA SIBBLIS, the opportunity to go on

various shore excursions on scheduled ports-of-call.

3. While on the ship, Plaintiffs and BARBARA SIBBLIS purchased directly from

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ROYAL CARIBBEAN the shore excursion “A Golden Eagle Sailaway” (also

known as “Golden Eagle Shore Excursion”) owned/operated by OUT ISLAND

CHARTERS, taking place in the scheduled port-of-call of Philipsburg, St.

Maarten. ROYAL CARIBBEAN represented that the shore excursion consisted

of a catamaran sail boat ride and wading at a beach. ROYAL CARIBBEAN

recommended this excursion for their family that ranged from age 5 to age 75.

4. For the beach portion of Golden Eagle Shore Excursion, OUT ISLAND

CHARTERS disembarked the passengers from the sail boat into deep water

(estimated to be over 10 feet) with only foam noodles for the adults to as a

floatation device to reach the beach.

5. The wind and sea conditions made it very difficult for the passengers to get from

the deep water to the beach.

6. NICOLE WOODLEY, BARBARA SIBBLIS and CLARICE LEE along with

minors K.W., M.W. and C.W. JR. feared for their safety and struggled to get to

the beach.

7. NICOLE WOODLEY and CLARICE LEE along with minors K.W., M.W. and

C.W. JR. eventually made it to the beach.

8. BARBARA SIBBLIS drowned while attempting to get to the beach.

A. The Parties

9. Plaintiffs, NICOLE WOODLEY and CLARICE LEE along with minors

K.W., M.W. and C.W., JR., are residents of New York.

10. Plaintiff, BARRINGTON L. SIBBLIS, as personal representative of the Estate

of BARBARA SIBBLIS, is a resident of Florida.

11. Defendant, ROYAL CARIBBEAN, was and is a for-profit corporation with its

world-wide headquarters, principal address, and principal place of business located

in Miami-Dade, Florida.

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12. Defendant ROYAL CARIBBEAN was the owner and operator of the cruise vessel

Adventure of the Seas, and sold the shore excursion to the Plaintiffs and BARBARA

SIBBLIS.

13. OUT ISLAND CHARTERS was and is a for-profit foreign business entity with

operations in St. Maarten. OUT ISLAND CHARTERS operated the shore

excursion that resulted in the death of BARBARA SIBBLIS. OUT ISLAND

CHARTERS owned the catamaran sail boat vessel used during the subject shore

excursion.

C. Jurisdiction

14. This Court has subject matter jurisdiction over Plaintiff’s claims under the maritime

and admiralty jurisdiction of the court. In particular, pursuant to Article III, §2 of

the United States Constitution, delegating jurisdiction over admiralty cases to the

federal courts, and 28 U.S.C. §1333.

15. Federal admiralty jurisdiction extends to all navigable waters, salt or fresh, with or

without tides, natural or artificial, which are in fact navigable. The term ‘navigable

waters’ means a body of water which, in its present configuration, constitutes a

highway of commerce, between the states or with foreign countries.

16. On February 20, 2019, Plaintiffs were a paying passengers on Defendant ROYAL

CARIBBEAN’s vessel, Adventure of the Seas, which was in navigable waters. On

the aformentioned date, BARBARA SIBBLIS died and the Plaintiffs were injured

in the scheduled-port-of-call of Philipsburg, St. Maarten, during the “A Golden

Eagle Sailaway” shore excursion marketed, promoted and sold on board the

Adventure of the Seas. The “A Golden Eagle Sailaway” shore excursion engaged in

an unreasonably dangerous activity where the passengers were disembarked from

the sail boat into deep water without adequate floatation devices. Accordingly,

this Court has admiralty jurisdiction over this case because the tort occurred on

navigable waters. More importantly, the case arises out of traditional maritime

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activity: a cruise ship transporting passengers on the high seas sells and promotes

an excursion consisting of sail boat ride and wading at a beach, at a scheduled-

port-of-call.

17. It is a settled principle of maritime law that a ship owner owes passengers the duty

of exercising at least reasonable care under the circumstances. This duty applies

whether the paying passenger was injured in the vessel or in a scheduled port-of-

call.

18. Accordingly, the legal rights and liabilities arising from the incident are within the

full reach of the Court’s admiralty jurisdiction.

19. This court also has jurisdiction in this matter pursuant to 28 U.S.C. 1332. The

matter in controversy exceeds, exclusive of interests and costs, the sum specified

by 28 U.S.C. 1332 and Plaintiffs are citizens of a different state than the Defendant.

20. Plaintiffs also assert all claims arising and relating to Florida state law under the

Savings to Suitors Clause of 28 U.S.C. § 1333(1).

21. This Court has personal jurisdiction over ROYAL CARIBBEAN, because

Defendant has, at all times material to this matter, itself or by and through its

agents, officers, distributors, and/or representatives:

22. Held its principal place of business in Miami-Dade County, Florida;

23. Operated, conducted, engaged in, and/or carried on a business venture in Florida

and held open an office in Florida;

24. Operated cruise ships that arrive and depart from the Port of Miami, in Miami-

Dade County, Florida;

25. Used, possessed, or held a mortgage or other lien on real property within Florida;

26. Engaged in substantial and not isolated activities within Florida by maintaining

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stores, offices, employees, distributors, and/or registered agents in Florida;

27. Employs several thousand Floridians to work at its Miami headquarters;

28. Sold products in Florida, advertised products in Florida, and/or entered into

contracts in Florida; and,

29. Pursuant to its own ticket contract, ROYAL CARIBBEAN submits itself to the

jurisdiction of this Court.

30. Venue is proper in this Court because the cruise ticket contract issued by ROYAL

CARIBBEAN contains a forum selection clause requiring all disputes arising out

of and in connection with the subject cruise be litigated in the United States District

Court for the Southern District of Florida, Miami Division. Carnival Cruise Lines,

Inc. v. Shute, 499 U.S. 585, 111 S. Ct. 1522 (1991).

31. At all times material hereto, the Defendant, ROYAL CARIBBEAN, was and is a

foreign corporation, with its principal place of business in Miami-Dade County,

Florida, and was and is a business entity and common carrier engaged in the

passenger cruise business.

32. At all times material hereto, OUT ISLAND CHARTERS is an entity based in St.

Maarten that operated, managed, and/or controlled the “A Golden Eagle

Sailaway” (also known as the Golden Eagle Shore Excursion), which was offered,

advertised, arranged, sponsored, recommended, marketed, sold, co-operated,

and/or co-managed by ROYAL CARIBBEAN.

33. OUT ISLAND CHARTERS, operated the “A Golden Eagle Sailaway” shore

excursion for passengers of the Adventure of the Seas, on February 20, 2019.

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34. On January 23, 2021 OUT ISLAND CHARTERS was dismissed from this lawsuit

based on a determination that OUT ISLAND CHARTERS is not subject to this

Court’s jurisdiction.

35. Before and after a passenger boards the vessel, ROYAL CARIBBEAN offers,

arranges for, recommends and markets excursions operated by OUT ISLAND

CHARTERS. For instance, ROYAL CARIBBEAN advertises and promotes OUT

ISLAND CHARTERS’ excursions on its websites. These websites, hosted in

Florida, specifically target millions of North American cruise passengers. ROYAL

CARIBBEAN allows passengers to book and pay for OUT ISLAND

CHARTERS’s excursion through ROYAL CARIBBEAN’ website from “180 days

before travel, and up to 5 days before they depart.” In this way, ROYAL

CARIBBEAN passengers can purchase the tour, read about the tour, see pictures,

see a video, and all of the excursion items that OUT ISLAND CHARTERS will

offer upon their arrival at the port-of-call.

36. ROYAL CARIBBEAN also allows passengers to book and pay for OUT ISLAND

CHARTERS’ tours at designated ROYAL CARIBBEAN excursion and

exploration desks on board its ships. There, passengers can talk to a ROYAL

CARIBBEAN crewmember, trained by ROYAL CARIBBEAN, to answer

questions and provide information about OUT ISLAND CHARTERS’ excursions

and to help the guest book and buy OUT ISLAND CHARTERS’ tours.

37. ROYAL CARIBBEAN maintains a department and/or a specific group of

employees in its headquarters in Florida devoted to creating, developing,

promoting, marketing, coordinating, explaining, overseeing, supervising, auditing,

tracking and monitoring its ports of call and the excursions sold to its passengers,

including the subject shore excursion operated by OUT ISLAND CHARTERS.

38. Once a passenger books an OUT ISLAND CHARTERS excursion on the ROYAL

CARIBBEAN website (or on a ROYAL CARIBBEAN ship), pays for the

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excursion in full, and participates in the excursion; OUT ISLAND CHARTERS

sends an invoice to ROYAL CARIBBEAN’s accounts payable department in

Florida. These invoices are then processed and approved by the accounts payable

department in Florida. Once processed and approved, the funds are wire

transferred to OUT ISLAND CHARTERS based on banking details provided to

the cruise line.

39. In order to maintain existing (and obtain new) business, OUT ISLAND

CHARTERS, submit bids for contracts to ROYAL CARIBBEAN headquarters in

Florida. Through these bids, OUT ISLAND, offer to ROYAL CARIBBEAN the

excursions it operates in Philipsburg, St. Maarten and elsewhere. The bids include

forms (created by ROYAL CARIBBEAN), generally referred to as tour proposal

templates or Universal Bid. In the template, OUT ISLAND CHARTERS give

ROYAL CARIBBEAN information regarding each excursion including: tour

operator information, tour pricing, timing, accessibility, safety policies, licenses,

permits and prior accidents and injuries that have occurred on its tours.

40. OUT ISLAND CHARTERS has to submit these bids and the attached tour

templates to ROYAL CARIBBEAN in Florida, in order to renew existing

agreements and/or obtain new business from ROYAL CARIBBEAN. ROYAL

CARIBBEAN then processes the bid and determines (at its Florida offices),

whether or not to renew and/or expand its existing agreement with OUT ISLAND

CHARTERS.

41. Upon information and belief, at all times material, OUT ISLAND CHARTERS

entered into a written contract with ROYAL CARIBBEAN entitled Tour Operator

Manual and Agreement and/or a business enterprise and/or course of dealing

(collectively referred to herein as “tour operator agreement”) with ROYAL

CARIBBEAN to do the marketing, selling and provision of recreational shore

excursions, for the benefit of ROYAL CARIBBEAN cruise passengers. The tour

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operator agreement provides that its purpose is to enhance “passengers’

experiences” and ensure “passengers’ safety”.

GENERAL ALLEGATIONS

42. At all times material hereto, ROYAL CARIBBEAN owned, operated,

managed, maintained and/or controlled the vessel, Adventure of the Seas.

43. ROYAL CARIBBEAN is a common carrier and Plaintiffs’ and the Estate of

BARBARA SIBBLIS’ direct claims of negligence herein fall within the parameters

of 46 U.S.C. § 30509 prohibitions against disclaimers. The statute’s language is

broad and unqualified, and it prohibits common carriers from limiting their liability

for “personal injury or death caused by negligence or fault of the owner [of the

passenger vessel] or the owner’s employees or agents.” See id. 30509(a)(1)(A).

44. At all times material hereto, OUT ISLAND CHARTERS owned and/or

operated the Golden Eagle Shore Excursion a/k/a “A Golden Eagle Sailaway”

which was offered, arranged for, sponsored, recommended, marketed, sold, co-

operated and/or managed by ROYAL CARIBBEAN, as part of the voyage on the

Adventure of the Seas.

45. On or about February 20, 2019, Plaintiffs and BARBARA SIBBLIS were paying

passengers on ROYAL CARIBBEAN’ vessel, Adventure of the Seas. The Plaintiffs

and BARBARA SIBBLIS’ itinerary consisted of a 8-night eastern Caribbean cruise

from February 16, 2019 to February 24, 2019 (hereinafter “the subject cruise”).

46. Excursions from the Adventure of the Seas were advertised to passengers, in

ROYAL CARIBBEAN’ promotional material, including, but not limited to,

brochures which contained ROYAL CARIBBEAN’ logo as well as on ROYAL

CARIBBEAN’ website.

47. ROYAL CARIBBEAN offered passengers aboard the Adventure of the Seas the

opportunity to go on various shore excursions during the subject cruise, including,

but not limited to the “A Golden Eagle Sailaway” shore excursion.

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48. ROYAL CARIBBEAN had a shore excursion desk aboard the Adventure of the

Seas for the purpose of, inter alia, providing passengers recommendations regarding

shore excursions and charging passengers for shore excursions.

49. While on the ship, ROYAL CARIBBEAN recommended to the Plaintiffs and

BARBARA SIBBLIS to purchase the “A Golden Eagle Sailaway” taking place in

the scheduled port-of-call of Philipsburg, St. Maarten. On or about February 20,

2019, as part of Plaintiffs’ cruise on the Adventure of the Seas, Plaintiffs and

BARBARA SIBBLIS purchased and booked the “A Golden Eagle Sailaway” at

the ROYAL CARIBBEAN excursion desk.

50. Before going on the “A Golden Eagle Sailaway” shore excursion, ROYAL

CARIBBEAN did not provide any information to the Plaintiffs or BARBARA

SIBBLIS with respect to the name, address, owner and/or operator of the

excursion. Plaintiffs and BARBARA SIBBLIS reasonably believed that the “A

Golden Eagle Sailaway” was being operated by ROYAL CARIBBEAN.

51. At the time of the incident, BARBARA SIBBLIS was 75-years-old, minor

children M.W. and C.W. JR. were 5-years-old and minor child K.W. was 8-years-

old.

52. When recommending and selling the “A Golden Eagle Sailaway” shore excursion,

ROYAL CARIBBEAN’s employee on board the cruise ship at the shore excursion

desk identified the excursion as easy and perfect for the young and older ages of

their group.

53. A ROYAL CARIBBEAN document further described the tour as follows:

Catamaran Sail: Enjoy the tropical breeze as your vessel speeds across the

sparkling sea as fast as 20 knots. Beach and Snorkeling: The boat anchors

offshore a beautiful spot where you can swim, sun and snorkel. Lunch and

Drinks: Your friendly crew will serve baguette sandwiches and ice-cold

beverages on the return to port. (SM08) Notes: Guests may need to wade or

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swim in the water to access the beach. Nudity may be observed at the beach.

Minimum Age: 4 years Maximum Weight: 250 lbs.

54. The ROYAL CARIBBEAN employee and document did not provide any further

description or warnings about the A Golden Eagle Sailaway. In particular,

ROYAL CARIBBEAN did not inform its passengers, including the Plaintiffs or

BARBARA SIBBLIS, that the sail boat would disembark the passengers into the

ocean in deep water with only foam noodles as a floatation device to get to the

beach.

55. ROYAL CARIBBEAN did not inform its passengers, including the Plaintiffs or

BARBARA SIBBLIS, that the adults would not be provided with life jackets or

other reasonable floatation devices to get to the beach.

56. ROYAL CARIBBEAN did not inform its passengers, including the Plaintiffs or

BARBARA SIBBLIS, that they may encounter strong ocean currents and/or other

dangerous sea conditions after disembarking the sail boat to get to the beach.

57. ROYAL CARIBBEAN did not inform its passengers, including the Plaintiffs or

BARBARA SIBBLIS, that they should be a strong swimmer in order to go to the

beach on this excursion.

58. Plaintiffs and BARBARA SIBBLIS relied on the representations provided by

ROYAL CARIBBEAN that it was “easy” and “appropriate for the ages in their

group” in making their decision to purchase the “A Golden Eagle Sailaway” shore

excursion.

59. Plaintiffs and BARBARA SIBBLIS purchased the subject shore excursion based

on the recommendation of the ROYAL CARIBBEAN employee at the shore

excursion desk onboard the cruise ship.

60. Had Plaintiffs and BARBARA SIBBLIS known that the subject shore excursion

would involve strong ocean currents and/or other dangerous sea conditions after

disembarking the sail boat without appropriate floatation devices to get to the

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beach, they would not have purchased the “A Golden Eagle Sailaway” shore

excursion.

61. Upon her arrival to the scheduled port-of-call in Philipsburg, St. Maarten, the

Plaintiffs and BARBARA SIBBLIS disembarked the Adventure of the Seas, and were

directed to board the “A Golden Eagle Sailaway” shore excursion catamaran.

62. The “A Golden Eagle Sailaway” shore excursion catamaran sailed around the

island for some sightseeing and to a snorkeling spot. The next stop was supposed

to be at a dock and for wading at a beach.

63. Instead, the catamaran sail boat anchored in the ocean in deep water offshore from

the beach. The passengers were disembarked from the catamaran into the ocean

(estimated to be over 10 feet deep). The water was too deep for them to wade to

the beach. The adult passengers were only provided with foam noodles to use for

floatation to get to the beach.

64. The shore excursion employees did not provide an adequate safety briefing to the

passengers prior to disembarking them into the deep ocean water to get to the

beach.

65. The shore excursion employees did not provide the passengers, including Plaintiffs

and BARBARA SIBBLIS, with adequate floatation devices for safely getting to the

beach from the catamaran anchored in deep water offshore.

66. The shore excursion employees did not provide the passengers, including Plaintiffs

and BARBARA SIBBLIS, with a life vest for safely getting to the beach from the

catamaran anchored in deep water offshore.

67. The shore excursion employees did not provide the passengers, including Plaintiffs

and BARBARA SIBBLIS, with an adequate warning regarding the sea and

weather conditions.

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68. The shore excursion employees did not provide the passengers, including Plaintiffs

and BARBARA SIBBLIS, with an adequate warning regarding the dangers of

getting to the beach from the catamaran anchored in deep water offshore.

69. The shore excursion employees did not provide the passengers, including Plaintiffs

and BARBARA SIBBLIS, with adequate instructions for safely getting to the

beach from the catamaran anchored in deep water offshore.

70. The shore excursion employees did not inform the passengers, including Plaintiffs

and BARBARA SIBBLIS, that only strong swimmers should attempt to swim to

beach and others should remain onboard.

71. The wind and sea conditions made it very difficult for the passengers, including

BARBARA SIBBLIS and Plaintiffs to get from the catamaran anchored in deep

water to the beach.

72. NICOLE WOODLEY, BARBARA SIBBLIS and CLARICE LEE along with

minors K.W., M.W. and C.W. JR. feared for their safety and struggled to get to

the beach.

73. NICOLE WOODLEY and CLARICE LEE along with minors K.W., M.W. and

C.W. JR. eventually made it to the beach; however, BARBARA SIBBLIS had

been separated from them as they struggled to get the young children and

themselves safely to the beach.

74. BARBARA SIBBLIS was later found face down in the ocean. Her non-responsive

body was brought to the beach.

75. A doctor on vacation performed CPR on BARBARA SIBBLIS’ lifeless body while

awaiting paramedics.

76. Attempts to revive BARBARA SIBBLIS were unsuccessful and a doctor

pronounced her dead on the beach.

77. NICOLE WOODLEY and CLARICE LEE along with minors K.W., M.W. and

C.W. JR. witnessed BARBARA SIBBLIS’ non-responsive body being brought

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from the ocean onto the beach. They watched the multiple attempts to revive her

fail and the pronouncement of her death.

78. At all times material hereto, NICOLE WOODLEY and CLARICE LEE along

with minors K.W., M.W. and C.W. JR. were in the zone danger. They lives were

also at risk trying to get to the beach. They suffered shock, fear, horror and

emotional distress in their own struggle to safely get to the beach, in witnessing the

unsuccessful attempts to revive BARBARA SIBBLIS, and in witnessing her dead

body.

79. Defendant ROYAL CARIBBEAN, its employees, servants, agents,

representatives, and/or tour operator partner, including OUT ISLAND

CHARTERS and its employees, agents, servants and representatives, failed to

exercise reasonable care in the operation and performance of the “A Golden Eagle

Sailaway” shore excursion and negligently operated the shore excursion in such a

manner that Plaintiffs sustained severe and permanent injuries and BARBARA

SIBBLIS died.

80. Defendant ROYAL CARIBBEAN, its employees, servants, agents,

representatives, and/or tour operator partner, including OUT ISLAND

CHARTERS and its employees, agents, servants and representatives, failed to keep

a proper look out and monitor passengers swimming to the beach to determine if

they were in trouble or needed assistance.

81. Defendant ROYAL CARIBBEAN, its employees, servants, agents,

representatives, and/or tour operator partner, including OUT ISLAND

CHARTERS and its employees, agents, servants and representatives, failed to

rescue BARBARA SIBBLIS and Plaintiffs when they encountered difficulty

attempting to get to the beach from the catamaran anchored in deep water.

82. OUT ISLAND CHARTERS managed and operated the “A Golden Eagle

Sailaway” shore excursion in an unreasonably dangerous and careless manner, by

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employing unfit, incompetent, and inexperienced employees to operate the shore

excursion.

83. During OUT ISLAND CHARTERS’ operation of the “A Golden Eagle Sailaway”

shore excursion, OUT ISLAND CHARTERS operated it in a dangerous and

careless manner, by employing crew members incapable of identifying existing and

predictable hazards in the shore excursion.

84. Despite such actual or constructive knowledge, ROYAL CARIBBEAN continued

to renew the tour operator agreement with OUT ISLAND CHARTERS, and

continued to promote and sell the “A Golden Eagle Sailaway” shore excursion.

85. Upon information and belief, as a result of the incident suffered by other

participants in the “A Golden Eagle Sailaway” shore excursion, ROYAL

CARIBBEAN knew or should have reasonably learned that incidents involving

other participants were being caused on the shore excursion because OUT

ISLAND CHARTERS hired staff who lacked skill, knowledge, and experience,

and were unfit or incompetent or incapable of identifying existing and predicting

hazards in the shore excursion.

86. Upon information and belief, as a result of the incident suffered by other

participants in the “A Golden Eagle Sailaway” shore excursion, ROYAL

CARIBBEAN knew or should have reasonably learned that incidents involving

other participants were being caused on the shore excursion because OUT

ISLAND CHARTERS failed to provide adequate floatation devices, such as a life

vest, to passengers.

87. ROYAL CARIBBEAN knew or should have known that OUT ISLAND

CHARTERS was not competent and/or fit to manage and operate the “A Golden

Eagle Sailaway” shore excursion;

88. Upon information and belief, as evidenced by other passengers’ reviews of shore

excursion and prior incidents, ROYAL CARIBBEAN knew prior to February 20,

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2019, that “A Golden Eagle Sailaway” shore excursion consisted of the passengers

swimming in deep ocean water with strong currents with a only foam noodle for

floatation, and willfully and/or knowingly and/or recklessly failed to inform its

passengers, including the Plaintiffs and BARBARA SIBBLIS, of the dangers

and/or risks. Further, ROYAL CARIBBEAN willfully and/or knowingly and/or

recklessly misrepresented the nature of the “A Golden Eagle Sailaway” shore

excursion. ROYAL CARIBBEAN willfully and/or knowingly and/or recklessly

disregarded the rights and safety of its passengers, including the Plaintiffs and

BARBARA SIBBLIS. ROYAL CARIBBEAN was aware of the probable

consequences of promoting the “A Golden Eagle Sailaway” shore excursion by

downplaying and misrepresenting its nature and the dangers it posed, leading the

Plaintiffs to sustain severe and permanent injuries and BARBARA SIBBLIS’s

death.

RIGHTS AND REMEDIES

Maritime Wrongful Death

89. The within maritime wrongful death action brought by Plaintiff BARRINGTON

L. SIBBLIS in his capacity as the Personal Representative of the Estate of Decedent

BARBARA SIBBLIS arises under the Death on the High Seas Act (“DOHSA”),

46 U.S.C. §§ 30301-30308, and seeks damages for:

a. The loss of financial support and the economic value of services which

Decedent BARBARA SIBBLIS provided to her dependent family members,

including but not limited to her Husband, Plaintiff BARRINGTON SIBBLIS;

b. The loss of parental nurture and guidance for Decedent BARBARA SIBBLIS’

children and grandchildren for whom, beyond the irreplaceable values of

companionship and affection, Decedent BARBARA SIBBLIS provided guidance,

training, instruction, and/or other assistance on such things to moral, educational,

employment, civic, physical training and other matters;

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c. Funeral expenses; and

d. Any and all other damages entitled to by law.

Maritime Personal Injury

90. The within maritime personal injury actions brought by Plaintiffs NICOLE

WOODLEY, individually and as mother and guardian of minors K.W., M.W.;

and C.W., JR. and CLARICE LEE, individually; arise under: The General

Maritime Law of the United States as may be supplemented without conflict by

the law of the State of Florida and seek full tort damages for the Defendant’s

negligence and their negligently inflicted emotional distress.

ADDITIONAL ALLEGATIONS

91. At all material times, Defendant ROYAL CARIBBEAN was and is engaged in

the business of providing cruise vacation experiences to the public. The experience

of recreational shore excursions and activities at the various ports of call are the

sine qua non of the cruises sold and advertised by Defendant ROYAL

CARIBBEAN.

92. At all times material, ports-of-call and shore excursions were, and are, a part of

ROYAL CARIBBEAN’ cruise packages, and the varying cruises packages are

often distinguished by the shore excursions offered and ports-of-call.

93. Defendant ROYAL CARIBBEAN uses the ports-of-call and shore excursions to

entice the public to purchase cruise packages.

94. Defendant ROYAL CARIBBEAN develops, organizes, promotes, advertises,

vouches for, and directly sells the shore excursions provided by subsidiaries,

employees, agents, servants, representatives and/or tour operator partners,

including OUT ISLAND CHARTERS.

95. The excursions and ports-of-call become a permanent part of a particular cruise

and are described, marketed and advertised in the literature published by ROYAL

CARIBBEAN and provided directly to passengers.

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96. Defendant ROYAL CARIBBEAN profits directly from the sale of shore

excursions, taking and keeping the majority of the shore excursion revenue. The

revenue from these excursions forms a significant portion of the overall revenue

generated by ROYAL CARIBBEAN and is an integral portion of its business plan

and model.

97. At all material times, ROYAL CARIBBEAN hired and/or utilized its

employees, agents, representatives, crewmembers, and/or other agents to

promote, market, coordinate, explain and directly sell excursions provided by

OUT ISLAND CHARTERS.

98. As part of its promotion of this significant portion of its business, ROYAL

CARIBBEAN maintains a department in its headquarters in Florida devoted to

creating, developing, promoting, marketing, coordinating, explaining, selling,

overseeing, supervising, auditing, tracking and monitoring its ports of call,

including the scheduled port-of-call of Philipsburg, St. Maarten, including the

subject “A Golden Eagle Sailaway” shore excursion.

99. In addition, Defendant ROYAL CARIBBEAN maintains a specified group of

employees and crew members on each of its ships, including the Adventure of the

Seas, to promote, market, coordinate, explain, oversee, supervise and sell these

excursions as well as to assist the various tour operators, including OUT ISLAND

CHARTERS to carry out and perform excursions at the scheduled port-of-call of

Philipsburg, St. Maarten, including the subject “A Golden Eagle Sailaway” shore

excursion.

100. At all material times, Defendant ROYAL CARIBBEAN derived substantial

income from developing, promoting, marketing, coordinating, directly selling and

vouching for the recreational shore excursions, beach activities and amenities,

including those at the scheduled port-of-call of Philipsburg, St. Maarten, for the

benefit of passengers on board ROYAL CARIBBEAN vessels.

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101. Defendant ROYAL CARIBBEAN, in an effort to persuade and convince its

passengers to buy its cruises and purchase its excursions, makes representations in

its literature, advertisements, promotional materials and onboard about the safety

and security of the excursions, including that the excursions are safe and operated

with reliable and insured tour operators.

102. As part of its efforts to persuade its passengers to purchase and partake in

these excursions, Defendant ROYAL CARIBBEAN represents to its passengers,

including Plaintiff, that it regularly oversees, monitors, audits, tracks and inspects

the operations of its tour operators, such as OUT ISLAND CHARTERS, both

before and after it includes them as operators of the tours, which it promotes and

sells to its passengers.

103. As part of its efforts to persuade its passengers to purchase and partake in

these excursions, including the “A Golden Eagle Sailaway” shore excursion,

ROYAL CARIBBEAN represents that it sets safety standards which its tour

operators, including OUT ISLAND CHARTERS, must comply with in carrying

out the excursions ROYAL CARIBBEAN promotes and sells to its passengers.

These representations, included on the ROYAL CARIBBEAN website and

promotional materials emphasize that the excursions booked “meet the high

standards of ROYAL CARIBBEAN” as “your security and comfort are of

paramount importance” and that excursions are monitored to ensure the “highest

quality.”

104. Defendant ROYAL CARIBBEAN made these representations with the

purpose and intent that passengers rely upon them.

105. During Plaintiffs and BARBARA SIBBLIS’ review of the marketing and

promotional material onboard, and their discussions with shipboard personnel and

personnel in St. Maarten, Plaintiff and BARBARA SIBBLIS were not informed of

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OUT ISLAND CHARTERS or that it had any involvement in the “A Golden

Eagle Sailaway” shore excursion.

106. At all times material hereto, OUT ISLAND CHARTERS was the agent,

apparent agent, servant, and/or employee of ROYAL CARIBBEAN and at all

times acted within the course and scope of its employment, agency, apparent

agency, joint venture or service by virtue of the following, among other facts:

a. ROYAL CARIBBEAN made all arrangements for the subject excursion

without disclosing to Plaintiffs and BARBARA SIBBLIS that the subject

excursion was being run by another entity (and/or entities);

b. ROYAL CARIBBEAN marketed the subject excursion using its company logo

on its website and/or in its brochures and/or on its ship without disclosing to

Plaintiffs and BARBARA SIBBLIS that the subject excursion was being run by

another entity (and/or entities);

c. ROYAL CARIBBEAN maintained a department and/or specific group of

employees in its headquarters in Florida devoted to creating, developing,

promoting, marketing, coordinating, explaining, overseeing, supervising,

auditing, tracking and monitoring its ports of call and the excursions sold to its

passengers, including the subject “A Golden Eagle Sailaway” shore excursion.

d. ROYAL CARIBBEAN maintained an excursion desk on its ship, staffed by its

employees, where ROYAL CARIBBEAN marketed, offered and sold

excursions, provided expert advice and information, answered questions,

handled and resolved complaints and refunds, on behalf of its subsidiary,

employees, servants, agents, representative, and/or tour operator partner,

including OUT ISLAND CHARTERS for which ROYAL CARIBBEAN

incurred certain expenses and costs;

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e. ROYAL CARIBBEAN recommended its passengers to not engage in

excursions, tours and/or activities that are not sold through ROYAL

CARIBBEAN;

f. Until the point that Plaintiffs and BARBARA SIBBLIS actually participated in

the “A Golden Eagle Sailaway” shore excursion, the Plaintiffs and BARBARA

SIBBLIS’ exclusive contact concerning the excursion was with ROYAL

CARIBBEAN and/or ROYAL CARIBBEAN’s onboard excursion desk;

g. ROYAL CARIBBEAN determined the amount of money charged for the

subject excursion;

h. The fee for the “A Golden Eagle Sailaway” shore excursion was charged to the

Plaintiffs and/or BARBARA SIBBLIS, and collected from the Plaintiffs

and/or BARBARA SIBBLIS, exclusively by ROYAL CARIBBEAN;

i. Plaintiffs and BARBARA SIBBLIS received a receipt from ROYAL

CARIBBEAN for the purchase of the “A Golden Eagle Sailaway” shore

excursion;

j. ROYAL CARIBBEAN employed personnel on its vessels to transport

passengers to Philipsburg, St. Maarten and for the purpose of organizing the

excursion and passengers going on the excursion;

k. ROYAL CARIBBEAN determined the time and length of each excursion;

l. ROYAL CARIBBEAN controlled the operation of the excursion by

promulgating various rules and regulations governing the conduct of the

excursion, the equipment to be utilized and the personnel allowed to conduct

the excursion, which it required its subsidiary, employees, servants, agents,

representative, and/or tour operator partner OUT ISLAND CHARTERS to

follow as part of its agreement with ROYAL CARIBBEAN;

m. ROYAL CARIBBEAN controlled and/or maintained the right of control over

the excursion by supervising and monitoring its performance and retaining the

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right to require its subsidiary, employees, servants, agents, representative,

and/or tour operator partner OUT ISLAND CHARTERS, to modify, alter or

change the manner in which each excursion was conducted, the equipment

utilized and/or the personnel conducting such excursion;

n. ROYAL CARIBBEAN controlled the operation of the excursion by expressly

reserving the right to determine when each excursion was safe to operate under

the conditions existing at the time, including the right to modify, terminate or

abort each excursion at any time when it was necessary to do so for the safety

of its passengers;

o. Defendant ROYAL CARIBBEAN represented to its passengers that the

excursions which it sold to them were safe, operated by reliable personnel using

safe equipment and were being operated subject to the safety requirements

established by ROYAL CARIBBEAN;

107. At all times material, OUT ISLAND CHARTERS was an agent,

ostensible/apparent agent, and/or representative of ROYAL CARIBBEAN. Any

representations by ROYAL CARIBBEAN to the contrary do not control the legal

status of the parties.

FIRST CAUSE OF ACTION

FOR NEGLIGENCE, CARELESSNESS,

WANTONNESS, and RECKLESSNESS

AGAINST DEFENDANT ROYAL CARIBBEAN

108. Plaintiffs NICOLE WOODLEY, individually and as mother and guardian of

minors K.W., M.W.; and C.W., JR.; CLARICE LEE, individually; and

BARRINGTON L. SIBBLIS, as personal representative of the Estate of

BARBARA SIBBLIS hereby incorporates by reference, as though fully set forth

herein, paragraphs 1-107, and allege as follows.

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109. At all times material, Defendant ROYAL CARIBBEAN owed a duty to their

passengers, including Plaintiffs and decedent BARBARA SIBBLIS, to exercise

reasonable care for the health, welfare, and safety of their passengers.

110. At all times material, Defendant knew or, in the exercise of reasonable care,

should have known that the subject “A Golden Eagle Sailaway” shore excursion

was being operated in a negligent and unsafe manner and was unreasonably

dangerous and presented an undue risk of harm to its cruise ship passengers. Said

dangers and risks existed for a sufficient length of time so as to provide notice to

Defendant that the subject “A Golden Eagle Sailaway” shore excursion was unsafe

for its passengers.

111. At all times material, Defendant knew or, in the exercise of reasonable care,

should have known that the dangers and risks associated with the subject “A

Golden Eagle Sailaway” shore excursion would increase the likelihood of

passengers being injured on the subject shore excursion.

112. At all times material Defendant’s conduct was outside the range of ordinary

activity involved in an catamaran sail boat ride and beach wading/swimming tour.

Defendant’s conduct was not inherent to this particular type of excursion and well

outside the range of ordinary and acceptable behavior for an activity represented

as “Easy.” Defendant’s increased the risk of harm beyond that inherent in the

activity. Defendant’s conduct was grossly negligent.

113. Plaintiffs and decedent BARBARA SIBBLIS had no knowledge of the conduct

and dangers of the activities of Defendant that ultimately caused Plaintiffs’ harm

and death of BARBARA SIBBLIS.

114. At all times material, Defendant, by and through their agents, servants, officers,

and/or employees, were negligent, careless, wanton and reckless and breached

their duty of care to Plaintiffs and decedent BARBARA SIBBLIS by committing

the following acts and/or omissions, including, but not limited to:

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a. Failing to accurately inform cruise ship passengers, including Plaintiffs and

decedent BARBARA SIBBLIS, of the dangers and undue risks associated with

the “A Golden Eagle Sailaway” shore excursion; and

b. Failing to warn passengers, including the Plaintiffs and decedent BARBARA

SIBBLIS, that the “A Golden Eagle Sailaway” shore excursion involved deep

water swimming with strong ocean currents and/or other dangers without life

vests or other reasonable floatation device;

115. As a direct and proximate result of the breach of Defendant’s negligence,

decedent BARBARA SIBBLIS was caused to perish on or about February 20,

2019.

116. As a direct and proximate result of Defendant’s negligence, Plaintiffs were

severely and permanently injured on or about February 20, 2019.

117. As a further and direct and proximate cause of Defendant’s negligence,

Plaintiffs sustained serious and permanent injuries, pain and suffering, mental

anguish, inconvenience, the loss of capacity for enjoyment of life, loss of earnings,

and have incurred medical expenses in the past and will incur medical expenses in

the future. All of said damages are permanent and continuing in nature.

118. WHEREFORE, Plaintiffs demand trial by jury and requests this Court enter

judgment against Defendant ROYAL CARIBBEAN for all damages permitted by

law, along with pre- and post-judgment interest, costs of suit, and such other or

further relief as this Court deems just and proper.

SECOND CAUSE OF ACTION

FOR NEGLIGENT SELECTION AND RETENTION

AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES

119. Plaintiffs NICOLE WOODLEY, individually and as mother and guardian of

minors K.W., M.W.; and C.W., JR.; CLARICE LEE, individually; and

BARRINGTON L. SIBBLIS, as personal representative of the Estate of

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BARBARA SIBBLIS hereby incorporates by reference, as though fully set forth

herein, paragraphs 1-107 and allege as follows.

120. At all times material, Defendant ROYAL CARIBBEAN developed, created,

hired, selected, contracted, and retained OUT ISLAND CHARTERS to provide

shore excursions to its passengers, including the “A Golden Eagle Sailaway” shore

excursion, at the scheduled port-of-call of Philipsburg, St. Maarten.

121. Plaintiffs and decedent BARBARA SIBBLIS entrusted their health, safety, and

welfare to Defendant ROYAL CARIBBEAN for the subject “A Golden Eagle

Sailaway” shore excursion.

122. Plaintiffs and BARBARA SIBBLIS justifiably relied on ROYAL

CARIBBEAN to provide a safe shore excursion, and to use reasonable care for

their health, safety, and welfare.

123. At all times material, ROYAL CARIBBEAN owed a duty to their passengers,

in particular Plaintiffs and decedent BARBARA SIBBLIS to use reasonable care

in the development, creation, hiring, selection, and retention of the employees,

servants, agents and/or representatives to provide shore excursions to their cruise

ship passengers, in particular the “A Golden Eagle Sailaway” shore excursion.

124. In order to comply with their responsibility to use reasonable care in the hiring,

selection, and retention of the employees, servants, agents and/or representatives

offering shore excursions to its cruise ship passengers, in particular the subject “A

Golden Eagle Sailaway” shore excursion, ROYAL CARIBBEAN was required to

make an appropriate investigation of OUT ISLAND CHARTERS.

125. At all times material, ROYAL CARIBBEAN failed to make an appropriate

investigation of OUT ISLAND CHARTERS prior to hiring it and/or selecting it

to offer for cruise passengers.

126. Had ROYAL CARIBBEAN made an appropriate investigation of OUT

ISLAND CHARTERS prior to hiring it and/or selecting it to offer for cruise

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passengers, ROYAL CARIBBEAN would have and/or should have known of the

dangers, including but not limited to deep water swimming, strong currents,

and/or lack of life jackets.

127. At all times material, after ROYAL CARIBBEAN hired and/or selected OUT

ISLAND CHARTERS, it failed to make ongoing appropriate investigations of

OUT ISLAND CHARTERS in order to determine whether to continue offering

the excursion to the cruise passengers.

128. Had ROYAL CARIBBEAN made an appropriate investigation of OUT

ISLAND CHARTERS after hiring it and/or selecting it to offer to cruise

passengers, ROYAL CARIBBEAN would have and/or should have known of the

dangers, including but not limited to deep water swimming, strong currents,

and/or lack of life jackets.

129. An appropriate investigation before and after hiring and/or selecting would

have revealed the unsuitability of OUT ISLAND CHARTERS to provide a safe

shore excursion, in particular the subject “A Golden Eagle Sailaway” shore

excursion.

130. Defendant ROYAL CARIBBEAN knew or, in the exercise of reasonable care,

should have known that its subsidiary, employees, servants, agents, representative,

and/or tour operator partner involved in the “A Golden Eagle Sailaway” shore

excursion was unfit to operate a shore excursion in a reasonably safe manner.

131. At all times material, Defendant ROYAL CARIBBEAN knew or, in the

exercise of reasonable care, should have known that its subsidiary, employees,

servants, agents, representative, and/or tour operator partner hired and retained to

operate the “A Golden Eagle Sailaway” shore excursion, presented foreseeable

risks to passengers.

132. At all times material, Defendant ROYAL CARIBBEAN knew or, in the

exercise of reasonable care, should have known that improper and negligent

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operation would increase the likelihood of passengers being seriously injured or

killed on the “A Golden Eagle Sailaway” shore excursion.

133. As such, it was unreasonable to hire, select, and retain OUT ISLAND

CHARTERS to provide shore excursions to its passengers, in particular the “A

Golden Eagle Sailaway” shore excursion.

134. In addition to the aforementioned acts and/or omissions, Defendant ROYAL

CARIBBEAN by and through their employees, servants, agents and/or

representatives, were negligent and breached their duty of care by selecting and

retaining OUT ISLAND CHARTERS, and committing the following acts and/or

omissions, including, but not limited to:

a. Failing to conduct an adequate and proper investigation of the “A Golden

Eagle Sailaway” shore excursion before hiring and/or selecting it;

b. Failing to conduct an adequate and proper investigation of the “A Golden

Eagle Sailaway” shore excursion after hiring and/or selecting it;

135. As a direct and proximate result of the breach of Defendant’s negligence,

decedent BARBARA SIBBLIS was caused to perish on or about February 20,

2019.

136. As a direct and proximate result of Defendant’s negligence, Plaintiffs were

severely and permanently injured on or about February 20, 2019.

137. As a further and direct and proximate cause of Defendant’s negligence,

Plaintiffs sustained serious and permanent injuries, pain and suffering, mental

anguish, inconvenience, the loss of capacity for enjoyment of life, loss of earnings

and have incurred medical expenses in the past and will incur medical expenses in

the future. All of said damages are permanent and continuing in nature.

138. WHEREFORE, Plaintiffs demand trial by jury and requests this Court enter

judgment against Defendant ROYAL CARIBBEAN for all damages permitted by

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law, along with pre- and post-judgment interest, costs of suit, and such other or

further relief as this Court deems just and proper.

THIRD CAUSE OF ACTION

FOR NEGLIGENT MISREPRESENTATION

AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES

139. Plaintiffs NICOLE WOODLEY, individually and as mother and guardian of

minors K.W., M.W.; and C.W., JR.; CLARICE LEE, individually; and

BARRINGTON L. SIBBLIS, as personal representative of the Estate of

BARBARA SIBBLIS hereby incorporates by reference, as though fully set forth

herein, paragraphs 1-107, and alleges as follows.

140. At all times material, Defendant ROYAL CARIBBEAN had a pecuniary

interest in coordinating, marketing, promoting, advertising, vouching for, and

directly selling the subject “A Golden Eagle Sailaway” shore excursion to its cruise

passengers.

141. At all times material, Defendant ROYAL CARIBBEAN, owed a duty to their

passengers, including Plaintiffs and decedent BARBARA SIBBLIS, to exercise

reasonable care in obtaining and accurately communicating any information

relating to the shore excursions they developed, created, coordinated, marketed,

promoted, advertised, vouched for, and directly sell to their cruise ship passengers.

142. At all times material, Defendant ROYAL CARIBBEAN made numerous

misrepresentations of material fact relating to their sponsored shore excursions,

including the subject “A Golden Eagle Sailaway” shore excursion, including, but

not limited to:

“We selected only the most reputable companies available to provide your

excursions …the companies providing your excursions are selected by ROYAL

CARIBBEAN based on their excellent reputation for service and safety…our

primary concern at ROYAL CARIBBEAN is your safety and security;”

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“Safety: Your security and comfort are of paramount importance. Every effort

is made to ensure that each tour operates safely;” and

“We select local shore excursion operators who provide quality and safe shore

excursions.”

143. At all times material, Defendant ROYAL CARIBBEAN knew or, in the

exercise of reasonable care, should have known that the representations of material

fact, outlined above, were untrue and misleading.

144. At all times material, Defendant ROYAL CARIBBEAN, by and through their

agents, servants, officers, and/or employees, were negligent, careless, and

breached its duty of care by committing the following negligent acts and/or

omissions, including, but not limited to:

a. Supplying false information relating to the shore excursions offered by

Defendant ROYAL CARIBBEAN to Plaintiffs and decedent BARBARA

SIBBLIS in the course of their business of providing shore excursions to fare-

paying cruise passengers;

b. Supplying false information relating to the safety of the subject “A Golden

Eagle Sailaway” shore excursion to Plaintiffs and BARBARA SIBBLIS in the

course of their business of providing shore excursions to fare-paying cruise

passengers;

c. Supplying misleading information relating to the shore excursions offered by

Defendant ROYAL CARIBBEAN to Plaintiffs and BARBARA SIBBLIS in

the course of their business of providing shore excursions to fare-paying cruise

passengers;

d. Supplying misleading information relating to the subject “A Golden Eagle

Sailaway” shore excursion to Plaintiffs and BARBARA SIBBLIS in the course

of their business of providing shore excursions to its fare-paying cruise

passengers; and/or

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e. All other negligent acts and/or omissions discovered during litigation.

145. At all times material, Defendant ROYAL CARIBBEAN made the

misrepresentations of material fact, outlined above, to induce cruise ship

passengers to purchase the shore excursions it developed, created, coordinated,

marketed, and directly sold.

146. At all times material, Plaintiffs and BARBARA SIBBLIS reasonably and

justifiably relied upon Defendant ROYAL CARIBBEAN misrepresentations of

material fact outlined above.

147. At all times material, Defendant ROYAL CARIBBEAN misrepresentations of

material fact relating to the subject “A Golden Eagle Sailaway” shore excursion

influenced Plaintiffs and BARBARA SIBBLIS to purchase said excursion.

Plaintiffs and BARBARA SIBBLIS would not have purchased the subject “A

Golden Eagle Sailaway” shore excursion, or any excursion for that matter, but for

Defendant ROYAL CARIBBEAN misrepresentations of material fact relating to

the safety and procedure of their sponsored excursions, including the subject “A

Golden Eagle Sailaway” shore excursion.

148. As a direct and proximate result of the breach of Defendant’s negligence,

decedent BARBARA SIBBLIS was caused to perish on or about February 20,

2019.

149. As a direct and proximate result of Defendant’s negligence, Plaintiffs were

severely and permanently injured on or about February 20, 2019.

150. As a further and direct and proximate cause of Defendant’s negligence,

Plaintiffs sustained serious and permanent injuries, pain and suffering, mental

anguish, inconvenience, the loss of capacity for enjoyment of life, loss of earnings

and have incurred medical expenses in the past and will incur medical expenses in

the future. All of said damages are permanent and continuing in nature.

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151. WHEREFORE, Plaintiffs demand trial by jury and requests this Court enter

judgment against Defendant ROYAL CARIBBEAN for all damages permitted by

law, along with pre- and post-judgment interest, costs of suit, and such other or

further relief as this Court deems just and proper.

FOURTH CAUSE OF ACTION

FOR VICARIOUS LIABILITY –

OSTENSIBLE AGENCY (APPARENT AGENCY)

AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES

152. Plaintiffs NICOLE WOODLEY, individually and as mother and guardian of

minors K.W., M.W.; and C.W., JR.; CLARICE LEE, individually; and

BARRINGTON L. SIBBLIS, as personal representative of the Estate of

BARBARA SIBBLIS hereby incorporates by reference, as though fully set forth

herein, paragraphs 1-107, and alleges as follows.

153. At all times material, ROYAL CARIBBEAN held out OUT ISLAND

CHARTERS, as the shore excursion operator, and as their ostensible agent.

ROYAL CARIBBEAN represented to their cruise passengers, including Plaintiff

and BARBARA SIBBLIS that OUT ISLAND CHARTERS was an ostensible

agent of ROYAL CARIBBEAN. Said representations of ostensible agency

included, but were not limited to, the following:

a. From the moment passengers begin researching cruise package

information, ROYAL CARIBBEAN bombard them with a series of aggressive

advertisements and promotions for shore excursions, including the subject “A Golden Eagle

Sailaway” shore excursion, and the scheduled port-of-call of Philipsburg, St. Maarten, on its

website and in its brochures, pamphlets, photographs, and other advertisements. OUT

ISLAND CHARTERS is not mentioned or indicated anywhere in this process;

b. ROYAL CARIBBEAN coordinate, organize, promote, market,

advertise, vouch for, and directly sell shore excursions provided by OUT ISLAND

CHARTERS, including the subject “A Golden Eagle Sailaway” shore excursion, on its

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website, in its brochures, and on board its cruise ships at kiosks run exclusively by ROYAL

CARIBBEAN employees;

c. Passengers pay ROYAL CARIBBEAN directly for shore excursions,

including the subject “A Golden Eagle Sailaway” shore excursion, without ever coming into

contact with any employee or representative of OUT ISLAND CHARTERS. When payment

is processed for shore excursions, it is reflected on passengers’ transaction receipts and

banking statements as a transaction made exclusively with Defendant ROYAL

CARIBBEAN;

d. ROYAL CARIBBEAN print the ticket stubs that passengers are

required to present for admission to the subject “A Golden Eagle Sailaway” shore excursion.

These tickets stubs are printed on ROYAL CARIBBEAN paper and delivered to passengers’

cruise ship cabins before the cruise ship even reaches the scheduled port-of-call of Philipsburg,

St. Maarten; and

e. OUT ISLAND CHARTERS was not identified as the owner and/or

operator of the subject “A Golden Eagle Sailaway” shore excursion at any time when it was

being marketed by ROYAL CARIBBEAN and purchased by passengers, including Plaintiff

and BARBARA SIBBLIS. In fact, at all times material, when customers selected the

description link for the subject “A Golden Eagle Sailaway” shore excursion on ROYAL

CARIBBEAN website, there was no indication of OUT ISLAND CHARTERS whatsoever,

yet the web page displayed an abundance of ROYAL CARIBBEAN logos and

representations.

154. At all times material, the representations, outlined above, were made to

passengers, including Plaintiffs and BARBARA SIBBLIS intentionally and/or by

want of reasonable care.

155. As a result of the numerous and pervasive representations, outlined above,

Plaintiffs and BARBARA SIBBLIS had a reasonable belief that OUT ISLAND

CHARTERS had the authority to act on behalf of, and for the benefit of, ROYAL

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CARIBBEAN with respect to the subject “A Golden Eagle Sailaway” shore

excursion.

156. As a further result of the numerous and pervasive representations of agency,

outlined above, Plaintiffs and BARBARA SIBBLIS had a reasonable belief that

ROYAL CARIBBEAN had a right to control the conduct of its agent, OUT

ISLAND CHARTERS, with respect to the subject “A Golden Eagle Sailaway”

shore excursion.

157. As a further result of the numerous and pervasive representations of agency,

outlined above, Plaintiffs and BARBARA SIBBLIS had a reasonable belief that

ROYAL CARIBBEAN had a right to control the safety policies and procedures of

its agent, OUT ISLAND CHARTERS, with respect to the subject “A Golden

Eagle Sailaway” shore excursion.

158. Plaintiffs and BARBARA SIBBLIS reasonably relied and acted upon such

beliefs of agency in purchasing the subject “A Golden Eagle Sailaway” shore

excursion, which resulted in the death of BARBARA SIBBLIS and Plaintiffs being

severely and permanently injured.

159. As such, ROYAL CARIBBEAN is vicariously liable for the negligent acts

and/or omissions of their ostensible agent, OUT ISLAND CHARTERS.

160. At all times material, OUT ISLAND CHARTERS owed a duty to its excursion

passengers, including Plaintiffs and BARBARA SIBBLIS, to provide a reasonably

safe excursion.

161. At all times material, OUT ISLAND CHARTERS knew or, in the exercise of

reasonable care, should have known the dangers and risks associated with the

subject “A Golden Eagle Sailaway” shore excursion.

162. At all times material, OUT ISLAND CHARTERS knew or, in the exercise of

reasonable care, should have known that the dangers and risks associated with the

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subject “A Golden Eagle Sailaway” shore excursion would increase the likelihood

of passengers being injured or killed on the subject excursion.

163. OUT ISLAND CHARTERS was negligent, careless, and breached its duty of

care by committing the following negligent acts and/or omissions, including, but

not limited to:

a. Failing to provide a safe shore excursion;

b. Failing to provide an excursion with proper equipment and personnel;

c. Failing to select a reasonably safe shore excursion to operate;

d. Failing to exercise reasonable care in the operation and performance of the “A

Golden Eagle Sailaway” shore excursion;

e. Failing to keep a proper look out and monitor passengers to determine if they were

in trouble or needed assistance/rescue – particularly when swimming in deep

water;

f. Managing and operating the “A Golden Eagle Sailaway” shore excursion in an

unreasonably dangerous and careless manner, by employing unfit, incompetent,

and inexperienced employees to operate the shore excursion;

g. Hiring staff, who through their lack of skill, knowledge, and experience, were

incapable of identifying existing and predictable hazards in the “A Golden Eagle

Sailaway” shore excursion;

h. Failing to promote, market, and sell reasonably safe shore excursions to its

passengers;

i. Failing to conduct an adequate and proper investigation of the “A Golden Eagle

Sailaway” shore excursion;

j. Failing to routinely monitor and/or supervise the subject “A Golden Eagle

Sailaway” shore excursion;

k. Failing to provide safe, competent and experienced operators and employees for

the “A Golden Eagle Sailaway” shore excursion;

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l. Failing to properly and adequately train the captain and crew of the boat used for

the “A Golden Eagle Sailaway” shore excursion.

m. Failing to adequately monitor, supervise and audit the ongoing operations of its

employees, servants, agents, and/or representatives to ensure it was using safe,

proper and appropriate equipment, properly trained and competent personnel, and

proper and safe procedures to provide a reasonably safe excursion for its passengers

participating in the subject “A Golden Eagle Sailaway” shore excursion;

n. Failing to properly and adequately inspect, investigate, screen, select, and retain

the services of its employees, servants, agents, and/or representatives, to ensure it

was operating and running a reasonably safe excursion, in particular the subject

“A Golden Eagle Sailaway” shore excursion;

o. Failing to provide safe, competent, and experienced operators and employees for

the subject “A Golden Eagle Sailaway” shore excursion;

p. Failing to properly and adequately train the crewmembers used for the subject “A

Golden Eagle Sailaway” shore excursion;

q. Failing to adopt and implement proper and adequate policies, protocols, and

procedures for the supervision of its employees, servants, agents, and/or

representatives, to ensure it was operating and running a reasonably safe excursion,

in particular the subject “A Golden Eagle Sailaway” shore excursion;

r. Failing to adopt and implement proper and adequate policies, protocols, and

procedures for addressing the safety of the subject “A Golden Eagle Sailaway”

shore excursion;

s. Failing to adopt and implement proper and adequate policies, protocols, and

procedures for the selection of safe shore excursions, in particular the “A Golden

Eagle Sailaway” shore excursion;

t. Failing to adopt and implement proper and adequate policies, protocols, and

procedures requiring its employees, servants, agents, and/or representatives

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involved in the “A Golden Eagle Sailaway” shore excursion to abide by reasonable

safety standards;

u. Failing to provide adequate and proper information regarding the subject “A

Golden Eagle Sailaway” shore excursion so that Plaintiffs and BARBARA

SIBBLIS could make an informed decision as to their participation in the subject

excursion;

v. Failing to accurately inform cruise ship passengers of the dangers and undue risks

associated with the subject “A Golden Eagle Sailaway” shore excursion;

w. Failing to adequately and properly warn passengers, in particular Plaintiffs and

BARBARA SIBBLIS of the dangers and undue risks involved with the subject “A

Golden Eagle Sailaway” shore excursion;

x. Assuring passengers, including Plaintiffs and BARBARA SIBBLIS, that all aspects

and conditions of the subject excursion were reasonably safe and appropriate for

them, when in fact they were not;

y. Failing to ensure all necessary steps were taken for Plaintiffs and BARBARA

SIBBLIS to safely participate in all aspects of the subject “A Golden Eagle

Sailaway” shore excursion;

z. Failing to implement a method of operation which was reasonably and safe and

which would prevent the creation of a dangerous condition, such as the one in this

case, and utilizing or allowing negligent methods of operation by its employees,

servants, agents, and/or representatives;

aa. Failing to promulgate and enforce appropriate safety rules for its employees,

servants, agents, and/or representatives;

bb. Instructing and/or allowing and/or condoning the “A Golden Eagle Sailaway”

shore excursion operator to engage passengers in deep water swimming with strong

ocean currents and/or other dangers without life vests or other reasonable

floatation device;

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cc. Other acts and/or omissions of negligence that will be proven at trial;

dd. Failing to warn passengers, including the Plaintiffs and BARBARA SIBBLIS, that

the “A Golden Eagle Sailaway” shore excursion involved deep water swimming

with strong ocean currents and/or other dangers without life vests or other

reasonable floatation device.

164. As a direct and proximate result of the breach of OUT ISLAND CHARTERS

and Defendant ROYAL CARIBBEAN’s negligence, decedent BARBARA

SIBBLIS was caused to perish on or about February 20, 2019.

165. As a direct and proximate result of OUT ISLAND CHARTERS and

Defendant ROYAL CARIBBEAN’s negligence, Plaintiffs were severely and

permanently injured on or about February 20, 2019.

166. As a further and direct and proximate cause of OUT ISLAND CHARTERS

and Defendant ROYAL CARIBBEAN’s negligence, Plaintiffs sustained serious

and permanent injuries, pain and suffering, mental anguish, inconvenience, the

loss of capacity for enjoyment of life, loss of earnings and have incurred medical

expenses in the past and will incur medical expenses in the future. All of said

damages are permanent and continuing in nature.

167. WHEREFORE, Plaintiffs demand trial by jury and requests this Court enter

judgment against Defendant ROYAL CARIBBEAN for all damages permitted by

law, along with pre- and post-judgment interest, costs of suit, and such other or

further relief as this Court deems just and proper.

FIFTH CAUSE OF ACTION

PLAINTIFF NICOLE WOODLEY, individually and as mother and guardian of minors

K.W., M.W.; and C.W., JR.’s CLAIM FOR NEGLIGENT

INFLICTION OF EMOTIONAL DISTRESS

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168. Plaintiff NICOLE WOODLEY, individually and as mother and guardian of

minors K.W., M.W.; and C.W., JR., references and incorporates the allegations

of Paragraphs 1 through 107 as fully as if set forth herein.

169. Due to the negligence of Defendant ROYAL CARIBBEAN, directly and

vicariously due to the negligence of OUT ISLAND CHARTERS, and in addition

to her and they directly witnessing the aforesaid negligence, Plaintiff NICOLE

WOODLEY and her minor children K.W., M.W.; and C.W., JR. were in the

zone of danger and not only placed at risk of immediate physical harm, but in fact

experienced such immediate harm in the form of fear and anxiety over and for their

own physical safety and well-being.

170. The negligence of Defendant ROYAL CARIBBEAN, directly and

vicariously due to the negligence of OUT ISLAND CHARTERS, caused and

continue to cause Plaintiff NICOLE WOODLEY and her minor children K.W.,

M.W.; and C.W., JR.to suffer emotional injuries and damages.

171. The emotional injuries and/or damages suffered by Plaintiff NICOLE

WOODLEY and her minor children K.W., M.W.; and C.W., JR. include

repetitive, ongoing, and/or continuous physical symptoms and manifestations to

include depression, post-traumatic stress, insomnia, and/or nightmares.

172. As a direct and proximate result of the negligence of ROYAL

CARIBBEAN, directly and vicariously due to the negligence of OUT ISLAND

CHARTERS, Plaintiff NICOLE WOODLEY and her minor children K.W.,

M.W.; and C.W., JR. were caused to sustain bodily injury and resulting pain and

suffering, mental anguish, loss of capacity for enjoyment of life, loss of earnings,

medical care and treatment, and/or aggravation of a previous existing condition.

The losses are either permanent or continuing and Plaintiff NICOLE WOODLEY

and her minor children K.W., M.W.; and C.W., JR. will suffer such losses in the

future.

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173. Plaintiff NICOLE WOODLEY, individually and as mother and guardian of

minors K.W., M.W.; and C.W., JR., demands trial by jury and requests this Court

enter judgment against Defendant ROYAL CARIBBEAN for all tort damages

permitted by law, along with pre- and post-judgment interest, costs of suit, and

such other or further relief as this Court deems just and proper.

SIXTH CAUSE OF ACTION

PLAINTIFF CLARICE LEE’S CLAIM FOR NEGLIGENT

INFLICTION OF EMOTIONAL DISTRESS

174. Plaintiff CLARICE LEE references and incorporates the allegations of

Paragraphs 1 through 107 as fully as if set forth herein.

175. Due to the negligence of ROYAL CARIBBEAN, directly and vicariously

due to the negligence of OUT ISLAND CHARTERS, and in addition to her

directly witnessing the aforesaid negligence, Plaintiff CLARICE LEE was in the

zone of danger and not only placed at risk of immediate physical harm, but in fact

experienced such immediate harm in the form of fear and anxiety over and for her

own physical safety and well-being.

176. The negligence of ROYAL CARIBBEAN, directly and vicariously due to

the negligence of OUT ISLAND CHARTERS, caused and continue to cause

Plaintiff CLARICE LEE to suffer emotional injuries and damages.

177. The emotional injuries and/or damages suffered by Plaintiff CLARICE

LEE include repetitive, ongoing, and/or continuous physical symptoms and

manifestations to include depression, post-traumatic stress, insomnia, and/or

nightmares.

178. As a direct and proximate result of the negligence of ROYAL

CARIBBEAN, directly and vicariously due to the negligence of OUT ISLAND

CHARTERS, Plaintiff CLARICE LEE was caused to sustain bodily injury and

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resulting pain and suffering, mental anguish, loss of capacity for enjoyment of life,

loss of earnings, medical care and treatment, and/or aggravation of a previous

existing condition. The losses are either permanent or continuing and Plaintiff

CLARICE LEE will suffer such losses in the future.

179. Plaintiff CLARICE LEE demands trial by jury and requests this Court enter

judgment against Defendant ROYAL CARIBBEAN for all tort damages permitted

by law, along with pre- and post-judgment interest, costs of suit, and such other or

further relief as this Court deems just and proper.

JURY TRIAL DEMAND

Plaintiffs hereby request and demand a trial by jury on all claims so triable.

Date: February 5, 2021

MEISTER LAW
Attorney for Plaintiffs

9300 S. Dadeland Blvd., Suite 101

Miami, Florida 33156
Phone: (305) 590-5570

Fax: (305) 675-3787
Email: [email protected]
[email protected]

BY: s/TonyaJMeister

TONYA J. MEISTER
FLORIDA BAR NO.: 062924

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SERVICE LIST
CASE NO. 20-CV-20692-KMM

NICOLE WOODLEY, individually and as mother and guardian of minors K. W., M.

W., and C.W., JR.; CLARICE LEE, individually; and BARRINGTON L. SIBBLIS, as

personal representative of the Estate of BARBARA SIBBLIS v. ROYAL CARIBBEAN

CRUISES, LTD., a Liberian Corporation, and OUT ISLAND CHARTERS NV

Tonya J. Meister, Esq.

MEISTER LAW LLC
Courthouse Tower, Suite 750

44 West Flagler Street

Miami, Florida 33130
E-mail: [email protected]
Counsel for Plaintiff

Jeffrey E. Foreman, Esq.

[email protected]
[email protected]

Noah D. Silverman, Esq.
[email protected]
[email protected]

Lauren S. Rose, Esq.
[email protected]

[email protected]
FOREMAN FRIEDMAN, PA

One Biscayne Tower, Suite 2300
2 South Biscayne Boulevard

Miami, FL 33131
Tel: 305-358-6555/Fax: 305-374-9077
Counsel for Defendant

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-20692-KMM

NICOLE WOODLEY, individually and as mother and
guardian of minors K. W., M. W., and C.W., JR.;
CLARICE LEE, individually; and BARRINGTON L.
SIBBLIS, as personal representative of the Estate of
BARBARA SIBBLIS,

Plaintiffs,

vs.

ROYAL CARIBBEAN CRUISES, LTD., a Liberian
Corporation,

Defendant.
____________________________________/

ANSWER AND AFFIRMATIVE DEFENSES

Defendant, ROYAL CARIBBEAN CRUISES, LTD (“RCL”), by and through undersigned

counsel, pursuant to the Federal Rules of Civil Procedure, hereby files this Answer and Affirmative

Defenses to Plaintiffs’ Second Amended Complaint [DE 71], and states as follows:

INTRODUCTION

1. Admitted.

2. Admitted that RCL sells shore excursions in various ports of call as a convenience to its

passengers. All else denied.

3. Admitted that certain Plaintiffs participated in the subject shore excursion in St. Maarten.

All else denied.

4. Denied.

5. Denied.

6. Without knowledge, therefore denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

7. Admitted.

8. Denied.

A. The Parties

9. Without knowledge, therefore denied.

10. Without knowledge, therefore denied.

11. Admitted that the Court has personal jurisdiction over RCL. All else denied.

12. Admitted that RCL operated the Adventure of the Seas on the date of the subject incident

and that RCL sold the subject shore excursion to the Plaintiffs who were passengers on the subject

cruise. All else denied.

13. Admitted that Defendant Out Island Charters (“OIC”) was the sole operator of the subject

excursion. Otherwise without knowledge, therefore denied.

C. Jurisdiction1

14. Admitted that this court has admiralty jurisdiction over this action.

15. Admitted that this court has admiralty jurisdiction over this action.

16. Admitted that certain Plaintiffs were passengers on the subject vessel which was in

navigable waters and that Barbara Sibblis died while she was off of the vessel in Philipsburg, St.

Maarten. All else denied.

17. Denied.

18. Admitted that this court has admiralty jurisdiction over this action. All else denied.

19. Without knowledge, therefore denied.

20. Denied.

1 There is no section “B” in Plaintiffs’ Complaint.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

21. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

22. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

23. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

24. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

25. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

26. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

27. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

28. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

29. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL and that venue is proper in this Court. All else denied.

30. Admitted that venue is proper in this Court and that the parties agreed by contract for venue

to be in this Court. All else denied.

31. Admitted for the purposes of this litigation that this Court has personal jurisdiction over

RCL. All else denied.

32. Admitted that OIC was the sole operator of the subject excursion. All else denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

33. Admitted that OIC was the sole operator of the subject excursion on the date alleged in the

Complaint. All else denied.

34. Admitted.

35. Admitted that RCL advertises shore excursions available to its passengers on its website

and that RCL’s passengers can purchase those excursions prior to their cruise. All else denied.

36. Admitted that RCL offers shore excursions to its passengers, including on its ships, all else

denied.

37. Admitted that RCL has shoreside employees whose job duties include entering into

contracts with independent contractor excursion providers to provide excursions to its passengers

and that shoreside employees are also involved in marketing those excursions. All else denied.

38. Admitted that OIC invoices RCL for the shore excursions it operates, and that payment is

made by wire transfer to OIC. All else denied.

39. Admitted that before offering OIC shore excursions to RCL passengers, OIC provided

information regarding the shore excursions to RCL. All else denied.

40. Denied.

41. Admitted that RCL and OIC entered into a contract concerning the subject excursion. All

else denied.

GENERAL ALLEGATIONS

42. Admitted that RCL operated the Adventure of the Seas on the date of the subject incident.

All else denied.

43. Denied.

44. Admitted OIC was the sole operator of the subject shore excursion and that it was marketed

and sold by RCL. All else denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

45. Admitted that certain Plaintiffs were paying passengers on the subject cruise. All else

denied.

46. Admitted.

47. Admitted.

48. Admitted.

49. Admitted that certain Plaintiffs purchased the subject shore excursion on the subject cruise.

All else denied.

50. Denied.

51. Without knowledge, therefore denied.

52. Denied.

53. Admitted that this is a portion of the description of the subject excursion. All else denied.

54. Denied.

55. Denied.

56. Admitted that RCL did not provide such information because it was not aware of any such

conditions that would have required it.

57. Admitted that RCL did not provide such information because it was not aware of any such

conditions that would have required it.

58. Denied.

59. Denied

60. Denied.

61. Admitted that certain Plaintiffs and Barbara Sibblis disembarked the subject cruise and

were directed to board the subject excursion by employees of OIC.

62. Denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

63. Denied.

64. Denied.

65. Denied.

66. Denied.

67. Denied.

68. Denied.

69. Denied.

70. Denied.

71. Denied.

72. Without knowledge, therefore denied.

73. Denied.

74. Without knowledge, therefore denied.

75. Admitted that CPR was performed on the beach until paramedics arrived. Otherwise

without knowledge, therefore denied.

76. Admitted that attempts to revive Barbara Sibblis were unsuccessful. Otherwise without

knowledge, therefore denied.

77. Without knowledge, therefore denied.

78. Denied.

79. Denied.

80. Denied.

81. Denied.

82. Denied.

83. Denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

84. Denied.

85. Denied.

86. Denied.

87. Denied.

88. Denied.

RIGHTS AND REMEDIES

Maritime Wrongful Death

89. Admitted that this action arises under the Death on the High Seas Act. All else denied,

including all sub-sections.

Maritime Personal Injury

90. Admitted that this action arises under the general maritime law of the United States. All

else denied.

ADDITIONAL ALLEGATIONS

91. Admitted.

92. Admitted that RCL offers shore excursions to its passengers. All else denied.

93. Denied.

94. Admitted that RCL offers advertises and sells shore excursions to its passengers. All else

denied.

95. Admitted that RCL offers shore excursions to its passengers. All else denied.

96. Admitted that RCL derives profit from the sale of shore excursions. All else denied.

97. Admitted that RCL has employees who market and sell shore excursions. All else denied.

98. Admitted that RCL has employees who market and sell shore excursions. All else denied.

99. Admitted that RCL has employees who market and sell shore excursions. All else denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

100. Admitted that RCL derives income from shore excursions run by independent contractor

tour providers. All else denied.

101. Admitted that RCL provides descriptions of the shore excursions available to its

passengers. All else denied.

102. Denied.

103. Denied.

104. Denied.

105. Denied.

106. Denied, including all sub-sections.

107. Denied.

FIRST CAUSE OF ACTION
FOR NEGLIGENCE, CARELESSNESS,
WANTONNESS, and RECKLESSNESS

AGAINST DEFENDANT ROYAL CARIBBEAN

108. RCL incorporates by reference paragraphs 1-107.

109. Denied.

110. Denied.

111. Denied.

112. Denied.

113. Denied.

114. Denied including all sub-sections.

115. Denied.

116. Denied.

117. Denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

118. Denied.

SECOND CAUSE OF ACTION
FOR NEGLIGENT SELECTION AND RETENTION

AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES

119. RCL incorporates by references paragraphs 1-107.

120. Admitted that RCL and OIC entered into a contract for OIC to operate the subject

excursion. All else denied.

121. Denied.

122. Denied.

123. Denied as an incomplete statement of the law.

124. Denied as an incomplete statement of the law.

125. Denied.

126. Denied.

127. Denied.

128. Denied.

129. Denied.

130. Denied.

131. Denied.

132. Denied.

133. Denied.

134. Denied including all sub-sections.

135. Denied.

136. Denied.

137. Denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

138. Denied.

THIRD CAUSE OF ACTION
FOR NEGLIGENT MISREPRESENTATION

AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES

139. RCL incorporates by references paragraphs 1-107.

140. Denied.

141. Denied.

142. Denied.

143. Denied.

144. Denied including all sub-sections.

145. Denied.

146. Denied.

147. Denied.

148. Denied.

149. Denied.

150. Denied.

151. Denied.

FOURTH CAUSE OF ACTION
FOR VICARIOUS LIABILITY –

OSTENSIBLE AGENCY (APPARENT AGENCY)
AGAINST DEFENDANT ROYAL CARIBBEAN CRUISE LINES

152. RCL incorporates by references paragraphs 1-107.

153. Denied including all sub-sections.

154. Denied.

155. Denied.

156. Denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

157. Denied.

158. Denied.

159. Denied.

160. Denied as an improper statement of the law.

161. Without knowledge, therefore denied.

162. Without knowledge, therefore denied.

163. Without knowledge, therefore denied including all sub-sections.

164. Denied.

165. Denied.

166. Denied.

167. Denied.

FIFTH CAUSE OF ACTION
PLAINTIFF NICOLE WOODLEY, individually and as mother and guardian of minors

K.W., M.W.; and C.W., JR.’s CLAIM FOR NEGLIGENT
INFLICTION OF EMOTIONAL DISTRESS

168. RCL incorporates by references paragraphs 1-107.

169. Denied.

170. Denied.

171. Denied.

172. Denied.

173. Denied.

SIXTH CAUSE OF ACTION
PLAINTIFF CLARICE LEE’S CLAIM FOR NEGLIGENT

INFLICTION OF EMOTIONAL DISTRESS

174. RCL incorporates by references paragraphs 1-107.

175. Denied.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

176. Denied.

177. Denied.

178. Denied.

179. Denied.

AFFIRMATIVE DEFENSES

As separate, complete, and affirmative defenses to Plaintiff’s Complaint and each of its

purported causes of action, based upon information and belief, RCL states as follows:

FIRST AFFIRMATIVE DEFENSE

RCL alleges federal maritime law, to the exclusion of state law, controls this action, and that

any recovery is limited by same.

SECOND AFFIRMATIVE DEFENSE

RCL alleges that this action is governed by, and subject to, the terms, limitations, and

conditions contained within the Plaintiffs’ passenger ticket contract. RCL adopts and incorporates

all of the terms, limitations, and conditions contained in the passenger ticket contract in its entirety

into its Answer by reference.

THIRD AFFIRMATIVE DEFENSE

The Death on the High Seas Act (DOHSA), 46 USC §30301 et seq., is the exclusive remedy

to the exclusion of state law and general maritime law of the Estate of Barbara Sibblis.

FOURTH AFFIRMATIVE DEFENSE

RCL alleges that it has fulfilled its duty of reasonable care to Plaintiffs and as such, Plaintiffs

are unable to recover.

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FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

FIFTH AFFIRMATIVE DEFENSE

RCL alleges that it had no notice, actual, constructive, or otherwise of any dangerous condition

which Plaintiffs allege were the proximate cause of Plaintiffs and/or Decedent’s injuries and as

such, RCL is not liable to Plaintiffs based on a theory of negligence and Plaintiffs are unable to

recover.

SIXTH AFFIRMATIVE DEFENSE

RCL alleges that it did not create any dangerous or defective condition, at any time during

Plaintiffs’ cruise, if ever.

SEVENTH AFFIRMATIVE DEFENSE

RCL alleges Plaintiffs knew of the existence of any alleged danger complained of in their

Complaint, realized and appreciated the possibility of injury as a result of the danger, and, having

a reasonable opportunity to avoid it, voluntarily exposed themselves to same.

EIGHTH AFFIRMATIVE DEFENSE

RCL alleges Plaintiffs’ and Decedent’s injuries were proximately caused by the conduct of

third parties, not subject to the control, supervision or direction of RCL, thereby precluding or

diminishing Plaintiffs’ recovery.

NINTH AFFIRMATIVE DEFENSE

RCL alleges that Plaintiffs’ and Decedent’s injuries were the result of superseding, intervening,

and/or unforeseeable causes, thereby precluding or diminishing Plaintiffs’ recovery.

TENTH AFFIRMATIVE DEFENSE

RCL alleges that, to the extent that the Plaintiffs’ Complaint alleges that a dangerous condition

existed, any such condition, was an open and obvious condition and that Plaintiffs and/or Decedent

Case 1:20-cv-20692-KMM Document 74 Entered on FLSD Docket 02/19/2021 Page 13 of 16

14

FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

did or should have observed and comprehend. As such, any recovery of the Plaintiffs is herein is

barred or should be reduced accordingly.

ELEVENTH AFFIRMATIVE DEFENSE

RCL alleges that Plaintiffs have failed to mitigate their damages, if any, thus precluding or

diminishing Plaintiffs’ recovery herein to the extent such mitigation would have diminished or

avoided Plaintiffs’ alleged losses or injuries.

TWELFTH AFFIRMATIVE DEFENSE

RCL alleges that Plaintiffs’ and Decedent’s injuries are the result of a pre-existing injury or

condition which was not aggravated by the alleged accident claimed herein. Alternatively, if any

pre-existing injury or condition was aggravated by any alleged injuries herein, Plaintiffs are only

entitled to reimbursement for the degree of aggravation, and any recovery must be limited to the

percentage of aggravation suffered as a result of the incidents alleged herein.

THIRTEENTH AFFIRMATIVE DEFENSE

RCL alleges, without admitting liability, that in the event that Plaintiffs should recover on their

claims, RCL would be entitled to a set-off, off-set, and/or reduction for any and all collateral source

benefits, wither paid or payable to Plaintiffs. Plaintiffs are not entitled to a windfall recovery based

on the difference between what was billed and what was actually paid by them or an insurer.

FOURTEENTH AFFIRMATIVE DEFENSE

RCL alleges that Plaintiffs’ Complaint, and each purported cause of action therein, fails to state

facts sufficient to constitute a cause of action against RCL.

WHEREFORE, Defendant, ROYAL CARIBBEAN CRUISES, LTD., having answered

Plaintiffs’ Complaint and having raised affirmative defenses, respectfully requests judgment in its

favor, and such other relief as this Court deems appropriate.

Case 1:20-cv-20692-KMM Document 74 Entered on FLSD Docket 02/19/2021 Page 14 of 16

15

FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

Dated: February 19, 2021
Miami, Florida

Respectfully submitted,

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on February 19, 2021, I electronically filed the foregoing document

with the Clerk of the Court using CM/ECF. I 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

electronically receive Notices of Electronic Filing.

BY: /s/ Noah D. Silverman
Noah D. Silverman, Esq.

By: /s/ Noah D. Silverman
Jeffrey E. Foreman, Esq. (FBN 0240310)
[email protected]
Noah Silverman, Esq. (FBN 401277)
[email protected]
Lauren Rose, Esq. (FBN 115743)
[email protected]
FOREMAN FRIEDMAN, P.A.
One Biscayne Tower, Suite 2300
2 South Biscayne Boulevard
Miami, Florida 33131
Tel: (305) 358-6555
Fax: (305) 374-9077
Attorneys for Royal Caribbean Cruises, Ltd.

Case 1:20-cv-20692-KMM Document 74 Entered on FLSD Docket 02/19/2021 Page 15 of 16

16

FOREMAN FRIEDMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: 305-358-6555 / Fax: 305-374-9077

SERVICE LIST

Tonya J. Meister, Esq.
MEISTER LAW LLC
Courthouse Tower, Suite 750
44 West Flagler Street
Miami, Florida 33130
E-mail: [email protected]
Counsel for Plaintiff

Elizabeth K. Russo, Esq.
Paolo R. Lima, Esq.
RUSSO APPELLATE FIRM, P.A.
[email protected]
7300 North Kendall Drive, Suite 600
Miami, Florida 33156
Telephone: (305) 666-4660
Facsimile: (305) 666-4470
Counsel for Plaintiff

Jeffrey E. Foreman, Esq.
[email protected]
[email protected]
Noah D. Silverman, Esq.
[email protected]
[email protected]
Lauren Rose, Esq.
[email protected]
[email protected]
Foreman Friedman, PA
One Biscayne Tower, Suite 2300
2 South Biscayne Boulevard
Miami, FL 33131
Phone: 305-358-6555
Fax: 305-374-9077
Attorneys for Royal Caribbean Cruises, Ltd.

Case 1:20-cv-20692-KMM Document 74 Entered on FLSD Docket 02/19/2021 Page 16 of 16

Date and Time: Sunday, March 21, 2021 11:26:00 AM EDT

Job Number: 139453570

Document (1)

1.




Woodley v. Royal Caribbean Cruises, Ltd., 2021 U.S. Dist. LEXIS 38897

Client/Matter: -None-

Search Terms: 2020 U.S.Dist.Lexis 124324

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Page 5 of 5

Woodley v. Royal Caribbean Cruises, Ltd.


 Temporarily unable to receive Shepard’s
  Signal™
As of: March 21, 2021 3:26 PM Z





Woodley v. Royal Caribbean Cruises, Ltd.


United States District Court for the Southern District of Florida

January 23, 2021, Decided; January 25, 2021, Entered on Docket

Case No. 1:20-cv-20692-KMM


Reporter

2021 U.S. Dist. LEXIS 38897 *

NICOLE WOODLEY, et al., Plaintiffs, v. ROYAL CARIBBEAN CRUISES, LTD., et al., Defendants.



Prior History: 



Woodley v. Royal Caribbean Cruises, Ltd., 472 F. Supp. 3d 1194, 2020 U.S. Dist. LEXIS 124324 (S.D. Fla., July 14, 2020)



Core Terms

personal jurisdiction, cruise, Excursion, Passenger, long-arm, lack of personal jurisdiction, Portions, motion to strike, contacts, venture



Counsel:  [*1] For Nicole Woodley, individually and as mother and guardian of minors K. W., M. W., and C.W., JR., Clarice Lee, individually, Barrington L. Sibblis, as personal representative of the Estate of Barbara Sibblis, Plaintiffs: Elizabeth Koebel Russo, Russo Appellate Firm, Miami, FL; Paulo R. Lima, Russo Appellate Firm, P.A., Miami, FL; Tonya Jean Meister, Meister Law LLC, Miami, FL.

For ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, Defendant: Noah Daniel Silverman, LEAD ATTORNEY, Jeffrey Eric Foreman, Foreman Friedman, PA, Miami, FL.

For OUT ISLAND CHARTERS NV, Defendant: Carlos Javier Chardon, LEAD ATTORNEY, Hamilton, Miller & Birthisel, LLP., Miami, FL.



Judges: K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE.




Opinion by: K. MICHAEL MOORE




Opinion


OMNIBUS ORDER


THIS CAUSE came before the Court upon Defendant Out Island Charters, NV’s (“OIC”) Motion to Dismiss Plaintiffs’ Amended Complaint for Lack of Personal Jurisdiction and to Enforce Forum Selection Agreement Between OIC and Plaintiffs. (“Mot.”) (ECF No. 55). Plaintiffs filed a response. (“Resp.”) (ECF No. 69). OIC did not file a reply and the time to do so has passed. The Motion is now ripe for review. The Parties also filed an Agreed Motion to Strike Portions [*2]  of the Amended Complaint (ECF No. 58), which the Court addresses here.

I. BACKGROUND[footnoteRef:1]1 [1: 1 The following background facts are taken from the Amended Complaint for Maritime Wrongful Death and Personal Injury Damages with Demand for Jury Trial (“Am. Compl.”) (ECF No. 51) and are accepted as true for purposes of ruling on this Motion to Dismiss. Fernandez v. Tricam Indus., Inc., No. 09-22089-CIV-MOORE/SIMONTON, 2009 U.S. Dist. LEXIS 138067, 2009 WL 10668267, at *1 (S.D. Fla. Oct. 21, 2009).]


This is a wrongful death action arising under

28 U.S.C. § 1333

brought by Nicole Woodley (“Woodley”), Clarice Lee (“Lee”), minors K.W., M.W., and C.W., Jr. (the “Minors”), and Barrington L. Sibblis, as personal representative of the Estate of Barbara Sibblis (the “Decedent”) (collectively, “Plaintiffs”) against Royal Caribbean Cruises LTD (“RCCL”) and OIC (collectively with RCCL, “Defendants”). See generally Am. Compl. (ECF No. 51). Woodley, Lee, the Minors, and the Decedent (collectively, “Passenger Plaintiffs”) were passengers on RCCL’s cruise ship, the Adventure of the Seas (the “Vessel”) during a Caribbean cruise between February 16, 2019 and February 24, 2019. Id. ¶¶ 1, 72.

On February 20, 2019, while on the Vessel, Passenger Plaintiffs purchased from RCCL admission to the Golden Eagle Shore Excursion (“Excursion”) operated by OIC. Id. ¶¶ 1-3. Passenger Plaintiffs disembarked the Vessel and boarded a catamaran as part of the Excursion. Id. ¶ 88. After sailing around the island, the catamaran anchored in deep water offshore from the beach. Id. ¶¶ 89-90. Passenger Plaintiffs were provided [*3]  “foam noodles” to help them swim from the catamaran to the beach. Id. ¶ 90. While attempting to swim from the catamaran to the beach, Decedent was found floating face down, non-responsive, in the ocean. Id. ¶ 101. After unsuccessful attempts to revive the Decedent, she was pronounced dead on the beach. Id. ¶¶ 102-03.



The Excursion is the subject of a contract between RCCL and OIC. Id. ¶ 37. Cruise passengers can book and pay for OIC excursions online prior to their cruise and during the cruise at designated OIC outposts on RCCL’s ships. Id. ¶¶ 42-43. RCCL “maintains a department” at its headquarters to promote and manage the OIC charters it sells to cruise passengers. Id. ¶ 44. OIC and RCCL are parties to a written contract entitled Tour Operator Manual and Agreement and/or a business enterprise and/or course of dealing (the “Agreement”) “to co-venture the marketing, selling and provision of recreational shore excursions, for the benefit of [RCCL’s] cruise passengers.” Id. ¶ 48.



On August 3, 2020, Plaintiffs filed an Amended Complaint alleging claims against RCCL and OIC; as to OIC, the claims include (1) Negligence (Count V); (2) Negligent Selection and Retention (Count VI); (3) Vicarious [*4]  Liability (Count VII); and (4) Negligent Infliction of Emotional Distress (Counts VIII and IX). See generally id. OIC now moves to dismiss Plaintiffs’ claims against OIC for lack of personal jurisdiction. See generally Mot.

II. LEGAL STANDARD







Federal Rule of Civil Procedure 12(b)(2)
provides that a court may dismiss a complaint for lack of personal jurisdiction.
Fed. R. Civ. P. 12(b)(2)
. “A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction.”
United Techs. Corp. v. Mazer



, 556 F.3d 1260, 1274 (11th Cir. 2009)

. In assessing whether a nonresident is subject to exercise of personal jurisdiction, federal courts must determine “whether the exercise of jurisdiction (1) comports with the long-arm statute of the forum state; and (2) does not violate the

Due Process Clause of the Fourteenth Amendment

.” Virgin Health Corp. v. Virgin Enters. Ltd., 393 F. App’x 623, 626 (11th Cir. 2010).











Federal courts engage in a three-part burden-shifting analysis when a defendant asserts lack of personal jurisdiction. See

Diulus v. Am. Express Travel Related Servs. Co., Inc.



, 823 F. App’x 843, 848 (11th Cir. 2020)

. “First, the plaintiff ‘bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction.'” Id. (quoting
Mazer



, 556 F.3d at 1274

). “Second, if the complaint alleged sufficient facts, and ‘the defendant challenges jurisdiction by submitting affidavit evidence in support [*5]  of its position, the burden traditionally shifts back to the plaintiff to produce evidence supporting its jurisdiction.'” Id. (quoting
Mazer



, 556 F.3d at 1274

). “Third, ‘where the plaintiff’s complaint and supporting evidence conflict with the defendant’s affidavits, the court must construe all reasonable inferences in favor of the plaintiff.'” Id. (quoting
Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc.



, 593 F.3d 1249, 1257 (11th Cir. 2010))

.

III. DISCUSSION

OIC moves to dismiss Plaintiffs’ claims against it, arguing that (1) OIC is not subject to personal jurisdiction in Florida, (2) OIC is not subject to jurisdiction before this Court under the national long-arm statute, and (3) Plaintiffs accepted a binding forum selection agreement requiring any claims to be brought exclusively in Saint Martin. See generally Mot. Plaintiffs filed a brief response, wherein Plaintiffs state that they will not be filing a substantive response “[i]n light of the Magistrate Judge’s Order denying Plaintiffs’ Motion for Leave to Propound Jurisdictional Discovery.” Resp. at 1; see also (ECF No. 64). For the reasons set forth below, the Court finds that dismissal of the claims against OIC is warranted because OIC is not subject to personal jurisdiction in Florida or jurisdiction before this Court under the national [*6]  long-arm statute. Accordingly, the Court does not reach the merits of the binding forum selection agreement.

A. OIC is Not Subject to Personal Jurisdiction in Florida


OIC argues that it is not subject to general or personal jurisdiction in Florida. See Mot. at 6-13. Specifically, OIC argues that it is not “at home” in Florida, which “forecloses a finding of general jurisdiction.” Id. at 10. OIC further argues that it is not subject to specific jurisdiction under Florida’s long-arm statute because (1) Plaintiffs do not allege that OIC committed a tortious act in Florida; (2) OIC’s indemnity agreement with RCCL is an insufficient basis upon which to confer jurisdiction as Plaintiffs’ claims do not arise out of that indemnity agreement; and (3) OIC’s contract with RCCL, which contains a Florida forum selection provision, is an insufficient basis upon which to confer jurisdiction under a third-party beneficiary theory. Id. at 6-9.





“Florida’s long-arm statute provides for both general and specific personal jurisdiction.”
Louis Vuitton Malletier, S.A. v. Mosseri



, 736 F.3d 1339, 1352 (11th Cir. 2013)

(citing

§ 48.193(1)-(2)

). “General personal jurisdiction exists when a defendant ‘is engaged in substantial and not isolated activity within this state . . . whether or not the claim arises from that activity.'” [*7]  Id. (quoting

§ 48.193(2)

). “General personal jurisdiction is based on a defendant’s substantial activity in Florida without regard to where the cause of action arose.” Id. (citation omitted). “[S]pecific personal jurisdiction authorizes jurisdiction over causes of action arising from or related to the defendant’s actions within Florida and concerns a nonresident defendant’s contacts with Florida only as those contacts related to plaintiff’s cause of action.” Id. (citation omitted).




This Court has previously dismissed with prejudice claims against excursion operators for lack of personal jurisdiction, finding both general and specific jurisdiction lacking under similar circumstances. See, e.g.,

Hickey v. Celebrity Cruises, Inc.



, No. 13-20587-CIV-SCOLA/OTAZO-REYES, 2015 U.S. Dist. LEXIS 195809, 2015 WL 13776760, at *5-6 (S.D. Fla. Feb. 2, 2015)

(finding that (1) an indemnity agreement between OIC and Celebrity Cruises, Inc. did not provide a basis for the exercise of specific personal jurisdiction over OIC; and (2) because OIC, “a corporation that operates exclusively in the Caribbean Island of Saint Martin, is not ‘at home’ in Florida[,] . . . the exercise of personal jurisdiction over [OIC] would not satisfy the minimum contacts requirement of the

Due Process Clause of the Fourteenth Amendment

“);
Serra-Cruz v. Carnival Corp.



, 400 F. Supp. 3d 1354, 1363 (S.D. Fla. 2019)

(“[T]his Court will not allow Plaintiff to [*8]  enter through the ‘back door’ and use the [consent to jurisdiction clause in an agreement between a cruise line and an excursion operator] via a meritless third-party beneficiary claim to find jurisdiction over a foreign defendant in a personal injury case.”










As in
Hickey
and
Serra-Cruz
, the indemnity agreement between OIC and Carnival does not provide a basis for the exercise of personal jurisdiction over OIC because Plaintiffs’ claims do not arise out of it, and OIC operates exclusively in Saint Martin, and is thus not “at-home” in Florida. See

Hickey



, 2015 U.S. Dist. LEXIS 195809, 2015 WL 13776760, at *5-6

;
Serra-Cruz



, 400 F. Supp. 3d at 1363

. Plaintiffs did not file a substantive response citing to any authority or setting forth any factual circumstances to differentiate the circumstances here from those present in Hickey and Serra-Cruz that warrants a different result. Accordingly, the Court finds that OIC is not subject to personal jurisdiction in Florida.

B. OIC is Not Subject to Jurisdiction Before This Court Under the National Long-Arm Statute



OIC argues that “courts rarely invoke jurisdiction under

Rule 4(k)(2)

” and “[f]ollowing Daimler [AG v. Bauman], jurisdiction under

Rule 4(k)(2)

has become even harder to establish.” Mot. at 13-14 (citing
Daimler AG v. Bauman



, 571 U.S. 117, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014))

.





Rule 4(k)(2) of the Federal Rules of Civil Procedure
“permits a federal court to aggregate a foreign defendant’s [*9]  nationwide contacts to allow for personal jurisdiction provided that two essential conditions are met: (1) plaintiff’s claims must arise under federal law; and (2) the exercise of jurisdiction must be consistent with the Constitution and laws of the United States.”
Thompson v. Carnival Corp.



, 174 F. Supp. 3d 1327, 1337 (S.D. Fla. 2016)

(quoting Fraser v. Smith, 594 F.3d 842, 848-49 (11th Cir. 2010)) (internal quotation marks omitted). “[I]t is a rare occurrence when a court invokes jurisdiction under the rule.” Id. The rule was invoked, for example, as to Osama bin Laden and al-Qaeda, where the court found that they “engaged in unabashedly malignant actions directed at and felt in this forum.” Mwani v. bin

Laden



, 417 F.3d 1, 13, 368 U.S. App. D.C. 1 (D.C. Cir. 2005)

.



Similar to this Court’s previous findings in cases involving excursion operators, the Court finds that OIC’s contacts with the United States are too tenuous to support jurisdiction under the national long-arm statute. See, e.g.,

Thompson



, 174 F. Supp. 3d at 1338

. Accordingly, the Court finds that OIC is not subject to this Court’s jurisdiction under the national long-arm statute.

C. The Parties’ Agreed Motion to Strike Portions of the Amended Complaint

In a separate Motion, Plaintiffs and Defendant RCCL jointly move the Court to strike allegations that inadvertently remained in Plaintiffs’ Amended Complaint after the Court dismissed certain [*10]  counts from the original Complaint. See generally (ECF No. 58). The Parties specifically request that the Court strike “(1) the term ‘joint venturer’ from paragraph 134; (2) paragraph 136 in its entirety, including all sub-sections; and (3) sub-sections (a)-(c) and (f)-(aa) from paragraph 163.” Id. at 3.






Federal Rule of Civil Procedure 12(f)
provides that a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”


Fed. R. Civ. P. 12(f)

. “The purpose of a motion to strike is to clean up the pleadings, remove irrelevant or otherwise confusing materials, and avoid unnecessary forays into immaterial materials.”
Blake Batmasian



, 318 F.R.D. 698, 700 (S.D. Fla. 2017)

. Motions to strike are usually only granted when “the matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.”
Id.



at 700-01

(citation omitted).

Here, Plaintiffs and Defendant RCCL request that the Court strike the terms “joint venture/joint venturer” from paragraph 134 and paragraph 163 in its entirety because those allegations implicate joint venture and are immaterial since the Amended Complaint does not bring a cause of action for joint venture. (ECF No. 58) at 3. Plaintiffs and Defendant RCCL further argue that [*11]  sub-sections (a)-(c) and (f)-(aa) should be stricken from paragraph 163 because they are immaterial to Plaintiffs’ claim for Negligent Selection and/or Retention. Id.



The Court finds good cause to strike the aforementioned portions of Plaintiffs’ Amended Complaint.

IV. CONCLUSION


UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that OIC’s Motion to Dismiss Plaintiffs’ Amended Complaint for Lack of Personal Jurisdiction (ECF No. 55) is GRANTED, and Plaintiffs claims against OIC are hereby DISMISSED WITH PREJUDICE. The Clerk of Court is INSTRUCTED to terminate OIC as a party to this case.



It is FURTHER ORDERED that Plaintiffs shall file an Amended Complaint on or before February 5, 2021 omitting claims against OIC and the portions that Plaintiffs and Defendant RCCL have agreed to strike, which shall serve as the final operative complaint in this matter. Accordingly, the Parties’ Agreed Motion to Strike Portions of the Amended Complaint (ECF No. 58) is DENIED AS MOOT.



DONE AND ORDERED in Chambers at Miami, Florida, this 23rd day of January, 2021.



/s/ K. Michael Moore



K. MICHAEL MOORE



CHIEF [*12]  UNITED STATES DISTRICT JUDGE

End of Document

Date and Time: Sunday, March 21, 2021 11:20:00 AM EDT

Job Number: 139453354

Document (1)

1.




Woodley v. Royal Caribbean Cruises, Ltd., 472 F. Supp. 3d 1194

Client/Matter: -None-

Search Terms: 2020 U.S.Dist.Lexis 124324

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Page 11 of 11

Woodley v. Royal Caribbean Cruises, Ltd.


   Neutral
As of: March 21, 2021 3:20 PM Z





Woodley v. Royal Caribbean Cruises, Ltd.


United States District Court for the Southern District of Florida

July 14, 2020, Decided; July 14, 2020, Entered on Docket

Case No. 1:20-cv-20692-KMM


Reporter

472 F. Supp. 3d 1194 *; 2020 U.S. Dist. LEXIS 124324 **; 107 Fed. R. Serv. 3d (Callaghan) 553

NICOLE WOODLEY, et al., Plaintiffs, v. ROYAL CARIBBEAN CRUISES, LTD., et al., Defendants.



Subsequent History: Dismissed by, Motion denied by, As moot


Woodley v. Royal Caribbean Cruises, Ltd., 2021 U.S. Dist. LEXIS 38897 (S.D. Fla., Jan. 23, 2021)


Core Terms

Excursion, passengers, Plaintiffs’, allegations, motion to dismiss, joint venture, argues, misrepresentation, counts, retention, cruise, shore, vicarious liability, dangerous condition, tour operator, contractor’s, notice, beach, omissions, shotgun, Minors, negligent misrepresentation, distress, warn, heightened duty, duty to warn, cruise line, Brochure, grounds, Vessel



Counsel:  [**1] For Nicole Woodley, individually and as mother and guardian of minors K. W., M. W., and C.W., JR., Clarice Lee, individually, Barrington L. Sibblis, as personal representative of the Estate of Barbara Sibblis, Plaintiffs: Elizabeth Koebel Russo, Russo Appellate Firm, Miami, FL; Paulo R. Lima, Russo Appellate Firm, P.A., Miami, FL; Tonya Jean Meister, Meister Law LLC, Miami, FL.

For ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, Defendant: Noah Daniel Silverman, LEAD ATTORNEY, Jeffrey Eric Foreman, Foreman Friedman, PA, Miami, FL.

For OUT ISLAND CHARTERS NV, Defendant: Carlos Javier Chardon, LEAD ATTORNEY, Hamilton, Miller & Birthisel, LLP., Miami, FL.



Judges: K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE.




Opinion by: K. MICHAEL MOORE




Opinion

 [*1198] 
ORDER ON MOTION TO DISMISS


THIS CAUSE came before the Court upon Defendant Royal Caribbean Cruises LTD.’s (“RCCL”) Motion to Dismiss Plaintiffs’ Complaint. (“Mot.”) (ECF No. 11). Plaintiffs filed a response in opposition.  [*1199]  (“Resp.”) (ECF No. 21). RCCL filed a reply. (“Reply”) (ECF No. 26). The Motion is now ripe for review.

I. BACKGROUND[footnoteRef:1]1 [1: 1 The following background facts are taken from the Complaint for Maritime Wrongful Death and Personal Injury Damages with Demand for Jury Trial (“Compl.”) (ECF No. 1) and are accepted as true for purposes of ruling on this Motion to Dismiss. Fernandez v. Tricam Indus., Inc., No. 09-22089-CIV-MOORE/SIMONTON, 2009 U.S. Dist. LEXIS 138067, 2009 WL 10668267, at *1 (S.D. Fla. Oct. 21, 2009).]


This is a wrongful death action arising under

28 U.S.C. § 1333

brought by Nicole Woodley (“Woodley”), Clarice Lee (“Lee”), [**2]  minors K.W., M.W. and C.W., Jr. (the “Minors”), and Barrington L. Sibblis, as personal representative of the Estate of Barbara Sibblis (the “Decedent”) (collectively, “Plaintiffs”) against RCCL and Out Island Charters NV (“OIC”) (collectively with RCCL, “Defendants”). See generally Compl. Woodley, Lee, the Minors and the Decedent (collectively, “Passenger Plaintiffs”) were passengers on RCCL’s cruise ship, the Adventure of the Seas (the “Vessel”) during an eight (8) night Caribbean cruise between February 16, 2019 and February 24, 2019. Id. ¶¶ 1, 72. On February 20, 2019, while on the Vessel, Passenger Plaintiffs purchased from RCCL admission to the Golden Eagle Shore Excursion (“Excursion”) operated by OIC. Id. ¶¶ 2-3. An RCCL employee recommended the Excursion to Passenger Plaintiffs “as easy and perfect for the young and older ages of their group.” Id. ¶ 79. An RCCL document described the Excursion as follows:

Catamaran Sail: Enjoy the tropical breeze as your vessel speeds across the sparkling sea as fast as 20 knots. Beach and Snorkeling: The boat anchors offshore a beautiful spot where you can swim, sun and snorkel. Lunch and Drinks: Your friendly crew will serve baguette sandwiches [**3]  and ice-cold beverages on the return to port. (SM08) Notes: Guests may need to wade or swim in the water to access the beach. Nudity may be observed at the beach. Minimum Age: 4 years Maximum Weight: 250 lbs.

Id. ¶ 80. No other description or warning was provided. Id. ¶ 81. Passenger Plaintiffs purchased the Excursion based on the recommendation and description provided by the RCCL employee. Id. ¶ 86.


Passenger Plaintiffs disembarked the Vessel and boarded a catamaran as part of the Excursion. Id. ¶ 89. After sailing around the island, the catamaran anchored in deep water offshore from the beach. Id. ¶¶ 89-90. Passenger Plaintiffs were provided “foam noodles” to help them swim from the catamaran to the beach. Id. ¶ 90. Because of the wind and sea conditions, Passenger Plaintiffs “feared for their safety and struggled to get to the beach. Id. ¶ 99. Woodley, Lee, and the Minors successfully reached the beach. Id. ¶ 100. The Decedent was found floating face down, non-responsive, in the ocean. Id. ¶ 101. After unsuccessful attempts to revive the Decedent, she was pronounced dead on the beach. Id. ¶¶ 102-03. Woodley, Lee, and the Minors “suffered shock, fear, horror and emotional distress [**4]  in their own struggle to safely get to the beach, in witnessing unsuccessful attempts to revive [the Decedent], and in witnessing her dead body.” Id. ¶ 105.



The Excursion is the subject of a contract between RCCL and OIC. Id. ¶ 37. Cruise passengers can book and pay for OIC excursions online prior to their cruise and during the cruise at designated OIC outposts on RCCL’s ships. Id. ¶¶ 42-43. RCCL “maintains a department” at its headquarters to promote and manage the  [*1200]  OIC charters it sells to cruise passengers. Id. ¶ 44. OIC and RCCL are parties to a written contract entitled Tour Operator Manual and Agreement and/or a business enterprise and/or course of dealing (the “Agreement”) “to co-venture the marketing, selling and provision of recreational shore excursions, for the benefit of [RCCL’s] cruise passengers.” Id. ¶ 48.



On February 17, 2020, Plaintiffs filed the Complaint alleging claims against RCCL for (1) Negligence, Carelessness, Wantonness, and Recklessness (Count I); (2) Negligent Selection and Retention (Count II); (3) Negligent Misrepresentation (Count III); (4) Vicarious Liability – Actual Agency (Count IV); (5) Vicarious Liability – Ostensible Agency (Apparent Agency) (Count [**5]  V); (6) Vicarious Liability – Joint Venture/Joint Enterprise (Count VI); (7) Negligent Infliction of Emotional Distress (“NIED”) (Counts X and XI); and (8) Breach of Contract (Count XII). See generally id. RCCL now moves to dismiss Plaintiffs’ Complaint arguing that Plaintiffs have failed to state a claim upon which relief can be granted. See generally Mot.

II. LEGAL STANDARD




















A court may dismiss a complaint for failing to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6)
. “To survive a motion to dismiss, a 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)

(citation and internal quotation marks omitted). This requirement “give[s] the defendant fair notice of what the claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly



, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)

(internal citation and alterations omitted). The court takes the plaintiff’s factual allegations as true and construes them in the light most favorable to the plaintiff.
Pielage v. McConnell



, 516 F.3d 1282, 1284 (11th Cir. 2008)

. A complaint must contain enough facts to plausibly allege the required elements.
Watts v. Fla. Int’l Univ.



, 495 F.3d 1289, 1295-96 (11th Cir. 2007)

. A pleading that offers “a formulaic recitation of the elements of a cause of action will not do.”
Iqbal



, 556 U.S. at 678

(quoting
Twombly



, 550 U.S. at 555

). “[C]onclusory allegations, unwarranted [**6]  deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.”
Oxford Asset Mgmt., Ltd. v. Jaharis



, 297 F.3d 1182, 1188 (11th Cir. 2002)

.

III. DISCUSSION

RCCL moves to dismiss the Complaint on several grounds. First, RCCL argues that the Complaint should be dismissed in its entirety as it is an impermissible shotgun pleading. Second, RCCL moves to dismiss Plaintiffs’ negligence claim on the basis that it improperly seeks to impose heightened duties of care on RCCL and does not sufficiently allege that RCCL was on notice of a dangerous condition. Third, RCCL moves to dismiss Plaintiffs’ negligent selection and retention claim as speculative and conclusory. Fourth, RCCL moves to dismiss Plaintiffs’ negligent misrepresentation claim because it is not pleaded with particularity under

Federal Rule of Civil Procedure 9(b)

and Plaintiffs’ have otherwise failed to allege the misrepresentation of a material fact. Fifth, RCCL moves to dismiss Plaintiffs’ apparent agency theory of vicarious liability because of the same tour agreement language. Sixth, RCCL moves to dismiss Plaintiffs’ joint venture theory of vicarious liability upon the same grounds. Seventh, RCCL moves  [*1201]  to dismiss Plaintiffs’ NIED claim because Plaintiffs failed to allege that they were in the zone of danger [**7]  or suffered physical manifestations of their distress.[footnoteRef:2]2 The Court addresses each argument in turn. [2: 2 RCCL also argues that Plaintiffs fail to state a claim for an actual agency theory of vicarious liability or breach of contract. Mot. at 12, 18. Plaintiffs concede that the “weight of authority in this District” conforms to RCCL’s arguments on both claims. Resp. at 18. Accordingly, Plaintiffs’ claims for Vicarious Liability by way of Actual Agency and Breach of Contract are dismissed. See A.M.S. v. Carnival Corp., No. 06-22091-CIV-GRAHAM, 2007 WL 9705997, at *3 (S.D. Fla. Jan. 23, 2007).]

A. The Complaint is Not an Impermissible Shotgun Pleading

RCCL argues that the Complaint “is a classic shotgun pleading as it begins each count with a preamble, re-alleging and incorporating by reference” all of the general factual allegations. Mot. at 3. Plaintiffs respond that while the counts in the complaint incorporate the general factual allegations, they do not “incorporate[] or adopt[] the allegations of preceding counts.” Resp. at 3.









The pleading requirements of the Federal Rules of Civil Procedure require that a complaint “give the defendant fair notice of what the claim is and the grounds upon which it rests.”
Twombly



, 550 U.S. at 555

. The allegations in a complaint “must be simple, concise, and direct.”

Fed. R. Civ. P. 8(d)(1)

. A “shotgun pleading”—one in which “it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief”—does not comply with the standards of

Rules 8(a)

and

10(b)

.
Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll.



, 77 F.3d 364, 366 (11th Cir. 1996)

; see also

Magluta v. Samples



, 256 F.3d 1282, 1284 (11th Cir. 2001)

.

The Court of Appeals for the Eleventh Circuit has described impermissible shotgun pleadings at length:





Though the groupings cannot be too finely drawn, we have identified [**8]  four rough types or categories of shotgun pleadings. The most common type—by a long shot—is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint. The next most common type, at least as far as our published opinions on the subject reflect, is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venial sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief. Fourth, and finally, there is the relatively rare sin of asserting multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.





Weiland v. Palm Beach Cty. Sheriff’s Office



, 792 F.3d 1313, 1321-23 (11th Cir. 2015)

(citation omitted). “The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or [**9]  another, to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.”
Id.



at 1323

.



Here, Plaintiffs allege twelve (12) counts, each of which incorporate paragraphs  [*1202]  1-136. See, e.g., Compl. ¶ 137. Paragraphs 1-136 contain general factual allegations that either relate to one or more of Plaintiffs’ counts or establish the Court’s jurisdiction. See id. ¶¶ 1-136. Although each of these factual paragraphs are incorporated into each count regardless of their applicability to the particular count, the Eleventh Circuit has drawn a bright line of distinction between the typical shotgun pleading—”where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint”—and pleadings like the Complaint.
Weiland



, 792 F.3d at 1321, 1324

(emphasis added).






Here, “[t]he allegations of each count are not rolled into every successive count. . . . [T]his is not a situation where a failure to more precisely parcel out and identify the facts relevant to each claim materially increased the burden of understanding the factual allegations underlying each count.”
Id.



at 1324

. The incorporation of [**10]  all factual allegations into each count has not made it “virtually impossible” for RCCL to determine which facts apply to which counts. In fact, RCCL does not argue that it had any difficulty in discerning which facts applied to which count, and its distinct arguments to dismiss each count confirm that there was no such difficulty. See

Anderson



, 77 F.3d at 366

. Accordingly, RCCL’s argument is unpersuasive.

B. Plaintiffs Plead Improperly Heightened Duties in their Claim for Negligence

RCCL argues that Plaintiffs have failed to state a claim for negligence. Specifically, RCCL argues that (1) Plaintiffs improperly impose a heightened duty on RCCL beyond the duty to warn of dangers where passengers are reasonably expected to visit; (2) Plaintiffs fail to allege that RCCL was on notice of a dangerous condition on the Excursion, and therefore RCCL had no duty to protect passengers from the Excursion; and (3) Plaintiffs make further speculative allegations that they will prove further acts and omissions of negligence at trial. Mot. at 4-7. Plaintiffs respond that (1) Plaintiffs do not impose a heightened duty on RCCL, and indeed it did fail to warn Plaintiffs of a danger where they were expected to visit; and (2) [**11]  Plaintiffs have pled that RCCL was on notice of similar incidents and, thus, aware of the danger on the Excursion. Resp. at 4-8.











A claim of negligence in a maritime case requires the following allegations: “(1) [T]he defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012). “[A] cruise line owes its passengers a duty to warn of known dangers beyond the point of debarkation in places where passengers are invited or reasonably expected to visit.” Id. (citing Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, 251 (Fla. Dist. Ct. App. 1985));
Aronson v. Celebrity Cruises, Inc.



, 30 F. Supp. 3d 1379, 1395 (S.D. Fla. 2014)

. “Thus, where cruise ship passengers are invitees or expected visitors at offshore locations, a ship operator’s duty of care is limited to the duty to warn.”
Aronson



, 30 F. Supp. 3d at 1395

;
Munday v. Carnival Corp.



, No. 16-CV-24841-KMW, 2017 U.S. Dist. LEXIS 112521, 2017 WL 5591640, at *2 (S.D. Fla. July 18, 2017)

.

Here, the Parties agree that the duty of care as it relates to cruise passenger injuries suffered off the vessel does not extend  [*1203]  beyond the duty to warn. Mot. at 4; Resp. at 4. Plaintiffs allege a number of negligent acts for a breach of the duty to warn: the failure “to accurately inform cruise ship passengers, including [Passenger Plaintiffs,] of the dangers and [**12]  undue risks associated with the [Excursion]” and the failure “to warn passengers, including [Passenger Plaintiffs] that the [Excursion] involved deep water swimming with strong ocean currents and/or other dangers without life vests or other reasonable flotation device.” Compl. ¶ 143(p), (y). However, the Complaint does appear to allege several negligent acts that would require heightened duties of care. See id. ¶ 143(a)-(o), (q)-(x) (including such acts and omissions as “[f]ailing to provide an excursion with proper equipment and personnel; [and] [f]ailing to select reasonably safe shore excursions to sponsor; Failing to promote, market, and sell reasonably safe shore excursions to its passengers,” among others). Thus, RCCL argues that Plaintiffs’ negligence claim should be dismissed on the basis that most of the allegations require a duty beyond the duty which RCCL owes to Plaintiffs. Mot. at 5.













Courts in this district take two distinct approaches to complaints that include a count of negligence based on breaches of the duty to warn and inappropriate heightened duties. One approach is to allow the count to survive dismissal, declining to strike individual claims that reached beyond [**13]  the duty to warn “in line-item fashion.”
Thompson v. Carnival Corp.



, 174 F. Supp. 3d 1327, 1342 (S.D. Fla. 2016)

(collecting cases). The other approach is to strike negligence counts that impose heightened duties. Id. (collecting cases). In
Thompson
, the Court took the latter approach to avoid “render[ing] cruise line operators like Carnival the all-purpose insurers of their passengers’ safety.” Here, the Court cannot allow Plaintiffs’ twenty-three (23) improper negligence allegations to survive dismissal because they properly alleged negligence in just two (2) instances. By dismissing the claim, the Court ensures that issues that reach discovery are tailored narrowly to those claims that Plaintiffs can permissibly recover on, and not overwhelmed by the numerous improper allegations. Compare

Kennedy v. Carnival Corp.



, No. 18-20829-Civ-WILLIAMS/TORRES, 2018 U.S. Dist. LEXIS 124539, 2018 WL 4410223, at *3 (S.D. Fla. July 24, 2018)

(granting motion to dismiss where the plaintiff alleged breaches of “thirty-nine separate duties of care, but almost none of them [were] premised on duties recognized under general maritime law”), with

Kennedy v. Carnival Corp.



, 385 F. Supp. 3d 1302, 1334

(denying motion to dismiss where the same plaintiff, in an amended complaint, alleged that the defendant “breached twenty-six duties of care with nineteen premised on the failure to warn,” and holding that the plaintiff had [**14]  “presented sufficient allegations to establish a claim for negligence even though some of the allegations are misplaced”). Furthermore, Plaintiffs implicitly concede that RCCL is not responsible for the breaches alleged in paragraphs 143(a)-(o) and (q)-(x). Resp. at 4-5. As such, RCCL’s argument for dismissal on these grounds is persuasive.

To the extent that Plaintiffs do impose the proper duty in a maritime negligence case, RCCL also argues that the Complaint contains only “threadbare allegations that recite no facts suggesting how [RCCL] knew or should have known of any specific dangerous condition” on the Excursion. Mot. at 6. Plaintiffs point to two allegations regarding RCCL’s knowledge of the dangerous conditions that refer to an “incident suffered by other participants” and “other passengers’ reviews” of [*1204]  the Excursion. Resp. at 6 (citing Compl. ¶¶ 113, 115). No other facts relating to other passengers’ experience with the Excursion are alleged. See generally Compl.








A prerequisite to the imposition of liability for a shipowner’s breach of a duty to warn its passengers is that the “carrier must have had ‘actual or constructive notice of the risk-creating condition.'”
Wolf v. Celebrity Cruises, Inc.



, 683 F. App’x 786, 794 (11th Cir. 2017)

(quoting [**15]  Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989). Further, “[a] cruise line must warn passengers only of those dangers that the cruise line knows or reasonably should have known, and which are not apparent and obvious to the passenger.”
Gayou v. Celebrity Cruises, Inc.



, No. 11-23359-Civ, 2012 U.S. Dist. LEXIS 77536, 2012 WL 2049431, at *5 (S.D. Fla. June 5, 2012)

(internal quotation marks and citation omitted).



Here, the Court is persuaded by RCCL’s argument that Plaintiffs do not allege facts sufficient to plausibly suggest that RCCL had actual notice of dangerous conditions on the Excursion. Plaintiffs do not allege what the alleged “incident” suffered by other passengers entailed, nor do they allege whether “reviews” by passengers who have gone on the Excursion even reference the same dangerous conditions that Passenger Plaintiffs experienced. See generally Compl. However, Plaintiffs have alleged more specific facts supporting the allegation that RCCL should have known of the dangerous condition. Specifically, Plaintiffs allege that (1) RCCL has a department that oversees, supervises, and monitors off-vessel products such as the Excursion, and (2) RCCL “inspects the operations of its tour providers, such as [OIC].” Id. ¶¶ 44, 130. That RCCL had employees supervising contractors like OIC and inspecting its [**16]  operations is sufficient to plausibly claim that RCCL had constructive notice of the dangerous condition. See

Kennedy



, 385 F. Supp. 3d at 1331

(holding that the defendant had sufficiently alleged constructive knowledge of the dangerous condition by alleging that the defendant should have learned of the condition of the excursion during inspections). Thus, RCCL’s argument on this point is not persuasive.



Lastly, RCCL argues that the claim it breached its duty to Plaintiffs through “[o]ther acts and/or omissions of negligence that will be proven at trial” is speculative and conclusory. Mot. at 7; Compl. ¶ 143(z). Plaintiffs offers no response on this point. See generally Compl. In any event, the Court agrees with RCCL. See

Thompson



, 174 F. Supp. 3d at 1341

. Accordingly, Plaintiffs’ claim for Negligence is dismissed without prejudice.[footnoteRef:3]3 [3: 3 RCCL makes passing arguments for the dismissal of Plaintiffs’ agency theories of vicarious liability and NIED claim on the grounds that those claims require a sufficiently pled negligence claim. Mot. at 11, 13, 16. Although the Court dismisses Plaintiffs’ negligence claim, it does not do so because Plaintiffs failed to properly plead negligence, but because Plaintiffs improperly imposed heightened duties of care along with the appropriate duty to warn. Accordingly, these arguments are inapposite.]

C. Plaintiffs have Not Sufficiently Pled Negligent Selection and Retention

RCCL argues that Plaintiffs fail to establish how RCCL knew or should have known that OIC was unfit to operate the Excursion safely. Mot. at 8. Plaintiffs respond that because RCCL dedicated a department to managing OIC excursions, RCCL knew or should have known of OIC’s incompetence. Resp. at 8.








 [*1205]  To plead a prima facie claim for negligent hiring or [**17]  retention, a plaintiff must demonstrate (1) the incompetence or unfitness of the contractor; (2) the defendant’s knowledge of the contractor’s incompetence or unfitness; and (3) that the contractor’s incompetence or unfitness proximately caused the plaintiff’s injuries.
Chimene v. Royal Caribbean Cruises, LTD.



, No: 16-23775-CV-MORENO/TURNOFF, 2017 U.S. Dist. LEXIS 188937, 2017 WL 8794706, at *6 (S.D. Fla. Nov. 14, 2017)

(citing
Smolnikar v. Royal Caribbean Cruises, Ltd.



, 787 F. Supp. 2d 1308, 1323 (S.D. Fla. 2011)

).












However, “negligent selection or hiring and negligent retention are separate and distinct causes of action.”
Ferretti v. NCL (Bahasmas) Ltd.



, No. 17-cv-20202-GAYLES/OTAZO-REYES, 2018 U.S. Dist. LEXIS 104734, 2018 WL 3093547, *2 (S.D. Fla. June 22, 2018)

. “The only difference between negligent selection and negligent retention claims is ‘the time at which the [cruise line] is charged with knowledge of the [contractor’s] unfitness.'”
Smolnikar



, 787 F. Supp. 2d at 1318 n.7

(quoting
Garcia v. Duffy



, 492 So. 2d 435, 438 (Fla. Dist. Ct. App. 1986)

). With negligent hiring, the inquiry relevant to the question of a defendant’s knowledge of their contractor’s incompetence is whether the defendant “diligently inquired” into the fitness of the contractor.
Id.



at 1319

. However, with negligent retention, liability hinges on whether the defendant was aware or should have been aware of such unfitness “during the course of the contractor’s employment.”
Id.



at 1318 n.7

.





Here, Plaintiffs have insufficiently alleged facts supporting the second element of both negligent selection and negligent [**18]  retention. Plaintiffs alleged that RCCL failed “to conduct an adequate and proper investigation” of OIC, but do not specify whether that failure to investigate took place prior to the hiring of OIC. Compl. ¶ 160;
Smolnikar



, 787 F. Supp. 2d at 1319

. This allegation, and others like it in the Complaint, “are temporally ambiguous,” leaving the Court “unable to determine whether Plaintiff[s] [are] alleging that RCCL failed to investigate [OIC’s] policies before [OIC] was hired or after.”
Ferreti



, 2018 U.S. Dist. LEXIS 104734, 2018 WL 3093547, at *2

(dismissing claim for negligent selection or hiring).






For the purposes of negligent retention, as discussed above, Plaintiffs allege that RCCL has a team of employees dedicated to overseeing contractors like OIC that inspect OIC’s operations. See Compl. ¶¶ 44, 130. However, contrary to Plaintiffs’ argument that the allegations demonstrating RCCL’s knowledge of the dangerous condition “also establish [RCCL’s] knowledge of [OIC]’s incompetence,” the notice standard to support a duty to warn is different from negligent retention. Resp. at 8. While the allegation that RCCL conducted inspections of OIC’s operations does support a duty to warn claim, it is insufficient for the purposes of negligent retention. See

Kennedy



, 385 F. Supp. 3d at 1335-1336

(“Simply having participated [**19]  in site inspections of the excursion operator . . . is not enough.”). In this context, Plaintiffs’ claims are “little more than boilerplate and entirely conclusory.”
Brown v. Carnival Corp.



, 215 F. Supp. 3d 1312, 1318 (S.D. Fla. 2016)

. Accordingly, Plaintiffs’ claims for negligent retention and selection are dismissed without prejudice.

D. Plaintiffs Have Pled a Claim for Negligent Misrepresentation Upon Which Relief Can be Granted

RCCL argues that Plaintiffs fail to state a claim for Negligent Misrepresentation.  [*1206]  Specifically, RCCL argues that Plaintiffs (1) fail to plead with particularity what facts RCCL misrepresented; and (2) fail to sufficiently plead that RCCL made any false statements. Mot. at 10. Plaintiffs respond that they met the particularity standard by pleading that a RCCL employee told the Passenger Plaintiffs that the Excursion was easy and appropriate for their range of ages but failed to inform them of the risks. Resp. at 10.




To state a claim for negligent misrepresentation, a plaintiff must allege:




(1) misrepresentation of a material fact; (2) that the representor made the misrepresentation without knowledge as to its truth or falsity or under circumstances in which he ought to have known of its falsity; (3) that the representor intended [**20]  that the misrepresentation induce another to act on it; and (4) that injury resulted to the party acting in justifiable reliance on the misrepresentation.





Ceithaml v. Celebrity Cruises, Inc.



, 207 F. Supp. 3d 1345, 1352-53 (S.D. Fla. 2016)

. Claims for negligent misrepresentation are subject to the heightened pleading standards of

Rule 9(b) of the Federal Rules of Civil Procedure

. Id.

Rule 9(b)

requires that a complaint set forth:



(1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.






Ziemba v. Cascade Int’l, Inc.



, 256 F.3d 1194, 1202 (11th Cir. 2001)

. To satisfy

Rule 9(b)

in a negligent misrepresentation claim, “the Complaint must set forth particular allegations about the ‘who, what, when, where, and how’ of the fraud.”
Ceithaml



, 207 F. Supp. 3d at 1353

(quoting
Garfield v. NDC Health Corp.



, 466 F.3d 1255, 1262 (11th Cir. 2006)

).

Here, Plaintiffs allege that RCCL made false statements and omissions in relation to their negligent misrepresentation claim with particularity. Specifically, Plaintiffs alleged that (1) on February 20, 2019, an employee of RCCL stationed at the shore excursion desk “identified the [E]xcursion as easy and perfect for the young [**21]  and older ages of their group”; (2) an RCCL “document” states that the minimum age for the Excursion is four years old; and (3) RCCL did not inform Passenger Plaintiffs that (i) they would not be provided with life jackets, (ii) they could encounter strong ocean currents, (iii) they should be “strong swimmer[s]” to make it from the catamaran to the beach; or (iv) the Excursion was not operated by RCCL. Compl. ¶¶ 76-84.





These allegations include (1) the content of the misrepresentations; (2) the identity, to the extent possible prior to discovery, of the sources of such alleged misrepresentations (a shore excursion desk employee and a document advertising the Excursion supplied by RCCL); (3) when the misrepresentations and omissions were made (February 20, 2019); and (4) where the misrepresentations and omissions were made (at the shore excursion desk aboard the Vessel). These allegations are sufficient to meet the

Rule 9(b)

particularity standard for negligent misrepresentation. See

Doria v. Royal Caribbean Cruises, Ltd.



, 393 F. Supp. 3d 1141, 1145 (S.D. Fla. 2019)

(denying motion to dismiss negligent misrepresentation claim where the complaint provided “ [*1207]  (1) the exact statements that are alleged to be misleading or false; (2) the sources of the allegedly misleading materials; [**22]  (3) and where and when the allegedly misleading or false statements were made”). Accordingly, RCCL’s argument for dismissal on these grounds is unpersuasive.

Likewise, Plaintiffs have pled facts that indicate the alleged misrepresentations were actually false. In the Motion, RCCL “cherry-picks” those allegations that are not supported by sufficient facts—i.e. that RCCL “misrepresented that they select ‘reputable’ tour operators and that their shore excursions are safe. Mot. at 11. Plaintiffs better bolstered allegations relating to RCCL’s specific statements about the appropriateness of the Excursion for the youngest and oldest of Passenger Plaintiffs are supported by facts indicating that the statements were false. See, e.g., Compl. ¶ 92, 98 (alleging that OIC did not provide life vests for the passengers despite “wind and sea conditions that made it very difficult” to swim from the catamaran to the shore). Therefore, Plaintiffs’ claim for negligent misrepresentation survives dismissal.

E. RCCL’s Argument that Plaintiffs have not Pled Apparent Agency is Not Persuasive


RCCL argues that because Plaintiffs received an express disclaimer in both the Excursion brochure and admittance ticket [**23]  that the relationship between RCCL and OIC was one of independent contractors, Plaintiffs’ claim that they reasonably believed there to be an agency relationship between RCCL and OIC is without merit. Mot. 13-14. Plaintiffs respond that the existence of an agency relationship is a question of fact that cannot be decided at the motion to dismiss stage. Resp. at 13.









To state a prima facie claim for apparent agency, a plaintiff must allege facts showing: (1) a representation by the principal to the plaintiff, which (2) causes the plaintiff to reasonably believe that an alleged agent is authorized to act on behalf of the principal, and which (3) “induces the plaintiff’s detrimental, justifiable reliance upon the appearance of agency.”
Franza v. Royal Caribbean Cruises, Ltd.



, 772 F.3d 1225, 1252 (11th Cir. 2014)

(citing
Borg-Warner Leasing v. Doyle Electric Company, Inc.



, 733 F.2d 833, 836 (11th Cir. 1984))

. Because the question of whether an agency relationship exists is a question of fact, whether a plaintiff reasonably believes that an agency relationship exists is also a question of fact “which cannot be decided on a motion to dismiss.”
Gentry v. Carnival Corp.



, No. 11-21580-CIV, 2011 U.S. Dist. LEXIS 114841, 2011 WL 4737062, at *4 (S.D. Fla. Oct. 5, 2011)

(citing
Archer v. Trans/American Srvs., Ltd.



, 834 F.2d 1570, 1573 (11th Cir. 1988)

).

Notwithstanding the issue of whether such an inquiry is appropriate at the motion to dismiss stage, RCCL urges the Court to look to the “Shore Excursion Guide” and [**24]  the “Shore Excursion ticket,” both of which are referred to in the Complaint and attached to the Motion as exhibits. See Mot. at 14; (“Brochure”) (ECF No. 11-4); (“Ticket”) (ECF No. 11-5).





Although the Court is generally limited to consideration of the Complaint at the motion to dismiss stage, the Court may consider documents (1) referred to in the Complaint, (2) central to the dispute, (3) whose contents are not disputed, and (4) attached to the Motion. See

Aronson



, 30 F. Supp. 3d at 1397

.



While the Ticket is mentioned only in passing in the Complaint, the Brochure is likely “central” to Plaintiffs’ claim that RCCL negligently misrepresented the  [*1208]  safety of the excursion. See, e.g., Compl. ¶ 80. Accordingly, while this document would likely be available to the Court for consideration, the Court declines to consider it due to the incomplete presentation of the Brochure. Specifically, RCCL attached only an “excerpt” of the Brochure to the Motion, three pages of an 83-page document. Mot. at 14; Brochure. The page that RCCL provides containing the language that purportedly renders Plaintiffs’ belief unreasonable is found on the 82nd page. Resp. at 12. Therefore, the incomplete presentation of the material may be misleading [**25]  because the relevant portion may appear to be more prevalent to the reader when presented in an excerpt rather than in the context of the brochure as a whole. As such, the Court declines to consider the Excerpt. See

Ware v. Associated Milk Prod., Inc.



, 614 F.2d 413, 414-15 (5th Cir. 1980)

(finding that a district court has discretion to decline to consider matters outside the pleadings on a motion to dismiss where the materials appear incomplete or inconclusive).



















Moreover, the cases cited by RCCL for the proposition that such express disclaimers bar a claim of vicarious liability via apparent agency are either inapposite or have since been abrogated. Mot. at 13. Specifically, the court in Hajtman v. NCL (Bahamas) Ltd. dismissed a claim that a medical professional was an apparent agent of a shipowner due to the “long standing maritime principle that carriers and shipowners are not vicariously liable for the acts of their medical staff” and, thus, is inapposite 526 F. Supp. 2d 1324, 1328-29 (S.D. Fla. 2017). Furthermore, Hajman and Peterson v. Celebrity Cruises, Inc., 753 F. Supp. 2d 1245 (S.D. Fla. 2010), which RCCL cites in its Reply, were both abrogated by
Franza
, in which the Eleventh Circuit invalidated that same “long standing maritime principle” by finding the defendant vicariously liable for the negligence of its medical staff.
772 F.3d at 1252
. Lastly,
Wolf v. Celebrity Cruises, Inc



.

was an [**26]  appeal of a summary judgment proceeding, a fact that RCCL concedes.
683 F. App’x 786, 790 (11th Cir. 2017)
; Reply at 8. The standards set out in these cases do not apply here.

Accordingly, RCCL’s arguments that Plaintiffs could not, as a matter of law, have reasonably believed there to be an agency relationship between RCCL and OIC are unavailing. The Court therefore declines to consider this factual question at the motion to dismiss stage.

F. Plaintiffs’ Theory of Joint Venture is Explicitly Disclaimed by the Agreement


RCCL argues that (1) Plaintiffs have no factual basis upon which to allege that the relationship between RCCL and OIC is a joint venture and their allegation is directly controverted by express language in the Agreement, and (2) Plaintiffs’ allegations that RCCL and OIC shared profits and losses from the Excursion were conclusory. Mot. at 15-16. Plaintiffs respond that (1) RCCL asks the Court to impermissibly make a factual determination as to whether a joint venture actually exists between RCCL and OIC, and (2) Plaintiffs have alleged facts sufficient to support the allegations that profits and losses were shared. Resp. at 14-15.





In considering whether a claim for vicarious liability by way of joint venture [**27]  has been alleged, the Court must consider the following “checklist of elements”: (1) the intention of the parties; (2) joint control or joint right of control; (3) joint proprietary  [*1209]  interests in the venture; and (4) whether both parties share in the profits and responsibility for losses.
Gharfeh v. Carnival Corp.



, 309 F. Supp. 3d 1317, 1325-26 (S.D. Fla. 2018)

.



RCCL attaches the Tour Operator Agreement to its Motion. See (“TOA”) (ECF No. 11-3). Plaintiffs referred to this document in the Complaint—previously defined as “the Agreement”—and do not dispute its credibility. See generally Compl.; Resp. RCCL argues that the TOA’s language expressly disclaims a joint venture relationship between RCCL and OIC. Mot. at 15; TOA § 9. Whether the Court may consider this document at this time thus hinges on whether the document is “central” to Plaintiffs’ claim. See

Aronson



, 30 F. Supp. 3d at 1397

.

















The court in
Pucci v. Carnival Corp.
discussed the lack of consensus among courts within our district as to whether a tour operator agreement is central to a joint venture theory of vicarious liability.
146 F. Supp. 3d 1281, 1292 (S.D. Fla. 2015)
. The differentiation arises out of whether, as alleged, the cruise line and the tour operator could have formed the joint venture implicitly through a separate agreement. Id. In particular, the court compared [**28]  the approach in
Zapata v. Royal Caribbean Cruises, Ltd.



, No. 12-21897-Civ., 2013 U.S. Dist. LEXIS 43487, 2013 WL 1296298 (S.D. Fla. Mar. 27, 2013)

(finding that a tour operator agreement disclaiming any joint venture was central to the plaintiff’s vicarious liability claim and dismissing the claim based on the agreement’s language) with the approach in
Ash v. Royal Caribbean Cruises Ltd.



, No. 13-20619-CIV, 2014 U.S. Dist. LEXIS 164691, 2014 WL 6682514 (S.D. Fla. Nov. 25, 2014)

(finding that the tour operator agreement was not central to the plaintiffs’ claim despite largely identical language because the plaintiffs did not specifically mention the tour operator agreement in their complaint, and a joint venture could have come about by some other means). Id. In
Pucci
, the Court found that its facts were more like
Ash
than
Zapata
because the complaint “refer[ed] to ‘an agreement’ entered into by Carnival and [the excursion operator] either through a formal contract or ‘their subsequent and ongoing course of conduct.'” Id. Accordingly, the Court did not consider the defendant’s attached agreement and declined to dismiss the plaintiffs’ joint venture theory.
Id.



at 1292-93

.




Here, Plaintiffs refer to the TOA explicitly and allege that the joint venture originated from the document. Compl. ¶ 48 (“[OIC] entered into a written contract with [RCCL] entitled [**29]  Tour Operator Manual and Agreement and/or a business enterprise and/or course of dealing (collectively referred to herein as ‘tour operator agreement’) to co-venture the marketing, selling and provision of recreational shore excursions.”).[footnoteRef:4]4 Thus, while the Court acknowledges that a joint venture can be created through implication, Plaintiffs have alleged that it was created by the Agreement, which the Parties agree is RCCL’s TOA. See

Celestino



, No. 22056-CV-WILLIAMS/ TORRES, 2018 U.S. Dist. LEXIS 177718, 2018 WL 6620114, at *6 (S.D. Fla. Oct. 15, 2018)

(applying the Court’s approach in
Ash
because the plaintiff “allege[d] that the parties’ subsequent  [*1210]  conduct contradicts the[] terms [of the tour operator agreement]”). And the TOA expressly disclaims a joint venture. See TOA (“[n]othing related in this Agreement shall be construed as constituting Operator and Cruise Line as partners, or as treating the relationships of employer and employee, franchisor and franchisee, master and servant or principal and agent or joint venture between the Parties hereto.”). Therefore, Plaintiffs’ claim for a joint venture theory of vicarious liability is dismissed. [4: 4 While the Court can envision a different interpretation of this language because of the words “and/or course of dealing,” the Complaint goes on to allege that the tour operator agreement “was drafted by [RCCL]’s legal department in Florida [and] became fully executed, after [RCCL] sign[ed] it in Florida.” Id. ¶ 58. Clearly, Plaintiffs were referring to a specific, written agreement.]

G. Plaintiffs have Alleged Facts Sufficient to Support a Claim of NIED

RCCL argues that Plaintiffs have failed to plead a claim for NIED. [**30]  Specifically, RCCL argues that (1) Woodley, Lee, and the Minors were not in the zone of danger because Plaintiffs failed to allege that the Decedent’s death “was caused by an actual or near accident which also placed them at risk of harm,” and (2) Plaintiffs have not alleged that Woodley, Lee, and the Minors suffered physical manifestations of the distress caused by the incident. Plaintiffs respond that Woodley, Lee, and the Minors (1) were in the same dangerous waters where the Decedent died and feared for their own lives, and (2) suffered depression, post-traumatic stress, insomnia, and nightmares. Resp. at 16-18.











A claim for NIED requires a showing of “mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought about by a physical injury, but that may manifest itself in physical symptoms.” Chaparro, 693 F.3d at 1337-38 (quoting
CONRAIL v. Gottshall



, 512 U.S. 532, 544, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994)

). Under federal maritime law, to plead NIED, a plaintiff must allege to have been within the zone of danger, meaning that he or she must have been immediately at risk of physical harm caused by the defendant’s negligence. Id. at 1338 (citations omitted). The requirement that the plaintiff has been threatened with physical impact [**31]  bars allegations of merely bearing witness to a traumatic event.
Martins v. Royal Caribbean Cruises Ltd.



, 174 F. Supp. 3d 1345, 1355 (S.D. Fla. 2016)

.







Plaintiffs contend that Woodley, Lee, and the Minors faced a similar danger as the plaintiff in
Twyman v. Carnival Corp



, 410 F. Supp. 3d 1311 (S.D. Fla. 2019)

. Resp. at 17. In that case, a father and son rode jet skis as part of a cruise excursion.
410 F. Supp. 3d at 1316
. The son collided with another cruise passenger’s jet ski and was injured to the point of non-responsiveness. Id. The father immediately jumped off his own jet ski into the water and attempted to rescue his son by lifting him onto one of the jet skis and bringing him to shore. Id. Paramedics later arrived with a defibrillator but did not know how to operate the device. Id. Subsequently, the son died. Id. The Court found that the father was in the zone of danger because the plaintiffs had alleged that the father (1) “was in the immediate area and entered the water” after the collision; (2) feared the immediate risk of being hit by jet skis or other vessels; and (3) feared the immediate risk of drowning while lifting his son’s body onto the jet ski.
Id.



at 1325

.




Plaintiffs’ argument that they were similarly in the zone of danger is persuasive. They swam through the same stretch of water, struggled through the same dangerous swimming conditions that [**32]  ultimately led to the Decedent’s death, and feared for their own safety because of those conditions.  [*1211]  Comp. ¶¶ 98-99. RCCL makes no attempt to distinguish the facts from those in
Twyman. See generally
Reply. Accordingly, RCCL’s argument on the zone of danger is unpersuasive.











RCCL further argues that Plaintiffs have not sufficiently alleged that they have suffered a physical manifestation caused by their emotional distress. Mot. at 18. Specifically, RCCL contends that Plaintiffs’ depression, post-traumatic stress, insomnia and nightmares are “emotional” rather than physical. Id. RCCL cites to no authority to support this proposition. Plaintiffs cite to
Crusan v. Carnival Corp.
, where the court found that physical manifestations of the fright and anxiety that the plaintiffs suffered, including “insomnia, depression, rapid heartbeat, and vomiting” were sufficient to support a claim for NIED at the motion to dismiss stage.
13-cv-20592-KMW/Simonton, 2015 U.S. Dist. LEXIS 191522, 2015 WL 13743473, at *3 (S.D. Fla. Feb. 24, 2015)
. Crusan is not truly analogous to the facts before this Court, because rapid heartbeat and vomiting could not reasonably be considered borderline examples of physical manifestations. See id. However, Plaintiffs also cite to cases where evidence of psychological [**33]  manifestations of distress were sufficient to create questions of material fact for the purposes of summary judgment. Resp. at 18 (citing
Gerhart v. Carnival Corp.



, No. 1:14-cv-22413-UU, 2015 U.S. Dist. LEXIS 181513, 2015 WL 12533127 (S.D. Fla. Feb. 13, 2015)

and
Terry v. Carnival Corp.



, 3 F. Supp. 3d 1363, 1370 (S.D. Fla. 2014)

). Thus, allegations of psychological manifestations of distress are sufficient to defeat a motion to dismiss. Accordingly, the Court declines to dismiss Plaintiffs’ NIED claim.

In conclusion, the Court grants the Motion as to Plaintiffs’ claims for Negligence (Count I), Negligent Selection and Retention (Count II), Actual Agency and Joint Venture theories of Vicarious Liability (Counts IV and VI), and Breach of Contract (Count XII). The Motion is denied as to Negligent Misrepresentation (Count III), Apparent Agency theory of Vicarious Liability (Count V), and Negligent Infliction of Emotional Distress (Counts X and XI).

IV. CONCLUSION


UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that RCCL’s Motion to Dismiss Plaintiffs’ Complaint (ECF No. 11) is GRANTED IN PART and DENIED IN PART. Accordingly, Counts I, II, IV, VI and XII are DISMISSED. It is further ORDERED that, pursuant to

Rule 15(a)(2) of the Federal Rules of Civil Procedure

, Plaintiffs are [**34]  granted leave to file an amended complaint on or before twenty (20) days from the date of this Order.

DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of July, 2020.



/s/ K. Michael Moore



K. MICHAEL MOORE



CHIEF UNITED STATES DISTRICT JUDGE

End of Document

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-20692-KMM

NICOLE WOODLEY, et al.,

Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES, LTD., et al.,

Defendants.

/

OMNIBUS ORDER

THIS CAUSE came before the Court upon Defendant Out Island Charters, NV’s (“OIC”)

Motion to Dismiss Plaintiffs’ Amended Complaint for Lack of Personal Jurisdiction and to Enforce

Forum Selection Agreement Between OIC and Plaintiffs. (“Mot.”) (ECF No. 55). Plaintiffs filed

a response. (“Resp.”) (ECF No. 69). OIC did not file a reply and the time to do so has passed.

The Motion is now ripe for review. The Parties also filed an Agreed Motion to Strike Portions of

the Amended Complaint (ECF No. 58), which the Court addresses here.

I. BACKGROUND1

This is a wrongful death action arising under 28 U.S.C. § 1333 brought by Nicole Woodley

(“Woodley”), Clarice Lee (“Lee”), minors K.W., M.W., and C.W., Jr. (the “Minors”), and

Barrington L. Sibblis, as personal representative of the Estate of Barbara Sibblis (the “Decedent”)

(collectively, “Plaintiffs”) against Royal Caribbean Cruises LTD (“RCCL”) and OIC (collectively

1 The following background facts are taken from the Amended Complaint for Maritime Wrongful
Death and Personal Injury Damages with Demand for Jury Trial (“Am. Compl.”) (ECF No. 51)
and are accepted as true for purposes of ruling on this Motion to Dismiss. Fernandez v. Tricam
Indus., Inc., No. 09-22089-CIV-MOORE/SIMONTON, 2009 WL 10668267, at *1 (S.D. Fla. Oct.
21, 2009).

Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 1 of 8

2

with RCCL, “Defendants”). See generally Am. Compl. (ECF No. 51). Woodley, Lee, the Minors,

and the Decedent (collectively, “Passenger Plaintiffs”) were passengers on RCCL’s cruise ship,

the Adventure of the Seas (the “Vessel”) during a Caribbean cruise between February 16, 2019

and February 24, 2019. Id. ¶¶ 1, 72.

On February 20, 2019, while on the Vessel, Passenger Plaintiffs purchased from RCCL

admission to the Golden Eagle Shore Excursion (“Excursion”) operated by OIC. Id. ¶¶ 1–3.

Passenger Plaintiffs disembarked the Vessel and boarded a catamaran as part of the Excursion. Id.

¶ 88. After sailing around the island, the catamaran anchored in deep water offshore from the

beach. Id. ¶¶ 89–90. Passenger Plaintiffs were provided “foam noodles” to help them swim from

the catamaran to the beach. Id. ¶ 90. While attempting to swim from the catamaran to the beach,

Decedent was found floating face down, non-responsive, in the ocean. Id. ¶ 101. After

unsuccessful attempts to revive the Decedent, she was pronounced dead on the beach. Id. ¶¶ 102–

03.

The Excursion is the subject of a contract between RCCL and OIC. Id. ¶ 37. Cruise

passengers can book and pay for OIC excursions online prior to their cruise and during the cruise

at designated OIC outposts on RCCL’s ships. Id. ¶¶ 42–43. RCCL “maintains a department” at

its headquarters to promote and manage the OIC charters it sells to cruise passengers. Id. ¶ 44.

OIC and RCCL are parties to a written contract entitled Tour Operator Manual and Agreement

and/or a business enterprise and/or course of dealing (the “Agreement”) “to co-venture the

marketing, selling and provision of recreational shore excursions, for the benefit of [RCCL’s]

cruise passengers.” Id. ¶ 48.

On August 3, 2020, Plaintiffs filed an Amended Complaint alleging claims against RCCL

and OIC; as to OIC, the claims include (1) Negligence (Count V); (2) Negligent Selection and

Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 2 of 8

3

Retention (Count VI); (3) Vicarious Liability (Count VII); and (4) Negligent Infliction of

Emotional Distress (Counts VIII and IX). See generally id. OIC now moves to dismiss Plaintiffs’

claims against OIC for lack of personal jurisdiction. See generally Mot.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(2) provides that a court may dismiss a complaint for

lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). “A plaintiff seeking the exercise of personal

jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint

sufficient facts to make out a prima facie case of jurisdiction.” United Techs. Corp. v. Mazer, 556

F.3d 1260, 1274 (11th Cir. 2009). In assessing whether a nonresident is subject to exercise of

personal jurisdiction, federal courts must determine “whether the exercise of jurisdiction (1)

comports with the long-arm statute of the forum state; and (2) does not violate the Due Process

Clause of the Fourteenth Amendment.” Virgin Health Corp. v. Virgin Enters. Ltd., 393 F. App’x

623, 626 (11th Cir. 2010).

Federal courts engage in a three-part burden-shifting analysis when a defendant asserts lack

of personal jurisdiction. See Diulus v. Am. Express Travel Related Servs. Co., Inc., 823 F. App’x

843, 848 (11th Cir. 2020). “First, the plaintiff ‘bears the initial burden of alleging in the complaint

sufficient facts to make out a prima facie case of jurisdiction.’” Id. (quoting Mazer, 556 F.3d at

1274). “Second, if the complaint alleged sufficient facts, and ‘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 its jurisdiction.’” Id. (quoting Mazer,

556 F.3d at 1274). “Third, ‘where the plaintiff’s complaint and supporting evidence conflict with

the defendant’s affidavits, the court must construe all reasonable inferences in favor of the

Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 3 of 8

4

plaintiff.’” Id. (quoting Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,

1257 (11th Cir. 2010)).

III. DISCUSSION

OIC moves to dismiss Plaintiffs’ claims against it, arguing that (1) OIC is not subject to

personal jurisdiction in Florida, (2) OIC is not subject to jurisdiction before this Court under the

national long-arm statute, and (3) Plaintiffs accepted a binding forum selection agreement

requiring any claims to be brought exclusively in Saint Martin. See generally Mot. Plaintiffs

filed a brief response, wherein Plaintiffs state that they will not be filing a substantive response

“[i]n light of the Magistrate Judge’s Order denying Plaintiffs’ Motion for Leave to Propound

Jurisdictional Discovery.” Resp. at 1; see also (ECF No. 64). For the reasons set forth below, the

Court finds that dismissal of the claims against OIC is warranted because OIC is not subject to

personal jurisdiction in Florida or jurisdiction before this Court under the national long-arm statute.

Accordingly, the Court does not reach the merits of the binding forum selection agreement.

A. OIC is Not Subject to Personal Jurisdiction in Florida

OIC argues that it is not subject to general or personal jurisdiction in Florida. See Mot. at

6–13. Specifically, OIC argues that it is not “at home” in Florida, which “forecloses a finding of

general jurisdiction.” Id. at 10. OIC further argues that it is not subject to specific jurisdiction

under Florida’s long-arm statute because (1) Plaintiffs do not allege that OIC committed a tortious

act in Florida; (2) OIC’s indemnity agreement with RCCL is an insufficient basis upon which to

confer jurisdiction as Plaintiffs’ claims do not arise out of that indemnity agreement; and (3) OIC’s

contract with RCCL, which contains a Florida forum selection provision, is an insufficient basis

upon which to confer jurisdiction under a third-party beneficiary theory. Id. at 6–9.

“Florida’s long-arm statute provides for both general and specific personal jurisdiction.”

Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir. 2013) (citing

Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 4 of 8

5

§ 48.193(1)–(2)). “General personal jurisdiction exists when a defendant ‘is engaged in substantial

and not isolated activity within this state . . . whether or not the claim arises from that activity.’”

Id. (quoting § 48.193(2)). “General personal jurisdiction is based on a defendant’s substantial

activity in Florida without regard to where the cause of action arose.” Id. (citation omitted).

“[S]pecific personal jurisdiction authorizes jurisdiction over causes of action arising from or

related to the defendant’s actions within Florida and concerns a nonresident defendant’s contacts

with Florida only as those contacts related to plaintiff’s cause of action.” Id. (citation omitted).

This Court has previously dismissed with prejudice claims against excursion operators for

lack of personal jurisdiction, finding both general and specific jurisdiction lacking under similar

circumstances. See, e.g., Hickey v. Celebrity Cruises, Inc., No. 13-20587-CIV-SCOLA/OTAZO-

REYES, 2015 WL 13776760, at *5–6 (S.D. Fla. Feb. 2, 2015) (finding that (1) an indemnity

agreement between OIC and Celebrity Cruises, Inc. did not provide a basis for the exercise of

specific personal jurisdiction over OIC; and (2) because OIC, “a corporation that operates

exclusively in the Caribbean Island of Saint Martin, is not ‘at home’ in Florida[,] . . . the exercise

of personal jurisdiction over [OIC] would not satisfy the minimum contacts requirement of the

Due Process Clause of the Fourteenth Amendment”); Serra-Cruz v. Carnival Corp., 400 F. Supp.

3d 1354, 1363 (S.D. Fla. 2019) (“[T]his Court will not allow Plaintiff to enter through the ‘back

door’ and use the [consent to jurisdiction clause in an agreement between a cruise line and an

excursion operator] via a meritless third-party beneficiary claim to find jurisdiction over a foreign

defendant in a personal injury case.”

As in Hickey and Serra-Cruz, the indemnity agreement between OIC and Carnival does

not provide a basis for the exercise of personal jurisdiction over OIC because Plaintiffs’ claims do

not arise out of it, and OIC operates exclusively in Saint Martin, and is thus not “at-home” in

Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 5 of 8

6

Florida. See Hickey, 2015 WL 13776760, at *5–6; Serra-Cruz, 400 F. Supp. 3d at 1363. Plaintiffs

did not file a substantive response citing to any authority or setting forth any factual circumstances

to differentiate the circumstances here from those present in Hickey and Serra-Cruz that warrants

a different result. Accordingly, the Court finds that OIC is not subject to personal jurisdiction in

Florida.

B. OIC is Not Subject to Jurisdiction Before This Court Under the National
Long-Arm Statute

OIC argues that “courts rarely invoke jurisdiction under Rule 4(k)(2)” and “[f]ollowing

Daimler [AG v. Bauman], jurisdiction under Rule 4(k)(2) has become even harder to establish.”

Mot. at 13–14 (citing Daimler AG v. Bauman, 571 U.S. 117 (2014)).

Rule 4(k)(2) of the Federal Rules of Civil Procedure “permits a federal court to aggregate

a foreign defendant’s nationwide contacts to allow for personal jurisdiction provided that two

essential conditions are met: (1) plaintiff’s claims must arise under federal law; and (2) the exercise

of jurisdiction must be consistent with the Constitution and laws of the United States.” Thompson

v. Carnival Corp., 174 F. Supp. 3d 1327, 1337 (S.D. Fla. 2016) (quoting Fraser v. Smith, 594 F.3d

842, 848–49 (11th Cir. 2010)) (internal quotation marks omitted). “[I]t is a rare occurrence when

a court invokes jurisdiction under the rule.” Id. The rule was invoked, for example, as to Osama

bin Laden and al-Qaeda, where the court found that they “engaged in unabashedly malignant

actions directed at and felt in this forum.” Mwani v. bin Laden, 417 F.3d 1, 13 (D.C. Cir. 2005).

Similar to this Court’s previous findings in cases involving excursion operators, the Court

finds that OIC’s contacts with the United States are too tenuous to support jurisdiction under the

national long-arm statute. See, e.g., Thompson, 174 F. Supp. 3d at 1338. Accordingly, the Court

finds that OIC is not subject to this Court’s jurisdiction under the national long-arm statute.

Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 6 of 8

7

C. The Parties’ Agreed Motion to Strike Portions of the Amended Complaint

In a separate Motion, Plaintiffs and Defendant RCCL jointly move the Court to strike

allegations that inadvertently remained in Plaintiffs’ Amended Complaint after the Court

dismissed certain counts from the original Complaint. See generally (ECF No. 58). The Parties

specifically request that the Court strike “(1) the term ‘joint venturer’ from paragraph 134; (2)

paragraph 136 in its entirety, including all sub-sections; and (3) sub-sections (a)–(c) and (f)–(aa)

from paragraph 163.” Id. at 3.

Federal Rule of Civil Procedure 12(f) provides that a “court may strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.

P. 12(f). “The purpose of a motion to strike is to clean up the pleadings, remove irrelevant or

otherwise confusing materials, and avoid unnecessary forays into immaterial materials.” Blake

Batmasian, 318 F.R.D. 698, 700 (S.D. Fla. 2017). Motions to strike are usually only granted when

“the matter sought to be omitted has no possible relationship to the controversy, may confuse the

issues, or otherwise prejudice a party.” Id. at 700–01 (citation omitted).

Here, Plaintiffs and Defendant RCCL request that the Court strike the terms “joint

venture/joint venturer” from paragraph 134 and paragraph 163 in its entirety because those

allegations implicate joint venture and are immaterial since the Amended Complaint does not bring

a cause of action for joint venture. (ECF No. 58) at 3. Plaintiffs and Defendant RCCL further

argue that sub-sections (a)–(c) and (f)–(aa) should be stricken from paragraph 163 because they

are immaterial to Plaintiffs’ claim for Negligent Selection and/or Retention. Id.

The Court finds good cause to strike the aforementioned portions of Plaintiffs’ Amended

Complaint.

Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 7 of 8

8

IV. CONCLUSION

UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being

otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that OIC’s

Motion to Dismiss Plaintiffs’ Amended Complaint for Lack of Personal Jurisdiction (ECF No. 55)

is GRANTED, and Plaintiffs claims against OIC are hereby DISMISSED WITH PREJUDICE.

The Clerk of Court is INSTRUCTED to terminate OIC as a party to this case.

It is FURTHER ORDERED that Plaintiffs shall file an Amended Complaint on or before

February 5, 2021 omitting claims against OIC and the portions that Plaintiffs and Defendant RCCL

have agreed to strike, which shall serve as the final operative complaint in this matter.

Accordingly, the Parties’ Agreed Motion to Strike Portions of the Amended Complaint (ECF No.

58) is DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of January, 2021.

K. MICHAEL MOORE
CHIEF UNITED STATES DISTRICT JUDGE

c: All counsel of record

23rd

Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 8 of 8

1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-20692-KMM

NICOLE WOODLEY, individually and as mother and

guardian of minors K. W., M. W., and C.W., JR.;

CLARICE LEE, individually; and BARRINGTON L.

SIBBLIS, as personal representative of the Estate of

BARBARA SIBBLIS,

Plaintiffs,

vs.

ROYAL CARIBBEAN CRUISES, LTD., a Liberian

Corporation, and OUT ISLAND CHARTERS NV

Defendants.

____________________________________/

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS

Defendant, ROYAL CARIBBEAN CRUISES LTD., (“RCL”), by and through

undersigned counsel, and pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, hereby

files this Reply in Support of its Motion to Dismiss Plaintiffs’ Complaint [DE 1], and in support

thereof, states as follows:

MEMORANDUM OF LAW

I. Plaintiffs’ Complaint is a Shotgun Pleading

Plaintiffs’ Complaint is an improper shotgun pleading that should be dismissed in its

entirety. Plaintiffs argue their Complaint is not a shotgun pleading because it does not

reincorporate the allegations of each cause of action, but merely re-alleges the Complaint’s general

factual allegations. [DE 21 at 2-3]. However, in Great Fla. Bank v. Countrywide Home Loans,

Inc., the Court held that a complaint that “incorporates all of the general factual allegations by

reference into each subsequent claim for relief” is an improper shotgun pleading. 2011 WL

Case 1:20-cv-20692-KMM Document 26 Entered on FLSD Docket 04/23/2020 Page 1 of 11

2

382588, at *2 (S.D. Fla. Feb. 3. 2011) (emphasis added). The Court specifically noted that

“Between the start of the Third Amended Complaint and the First Cause of Action … lie 142

paragraphs containing allegations related—or at least somewhat related—to Plaintiff’s claims.” Id.

Plaintiffs’ Complaint begins with 136 paragraphs of factual allegations that are not

specifically tied to any particular count. Nor does Plaintiffs’ Complaint explain which factual

allegations are applicable to which defendant. Even more troubling, Plaintiff’s factual allegations

include eighteen (18) paragraphs with twenty-seven (27) sub-sections of “Additional Allegations,”

without any explanation as to their applicability to each cause of action, or why they are separate

from Plaintiffs’ other general factual allegations. [DE 1, ¶119-136]. “Neither this Court nor the

district court is required to parse the complaint searching for allegations … that could conceivably

form the basis of each of Appellants’ claims. Appellants were required to clearly connect each

factual allegation to the appropriate count in the complaint in order to satisfy Rule 9(b).” Ferrell

v. Durbin, 311 F. App’x 253, 259 (11th Cir. 2009); see also, Nichols v. Carnival Corp., No. 1:19-

CV-20836-UU, 2019 WL 7882648, at *3 (S.D. Fla. Sept. 17, 2019). Accordingly, Carnival

respectfully submits that Plaintiffs’ Complaint is a shotgun pleading and should be dismissed in

its entirety. Id.

II. Plaintiffs’ Negligence Claims (Counts I & II) Should be Dismissed

A. Plaintiffs improperly impose heightened duties of care in Count I.

As an initial matter, RCL has not conceded Plaintiff adequately pled any claim for

negligence, as Plaintiffs suggest in their Response. [DE 21, ¶4]. RCL moved to dismiss Count I as

it alleges negligence duties above and beyond the “duty to warn of known dangers in places where

passengers are invited or reasonably expected to visit,” as this Honorable Court held was the

correct duty of care for cases involving incidents on shore excursions. Thompson v. Carnival

Case 1:20-cv-20692-KMM Document 26 Entered on FLSD Docket 04/23/2020 Page 2 of 11

3

Corp., 174 F. Supp. 3d 1327, 1340 (S.D. Fla. 2016). Plaintiffs’ failure to warn allegation is

defective in its own right, as discussed in RCL’s motion and below. See sub-section (B), infra.

Plaintiffs request this Court reject RCL’s argument that they have pled heightened duties,

however RCL respectfully requests this Honorable Court find consistently with its holding in

Thompson and with the several other courts in this district who have held a cruise line’s duty of

care to its passengers, while they are off the vessel, is in fact limited to a duty to warn of known

dangers. Id.; see also, Moseley v. Carnival Corp., 2013 WL 5913833, *3 (S.D. Fla. Oct. 31, 2013));

Finkelstein v. Carnival Corp., 2015 WL 12765434, *3 (S.D. Fla. Jan. 20, 2015); Munday v.

Carnival Corp., 2017 WL 5591640, *2 (S.D. Fla. July 18, 2017); Aronson v. Celebrity Cruises,

Inc., 30 F. Supp. 3d 1379, 1395 (S.D. Fla. 2014). As briefed in RCL’s motion, the majority of the

breaches of duty alleged by Plaintiffs seek to impose duties on RCL that go far beyond the duty to

warn. [DE 1, ¶143]. Accordingly, RCL respectfully requests that this Court dismiss Count I of

Plaintiffs’ Complaint, as it is premised on heightened duties not owed to Plaintiffs by RCL.

B. Plaintiffs fail to sufficiently plead notice of the alleged dangerous condition(s).

It is undisputed by Plaintiffs that in order to adequately failure to warn under maritime law,

a plaintiff must plead sufficient facts that RCL knew or should have known of the specific

dangerous condition alleged. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir.

1989). Likewise, to plead negligent section and/or retention, Plaintiffs must plead facts that RCL

knew or should have known of the particular incompetence or unfitness of the tour operator. Gayou

v. Celebrity Cruises, Inc., 2012 WL 2049431, *5 (S.D. Fla. June 5, 2012).

Plaintiffs’ allegations are conclusory and therefore fail to sufficiently plead notice. Gayou,

2012 WL 2049431, at *5 (Plaintiffs are required to plead “facts showing that the cruise line knew

or should have known of any dangerous condition relating to the… excursion that would give rise

Case 1:20-cv-20692-KMM Document 26 Entered on FLSD Docket 04/23/2020 Page 3 of 11

4

to a duty to warn” (emphasis in original). For example, Plaintiffs argue that “as a result of the

incident suffered by other participants … [RCL] new or reasonably should have learned that

incidents … were being caused … because Out Island Charters failed to provide adequate flotation

devices ….” [DE 1, ¶113]. This allegation is entirely conclusory as it fails to provide any

information that shows RCL would have known that a prior incident was caused by the tour

operator’s failure to provide flotation devices. What was the incident, who was the guest (did they

have any underlying condition making them more susceptible to injury), where did it occur, and

most importantly how would a flotation device have prevented the incident? These are all the

material facts that a plaintiff is required to plead. Thompson, 174 F. Supp. 3d at 1340 (allegations

insufficient as “it is evident that Thompson’s Complaint rests on ‘naked assertion[s]’ devoid of

‘further factual enhancement.”)

Contrary to Plaintiff’s arguments that Polanco v. Carnival Corp., No. 10-21716-CIV, 2010

WL 11575228, at *1-2 (S.D. Fla. Aug. 11, 2010) and Zhang v. Royal Caribbean Cruises, Ltd., No.

19-cv-20773, D.E. 40 (S.D.Fla. Nov. 15, 2019)1, are distinguishable, both cases are applicable as

they involve injuries which occurred off the ship and in both of cases the Court held that without

actual facts of how the cruise line knew or should have known of the alleged dangerous condition,

the plaintiffs’ complaints were insufficient. Moreover, Polanco and Zhang are just two examples.

There are numerous cases from within in this district which likewise held that a complaint is not

sufficient when its notice allegations are conclusory. See for e.g., Nichols v. Carnival Corp., No.

1:19-CV-20836-UU, 2019 WL 7882648, at *3 (S.D. Fla. Sept. 17, 2019) (“Plaintiff failed to

articulate what facts gave Carnival actual or constructive notice about any dangerous condition by

failing to allege what prior incidents may have occurred, and on what excursions, nor how these

1 The Zhang Order was attached as Exhibit A to RCL’s Motion. See, DE 11-1.

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incidents put Carnival on notice”); Gayou, 2012 WL 2049431; Harding v. NCL (Bahamas) Ltd.,

90 F.Supp.3d 1305 (2015). On the contrary, Twyman v. Carnival Corp., 410 F. Supp. 3d 1311

(S.D. Fla. 2019), is distinguishable as in that case, the plaintiffs had alleged that Carnival owned

and operated the location where the incident occurred. The Court held that particular allegation

“adequately ‘nudge[ ] [Plaintiffs’] claims across the line from conceivable to plausible.’”) Id. at

1322 (quoting, Twombly, 550 U.S. at 570). Accordingly, RCL submits that Plaintiffs have failed

to establish RCL was on notice of any dangerous condition with respect to their Negligence claim

in Count I and their Negligent Selection and Retention claim in Count II and respectfully requests

this Court dismiss both claims.

III. Plaintiffs’ Claim for Negligent Misrepresentation (Count III) Should be Dismissed

A. Plaintiffs fail to satisfy the pleading requirements of Fed. R. Civ. P. 9(b).

As briefed in RCL’s motion, the only allegations of misrepresentation alleged in Count III

fail to identify who made the representations (was it a person, a document, the website, etc.,) or

when or where those statements were made, and are therefore insufficient. Ceithaml v. Celebrity

Cruises, Inc., 207 F.Supp.3d 1345, 1353 (S.D.Fla 2016) (“to pass Rule 9(b) muster, the Complaint

must set forth particular allegations about the who, what, when, where, and how of the fraud”)

(internal citations omitted). The alleged misrepresentations Plaintiffs point to in their Response are

found within Plaintiffs’ factual allegations, not within Count III. [DE 1, ¶76, 79, 81-84]. Nor does

Count III even reference those paragraphs as examples of alleged misrepresentations.2 Moreover,

Plaintiffs’ allege that RCL made other misrepresentations not identified in their Complaint. [DE

1, ¶168] (“Defendant ROYAL CARIBBEAN made numerous misrepresentations of material fact

2 This is also a further indication that Plaintiffs’ Complaint is an impermissible shotgun pleading.

See, section I, supra.

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… including, but not limited to…”) (emphasis added). Thus, Plaintiff’s have not identified

“precisely what statements were made in what documents or oral representations or what

omissions were made,” as Plaintiffs failed to clearly identify what representations or omissions

they are alleging were false. Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001).

Further, Plaintiffs’ argument that the shore excursion ticket proves what time the alleged

misrepresentations were made, thus satisfying the pleading standard, makes little sense as

Plaintiffs failed to allege this information in their Complaint. Rather, it was RCL who attached the

ticket to its motion (in regard to Plaintiff’s apparent agency claim). Accordingly, RCL respectfully

submits that Plaintiffs’ Complaint fails to meet the heightened pleading standard for fraud claims.

B. Plaintiffs fail to satisfy the elements of negligent misrepresentation.

Notwithstanding, Plaintiffs’ claims that RCL made material misrepresentations should be

dismissed as they have not sufficiently pled that any such representation made by RCL was false.

For example, Plaintiffs’ allege “RCL misrepresented that it ‘selected only the most reputable

companies available to provide [] excursions ….” [DE 1, ¶168]. There are no allegations in the

Complaint, however, that RCL did not select the most reputable companies. Moreover, Plaintiffs’

alleged misrepresentations are not actionable as negligent misrepresentation claims. See, Zhang,

[DE 11-1 at 9]. First, a representation that an excursion will be “safe,” “cannot form the foundation

of a negligent-misrepresentation claim.” Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-

21196-CIV, 2009 WL 8659594, at *9 (S.D. Fla. Sept. 14, 2009) (citing, Isbell v. Carnival Corp.,

462 F. Supp. 2d 1232, 1234 (S.D. Fla. 2006) (a representation by a cruise line that “ ‘any 90–year

old woman’ ” could safely enjoy the excursion,” was not actionable). Likewise, representations

that shore excursion operators are “insured, reliable, and reputable” are also not actionable. Hoard

v. Carnival Corp., 14-23660-CIV, 2015 WL 1954055, at *3 (S.D. Fla. Apr. 17, 2015). Plaintiffs

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have not attempted to distinguish Balaschak, Isbell, or Hoard in their Response, in fact they ignore

them altogether. [DE 21 at 11]. However, these cases are applicable as they all held that allegations

such as Plaintiffs are not actionable. Accordingly, RCL respectfully submits that Plaintiffs’

negligent misrepresentation claim be dismissed. “Merely because an accident occurs, a carrier does

not become liable to a passenger.” Isbell, 462 F. Supp. 2d at 1238.

IV. Plaintiffs’ Apparent Agency Claim Should be Dismissed

As a threshold matter, Plaintiffs failed to respond to RCL’s argument that because

Plaintiffs’ underlying negligence claim is insufficiently pled, Plaintiffs’ apparent agency claim

must be dismissed. See Thompson, 174 F. Supp. 3d at 134. Notwithstanding, Plaintiffs’ apparent

agency claim should be dismissed as RCL’s Shore Excursion Guide expressly states, “shore

excursions … are provided by independent tour operators.” [DE 11-4. Additionally, Plaintiffs

and Decedent’s ticket for the subject excursion stated, “The providers of such services are

independent contractors and are not acting agents or representatives of [RCL].” [DE 11-5].3

Plaintiffs argue that RCL’s reliance on Hajtman v. NCL (Bahamas) Ltd., 526 F. Supp. 2d

1324, 1328 (S.D. Fla. 2017), does not support dismissal as it was abrogated by Franza v. Royal

Caribbean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir. 2014). [DE 21 at 12]. However, Franza’s

abrogation of Hajtman was regarding whether a cruise line could be vicariously liable for the

alleged negligence of their medical staff, reversing a century old precedence that a cruise line could

not be held liable for the negligence of its shipboard doctor. Franza, 772 F.3d 1228. Hajtman

separately held that the contractual language of RCL’s passenger ticket contract dispelled any

3 Plaintiffs have not contested that the Court may consider the attachments to RCL’s motion, thus

have waived the issue and the Court may consider the exhibits. See S.D. Fla. L.R. 7.1(c); Hudson

v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party fails to respond

to an argument or otherwise address a claim, the Court deems such argument or claim abandoned”)

(citing, Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995)).

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reasonable belief that the medical staff were their agents. “Irrespective of the fact that Defendant

is prohibited from limiting liability where it is against public policy, this contractual language

serves as further notice to Plaintiff that no agency relationship exists between Defendant and [the

medical staff].” Hajtman, 526 F. Supp. 2d 1329. Additionally, although RCL acknowledges Wolf

v. Celebrity Cruises, Inc., 683 Fed. Appx. 786 (11th Cir. 2017) was decided at summary judgment,

the Court’s decision was based on Peterson v. Celebrity Cruises, Inc., 753 F. Supp. 2d 1245, 1248

(S.D. Fla. 2010), which dismissed an apparent agency claim at the motion to dismiss stage. Id. at

1309. Accordingly, RCL respectfully requests the Court dismiss Plaintiffs’ Apparent Agency

claim, as they have not sufficiently pled a reasonable belief that the tour operator was RCL’s agent.

V. Plaintiffs’ Joint Venture Claim Should be Dismissed

Plaintiffs’ Joint Venture claim should be dismissed as the subject Tour Operator

Agreement (“TOA”) expressly states, “Nothing related in this Agreement shall be construed

as constituting Operator and Cruise Line as partners … or joint venture ….” [DE 11-3 at

Section 9]. Though Plaintiffs’ Response cites cases where courts have declined to dismiss a joint

venture claim at the motion to dismiss stage, Plaintiffs entirely ignore Doria v. Royal Caribbean

Cruises, Ltd., [DE 11-2 at 13], and Zapata v. Royal Caribbean Cruises, Ltd., No. 12–21897– Civ.,

2013 WL 1296298, at *6 (S.D. Fla. Mar. 27, 2013). Both cases dismissed joint venture claims

based on the exact same, or near identical, TOA as in this case. In fact, in Doria, Judge Williams

dismissed the plaintiff’s claim with prejudice. [DE 11-2 at 13]. Additionally, as briefed in RCL’s

motion, Plaintiffs’ allegation that RCL and the tour operator shared profits and losses is

conclusory, which this Court held in Thompson is insufficient to state a claim for joint venture.

174 F. Supp.3d at 1344. Accordingly, RCL respectfully requests the Court dismiss Plaintiffs’ joint

venture claim.

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VI. Plaintiffs’ Negligent Infliction of Emotional Distress (“NIED”) Claims Should be
Dismissed

As a threshold matter, Plaintiffs failed to respond to RCL’s argument that Plaintiffs’ NIED

claims should be dismissed as they are based on insufficient negligence claims. See, Chaparro v.

Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). Notwithstanding, Plaintiffs have not

sufficiently pled what the zone of danger for Decedent was. In their Response, Plaintiffs argue that

paragraphs 98-100 of their Complaint “make clear that Plaintiffs … struggled to reach the beach

with [Decedent] until the moment she was unable to keep up and became separated from the other

Plaintiffs.” [DE 21 at 16] (emphasis added). Plaintiffs’ Complaint, however, simply says Decedent

“had been separated from” Plaintiffs. [DE 1, ¶100]. Plaintiffs cannot include additional facts in

their Response that were not pled in their Complaint. See, Brandywine Communications Tech.,

LLC v. T-Mobile USA, Inc., 904 F.Supp.2d 1260, 1272 n.13 (M.D.Fla. 2012) (“Plaintiff cannot

add facts bolstering its allegations within its response to a motion to dismiss …”).

Regardless, even with this additional fact, Plaintiffs’ allegations are insufficient. In a

footnote, Plaintiffs claim RCL’s argument that they have not pled what actually befell Decedent

in the water is “specious,” because they allege, she “drowned while attempting to get to the beach.”

[DE 21 at 17 n.8, citing, DE 1, ¶6]. However, just because Decedent ultimately drowned, does not

mean that Plaintiffs were at risk of the same condition. For example, if Decedent suffered a medical

condition while swimming, such as a heart attack or stroke, that would be the cause of her

drowning. Plaintiffs have not pled what risk-creating condition caused the Decedent’s demise;

therefore, they have not and cannot assert that they were in the zone of danger of the same risk-

creating condition. Accordingly, their NIED claim must be dismissed. Chaparro, 693 F.3d at 1337.

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VII. Plaintiffs’ Actual Agency Claim Should be Dismissed

In their Response, Plaintiffs concede that “the weight of authority in this District is against

them,” in regard to their Actual Agency claim. As such, as briefed in RCL’s motion, RCL

respectfully requests this Court dismiss Plaintiffs’ Actual Agency claim as subject Tour Operator

Agreement expressly states, “Nothing related in this Agreement shall be construed as

constituting Operator and Cruise Line as partners … or principal and agent ….” [DE 11-3

at Section 9]. See, Gayou, 2012 WL 2049431, at *8.

VIII. Plaintiffs’ Breach of Contract Claim Should be Dismissed

Here as well, Plaintiffs concede that “the weight of authority in this District is against

them.” Accordingly, RCL likewise respectfully requests this Court dismiss Plaintiffs’ Breach of

Contract claim as the subject Tour Operator Agreement expressly denies an intent to benefit any

third parties, such as Plaintiffs, [DE 11-3 at Section 10], and, moreover, Plaintiffs did not allege

any provision of the contract that RCL breached. See, Doria, [DE 11-2 at 15]; Gayou, 2012 W L

2034931, at *11; Zapata, 2013 WL 1296298, *5; Steffan v. Carnival Corp., 2017 WL 7796726,

*6 (S.D. Fla. May 22, 2017).

WHEREFORE, RCL respectfully requests this Honorable Court enter an Order dismissing

Plaintiffs’ Complaint, and for any and all relief this Court deems just and proper.

Dated: April 23, 2020

Miami, Florida

Respectfully submitted,

FOREMAN FRIEDMAN, PA

BY: /s/ Noah Silverman, Esq.

Jeffrey E. Foreman, Esq. (FBN 0240310)

[email protected]

Noah Silverman, Esq. (FBN 401277)

[email protected]

Lauren Rose, Esq. (FBN 115743)

Case 1:20-cv-20692-KMM Document 26 Entered on FLSD Docket 04/23/2020 Page 10 of 11

11

[email protected]

Foreman Friedman, P.A.

One Biscayne Tower, Suite 2300

2 South Biscayne Boulevard

Miami, Florida 33131

Tel: (305) 358-6555

Fax: (305) 374-9077

Attorneys for the Defendant

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on April 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.

By: Noah D. Silverman

Noah D. Silverman, Esq.

SERVICE LIST

Tonya J. Meister, Esq.

MEISTER LAW LLC

Courthouse Tower, Suite 750

44 West Flagler Street

Miami, Florida 33130

E-mail: [email protected]

Elizabeth K. Russo, Esq.

Paolo R. Lima, Esq.

RUSSO APPELLATE FIRM, P.A.

[email protected]

7300 North Kendall Drive, Suite 600

Miami, Florida 33156

Telephone: (305) 666-4660

Facsimile: (305) 666-4470

Attorneys for Plaintiff

Jeffrey E. Foreman, Esq.

[email protected]

[email protected]

Noah D. Silverman, Esq.

[email protected]

[email protected]

Lauren Rose, Esq.

[email protected]

[email protected]

Foreman Friedman, PA

One Biscayne Tower, Suite 2300

2 South Biscayne Boulevard

Miami, FL 33131

Phone: 305-358-6555

Fax: 305-374-9077

Attorneys for Defendant

Case 1:20-cv-20692-KMM Document 26 Entered on FLSD Docket 04/23/2020 Page 11 of 11

150 SOUTHEAST SECOND AVENUE, SUITE 1200 · MIAMI, FLORIDA 33131

TELEPHONE: 305-379-3686 · FACSIMILE: 305-379-3690

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 20-CV-20692-KMM

NICOLE WOODLEY, individually and as
mother and guardian of minors K. W., M. W.,
and C.W., JR.; CLARICE LEE, individually;
and BARRINGTON L. SIBBLIS,
as personal representative
of the Estate of BARBARA SIBBLIS

Plaintiffs

vs.

ROYAL CARIBBEAN CRUISES LTD. a Liberian
Corporation, and OUT ISLAND CHARTERS NV

Defendants.

____________________________________/

OUT ISLAND CHARTERS, NV’S MOTION TO QUASH SERVICE OF PROCESS, TO DISMISS
PLAINTIFFS’ COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND TO ENFORCE FORUM

SELECTION AGREEMENT BETWEEN OUT ISLAND AND PLAINTIFFS

Defendant, OUT ISLAND CHARTERS, NV (hereinafter “Out Island”), by and through

undersigned counsel and pursuant to the applicable Federal Rules of Civil Procedure, files this

Motion to Quash Service of Process, to Dismiss Plaintiffs’ Complaint [ECF No. 1] for Lack of

Personal Jurisdiction, and to Enforce Forum Selection Agreement, and in support states as

follows:

I. Preliminary Statement
This matter arises from the death of RCL passenger, Barbara Sibblis, who passed away

while swimming in the ocean during an excursion that Out Island owned and operated in Sint

Maarten. Out Island, which has at all times maintained its only place of incorporation and

principal place of business in Sint Maarten, should be dismissed with prejudice because, as this

Court has twice found, it is not subject to personal jurisdiction in Florida, and the service of

process Plaintiffs attempted does not comport with Sint Maarten law. See e.g. Hickey v. Celebrity

Cruises, Inc. & Out Island Charters, No. 13-20587-Civ-Scola/Reyes, U.S. Dist. LEXIS 195809,

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at *7 (S.D. Fla. Feb. 2, 2015) and Ree v. Out Island Charters, et.al. No. 15-21842-Civ-

Cooke/Torres, ECF No. 57, (S.D. Fla. February 11, 2016) (both dismissing Out Island for lack of

personal jurisdiction and quashing service of process because service did not comport with Sint

Maarten law, which requires service through a bailiff).

The issue of whether personal jurisdiction can be exercised over foreign shore excursion

operators in contractual relationships with Florida-based cruise lines has been litigated in this

district ad nauseum. Following the seminal, 2014 Supreme Court decision in Daimler AG v.

Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014), every decision from this Court (with the

exception of two decisions that nonetheless support dismissal here)1, has found personal

jurisdiction lacking. Among the many decisions are Hickey and Ree (supra) and Chief Judge

Moore’s decision in Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1336 n.7, (S.D. Fla.

2016) (citation omitted) (“The Court [in Daimler] has left open only the slimmest possibility that

general jurisdiction might be permissible in a state that is the functional equivalent of one of

th[e] paradigm examples. While such an exception is theoretically possible, the Court suggests

that it will be the rarest of rarities.”)

Moreover, the Eleventh Circuit affirmed both post-Daimler decisions that cruise

passengers appealed after the district court found personal jurisdiction lacking over the foreign

shore excursion operators. See Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th

Cir. Jun. 15, 2015), citing Daimler AG v. Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014) (“[a]

foreign corporation cannot be subject to general jurisdiction in a forum unless the corporation’s

activities in the forum closely approximate the activities that ordinarily characterize a

1 See Lienemann v. Cruise Ship Excursions, Inc., 2018 U.S. Dist. LEXIS 197781, at *13 (S.D.
Fla. Nov. 9, 2018) (Lenard, J.) and Steffan v. Carnival Corp., 2017 U.S. Dist. LEXIS 161790, at
*18 (S.D. Fla. Aug. 1, 2017) (Altonaga, J.) (finding personal jurisdiction based on the plaintiffs’
status as third party beneficiaries to the agreement between the foreign tour operator and
Carnival Corp and the forum selection clause in said agreement.) As addressed in further detail
below, however, although other decisions from this Court establish that these decisions
overlooked applicable law, both the Steffan and Lienemann courts noted that personal
jurisdiction would have been lacking had the agreement at issue been Royal Caribbean’s
standard shore excursion agreement, which is the agreement at issue here. These court founds
that unlike the Carnival agreement, RCL’s agreement expressly disclaimed third-party
beneficiaries and did not contain the requirement that the shore excursion operator consent to
personal jurisdiction in Florida in the event that the cruise passenger added Carnival as a party
to the lawsuit.

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corporation’s place of incorporation or principal place of business.”) See also Wolf v. Celebrity

Cruises, Inc., 683 F. App’x 786, 791 (11th Cir. 2017) (citation and internal quotations omitted)

(“[o]nly in the exceptional case may “a corporation’s operations in a forum other than its formal

place of incorporation or principal place of business … be so substantial and of such a nature as

to render the corporation at home in that State.”)

As Out Island establishes here and has established in prior cases, it has had only one “home,”

Sint Maarten. The very limited contacts Plaintiff alleges (i.e. contracts with Florida-based cruise

lines, contractual forum selection clause with cruise lines, etc.), have been consistently rejected

by this Honorable Court and the Eleventh Circuit as insufficient for purposes of establishing

personal jurisdiction.

The same applies to the theories of specific jurisdiction Plaintiff proffers. Moreover, although

moot in light of the above, dismissal is also warranted because Plaintiffs entered into a binding

contract with Out Island where they agreed to bring any claims against it in Sint Maarten. Thus,

for all the reasons noted above, even if Plaintiffs were given another opportunity to serve Out

Island through the proper channels, their attempt would be futile. For these reasons, the Court

should dismiss Out Island with prejudice.

II. Factual Analysis
1. Plaintiffs attempted to serve their Complaint and Summons on Out Island in

Phillipsburg, Sint Maarten, through a letter that their attorney mailed via DHL. See Pls’ letter to

Out Islands dated May 18, 2020 at ECF No. 30, p. 8.

2. Plaintiffs also attempted substituted service on Florida’s Secretary of State. Id. at pp.

3 – 6.

3. Sint Maarten law (Article 1, §1 of the Codes of Civil Procedure) mandates that

service of process of initial pleadings in an action for damages, such as Plaintiffs’ action, must be

made by a writ of summons served by a duly appointed process server, i.e. bailiff. See

Declaration of Sint Maarten attorney, Charles Rutte, attached as Exhibit “A,” at ¶4-5.

4. Sending the Complaint and Summons to Out Island by postal channels does not meet

the service requirements of Sint Maarten law. Id. at ¶4-6.

5. At all times, Out Island has been a private corporation registered in and existing

under the laws of Sint Maarten and has maintained its only place of business there. It operations

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have always been limited to Sint Maarten. See Declaration of Out Island shareholder, Judy

Reeve, attached as Exhibit “B,” at ¶ 4.

6. Out Island has never, among other things: been incorporated, licensed or qualified to do

business in the State of Florida or elsewhere in the United States; maintained any place of business

within the State of Florida or elsewhere in the United States; owned any assets in the State of

Florida or elsewhere in the United States; had a registered agent in the State of Florida or elsewhere

in the United States; been subject to service of process in the State of Florida or elsewhere United

States; or operated, conducted, engaged in or carried on a business venture, or had an office or

agency in Florida or elsewhere in the United States. Id at ¶¶9, 12, 15 17, & 21.

7. The incident alleged in the Complaint does not have a connection with the State of

Florida, and did not cause injury to a person or property located in Florida. Id at ¶40.

8. On the date of the incident alleged in Plaintiffs’ Complaint, February 20, 2019, Out

Island offered the subject excursion to RCL passengers through an Independent Contractor Tour

Operator Agreement (“TOA”) between RCL and Out Island. Out Island executed the TOA in Sint

Maarten. Out Island performed all services under the TOA in Sint Maarten and nowhere else. Id.

at ¶ 6.

9. The TOA does not require that Out Island consent to the jurisdiction of any court in

the United States for disputes involving cruise passengers or any other third parties. Out Island

has never entered into an agreement where it consented to litigate disputes in the United States for

matters involving lawsuits by cruise passengers. Out Island did not consent to submit to this

Court’s jurisdiction in this case. Id. at ¶ 7.

10. The only forum selection agreement that Out Island has entered into with any

applicability to the present dispute is contained in the “Contractual Assumption

Acknowledgement of Risks and Liability Waiver and Release Agreement” (“Liability Waiver”)

that Barbara Sibblis and Nicole Woodley executed on February 19, 2019 before their participation

in the subject shore excursion. By executing the Liability Waiver, Plaintiffs agreed to commence

any legal action against Out Island in St. Maarten. The Liability Waiver states, in part:

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Id. at ¶8, attached Liability waiver as Exhibit “2” to the Declaration.

11. The TOA in effect on the date of the incident alleged in the Complaint, which was

between RCL and Out Island, imposed no obligation intended to benefit third parties, including

but not limited to RCL passengers. The TOA contains no express or implied provision

establishing an intent to primarily or directly benefit third parties, including but not limited to

passengers such as the Plaintiffs. The TOA contains no express provision guaranteeing safe

passage. Conversely, the TOA contains an express provision that explicitly disclaims the

existence of third party beneficiaries. The provision is in paragraph 12.10 of the TOA under the

heading “Third Party Beneficiary.” Paragraph 12.10 establishes that “this Agreement shall not be

deemed to provide third parties with any remedy, claim, right or action or other right.” The

purpose of the TOA was to confer a benefit for Out Island and RCL and no one else. Out Island

did not enter into the TOA to benefit anyone other than Out Island. Id. at ¶36

III. Memorandum of Law
A. Plaintiffs’ Complaint should be dismissed for insufficient service of process2 on Out

Island, a Sint Maarten corporation with no Florida presence, for failure to comply
with Rule 4.

Under Fed. R. Civ. P. 4(f)(2)(A), “service on a corporation in a foreign country must be

accomplished as prescribed by the foreign country’s law for service in that country in an action in

its courts of general jurisdiction.” Hickey, 2015 U.S. Dist. LEXIS 195809, at *7 (internal

quotations omitted) (quashing service of process attempted on Out Island for failure to comply

with Rule 4). “Article 1, Section 1, of the Sint Maarten Code of Civil Procedure expressly

2 As a threshold matter, courts cannot exercise personal jurisdiction over a foreign defendant that
was improperly served. See Prewitt Enters. v. OPEC, 353 F.3d 916 (11th Cir. 2003) (citing Omni
Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“before a court may exercise
personal jurisdiction over a defendant, there must be more than notice to the defendant . . . there
also must be a basis for the defendant’s amenability to service of summons. Absent consent, this
means there must be authorization for service of summons on the defendant.”); see also Bodyup
Fitness, LLC v. 2080039 Ontario, Inc., 2008 U.S. Dist. LEXIS 13494, 14-15, (S.D. Fla. 2008);
Polskie Linie Oceaniczne, 795 F.2d 968, 972 (11th Cir. 1986) (“A plaintiff has the burden of
sustaining validity of service to invoke long-arm jurisdiction in the Florida courts.”). Where
service is insufficient, it should be quashed.

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requires that service of process be effectuated by a duly appointed and authorized process server

(bailiff).” Id., see also Ex. A, Declaration of Sint Maarten attorney, Charles Rutte, at ¶4-6 (citing

Sint Maarten’s Code of Civil Procedures, Article 1, § 1). More recently, in Ree v. Out Island

Charters, et.al. No. 15-21842-Civ-Cooke/Torres, ECF No. 57, (S.D. Fla. February 11, 2016),

Judge Cooke granted Out Island’s motion to quash service of process for failure to comply with

Sint Maarten law.3

Other decisions from this district similarly support Out Island’s Motion. See Forth v.

Carnival Corp., No. 12-23770-CIV-SEITZ/SIMONTON, 2013 U.S. Dist. LEXIS 62263, at *3

(S.D. Fla. Apr. 30, 2013) (finding the following methods of service insufficient because they did

not comply with Mexican law: serving the Florida Secretary of State as the purported agent

pursuant to 48.181; sending the defendant a copy of the Complaint and Summons via registered

mail; and having the Clerk of Court for the Southern District of Florida issue and send a Notice

of International Service, along with a copy of the Complaint and Summons, to the defendant via

Federal Express); Easy Fly S.A.L. v. Aventura Aviation, Inc., 2010 WL 4683885, *3 (S.D. Fla.

2010) (Lenard, J) (quashing service on nonresident defendant for failure to comply with Rule 4,

notwithstanding purported service under 48.181). 4

Moreover, as the above decisions also show, Plaintiffs cannot meet their burden to plead

any basis for substituted service on Florida’s Secretary of State under § 48.181.5 “In order to

3 Although Judge Cooke’s Order of dismissal does not state the grounds, see Out Island’s Motion
to Quash, No. 15-21842, ECF No. 38 at pp. 5 – 8, showing that the plaintiffs attempts consisted
of, inter alia, Fed Ex letter from Clerk of the Southern District of Florida and substituted service
through Florida’s Secretary of State.

4 Actual notice of the Complaint is insufficient. See Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007) (“A defendant’s actual notice is not sufficient to cure defectively executed
service”); Prewitt Enterprises, Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 925
(11th Cir. 2003) (“[t]hus, we agree with the district court that even though [defendant] had actual
notice of the filing of the suit, service of process was ineffective because it was clearly not in
substantial compliance with the requirements of Fed.R.Civ.P. 4(f)(2)(C)(ii).”).

5 A “defendant[ ] ha[s] no obligation to waive [its] due process right to proper service.” Adams v.
AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 886 (8th Cir.1996). Plaintiffs’ burden is to
plead facts authorizing substituted service, meeting the strict and narrow constraints of the
substituted service statute, in order to protect due process. See City of Jacksonville v. Arrigato,
Inc., 2010 U.S. Dist. LEXIS 89406 (M.D. Fla. 2010) (“Valid substituted service of process on

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serve a nonresident pursuant to section 48.181, the complaint must allege specific facts which

show that the defendant is conducting business in Florida and that the cause of action arose from

business activities within this state.” Newberry v. Rife, 675 So. 2d 684, 685 (Fla. 2d DCA 1996)

(emphasis added). “Section 48.181, like subsection 48.193(1), requires that “connexity” exist

between the cause of action and the defendant’s activities in Florida.” Farrell v. Royal Caribbean

Cruises, Ltd., 917 F. Supp. 2d 1248, 1254 (S.D. Fla. 2013)); see also Groome v. Feyh, 651 F.

Supp. 249, 253 (S.D. Fla. 1986) (“The operative language of section 48.181(1) has been found to

be identical to the language of section 48.193(1)(a), the statute at issue here. Cases interpreting

section 48.181(1) have been deemed to be applicable to section 48.193(1)(a).”). Conclusory

allegations do not suffice. See Hartman Agency, Inc. v. Indiana Farmers Mut. Ins. Co., 353 So.

2d 665, 666 (Fla. 2d DCA 1978). As shown below, neither of these two elements can be met, as

there is no basis for specific jurisdiction, and Plaintiffs fail to plead any specific facts showing

that Out Island conducted business in Florida, and that the action arises from Out Island’

business activities in Florida. Even if Plaintiffs’ did, Out Island’s declaration establishes the

contrary.

B. Even if Plaintiff had properly served Out Island, dismissal for lack of personal
jurisdiction is required.

1. Legal standard for conferring jurisdiction over a nonresident defendant

“A federal court sitting in diversity undertakes a two-step inquiry in determining whether

personal jurisdiction exists: the exercise of jurisdiction must (1) be appropriate under the state

long-arm statute and (2) not violate the Due Process Clause of the Fourteenth Amendment to the

United States Constitution.” Carmouche v. Tamborlee Mgmt., 789 F.3d 1201, 1203 (11th Cir.

2015) citing United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.2009). “A defendant

can be subject to personal jurisdiction under Florida’s long-arm statute in two ways: first, section

48.193(1)(a) lists acts that subject a defendant to specific personal jurisdiction—that is,

jurisdiction over suits that arise out of or relate to a defendant’s contacts with Florida, Fla. Stat. §

the Secretary of State requires strict compliance with the statutory provisions for substituted
service.”); Cantley v. Ducharme, 2010 U.S. Dist. LEXIS 65745 (S.D. Fla. 2010) (§ 48.181 “must
be strictly construed to protect due process guarantees.”); Mecca Multimedia, Inc. v. Kurzbard,
954 So.2d 1179 (Fla. 3d DCA 2007) (“The burden of pleading facts that support, as a matter of
law, the applicability of substituted service falls on the party seeking to invoke the provisions of
the long-arm statute.”) (citing Labbee v. Harrington, 913 So.2d 679, 682 (Fla. 3d DCA 2005)).

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48.193(1)(a); and second, section 48.193(2) provides that Florida courts may exercise general

personal jurisdiction—that is, jurisdiction over any claims against a defendant, whether or not

they involve the defendant’s activities in Florida—if the defendant engages in “substantial and

not isolated activity” in Florida, id. § 48.193(2).” Id at 1203-1204.

However, “[t]he reach of section 48.193(2) extends to the limits on personal jurisdiction

imposed by the Due Process Clause of the Fourteenth Amendment.” Carmouche, 789 F.3d at

1204 (citing Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010)). “So, to determine whether the

district court had general jurisdiction over [Out Island] under section 48.193(2), [the Court] need

only determine whether the [] exercise of jurisdiction over [Out Island] would exceed

constitutional bounds.” Id. (internal quotations omitted). “A court may assert general jurisdiction

over foreign (sister-state or foreign-country) corporations, without offending due process when

their affiliations with the State are so continuous and systematic’ as to render them essentially at

home in the forum State. Id. (quotations and citations omitted).

However, even before the Court engages in the first step of the above noted analysis, it

should first determine whether the Complaint contains sufficient material facts to support the

exercise of jurisdiction. As the Eleventh Circuit recently reiterated, “a plaintiff seeking to

establish personal jurisdiction over a nonresident defendant bears the initial burden of alleging in

the complaint sufficient facts to make out a prima facie case of jurisdiction.” Louis Vuitton

Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013).

“When a defendant challenges personal jurisdiction by submitting affidavit evidence in

support of its position, the burden traditionally shifts back to the plaintiff to produce evidence

supporting jurisdiction.” Id. “If defendants sufficiently challenge plaintiff’s assertions, then

plaintiff must affirmatively support his or her jurisdictional allegations, and may not merely rely

upon the factual allegations set forth in the complaint.” Roblor Mktg. Grp., Inc. v. GPS Indus.,

Inc., 645 F. Supp. 2d 1130, 1137 (S.D. Fla. 2009); see also Yepez v. Regent Seven Seas Cruises,

10-23920-CIV, 2011 WL 3439943, *1 (S.D. Fla. 2011) (King, J) (“[T]he party who invokes the

jurisdiction of the court has the burden of establishing jurisdiction. Rule 8(a) requires the

plaintiff to set forth in the complaint the factual support for jurisdiction.”).

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2. Specific jurisdiction cannot be exercised over Out Island.

a. Fla. Stat. § 48.193(1)(a)(1) does not confer jurisdiction over Out Island

“Subsection (1)(a)(1) confers jurisdiction over an out-of-state defendant for claims arising

against a defendant who is “operating, conducting, engaging in, or carrying on a business venture

in this state or having an office or agency in this state.” Serra-Cruz, 400 F. Supp. 3d at 1358.

“[S]pecific personal jurisdiction authorizes jurisdiction over causes of action arising from or

related to the defendant’s actions within Florida and concerns a nonresident defendant’s contacts

with Florida only as those contacts related to the plaintiff’s cause of action.” Wolf, 683 F. App’x

at 793. In the present case, Plaintiffs do not allege that Out Island committed a tortious act in

Florida and cannot assert specific jurisdiction based on any tort claims related to the incident that

occurred in Sint Maarten. In Wolf, the Eleventh Circuit found that specific jurisdiction cannot be

exercised for this exact reason. See Id. (“Mr. Wolf does not allege that OCT committed a tortious

act in Florida and cannot assert specific jurisdiction based on any tort claims related to the

incident that occurred in Costa Rica.”); see also Serra-Cruz, 400 F. Supp. 3d at 1358 (citing

Bloom v. A.H. Pond Co., Inc., 519 F. Supp. 1162, 1168 (S.D. Fla. 1981) (“It is clear that doing

business in this state is not a sufficient basis, standing along, upon which to predicate long-arm

jurisdiction. There must also be some nexus or connection between the business that is

conducted in Florida and the cause of action alleged.”)). Florida’s Third District Court of

Appeals has even recognized “that recent constitutional jurisprudence suggests that, to comply

with the Fourteenth Amendment’s due process requirement, a state court may exercise specific

jurisdiction over a non-resident defendant only when the complained-of injury actually occurs in

the forum state.” Banco de los Trabajadores, 237 So. 3d at 1136 n.10 (citing Bristol-Myers

Squibb Co. v. Superior Ct. of Cal., San Francisco Cty., 137 S.Ct. 1773, 198 L. Ed. 2d 395

(2017)).

b. Fla. Stat. § 48.193(1)(a)(4) does not confer jurisdiction over Out Island.

Plaintiffs argue that this section applies because Out Island agreed to indemnify RCL for

claims made in their Complaint. See Compl., ECF. No 1 at ¶36. This Court, however, has

consistently rejected this argument in the content of similarly situated foreign shore excursion

operators. See, e.g., Brown v. Carnival Corp., et al., 2016 WL 4613385, at *7 (S.D. Fla. Aug. 15,

2016) (Ungaro, J) (citing Lapidus v. NCL Am. LLC, 2013 WL 646185 (S.D. Fla. Feb. 14, 2013)

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(Seitz, J) (“[h]ere, Plaintiff’s contention that the Excursion Entities agreed to indemnify [cruise

line] for his claims is insufficient because Plaintiffs negligence claims do not arise from an

indemnity agreement. Plaintiffs’ claims arise from [cruise line’s] allegedly negligent actions

onboard the ship and in Hawaii. Put another way, Plaintiffs negligence claims could be asserted

regardless of whether an indemnity agreement exists between NCL and the Excursion

Entities”)). See also E & H Cruises, Ltd. v. Baker, 88 So. 3d 291, 296 (Fla. 3rd DCA 2012)

(rejecting same argument and noting, inter alia, “[b]ecause the plaintiff is neither suing, nor

could sue, under the Tour Operator Agreement, she cannot use same as a basis for jurisdiction.”)

c. Fla. Stat. § 48.193(1)(a)(9) does not confer jurisdiction over Out Island

Plaintiffs allege that Out Island is subject to personal jurisdiction under Fla. Stat. §

48.193(1)(a)(9) (which incorporates Fla. Stat. §§ 685.101 and 685.102), because it entered a

contract with RCL containing a Florida forum clause. See Compl., ECF No. 1 at ¶37. Like other

cruise passengers, Plaintiffs may argue that they are able to enforce the forum selection provision

between RCL and Out Islands because they were third party beneficiaries to the TOA. This

argument fails as a matter of law. As the Honorable Judges Cooke, Ungaro and Williams have

recognized, personal jurisdiction cannot be asserted under the above referenced statutes over

foreign operators than do not have Florida forum selection agreement with the plaintiff. See

Kenneth Evesson v. Carnival Corp. et. al., Case No. 17-23474, D.E. 41 (S.D. Fla. June 20, 2018)

and Transcript of June 7, 2018 oral arguments, attached as Exhibit “C,” at p. 32 – 33; Mabs, et.

al. v. Kantours, et. al. No. 1:19-cv-20144, D.E. 72 (S.D. Fla. July 31, 2019) (Cooke J.) and

Transcript of July 31, 2019 oral arguments, attached as Exhibit “D,” at page 29; Serra-Cruz v.

Carnival Corp., 400 F. Supp. 3d 1354, 1361 (S.D. Fla. 2019) (Ungaro, J.) (“The Court agrees

with Judge Cooke in Evesson v. Carnival Corp. et al., No. 17-cv-23474-MGC, D.E. 41, 45 (S.D.

Fla. June 20, 2018) . . . Plaintiff’s use of subsection (1)(a)(9) through a third-party beneficiary

claim is an attempted ‘back door way through the contract’ to establish jurisdiction over a

foreign defendant in a personal injury case.”); Kreyer v. Carnival Corp., 2019 U.S. Dist. LEXIS

223736, at *5 (S.D. Fla. Dec. 18, 2019) (Williams, J. ) (citing Evesson and Serra Cruz for the

proposition “that several other Courts in this District have thoroughly addressed the issues raised

in [the tour operator’s] motion to dismiss and have found that dismissal is warranted.”)

The only two courts to have applied Fla. Stat. §§ 685.101-.102 against a foreign shore

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excursion operator, which they did under the third-party beneficiary theory, recognized that they

would apply to Carnival’s TOA but not RCL’s (i.e. the TOA as issue here). See Lienemann v.

Cruise Ship Excursions, Inc., 2018 U.S. Dist. LEXIS 197781, at *13 (S.D. Fla. Nov. 9, 2018)

(Lenard, J.); Steffan v. Carnival Corp., 2017 U.S. Dist. LEXIS 161790, at *18 (S.D. Fla. Aug. 1,

2017) (Altonaga, J.) In both cases, the courts noted that RCL passengers would not be able to

enforce the same TOA at issue here, because the TOA explicitly disclaims third party

beneficiaries. In fact, even in the context of 12(b)(6) motions, courts in this district routinely

dismiss similar third party beneficiary claims with prejudice, when considering the same TOA at

issue here. See e.g., Sanlu Zhang v. Royal Caribbean Cruises, Ltd., 2019 U.S. Dist. LEXIS

199362, at *29-30 (S.D. Fla. Nov. 14, 2019; Doria v. Royal Caribbean Cruises, Ltd., 2019 U.S.

Dist. LEXIS 104354, at *18 (S.D. Fla. June 19, 2019)(Williams, J.); Gayou v. Celebrity Cruises,

Inc., 2012 U.S. Dist. LEXIS 77536, at *33-34 (S.D. Fla. June 5, 2012) (Scola, J.); Zapata v.

Royal Caribbean Cruises, Ltd., 2013 U.S. Dist. LEXIS 43487, at *17-19 (S.D. Fla. Mar. 27,

2013) (Cooke, J).

Although ultimately without difference to Out Island, the Courts in Kreyer, Evesson and

Serra-Cruz disagreed with portions of Steffan and Lienemann, and found that Fla. Stat. §§

685.101-.102 would not apply to Carnival’s TOA either. As Judge Ungaro recognized, Steffan

presumably ruled as it did “because the court [] did not have the benefit of the defendant’s

briefing and relied wholly on the plaintiff’s arguments, which were brought to the court’s

attention in a notice of supplemental authority filing . . .” Id at *12-13. And concerning,

Lienemann, Judge Ungaro found it “relied almost entirely on Steffan in finding that jurisdiction

existed due to the excursion contractor agreement” and noted that the arguments supported by

the decision’s reasoning were “meritless.” Id. The Serra-Cruz court also recognized that even if

third party beneficiary status permitted enforcement of forum selection agreements, the lack of

an express disclaimer against such status, which Carnival’s TOA did not have (but RCL’s does),

would not create third party beneficiary status. Id at *16.

3. General jurisdiction cannot be personal jurisdiction over Out Island, which is
“at home” only in Sint Maarten.

Plaintiffs’ Complaint acknowledges that Out Island is a foreign entity operating in Sint

Maarten [ECF No. 1 at ¶ 13]. Moreover, they do not allege that Out Island is “at home” in

Florida. Although this alone forecloses a finding of general jurisdiction, out of an abundance of

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caution Out Island notes as follows:

A corporation’s place of incorporation and its principal place of
business are paradigm all-purpose forums. And a corporation’s
operations in a forum other than its formal place of incorporation
or principal place of business will be so substantial and of such a
nature as to render the corporation at home in that State only in
exceptional cases.

Carmouche, 789 F.3d at 1204, citing Daimler, 134 S.Ct. at 761 (internal quotes omitted); see

also Thompson v. Carnival Corp., 174 F. Supp. 3d 1327 (S.D. Fla. 2016) (holding that the court

could not exercise jurisdiction over excursion entities when contacts were even more attenuated

that those required in Carmouche and Daimler). Applying this standard, this Court determined

that general jurisdiction cannot be asserted against Out Island. See, e.g., Hickey, 2015 U.S. Dist.

LEXIS 195809, at *18-19 (“Applying this [Daimler] analysis, it is clear that Out Island, a

corporation that operates exclusively in the Caribbean Island of Saint Martin, is not ‘at home’ in

Florida. Therefore, even if [the plaintiff] could prove her ‘sham independent contractor/agency

relationship’ theory through additional discovery, the exercise of general personal jurisdiction

over Out Island would not satisfy the minimum contacts requirement of the Due Process Clause

of the Fourteenth Amendment.”).

Having established that Out Island’s principal place of business or place of incorporation

is not in Florida, the Court need not examine much more. The Complaint comes nowhere close

to showing this is an “exceptional case” as contemplated by the Supreme Court. Plaintiffs cannot

meritoriously rebut that the Complaint fails to establish a basis for jurisdiction.

Contacts such as those alleged in the Complaint have been consistently rejected as

insufficient by this Honorable Court and the Eleventh Circuit, particularly in cases involving

foreign tour operators doing business with cruise lines. In Carmouche v. Tamborlee, for

example, the Eleventh Circuit rejected the following contacts as insufficient: (1) contractual

relationship with numerous Florida-based cruise lines; (2) a Florida bank account administered in

Miami; (3) two Florida addresses; (4) purchase of insurance from Florida companies; (5) filing a

financing statement with the Florida Secretary of State; (6) membership in the Florida Caribbean

Cruise Association; (7) consenting to the jurisdiction of the Southern District of Florida for all

lawsuits arising out of its agreements with Carnival Corporation. See Carmouche, 789 F.3d at

1204. The Carmouche court concluded “[t]hese connections are not so substantial as to make this

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one those exceptional cases in which a foreign corporation is at home in a forum other than its

place of incorporation or principal place of business. Id (internal quotes omitted) (citing Daimler,

134 S.Ct. at 761 n. 19).

In Thompson v. Carnival Corp., this Court cited Daimler’s “sweeping declaration ‘that

only a limited set of affiliations with a forum will render a defendant amenable to all-purpose

jurisdiction . . .” and found that jurisdiction over the foreign tour operator was improper. See

Thompson, 174 F. Supp. 3d at 1334. The court noted that Daimler signaled a “dramatic change,”

and made it “incredibly difficult to establish general jurisdiction in a forum other than the place

of incorporation or principal place of business.” Id at *6 (citing Monkton Ins. Servs., Ltd. v.

Ritter, 768 F.3d 429, 432 (5th Cir. 2014)).

Lastly, to the extent that Plaintiff argues that the Florida contacts of other entities should

be imputed onto Out Island, the argument fails as a matter of law. See Atmos Nation Ltd. Liab.

Co. v. Alibaba Grp. Holding Ltd., 2016 U.S. Dist. LEXIS 33228, at *17 (S.D. Fla. Mar. 15,

2016)(Moore, J.) (“The fact that Defendants may have involvement, even extensive involvement,

with corporations that do business in Florida is not sufficient, in and of itself, to establish that

Defendants themselves are subject to the personal jurisdiction of a Florida court.”).

In McCullough v. Royal Caribbean Cruises, Ltd., the court also rejected the plaintiffs’

attempt to impute the contacts of Florida-based affiliates onto the foreign defendant challenging

personal jurisdiction. The court noted as follows:

Notwithstanding the factual distinction, the McCulloughs face a broader
problem. Daimler rejected the Ninth Circuit’s agency theory of jurisdiction,
finding that it “appears to subject foreign corporations to general jurisdiction
whenever they have an in-state subsidiary or affiliate, an out-come that would
sweep beyond even the ‘sprawling view of general jurisdiction’ . . . rejected
in Goodyear.” 134 S. Ct. at 760 (quoting Goodyear, 564 U.S. at 929).
Since Daimler, several courts in this District have strongly suggested that that
rejection has abrogated the agency theory advanced by Meier and its
progeny. See Thompson, 174 F. Supp. 3d at 1336 (“[R]eliance on
[Stubbs and Meier] to establish general jurisdiction on an agency theory is
dubious given the decisions in Daimler and Goodyear.”); Schulman v. Global
Citizens Travel, LLC, No. 13-23766, 2015 U.S. Dist. LEXIS 178872, 2015 WL
11018438, at *4 (S.D. Fla. Jan. 20, 2015) (“The approach to agency the Eleventh
Circuit applied in a jurisdictional analysis in Meier and Stubbs is now in doubt in
light of Daimler, in which the Supreme Court expressed skepticism of any agency
test that did not require a showing that the agent in the forum state was ‘so
dominated by the [parent] as to be its alter ego.'” (quoting Daimler, 134 S. Ct. at

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759)); see also Aronson v. Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1391
(S.D. Fla. 2014).

McCullough, 268 F. Supp. 3d 1336, 1348 (S.D. Fla. 2017).

4. The Court Lacks Jurisdiction over Out Island under Federal Rule of Civil
Procedure 4(k)(2), the National Long-Arm Statute, as Out Island’s nonexistent
contacts with the United States do not subject it to general or specific
jurisdiction.

In apparent recognition that Florida, or any other state for that matter, does not have

jurisdiction over Out Island, Plaintiff has also pled jurisdiction pursuant to Fed .R. Civ. P. 4.

Rule 4(k)(2), the national long-arm statute, “permits a federal court to exercise personal

jurisdiction over a defendant, providing that two essential conditions are met: (1) plaintiff’s

claims must “arise under federal law; and (2) the exercise of jurisdiction must be consistent with

the Constitution and laws of the United States.” Fraser, 594 F.3d at 849.

However, courts rarely invoke jurisdiction under Rule 4(k)(2), as observed by the Ninth

Circuit: “in the fourteen years since Rule 4(k)(2) was enacted, none of our cases has

countenanced jurisdiction under the rule.” Holland Am. Line Inc. Wärtsilä N. Am., Inc., 485 F.3d

450, 462 (9th Cir. 2007). The court in Holland further explained:

The few cases in which our sister circuits have concluded that Rule
4(k)(2) conferred jurisdiction have involved defendants with much
more extensive contacts to this country. See, e.g., Mwani v. bin
Laden, 417 F.3d 1, 13 (D.C. Cir. 2005) (holding that jurisdiction
could be exercised where defendants had engaged in numerous
conspiracies to bomb the World Trade Center, the United Nations,
and the Lincoln and Holland Tunnels); Adams v. Mediterranea Di
Sicurta, 364 F.3d 646, 651 (5th Cir. 2004) (upholding personal
jurisdiction under Rule 4(k)(2) where the defendant insurer had
directly insured hundreds of claims in the United States).

Id. It is in this light, that the Court should view Plaintiffs’ request for jurisdiction under Rule

4(k)(2).

Following Daimler, jurisdiction under Rule 4(k)(2) has become even harder to establish.

As District Courts in this District have recently recognized:

This is not one of those uncommon cases. The Excursion Entities’
contacts with the United States as a whole are simply too
attenuated to support jurisdiction under Rule 4(k)(2). Turning back
to Fraser, the Eleventh Circuit determined that the tour boat

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operator’s nationwide contacts “were no more continuous and
systematic than the company’s activities in Florida.” Fraser, 594
F.3d at 849. As a result, the Court held that exercising general
jurisdiction over the foreign-based corporation under Rule 4(k)(2)
would offend due process. Id. at 850 (reasoning that if the tour boat
operator was “subject to general personal jurisdiction under Rule
4(k)(2)” it would necessarily “imply that the company is amenable
to suit everywhere in the United States on any claim arising under
federal law”).

Thompson, 174 F. Supp. 3d at 1327; see also Chimene v. Royal Caribbean Cruises Ltd., 2017

U.S. Dist. LEXIS 65965, at *9 (S.D. Fla. Apr. 5, 2017) (Moreno, J.), citing Wolf, 2017 U.S. App.

LEXIS 5348, 2017 WL 1149092, at *4; McCullough, 268 F. Supp. 3d at 1352 (rejecting a

similar attempt to apply Rule 4(k)(2) to a foreign shore excursion operator in a contractual

relationship with U.S. based cruise lines).

A district court in Pennsylvania also recognized:

. . . under the “at home” standard reiterated in Daimler AG, it is
unlikely that a court could ever find general jurisdiction under Rule
4(k)(2). Indeed, a finding that a corporate defendant “is fairly
regarded as at home” within the United States would seemingly
preclude a finding that the same corporate “defendant is not subject
to jurisdiction in any state’s courts of general jurisdiction,” as is
required under Rule 4(k)(2)(A).

Best Odds Corp., 2014 WL 2527145, at *5 (finding no national jurisdiction despite defendant’s

media kit in which it self-described its “significant U.S presence”); see also

Chimene v. Royal Caribbean Cruises Ltd., 2017 U.S. Dist. LEXIS 65965, at *10 (S.D. Fla. Apr.

5, 2017) (Moreno, J).

C. Plaintiffs’ unequivocal acceptance of binding forum selection agreement requires
dismissal for improper venue

Although, in light of the above, the Court need not reach this issue, Out Island addresses

it out of an abundance of caution. As noted above, prior to participating in the subject tour,

Plaintiffs executed a Liability Waiver that included a mandatory forum selection clause, which

explicitly provides in capitalized letters:

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See Ex. “B,” at ¶ 8.

Plaintiffs’ signatures confirms that they read and accepted the clear and unambiguous

terms and conditions of the Agreement. Above their signatures, the Agreement states in all

capital letters: “I HAVE READ AND UNDERSTAND THIS AGREEMENT IN I AM AWARE

THAT BY SIGNING THIS AGREEMENT I MAY BE WAIVING CERTAIN LEGAL

RIGHTS, INCLUDING THE RIGHT TO SUE.” Id6.

Plaintiffs’ acceptance of this binding, mandatory forum selection clause, requiring his

claims in this action to be brought exclusively in Sint Maarten, also warrants dismissal. See e.g.

Krenkel v. Kerzner Intern. Hotels, Ltd., 579 F.3d 1279 (11th Cir. 2009) (enforcing forum

selection clause within terms of contract signed by hotel guests upon check-in). Controlling

Eleventh Circuit law holds that “forum-selection clauses in international agreements ‘are prima

facie valid and should be enforced unless enforcement is shown by the resisting party to be

‘unreasonable’ under the circumstances.’” Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d

1285, 1291 (11th Cir. 1998).

Such forum selection clauses are strictly enforced, even when unequal bargaining power

is alleged, unless the plaintiff can meet a “heavy burden of proof” to show that enforcement is

fundamentally unfair. See Carnival Cruises, Inc. v. Shute, 499 U.S. 585 (1991) (enforcing forum

selection clause against cruise line passenger). To overcome the forum selection clause, Plaintiff

must meet a heightened “strong showing” of unreasonableness standard, which occurs “only

when: (1) their formation was induced by fraud or overreaching7; (2) the plaintiff effectively

6 Of course, “[a] passenger’s failure to actually read the contractual provision at issue does not
preclude his being bound.” See Racca v. Celebrity Cruises, Inc., 376 Fed. Appx. 929, 931 (11th
Cir. 2010) (citing Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 13 (5th Cir. 1979)).

7 “In determining whether there was fraud or overreaching in a non-negotiated forum-selection
clause, we look to whether the clause was reasonably communicated to the consumer. A useful
two-part test of ‘reasonable communicativeness’ takes into account the clause’s physical
characteristics and whether the plaintiffs had the ability to become meaningfully informed of the

Case 1:20-cv-20692-KMM Document 40 Entered on FLSD Docket 06/19/2020 Page 16 of 19

CASE NO. 20-CV-20692-KMM

17

150 SOUTHEAST SECOND AVENUE, SUITE 1200 · MIAMI, FLORIDA 33131
TELEPHONE: 305-379-3686 · FACSIMILE: 305-379-3690

would be deprived of his day in court because of the inconvenience or unfairness of the chosen

forum; (3) the fundamental unfairness of the chosen law would deprive the plaintiff of a remedy;

or (4) enforcement of the provisions would contravene a strong public policy.” Id. at 1292.

Plaintiffs, whose Complaint does not even acknowledge the liability waiver they signed, have

not and cannot accurately allege any facts supporting any of the above elements

As none of the above noted circumstances are present here, the subject forum selection

clause warrants dismissal for improper venue under Rule 12(b)(3).

IV. Conclusion
As shown above, dismissal is warranted for several independent reasons. First, Plaintiffs’

method of service is prohibited under Sint Maarten law and is thus noncompliant with Rule 4.

Second, the Court lacks personal jurisdiction over Out Island, which is not “at home” in Florida

and did not commit any tortious act here. Lastly, Plaintiffs executed a valid and enforceable

agreement that mandates that any claims against Out Island can only proceed in Sint Maarten.

For all these reasons, Out Island respectfully requests the Court dismiss it from this action with

prejudice and grant any other relief it deems just and proper.

Dated: June 19, 2020

Respectfully submitted,

/s/ Carlos J. Chardon
Jerry D. Hamilton
Florida Bar No.: 970700
[email protected]
Carlos J. Chardon
Florida Bar No. 517631
[email protected]
Spencer B. Price
Florida Bar No. 1001044
[email protected]
HAMILTON, MILLER & BIRTHISEL, LLP

clause and to reject its terms.” Krenkel v. Kerzner Intern. Hotels Ltd., 579 F.3d 1279, 1281 (11th
Cir. 2009) (finding terms of hotel waiver reasonably communicated forum selection clause).
Here, the physical characteristics of the waiver confirm it was reasonably communicated and
Plaintiff’s signature, acknowledging he read and understood it, confirms he was meaningfully
informed.

Case 1:20-cv-20692-KMM Document 40 Entered on FLSD Docket 06/19/2020 Page 17 of 19

CASE NO. 20-CV-20692-KMM

18

150 SOUTHEAST SECOND AVENUE, SUITE 1200 · MIAMI, FLORIDA 33131
TELEPHONE: 305-379-3686 · FACSIMILE: 305-379-3690

150 Southeast Second Avenue, Suite 1200
Miami, Florida 33131
Telephone: (305) 379-3686
Attorneys for Defendant, Out Island

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 19, 2020, I electronically filed the foregoing

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing is being

served this day on all counsel of record or pro se parties identified on the following 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 electronically notices of Electronic Filing.

/s/ Carlos J. Chardon
Carlos J. Chardon, Esq.

Case 1:20-cv-20692-KMM Document 40 Entered on FLSD Docket 06/19/2020 Page 18 of 19

CASE NO. 20-CV-20692-KMM

19

150 SOUTHEAST SECOND AVENUE, SUITE 1200 · MIAMI, FLORIDA 33131
TELEPHONE: 305-379-3686 · FACSIMILE: 305-379-3690

SERVICE LIST

Tonya J. Meister, Esq.
MEISTER LAW LLC
Courthouse Tower, Suite 750
44 West Flagler Street
Miami, Florida 33130
E-mail: [email protected]

Elizabeth K. Russo, Esq.
Paolo R. Lima, Esq.
RUSSO APPELLATE FIRM, P.A.
[email protected]
7300 North Kendall Drive, Suite 600
Miami, Florida 33156
Telephone: (305) 666-4660
Facsimile: (305) 666-4470
Attorneys for Plaintiff

Jerry D. Hamilton, Esq.
Florida Bar No. 970700
[email protected]
Carlos J. Chardon, Esq.
Florida Bar No. 517631
[email protected]
Spencer B. Price, Esq.
Florida Bar No. 1001044
[email protected]
Hamilton, Miller & Birthisel, LLP
150 Southeast Second Avenue
Suite 1200
Miami, Florida 33131
Telephone: 305-379-3686
Facsimile: 305-379-3690
Attorneys for Out Island Charters NV

Jeffrey E. Foreman, Esq.
[email protected]
[email protected]
Noah D. Silverman, Esq.
[email protected]
[email protected]
Lauren Rose, Esq.
[email protected]
[email protected]
FOREMAN FRIEDMAN, PA
One Biscayne Tower, Suite 2300
2 South Biscayne Boulevard
Miami, FL 33131
Phone: 305-358-6555
Fax: 305-374-9077
Attorneys for Defendant, Royal Caribbean

Case 1:20-cv-20692-KMM Document 40 Entered on FLSD Docket 06/19/2020 Page 19 of 19

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-20692-KMM

NICOLE WOODLEY, individually and as mother and
guardian of minors K. W., M. W., and C.W., JR.;
CLARICE LEE, individually; and BARRINGTON L.
SIBBLIS, as personal representative of the Estate of
BARBARA SIBBLIS,

Plaintiffs,

vs.

ROYAL CARIBBEAN CRUISES, LTD., a Liberian
Corporation, and OUT ISLAND CHARTERS NV

Defendants.
____________________________________/

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

Defendant, ROYAL CARIBBEAN CRUISES LTD., (“RCL”), by and through

undersigned counsel, and pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, hereby

moves to dismiss Plaintiffs’ Complaint [DE 1], and in support thereof, states as follows:

INTRODUCTION

Plaintiffs, NICOLE WOODLEY, individually and as mother and guardian of minors

K.W., M.W., and C.W., Jr.; CLARICE LEE, individually; and BARRINGTON L. SIBBLIS, as

personal representative of the Estate of BARBARA SIBBLIS, filed this Complaint for Damages

and Wrongful Death as a result of an incident that allegedly occurred during their voyage on the

Defendant’s vessel, the Adventure of the Seas, on February 20, 2019, while participating in the

“Golden Eagle Sail Away” shore excursion in St. Maarten. [DE 1, ¶72, 85]. Plaintiffs’ Complaint

contains the following claims against RCL: Negligence (Count I); Negligent Selection and

Retention (Count II); Negligent Misrepresentation (Count III); Actual Agency (Count IV);

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 1 of 22

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Apparent Agency (Count V); Joint Venture (Count VI); Negligent Infliction of Emotional Distress

(Counts X, XI); and Breach of Contract (Count XII). For the reasons set forth below, Plaintiffs’

Complaint fails to state a claim against RCL upon which relief may be granted under any of these

theories, and as such, RCL respectfully requests that the Complaint be dismissed.

MEMORANDUM OF LAW

I. Standard for a Motion to Dismiss

“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, a plaintiff must articulate “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662 (2000). The

allegations must include “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. When a plaintiff “[has] not nudged their claims across the line from conceivable

to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570.

II. Federal Maritime Law Governs Plaintiffs’ Claims

This matter is subject to the general maritime law of the United States. Incidents occurring

on navigable waters and bearing a significant relationship to traditional maritime activities are

governed by maritime law, thus it is well settled that the law governing passenger suits against

cruise lines is the general maritime law. See Kermarec v. Compagnie Generale Transatlantique,

358 U.S. 625 (1959); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir. 1989).

This principle extends to torts occurring at offshore locations or ports-of-call during the course of

a cruise. See Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901 (11th Cir. 2004); Isbell v. Carnival

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 2 of 22

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Corp., 462 F. Supp. 2d 1232, 1236 (S.D. Fla. 2006). “[S]tate law may supplement maritime law

as long as there is no conflict with maritime law,” however, “maritime law controls.” Morhardt v.

Carnival Corp., 304 F. Supp. 3d 1290, 1294 (S.D. Fla. 2017). Here, according to the allegations

of Plaintiffs’ Complaint, BARBARA SIBBLIS, (“Decedent”), was allegedly injured while

participating in a shore excursion during the course of Plaintiffs’ cruise on the Adventure of the

Seas. [DE 1, ¶72 – 101]. Additionally, Plaintiff agrees that “[t]he within maritime personal injury

actions brought by Plaintiffs … arise under: The General Maritime Law of the United States …”

[DE 1, ¶117]. Accordingly, federal maritime law applies to the instant action.

III. Plaintiffs’ Complaint is a Shotgun Pleading and Should be Dismissed in its
Entirety

As a threshold matter, Plaintiffs’ Complaint is an impermissible shotgun pleading and

should be dismissed in its entirety. The Eleventh Circuit “has been roundly, repeatedly, and

consistently condemning [shotgun pleadings] for years.” Vibe Micro, Inc. v. Shabanets, 878 F.3d

1291, 1294 (11th Cir. 2018); Bartes v. Sch. Bd. Of Alachua Cnty., 2005 U.S. App. LEXIS 23386

(11th Cir. 2005) (“We have condemned these “shot gun” pleadings on numerous occasions

because they make it ‘virtually impossible to know which allegations of fact are intended to

support with claim(s) for relief’ and ‘impede the orderly, efficient, and economic disposition of

disputes.’”) As such, the Eleventh Circuit has advised against allowing a case to proceed when

pled as a shotgun pleading. See Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001).

Here, Plaintiffs’ Complaint is a classic shotgun pleading as it begins each count with a

preamble, re-alleging and incorporating by reference one-hundred and thirty-six (136) paragraphs

of factual allegations, including numerous additional sub-sections, all of which span twenty-eight

(28) pages. “A shotgun-style complaint is one that incorporates all of the general factual allegations

by reference into each subsequent claim for relief.” Great Fla. Bank v. Countrywide Home Loans,

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 3 of 22

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Inc., 2011 WL 382588, at *2 (S.D. Fla. Feb. 3. 2011) (internal quotations omitted); see also

Kennedy v. Bell South Telecomms., Inc., 546 Fed. Appx. 817, 819-20 (11th Cir. 2013); BMC

Industries, Inc. v. Barth Industries, Inc., 160 F.3d 1313, 1322-23 n.6 (11th Cir. 1998). Complaints

such as Plaintiffs are improper and warrant dismissal as they “[fill] each count with allegations

that are not relevant to that particular count.” Buckner v. Whitley, No. 3:18-CV-610-WKW, 2019

WL 1117914, at *1 (M.D. Ala. Mar. 11, 2019); see also Nichols v. Carnival Corp., No. 1:19-CV-

20836-UU, 2019 WL 7882648, at *3 (S.D. Fla. Sept. 17, 2019) (discussing the plaintiff’s “problem

of re-alleging and incorporating by reference the other 44 paragraphs, without explaining which

of those paragraphs support each cause of action and how.”) For example, Plaintiffs’ factual

allegations regarding their Negligent Infliction of Emotion Distress claims have nothing to do with

their Apparent Agency claim, and vice versa. Additionally, the Complaint includes several pages

of jurisdictional allegations which seemingly only apply to Plaintiffs’ claims against Defendant

Out Island Charters, not RCL, yet they are incorporated by reference into every count of the

Complaint. Accordingly, Plaintiffs’ Complaint must be dismissed in its entirety as it is an

impermissible shotgun pleading.

IV. Plaintiffs’ Negligence Claim (Count I) Should be Dismissed

A. Plaintiffs improperly seek to impose heightened duties of care on RCL

Count I of Plaintiffs’ Complaint improperly imposes numerous heightened duties of care

on RCL that are non-existent under general maritime law. It is well settled that the standard of care

owed to passengers by a cruise ship operator is reasonable care under the circumstances. See

Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). In Thompson v. Carnival

Corp., this Honorable Court held that “Once the passenger leaves the ship, a cruise ship operator

‘only owes its passengers a duty to warn of known dangers in places where passengers are invited

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or reasonably expected to visit.’” 174 F. Supp. 3d 1327, 1340 (S.D. Fla. 2016) (quoting Moseley

v. Carnival Corp., No. 13–20416–CIV, 2013 WL 5913833, at *3 (S.D. Fla. Oct. 31, 2013)).

Here, Plaintiffs’ negligence claim fails because it alleges improper duties over and above

the duty to warn. For example, Plaintiffs allege RCL was negligent for, inter alia, “Failing to

provide an excursion with proper equipment and personnel,” “Failing to adopt and implement

proper and adequate policies, protocols, and procedures…,” “Failing to implement a method of

operation which was reasonable and safe…,” and “Failing to promulgate and enforce appropriate

safety rules…” [DE 1, ¶143]. Ultimately, only one of Plaintiffs’ twenty-seven (27) alleged

breaches is premised on a duty to warn. Thus, the overwhelming majority of Plaintiffs’ allegations

fail, where, as here, the only duty owed by RCL was to warn of dangers in places where passengers

are reasonably expected to visit. Thompson, 174 F. Supp. 3d at 1340. Accordingly, Plaintiffs’

negligence claim must be dismissed, because, as this Court held in Thompson, “Otherwise, the

imposition of heightened duties would effectively render cruise line operators like Carnival the

all-purpose insurers of their passengers’ safety.” Id. at 1342.

B. Plaintiffs fail to sufficiently allege RCL was on notice of a dangerous condition

Notwithstanding that Count I seeks to impose heightened duties, Plaintiffs fail to

sufficiently allege RCL was on notice of a dangerous condition. A shipowner only has a duty to

protect passengers from dangers “of which the carrier knows, or reasonably should have known.”

Wolf v. Celebrity Cruises, Inc., 683 Fed. Appx. 786, 794 (11th Cir. 2017). “Accordingly, as a

prerequisite to imposing liability, a carrier must have had ‘actual or constructive notice of the risk-

creating condition.” Id. (citing Keefe, 867 F.2d at 1322); see also Thompson, 174 F. Supp. 3d at

1341 (“To premise a negligence claim on a breach of the duty to warn, [Plaintiff] must set forth

factual allegations ‘showing that the cruise line knew or should have known of any dangerous

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condition relating to the . . . excursion that would give rise to a duty to warn.’”) (citing Gayou v.

Celebrity Cruises, Inc., No. 11–23359–CIV, 2012 WL 2049431, at *5 (S.D.Fla. June 5, 2012)).

The allegations in Plaintiffs’ Complaint amount to nothing more than threadbare

allegations that recite no facts suggesting how RCL knew or should have known of any specific

dangerous condition regarding the subject excursion. Plaintiffs allege that RCL “knew or should

have reasonably learned that incidents involving other participants were being caused on the shore

excursion,” and that “said dangers and risks existed for a sufficient length of time so as to provide

notice to Defendant.” [DE 1, ¶ 112, 139]. However, Plaintiffs do not allege even a single fact about

any alleged prior incident or how they put RCL on notice of a dangerous condition.

The cases of Polanco v. Carnival Corp. and Zhang v. Royal Caribbean Cruises, Ltd. are

instructive. In Polanco, the plaintiff also alleged that the defendant cruise line knew of a dangerous

condition on the subject excursion for a “sufficient period of time,” and because of “similar

incidents in the past.” No. 10-21716-CIV, 2010 WL 11575228, at *1-2 (S.D. Fla. Aug. 11, 2010).

As with Plaintiffs’ Complaint, the complaint in Polanco failed to provide any factual details and

thus the Court found the allegations insufficient to establish notice.

The problem for the plaintiffs is that these meager allegations are wholly
conclusory. There are no details about how long Carnival knew of the negligent
operation of the motor vehicle on the excursion, or how it was that Carnival knew
or should have known about such negligent operation. There are also no details
about the similar past incidents that Carnival allegedly failed to investigate. What
were the incidents, and how were they similar? When did they occur? Who was the
excursion operator? Who were the drivers of the motor vehicles in the other
incidents? How did Carnival learn of the incidents? The complaint is bereft of
information on these material issues. It therefore fails to state a claim for
negligence….”

Id. at *2.

Likewise, in Zhang v. Royal Caribbean Cruises, Ltd, a recent cruise-line shore excursion

case from this district, Judge Scola discussed that the plaintiff must plead facts that establish how

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the cruise line became aware of alleged prior incident incidents and such incidents must have some

connection to the plaintiff’s case. See Omnibus Order Granting Motions to Dismiss, No. 19-cv-

20773, D.E. 40 (S.D.Fla. Nov. 15, 2019), attached herein as Exhibit A at 10. There, the plaintiff

alleged ten accidents in his complaint to support allegations that the cruise line was on notice of

the alleged dangerous condition. Id. However, the Court found that the incidents did not actually

provide any information that would show how the incident put the cruise line on notice. Id. Thus,

the Court held that the plaintiff’s negligence claim was insufficient. Id. Here, Plaintiffs’ prior

incident allegations are even more insufficient than in Zhang as Plaintiffs have failed to allege any

factual information about any alleged prior incident on the subject excursion.

Plaintiffs also allege RCL had notice from “other passengers’ reviews of [the] shore

excursion.” [DE 1, ¶115]. However, Plaintiffs’ Complaint does not include a single detail about

any such review, or how RCL would have been aware of them (if, for example, they were posted

on a third-party website such as Trip Advisor). For instance, Plaintiff does not allege that any of

the alleged reviewers were RCL passengers. But even if they were, Plaintiff has also failed to

allege that any prior incident was ever reported to RCL. Thus, Plaintiffs have failed to plead how

RCL knew of a dangerous condition regarding the subject excursion.

C. Plaintiffs’ allegation that other acts and/or omissions will be proven at trial is
speculative and conclusory and should be dismissed.

Count I includes an allegation that RCL breached its duty through “Other acts and/or

omissions of negligence that will be proven at trial.” [DE 1, ¶143(z)]. As this Court held in

Thompson, a speculative allegation such as this is deficient and cannot survive dismissal.

Thompson 174 F. Supp. 3d at 1341 (“Equally deficient is Thompson’s speculative allegation that

he ‘anticipates that discovery will reveal that, prior to the Plaintiff’s incident, other cruise ship

passengers were also injured participating in the same shore excursion.’ Compl. ¶ 34. Without

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factual support, this allegation is insufficient to survive dismissal.”) Therefore, should the Court

allow Plaintiffs’ negligence claim to proceed, RCL respectfully requests this allegation be stricken

from the Complaint.

V. Plaintiffs’ Negligent Selection and Retention Claim (Count II) Should be
Dismissed

In Count II, Plaintiffs allege that Celebrity negligently selected and retained the subject

tour operator. The elements of a negligent selection claim are; 1) that the excursion company was

incompetent or unfit to perform the work, 2) that the cruise operator knew or reasonably should

have known of the particular incompetence or unfitness prior to retaining the operator, and 3) that

such incompetence or unfitness proximately caused the plaintiff’s injuries. See Gayou, 2012 WL

2049431, at *5 (citing Smolnokar v. Royal Caribbean Cruises Ltd., 787 F.Supp.2d 1308, 1318

(S.D.Fla.2011)). Negligent retention is established by a showing that the cruise line knew of tour

operator’s unfitness after they were hired and failed to act. See Franza v. Royal Caribbean Cruises,

Ltd., 948 F. Supp. 2d 1327, 1334 (S.D. Fla. 2013).

Plaintiffs allege that RCL knew that the tour operator “was unfit to operate a shore

excursion in a reasonably safe manner,” and “presented foreseeable risks to passengers,” [DE 1,

¶156-57], but fail to allege any fact to establish how RCL would have had such knowledge prior

to or after selecting them. As with Plaintiffs’ general negligence allegations, these allegations are

conclusory and speculative, not fact. Thompson, 174 F. Supp. 3d at 1340 (“it is evident that

Thompson’s Complaint rests on ‘naked assertion[s]’ devoid of ‘further factual enhancement’”)

(citing, Iqbal, 556 U.S. at 678); Polanco, 2010 WL 11575228, at *2; Zhang, Exhibit A at 10. Thus,

Plaintiffs have not sufficiently pled that RCL knew or should have known of any unfitness of the

tour operator either prior to after retaining them to operate shore excursions for their passengers to

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9

support a claim for negligent selection and/or retention. Accordingly, Count II should be

dismissed.

VI. Plaintiffs’ Claim for Negligent Misrepresentation (Count III) Should be
Dismissed

A. Plaintiffs failed to satisfy the pleading requirements of Fed. R. Civ. P. 9(b).

Plaintiffs have failed to comply with the heightened pleading standards of Fed. R. Civ. P.

9(b) for allegations of fraud, which states, in pertinent part, “[i]n alleging fraud or mistake, a party

must state with particularity the circumstances constituting fraud or mistake.” To meet this

standard, a plaintiff must set forth:

“(1) precisely what statements were made in what documents or oral
representations or what omissions were made, and (2) the time and place of each
statement and the person responsible for making (or in the case of omissions, not
making) same, and (3) the content of such statement and the manner in which they
misled plaintiff, and (4) what the defendants obtained as a consequence of the
fraud.”

Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). Courts regularly dismiss

misleading advertising claims for failing to satisfy Rule 9’s standards. Id.; see also Doria v. Royal

Caribbean Cruises, Ltd., Order on Defendant’s Motion to Dismiss, 19-cv-20179-KMW, [D.E. 5

at 13], (S.D.Fla. June 20, 2019), attached herein as Exhibit B; Ceithaml v. Celebrity Cruises, Inc.,

207 F.Supp.3d 1345, 1353 (S.D.Fla 2016) (“to pass Rule 9(b) muster, the Complaint must set forth

particular allegations about the who, what, when, where, and how of the fraud”) (internal citations

omitted).

Plaintiffs allege that RCL misrepresented that it “selected only the most reputable

companies available to provide your excursions …,” “Safety: Your security and comfort are of

paramount importance …,” and “We select local shore excursion operators who provide quality

and safe shore excursions.” [DE 1, ¶168]. However, Plaintiffs additionally allege that RCL made

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10

“numerous misrepresentations of material fact,” “including, but not limited to,” the representations

above. Plaintiffs, therefore, failed to identify “precisely” what alleged misrepresentations were

made as they included no facts as to any other alleged misrepresentation. Ziemba, 256 F.3d at

1202. Moreover, Plaintiffs have not pled a single fact as to who made each alleged

misrepresentation, or if they were made in a document, RCL’s website, or elsewhere, or the time

or place of each statement. Thus, Plaintiffs have wholly failed to plead “the who, what, when,

where, and how,” of their negligent misrepresentation claim. Ceithaml, 207 F.Supp.3d at 1353.

Accordingly, the claim fails to comply with the requisite heightened pleading standard and should

be dismissed.

B. Plaintiffs fail to satisfy the elements of negligent misrepresentation

Notwithstanding, Plaintiffs fail to sufficiently state a claim of action. To successfully plead

negligent misrepresentation, a plaintiff must allege the following:

“(1) misrepresentation of a material fact; (2) that the representor made the
misrepresentation without knowledge as to its truth or falsity or under
circumstances in which he ought to have known of its falsity; (3) that the
representor intended that the misrepresentation induce another to act on it; and (4)
that injury resulted to the party acting in justifiable reliance on the
misrepresentation.”

Holguin v. Celebrity Cruises, Inc., Nos. 10–20215–CIV, 10–20545–CIV, 10–20546–CIV, 2010

WL 1837808, at *1 (S.D. Fla. May 4, 2010) (citing Fojtasek v. NCL (Bahamas) Ltd., 613

F.Supp.2d 1351, 1355 (S.D. Fla. 2009)).

Plaintiffs fail to sufficiently plead that RCL made any misrepresentation of material fact,

as the Complaint does not include any facts that the alleged statements were false. In Zhang, the

Court dismissed the plaintiff’s negligent misrepresentation claim because the complaint did “not

set forth any facts showing that any of [the alleged] statements are actually false.” Exhibit A at 9.

The Court held that, therefore, it “agrees with Royal Caribbean that Zhang’s pleading does not get

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11

him past even the first element of his claim.” Id. Moreover, the Court found that “many of the

misrepresentations that Zhang points to are not actionable” on a negligent misrepresentation claim.

Id. For example, a “general promise of a ‘safe, reliable, licensed, excursion’ is not actionable.” Id.

(citing, Gibson v. NCL (Bahamas) Ltd., 11-24343-CIV, 2012 WL 1952667, at *6 (S.D. Fla. May

30, 2012)); see also Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-21196-CIV, 2009 WL

8659594, at *9 (S.D. Fla. Sept. 14, 2009) (a representation that an excursion is “safe,” “cannot

form the foundation of a negligent-misrepresentation claim”) (citing, Isbell v. Carnival Corp., 462

F. Supp. 2d 1232, 1237 (S.D. Fla. 2006)). Additionally, “statements that an operator was

‘handpicked,’ ‘insured, reliable, and reputable’” are also not actionable. Id. (citing, Hoard v.

Carnival Corp., 14-23660-CIV, 2015 WL 1954055, at *3 (S.D. Fla. Apr. 17, 2015)). Accordingly,

Plaintiffs’ claim that RCL misrepresented that they select “reputable” tour operators and that their

shore excursions are safe, are not cognizable. As such, Plaintiffs’ negligent misrepresentation

claim should be dismissed.

VII. Plaintiffs’ Claim for Actual Agency (Count IV) Should be Dismissed

In Count IV, Plaintiffs claim that RCL is vicariously liable for the alleged negligent

conduct of the tour operator under a theory of actual agency. As an initial matter, as Plaintiffs’

underlying negligence claim is insufficiently pled, discussed supra, Plaintiffs’ actual agency claim

cannot survive. See Thompson, 174 F. Supp. 3d at 134. Notwithstanding, Plaintiffs’ actual agency

claim fails to state a claim upon which relief can be granted. An actual agency relationship

requires: 1) acknowledgement by the principal (here, RCL), that the agent (the Excursion

Defendants) will act for it; 2) the agent’s acceptance of the undertaking; and 3) control over the

agent’s actions by the principal. See Gayou, 2012 WL 2049431, at *10 (citing Fojtasek, 613 F.

Supp. 2d. at 1357).

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Plaintiffs’ allegation that RCL acted as principal to the subject tour operator is without

merit as the Tour Operator Agreement, (“Agreement”) between RCL and Out Island Charters

expressly dispels such a claim. Specifically, the Agreement states:

Operator’s relationship with Cruise Line during the Term of this Agreement
shall be that of an independent contractor …. Nothing related in this
Agreement shall be construed as constituting Operator and Cruise Line as
partners, or as treating the relationships of employer and employee, franchisor and
franchisee, master and servant or principal and agent or joint venture between the
Parties hereto.

See Tour Operator Agreement, attached hereto as Exhibit C, at Section 9, “Relationship of the

Parties” (emphasis added).1

In Gayou, the Court addressed a nearly identical tour operator agreement and ultimately

dismissed the plaintiff’s actual agency claim, finding, “the contract between Celebrity and the

excursion company shows, as a matter of law, that no actual agency relationship was formed or

intended by the parties.” Gayou, 2012 WL 2049431, at *8. In fact, the specific language that the

Gayou Court found decisive was the same exact language as the Agreement in this case. (Compare

Gayou, 2012 WL 2049431, at *10 (“Operator’s relationship with Cruise Line during the term of

this agreement shall be that of an Independent Contractor,”) citing the subject agreement in that

case, with Exhibit C at Section 9 (“Operator’s relationship with Cruise Line during the Term of

1 The Court can consider the Agreement at this stage because it was specifically referenced in
Plaintiffs’ Complaint and incorporated into Count IV. [DE 1, ¶48, 57-60, 111, 178] (Additionally,
Plaintiffs’ Third-party Beneficiary claim is entirely premised on the subject Agreement.) See
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (“[W]here
the plaintiff refers to certain documents in the complaint and those documents are central to the
plaintiff’s claim, then the Court may consider the documents part of the pleadings for purposes of
Rule 12(b)(6) dismissal”); see also Gayou, 2012 WL 2049431, at *9 (“Because the contract, and
the control it allegedly allowed Celebrity to exercise over the excursion company, is central to
Gayou’s claim of actual agency, the Court may consider its terms in deciding this Motion to
Dismiss.”)

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this Agreement shall be that of an independent contractor.”)) The Gayou Court further noted that

the contract did not provide for “the kind of control by [the cruise line] over the excursion

company…that would be required for an actual agency relationship.” Id. Like the contract in

Gayou, the subject Agreement in this matter expressly disclaims that Out Island was the actual

agent of RCL. Accordingly, Plaintiffs’ actual agency claim should be dismissed.

VIII. Plaintiffs’ Claim for Apparent Agency (Count V) Should be Dismissed

In Count V, Plaintiffs claim that RCL is vicariously liable under a theory of apparent

agency. As an initial matter, as with Plaintiffs’ actual agency claim, as Plaintiffs’ underlying

negligence claim is insufficiently pled, discussed supra, Plaintiffs’ apparent agency claim cannot

survive. See Thompson, 174 F. Supp. 3d at 134. Notwithstanding, Plaintiffs cannot state a claim

for apparent agency as a matter of law. The elements of apparent agency are; 1) the alleged

principal makes some sort of manifestation causing a third party to believe that the alleged agent

had authority to act for the benefit of the principal, 2) that such belief was reasonable and 3) that

the claimant reasonably acted on such belief to his detriment. Thompson, 174 F. Supp. 3d at 1343

(citing, Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1371 (S.D. Fla. 2005)).

Where a plaintiff has received disclaimers that expressly categorize an entity as an

independent contractor, the plaintiff is “unable to satisfy the second apparent agency prong, which

requires that Plaintiff’s belief of alleged agency be reasonable [as] Plaintiff’s belief is unreasonable

as a matter of law.” Hajtman v. NCL (Bahamas) Ltd., 526 F. Supp. 2d 1324, 1328 (S.D. Fla. 2017);

see also Wolf v. Celebrity Cruises, Inc., 683 Fed.Appx. 786, 798 (11th Cir. 2017) (“Mr. Wolf’s

purported belief that OCT was an agent of Celebrity, however, is not reasonable in light of the two

separate disclaimers he received—the Cruise Ticket Contract and the Shore Excursion Ticket—

which expressly stated that excursion operators were independent contractors and not agents or

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representatives of Celebrity, as well as the OCT Liability Waiver, which reiterated that the zip-

line excursion was owned and operated by OCT.”)

Here, Plaintiffs and Decedent received such disclaimers that expressly categorized the tour

operator as an independent contractor and are thus precluded from alleging a belief that the tour

operator was the apparent agent of RCL. First, RCL’s shore excursion brochure, which is available

on RCL’s website, expressly disclaims:

[RCL] offers shore excursions for guest convenience and peace of mind. Although
we have carefully selected the finest excursions at each port, services are provided
by independent tour operators. [RCL] will not be responsible or liable for any
loss, damage, injury, costs, or delays resulting from or in conjunction with your use
of these services.

See Excerpt from RCL’s Shore Excursion Guide, attached hereto as Exhibit D (emphasis added).

Additionally, Plaintiffs and Decedent received a ticket for the subject excursion which stated:

The providers of such services are independent contractors and are not acting
agents or representatives of [RCL]. In no event shall RCL be liable for any
accident or harm to tickets holders, which occurs as a result of any acts, omissions,
or negligence of any independent contractors … IMPORTANT … Shore
Excursions are operated by independent contractors and tickets are sold by [RCL]
as a convenience to guests inly. [RCL], its employees and agents are in no way
responsible for the performance of the excursion and guests participate in any
activities offered by the shore excursion at their own risk.

See Shore Excursion Ticket, attached hereto as Exhibit E (emphasis added).2 Plaintiffs allege they

reviewed RCL’s website, and the brochure specifically, throughout the Complaint. [DE 1, ¶73,

131, 134(b), 194(a)]. Plaintiffs also allege that they received a physical copy of the Shore

2 The Court can consider the Shore Excursion Guide because it was referenced throughout the
Complaint [DE 1, ¶73, 131, 134(b), 194(a)]. Further, it is central to Plaintiffs’ claim as Plaintiffs
allege representations made on RCL’s website, and the brochure specifically, led to their
[unreasonable] belief that the tour operator was RCL’s agent. [DE 1, ¶194].

The Court can also consider the Shore Excursion ticket, which was also expressly referenced in
the Complaint. [DE 1, ¶194(d)]. Additionally, the ticket is central to Plaintiffs’ claim as this action
was brought pursuant to its terms. See n.1, supra.

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Excursion Ticket. [DE 1, ¶194(d)]. Accordingly, Plaintiffs have not sufficiently pled that their

and/or Decedent’s belief that the tour operator was the agent of RCL was reasonable as they were

provided disclaimers in multiple documents which they allege they reviewed. Therefore, Plaintiffs’

apparent agency claim should be dismissed.

IX. Plaintiffs’ Joint Venture Claim (Count VI) Should be Dismissed

In Count VI, Plaintiffs claim that RCL is vicariously liable under a theory of joint venture.

In order to successfully bring a claim for joint venture, a plaintiff must properly plead the

following: “(1) a community of interest in the performance of a common purposes; (2) joint control

or right of control; (3) a joint proprietary interest in the subject matter; (4) a right to share in the

profits; and (5) a duty to share in any losses which may be sustained.” Fojtasek, 613 F. Supp. 2d

at 1357.

Plaintiffs have no factual basis on which to plead the existence of a joint venture between

RCL and the tour operator as the Tour Operator Agreement expressly denies such a relationship.

Specifically, the Agreement says:

Operator’s relationship with Cruise Line during the Term of this Agreement
shall be that of an independent contractor …. Nothing related in this
Agreement shall be construed as constituting Operator and Cruise Line as
partners, or as treating the relationships of employer and employee, franchisor and
franchisee, master and servant or principal and agent or joint venture between the
Parties hereto.

Exhibit C at Section 9 (emphasis added).

In Doria, Judge Williams considered an identical tour operator agreement provision and

found that it expressly belied the plaintiff’s joint venture claim, warranting dismissal with

prejudice. Exhibit B at 13 (“because the terms of the TOA unambiguously foreclose any argument

that Royal Caribbean intended to enter into a joint venture with Renta, Count VI of the Complaint

is dismissed with prejudice”); see also Zapata v. Royal Caribbean Cruises, Ltd., No. 12–21897–

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Civ., 2013 WL 1296298, at *6 (S.D. Fla. Mar. 27, 2013) (dismissal of plaintiff’s joint venture

claim which was based on same contract as in instant matter because, “The unambiguous language

of the Tour Operator Agreement directly contradicts Plaintiff’s allegations and warrants the

dismissal of Plaintiff’s joint venture claim against RCCL.”)

Moreover, in Thompson, this Court dismissed the plaintiff’s joint venture claim because

the plaintiff “alleged in a conclusory manner that Carnival and the Excursion Entities shared profits

and losses.” 174 F. Supp.3d at 1344. Here as well, Plaintiffs’ allegations are entirely conclusory

as they simply allege that “ROYAL CARIBBEAN shared profits and losses with OUT ISLAND

CHARTERS for the “A Golden Eagle Sailaway” shore excursion,” without any factual support.

[DE 1, ¶136(j)]. Accordingly, Plaintiffs’ joint venture claim should be dismissed.

X. Plaintiffs’ Negligent Infliction of Emotional Distress (“NIED”) Claims (Counts X
and XII) Should be Dismissed

Plaintiffs claim that RCL is liable for NIED on behalf of Decedent’s daughter and

grandchildren, Nicole Woodley, K.W., M.W., and C.W., Jr., in Count X, and on behalf of Clarice

Lee, in Count XI. As a threshold matter, Plaintiffs’ claims should be dismissed because they are

grounded on Plaintiffs’ insufficient negligence claims, as discussed supra. See Chaparro v.

Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (“[NIED] … requires an adequately pled

underlying claim of negligence.”) Notwithstanding, Plaintiffs have failed to sufficiently plead

NIED under maritime law.

A. Plaintiffs were not in the “Zone of Danger”

“Federal maritime law has adopted [the] application of the ‘zone of danger’ test which

allows recovery if a plaintiff is placed in immediate risk of physical harm by [defendant’s

negligent] conduct.” Chaparro, 693 F.3d at 1338 (internal citations omitted). It is not sufficient

for the plaintiff to have been a bystander to someone else’s injury. See Martins v. Royal Caribbean

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Cruises Ltd., 174 F.Supp.3d 1345, 1354-55 (S.D. Fla. 2016) (“plaintiffs must allege more than

merely being a witness to a traumatic event to sufficiently plead NIED”) (internal citations

omitted). In other words, recovery is warranted because “a near miss may be as frightening as a

direct hit.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547 (1994). In Norfolk & Western

Ry. Co. v. Ayers, 538 U.S. 135, 147 (2003), the Supreme Court held NIED recovery “is sharply

circumscribed by the zone-of-danger test.” Accordingly, Courts have held that the default recovery

for NIED is no recovery. See Randolph v. Consolidated Rail Corp., No. 10–560, 2012 WL 113554,

(D. NJ. Jan. 12, 2012) (“the default common law rule for [NIED]: no recovery”) (emphasis in

original).

Plaintiffs allege that they suffered emotional injury because they “witnessed [Decedent’s]

non-responsive body being brought from the ocean onto the beach,” [DE 1, ¶ 104], “watched the

multiple attempts to revive her fail and the pronouncement of her death,” Id., and “in witnessing

the unsuccessful attempts to revive [Decedent],” [DE 1, ¶ 105], “and in witnessing her dead body.”

Id. These are solely by-stander allegations and therefore fail to meet the zone of danger test.

Moreover, Plaintiffs’ allegation that they were in the zone of danger because “[t]hey [sic]

lives were also at risk trying to get to the beach,” is still insufficient. [DE 1, ¶105]. To recover for

NIED, a plaintiff must allege there was an actual or near accident that placed them at immediate

risk. See Gaynor v. State Farm Mut. Auto. Ins. Co., 727 So.2d 1279 (La. App. 4th Cir.1999) (“The

zone of danger theory of recovery is employed in situations where the plaintiff has an impending

fear of death or injury due to his proximity to an actual or near accident. We are reticent to expand

this definition.”) Here, however, Plaintiffs allege they were separated from Decedent who was

later found unresponsive. [DE 1, ¶100, 101]. Thus, Plaintiffs have not alleged Decedent’s death

was caused by an actual or near accident which also placed them at risk of harm. Plaintiffs have

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not alleged, for example, that they and Decedent were struck or almost struck by a boat, a jet ski,

a large wave, other swimmers, or anything else for that matter. In fact, Plaintiffs have not pled

what actually befell Decedent in the water. As such, Plaintiffs have not sufficiently pled that they

were in the zone of danger.

B. Plaintiffs have not sufficiently pled that they suffered a physical manifestation
of their alleged emotional distress

Courts in this district have held that plaintiffs who allege NIED must prove they have

suffered a physical manifestation as a result of their emotional distress. See Terry v. Carnival

Corp., 3 F.Supp.3d 1363, 1369 (S.D. Fla. 2014); Tassinari v. Key West Water Tours, L.C., 480 F.

Supp. 2d 1318, 1324-25 (S.D. Fla. 2007) (plaintiff’s NIED claim, “required a physical

manifestation of emotional injury.”) Plaintiffs allege their emotional injuries “include repetitive,

ongoing, and/or continuous physical symptoms and manifestations,” and that they “were caused

to sustain bodily injury.” [DE 1, ¶270-71, 276-77]. These allegations are wholly conclusory and

fail to establish the requisite showing of physical injury. See Bell Atl. Corp., 550 U.S. 544 at 555

“labels and conclusions” or “a formulaic recitation of the elements of the cause of action” will not

do. Moreover, Plaintiffs allege their manifestations “include depression, post-traumatic stress,

insomnia, and/or nightmares,” all of which are emotional in nature, not physical. Thus, Plaintiffs

have not sufficiently pled NIED in Count X or XI, and these claims should be dismissed.

XI. Plaintiffs’ Breach of Contract Claim (Count XII) Should be Dismissed

In Count XIII, Plaintiffs allege that they are intended third-party beneficiaries of the Tour

Operator Agreement. However, Plaintiffs’ claim should be dismissed because the Agreement does

not express an intent to benefit Plaintiffs, and, moreover, Plaintiffs fail to allege any provision of

the contract that RCL breached. The elements of third-party beneficiary are: (1) the existence of a

contract in which plaintiff is not a party, (2) an intent, either expressed by the parties, or in the

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provisions of the contract, that the contract primarily and directly benefit the plaintiff, (3) breach

of that contract by one of the parties and (4) damages to plaintiff resulting from the breach.

Thompson, 174 F. Supp.3d at 1344; Rinker v. Carnival Corp., 753 F. Supp. 2d 1237, 1243-44 (S.D.

Fla. 2010).

A. Plaintiffs are not intended third-party beneficiaries of the Tour Operator
Agreement

“In order for a third-party to have a legally enforceable right under [a] contract, the benefit

to the third-party must be the direct and primary object of the contracting parties.” Thompson, 174

F. Supp.3d at 1344 (internal citations omitted). Plaintiffs allege that “[p]ursuant to the plain

language of the contract [the parties] expressed the intent to direct and primarily benefit

Plaintiff….” [DE 1, ¶283]. However, Plaintiffs’ allegations are expressly contradicted by the

Agreement. Specifically, the agreement says:

Each party warrants and represents that: … (e) It has no commitment, express or
implied, with any other person, firm or corporation that is in conflict with the terms,
conditions and understandings contained in this Agreement ….

Exhibit C at Section 10. Therefore, despite Plaintiffs’ claim that the “plain language” of the

Agreement conveys an intent to benefit them, the Agreement actually states the exact opposite.

In Doria, the Court dismissed the plaintiff’s third-party beneficiary claim, with prejudice,

because the tour operator agreement “expressly disclaim[ed] any intent to benefit Plaintiff.”

Exhibit B, at 15 (citing, Zapata, 2013 WL 1296298, *5; Gayou, 2012 W L 2034931, at *11).

Likewise, in Zhang, the Court held that the tour operator agreement did not support “a plausible

inference that the contract is intended to primarily and directly benefit Royal Caribbean’s

passengers generally, never mind Zhang himself specifically.” Exhibit A, at 10. Plaintiffs’ claim

fails for the same reasons as the plaintiffs’ claims in Doria, Zapata, Gayou, and Zhang.

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Accordingly, Plaintiffs have not sufficiently pled that they are intended beneficiaries entitled to

relief for any breach.

B. Plaintiffs have not alleged RCL breached any provision of the Agreement

Notwithstanding, even if Plaintiffs were intended third-party beneficiaries of the

Agreement, Plaintiffs have sufficiently pled that RCL breached any provision. Plaintiffs allege

RCL breached several express terms of the Agreement including, inter alia, “Failing to operate

the subject excursion and catamaran in a safe and reasonable manner,” “Failing to take reasonable

precautions to avoid passengers drowning and/or risk drowning,” and “Failing to warn passengers

of the strong ocean currents and/or other dangers in the ocean.” [DE 1, ¶286]. However, none of

these are obligations that RCL owes under the Agreement. Exhibit C.

In Steffan v. Carnival Corp., Judge Altonaga dismissed the plaintiff’s third-party

beneficiary claim for this very reason, holding that dismissal was warranted because no alleged

breaches pled by the plaintiff existed in the subject contract. 2017 WL 7796726, *6 (S.D. Fla. May

22, 2017). Additionally, Plaintiffs’ claim that RCL breached implied terms is equally without merit

as the Agreement clearly states, “Each party warrants and represents that: … (e) It has no

commitment, express or implied, with any other person ….” Exhibit C at Section 10. Accordingly,

Plaintiffs’ breach of contract claim should be dismissed.

WHEREFORE, Defendant, ROYAL CARIBBEAN CRUISES LTD., respectfully requests

this Honorable Court to enter an Order dismissing Plaintiffs’ Complaint in its entirety, and for any

and all further relief this Court deems just and proper under the circumstances.

Dated: March 13, 2020
Miami, Florida

Respectfully submitted,
FOREMAN FRIEDMAN, PA

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 20 of 22

21

BY: /s/ Noah Silverman, Esq.
Jeffrey E. Foreman, Esq. (FBN 0240310)
[email protected]
Noah Silverman, Esq. (FBN 401277)
[email protected]
Lauren Rose, Esq. (FBN 115743)
[email protected]
Foreman Friedman, P.A.
One Biscayne Tower, Suite 2300
2 South Biscayne Boulevard
Miami, Florida 33131
Tel: (305) 358-6555
Fax: (305) 374-9077
Attorneys for the Defendant

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on March 13, 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.

By: Noah D. Silverman
Noah D. Silverman, Esq.

SERVICE LIST

Tonya J. Meister, Esq.
MEISTER LAW LLC
Courthouse Tower, Suite 750
44 West Flagler Street
Miami, Florida 33130
E-mail: [email protected]
Counsel for Plaintiffs

Jeffrey E. Foreman, Esq.
[email protected]
[email protected]
Noah D. Silverman, Esq.
[email protected]
[email protected]
Lauren Rose, Esq.
[email protected]
[email protected]
Foreman Friedman, PA

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 21 of 22

22

One Biscayne Tower, Suite 2300
2 South Biscayne Boulevard
Miami, FL 33131
Phone: 305-358-6555
Fax: 305-374-9077
Attorneys for Defendant

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 22 of 22

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 20-CV-20692-KMM

NICOLE WOODLEY, individually and as mother
and guardian of minors K.W., M.W., and C.W., Jr.;
CLARICE LEE, individually; and BARRINGTON
L. SIBBLIS, as Personal Representative of the
Estate of BARBARA SIBBLIS,

Plaintiffs,
vs.

ROYAL CARIBBEAN CRUISES, LTD., a
Liberian Corporation and OUT ISLAND
CHARTERS NV,

Defendants.
___________________________________________/

PLAINTIFFS’ RESPONSE TO DEFENDANT OUT ISLAND CHARTERS NV’S

RENEWED MOTION TO DISMISS

Plaintiffs Nicole Woodley, individually and as mother and guardian of minors K.W., M.W.,

and C.W., Jr.; Clarice Lee, individually; and Barrington L. Sibblis, as Personal Representative of

the Estate of Barbara Sibblis (“Plaintiffs”), respectfully file this Response to Defendant Out Island

Charters NV’s Motion to Dismiss for Lack of Personal Jurisdiction and to Enforce Forum

Selection Agreement (DE 47), and state as follows:

1. In light of the Magistrate Judge’s Order denying Plaintiffs’ Motion for Leave to

Propound Jurisdictional Discovery (DE 64), Plaintiffs will not be filing a substantive response to

Out Island’s Motion to Dismiss.

Respectfully submitted by:

MEISTER LAW, LLC.
[email protected]
[email protected]
Courthouse Tower, Suite 750

Case 1:20-cv-20692-KMM Document 69 Entered on FLSD Docket 12/23/2020 Page 1 of 3

CASE NO.: 20-CV-20692-KMM

2

44 West Flagler Street
Miami. Florida 33130
Telephone: (305) 590-5570
Facsimile: (305) 675-3787
-and-
RUSSO APPELLATE FIRM, P.A.
[email protected]
7300 North Kendall Drive, Suite 600
Miami, Florida 33156
Telephone: (305) 666-4660
Facsimile: (305) 666-4470

Counsel for Plaintiffs

By: ____/s/ Paulo R. Lima
PAULO R. LIMA
Florida Bar No. 64364
[email protected]

Case 1:20-cv-20692-KMM Document 69 Entered on FLSD Docket 12/23/2020 Page 2 of 3

CASE NO.: 20-CV-20692-KMM

3

CERTIFICATE OF SERVICE

I do hereby certify that on this 23rd day of December, 2020, I have filed a copy of the

foregoing with the CM/ECF System, which will generate notices of Electronic Filing to all parties

that have appeared in this matter.

____/s/ Paulo R. Lima

Case 1:20-cv-20692-KMM Document 69 Entered on FLSD Docket 12/23/2020 Page 3 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 20-CV-20692-KMM

NICOLE WOODLEY, individually and as mother
and guardian of minors K.W., M.W., and C.W., Jr.;
CLARICE LEE, individually; and BARRINGTON
L. SIBBLIS, as Personal Representative of the
Estate of BARBARA SIBBLIS,

Plaintiffs,

vs.

ROYAL CARIBBEAN CRUISES, LTD., a
Liberian Corporation and OUT ISLAND
CHARTERS NV,

Defendants.
___________________________________________/

PLAINTIFFS’ RESPONSE TO DEFENDANT ROYAL CARIBBEAN CRUISES, LTD.’S
MOTION TO DISMISS COMPLAINT

Plaintiffs, pursuant to Fed. R. Civ. P. 12(b)(6), respectfully submit this Response in

Opposition to Defendant Royal Caribbean Cruises, Ltd.’s (“Defendant” or “Royal”) Motion to

Dismiss the Complaint (D.E. 11) and states as follows:

This case is at the motion to dismiss stage. Not directed verdict or even summary

judgment.

The Court should deny Defendant’s motion and decline Royal’s invitation to skip ahead

to summary judgment simply because Royal disagrees with well-established concepts such as

notice pleading and discovery. Simply put, Plaintiffs have alleged more than enough facts to

place Royal on notice of the claims that it is being summoned to defend in this action. The Rules

of Civil Procedure do not require more than this. Plaintiffs are not required to adduce detailed

facts that are obviously beyond Plaintiffs’ ability to uncover at this early stage of litigation.

Notwithstanding Royal’s cherry-picking favorable language from other cases, the allegations in

the Complaint on file in this case show that Plaintiffs have adequately stated claims on which

relief can be granted.

Case 1:20-cv-20692-KMM Document 21 Entered on FLSD Docket 04/09/2020 Page 1 of 20

CASE NO.: 20-CV-20692-KMM

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I. Standard for motions to dismiss

To survive a motion to dismiss based on Fed. R. Civ. P. 12(b)(6), a plaintiff must plead

enough facts to state a claim 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)). The purpose behind

this plausibility requirement is that a complaint must “give the defendant fair notice of what the

claim is and the ground upon which it rests.” Twombly, 550 U.S. at 555.

This pleading standard “does not require detailed factual allegations,” although it

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. See

also id. (holding pleadings must contain “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do”). A complaint satisfies the plausibility

standard if “the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Finally, it is well settled that a district court reviewing a motion to dismiss “accepts the

factual allegations in the complaint as true and construes them in the light most favorable to the

plaintiff.” Speaker v. U.S. Dep’t of Health and Human Servs. Ctrs. For Disease Control &

Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010).

II. The Complaint is not a shotgun pleading

While Plaintiffs agree that the Eleventh Circuit has repeatedly criticized so-called

“shotgun pleadings,” Royal’s argument fails because the Complaint in this action is nothing like

the type of incomprehensible morass pleading that courts have stricken under this rule.

Defendant argues that the Complaint is a “classic shotgun pleading” because “it begins

each count with a preamble re-alleging and incorporating by reference one-hundred and thirty-

six (136) paragraphs of factual allegations…” (Mot. at 3). But the fact that the Complaint

incorporates by reference the general factual allegations into each of the respective counts or

claims does not make it a “shotgun pleading.” The Eleventh Circuit recently explained:

Shotgun pleadings are characterized by: (1) multiple counts that
each adopt the allegations of all preceding counts; (2) conclusory,
vague, and immaterial facts that do not clearly connect to a
particular cause of action; (3) failing to separate each cause of
action or claim for relief into distinct counts; or (4) combining
multiple claims against multiple defendants without specifying
which defendant is responsible for which act.

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CASE NO.: 20-CV-20692-KMM

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McDonough v. City of Homestead, 771 Fed. Appx. 952, 955 (11th Cir. 2019) (citing Weiland v.

Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015)).

Indeed, in Weiland, the Eleventh Circuit noted that the complaint re-alleged the general

factual allegations into each count, but then expressly rejected the argument that it was a shotgun

pleading, stating: “What we have here is different. The allegations of each count are not rolled

into every successive count on down the line.” 792 F.3d at 1324. In fact, the Eleventh Circuit has

repeatedly made this distinction. See Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg

Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) (condemning as a shotgun pleading a complaint that

“contains several counts, each one incorporating by reference the allegations of its predecessors

[i.e., predecessor counts], leading to a situation where most of the counts (i.e., all but the first)

contain irrelevant factual allegations and legal conclusions”); Magluta v. Samples, 256 F.3d

1282, 1284 (11th Cir. 2001) (identifying as a shotgun pleading a complaint where “[e]ach count

incorporates by reference the allegations made in a section entitled ‘General Factual

Allegations’…while also incorporating the allegations of any count or counts that precede it”).

The Eleventh Circuit, in Weiland explained that a complaint that incorporates all general

factual allegations should be dismissed only “where it is virtually impossible to know which

allegations of facts are intended to support which claim(s) for relief.” 792 F.3d at 1325. See also

Harvard v. Inch, 411 F. Supp. 3d 1220, 1233 (N.D. Fla. 2019) (citing Weiland and finding

complaint that incorporated all general factual allegations was not a “shotgun pleading”). Accord

Jackson v. Bank of America, N.A., 898 F.3d 1348, 1356 (11th Cir. 2018) (finding complaint was

“an incomprehensible shotgun pleading” because it “incorporates by reference all of its factual

allegations into each claim, making it nearly impossible for Defendants and the Court to

determine with any certainty which factual allegations give rise to which claims for relief”).

Here, each of the 12 counts incorporates by reference paragraphs 1 through 136, which

are substantive factual allegations. None of the twelve counts incorporates or adopts the

allegations of preceding counts. Nor, for that matter, can Defendant credibly argue that the

complaint is so “incomprehensible” as to make it impossible for Royal to determine which facts

support which claims. Accordingly, Eleventh Circuit precedent forecloses Defendant’s argument

on this point.

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In any event, to the extent this Court agrees with Defendant on this issue, Plaintiffs

respectfully request an opportunity to re-plead their claims, as mandated by Eleventh Circuit

precedent. See Jackson, 898 F.3d at 1358 (“In dismissing a shotgun complaint for

noncompliance with Rule 8(a), a district court must give the plaintiff ‘one chance to remedy such

deficiencies.’”) (quoting Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018)).

III. Plaintiffs have sufficiently alleged a claim for negligence

A. Royal’s argument concerning alleged “heightened duties of care” do not
support dismissal

Defendant’s arguments that the Complaint “imposes numerous heightened duties of care”

is, ultimately, a waste of time. To be clear, Plaintiffs agree that the relevant duty applicable to

their negligence claims is “reasonable care under the circumstances.” And Royal appears to

agree that this duty encompasses a duty to warn Plaintiffs of “dangers in places where passengers

are reasonably expected to visit.” (Mot. at 5) (citing Thompson v. Carnival Corp., 174 F. Supp.

3d 1327, 1340 (S.D. Fla. 2016)). There can be no question that Plaintiffs were “reasonably

expected to visit” the beach where Ms. Sibblis perished, since it was Royal that sold Plaintiffs

the shore excursion tickets that took them there. (See Compl. at ¶¶ 134(f)-(j)).

Undoubtedly, Plaintiffs did plead that Royal breached its duty to warn when they alleged,

for example, that Royal:

 “[f]ailed to accurately inform cruise passengers, including Plaintiffs and decedent
Barbara Sibblis, of the dangers and undue risks associated with the ‘A Golden
Eagle Sailaway’ shore excursion” (Compl. at ¶ 143(p));

 “[f]ailing to warn passengers, including the Plaintiffs and decedent Barbara
Sibblis, that the ‘A Golden Eagle Sailaway’ shore excursion involved deep water
swimming with strong ocean currents and/or other dangers without life vests or
other reasonable flotation device” (Compl. at ¶ 143(y))

Accordingly, Royal seems to concede that Plaintiffs have adequately pled a negligence claim

based on the duty to warn of the dangerous condition – namely, that the excursion Royal sold to

Plaintiffs entailed dumping adult passengers (including the 75-year-old decedent, Ms. Sibblis)

off a sailboat anchored in 10-foot-deep water with nothing more than a foam pool noodle and

then directing them to swim to a beach. (Compl. at ¶¶ 78, 81-82, 90).

To the extent Royal urges this Court to dismiss the negligence claim because Plaintiffs

have alleged that Royal breached additional duties, the Court should reject that argument.

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Another court in this District declined a similar invitation in a well-reasoned opinion that

discussed the rationale behind Fed. R. Civ. P. 8(a). That court explained that where, as here, the

plaintiff “alleges the Kermarec standard of care in some paragraphs…and not in others,” then the

complaint has satisfied the purpose of Rule 8(a) because the “allegations have therefore notified

[the defendant] of her claim.” Balaschak v. Royal Caribbean Cruises, Ltd., 2009 WL 8659594,

*6 (S.D. Fla. Sept. 14, 2009). The court also offered a policy-based reason for declining to

dismiss the count, stating: “Requiring [plaintiff] to replead the paragraphs alleging standards of

care inconsistent with Kermarec would be time consuming and inefficient,” and would violate

the requirement that “pleadings must be construed so as to do justice.” Id. (quoting Fed. R. Civ.

P. 8(e)).

Other cases have, similarly, declined cruise line defendants’ requests to strike

undisputedly valid claims based on similar purported defects. See, e.g., Pucci v. Carnival Corp.,

146 F. Supp. 3d 1281, 1287 (S.D. Fla. 2015); Holguin v. Celebrity Cruises, Inc., 2010 WL

1837808, *1 (S.D. Fla. May 4, 2010). To the extent the Court digresses to address this issue at

all, it should, at most, simply strike (or decline to consider) the specific paragraphs that allegedly

do not pertain to Royal’s uncontested duty to warn. See Zapata v. Royal Caribbean Cruises, Ltd.,

2013 WL 1296298, *3 (S.D. Fla. Mar. 27, 2013) (“Plaintiff’s allegations relating to the provision

of medical care, first responders, and first aid equipment, including the allegations contained in

paragraphs 29m-29r, 29y, 29ii, and 29jj of the Amended Complaint are dismissed with

prejudice.”).1

In sum, Defendant’s “heightened duties of care” argument does not present a basis for

dismissing Count 1 of the Complaint.

B. Plaintiffs have sufficiently alleged Royal’s notice of the dangerous condition

Royal’s argument that the Complaint does not adequately plead notice also is without

merit. Royal cites two cases where district courts found those plaintiffs’ allegations to be

insufficient, then argues that those cases require dismissal of the Complaint in this case. (See

Mot. at 5-7) (citing Polanco v. Carnival Corp., 2010 WL 11575228 (S.D. Fla. Aug. 11, 2010),

1 The court in Zapata also dismissed, without prejudice, the remainder of the plaintiff’s
negligence claim, but on the unrelated ground that it did not allege sufficient facts about the
nature of the dangerous condition. 2013 WL 1296298, at *2. The Court did not dismiss the
negligence claim based on the defendant’s “heightened duties of care” argument.

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and Zhang v. Royal Caribbean Cruises, Ltd., No. 19-cv-20773 (S.D. Fla. Nov. 15, 2019)).2

Royal’s argument is flawed because it focuses exclusively on two paragraphs in the Complaint

(in an effort to liken the allegations in this case to those asserted in Polanco and Zhang), and

then ignores the remaining allegations relevant to notice. If Plaintiffs’ notice allegations had

been limited to those stated in Royal’s motion, then perhaps dismissal might be appropriate. But

Plaintiffs have alleged much more.

Plaintiffs’ allegations regarding Royal’s notice of the dangerous condition include:

 “as a result of the incident suffered by other participants in the ‘A Golden Eagle
Sailaway’ shore excursion, Royal Caribbean knew or reasonably should have learned
that incidents involving other participants were being caused on the shore excursion
because Out Island Charters failed to provide adequate flotation devices, such as a
life vest, to passengers” (Compl. at ¶ 113)

 “as evidenced by other passengers’ reviews of shore excursion and prior incidents,
Royal Caribbean knew prior to February 20, 2019, that ‘A Golden Eagle Sailaway’
shore excursion consisted of the passengers swimming in deep ocean water with
strong currents with only a foam noodle for flotation…” (Compl. at ¶ 115)

Thus, in addition to the prior incidents and passenger reviews alleged in the Complaint, the very

manner in which the “A Golden Eagle Sailaway” shore excursion was routinely conducted—i.e.,

directing passengers to disembark into deep water swept by strong ocean currents with nothing

more than a foam noodle as a flotation device—placed Royal on notice of the danger that its

shore excursion posed to its passengers.3

Moreover, Plaintiffs plainly alleged sufficient facts to show that Royal knew about the

dangerous manner in which the shore excursion was regularly conducted. For example, Plaintiffs

alleged that Royal:

2 The Zhang order was not selected for publication on Westlaw, so Defendant attached a copy to
its Motion to Dismiss. (D.E. 11-1).
3 Importantly, that distinguishes this case from Zhang and Polanco, where the plaintiffs did not
allege that there was anything inherently dangerous about the manner in which the excursions
were typically conducted. Polanco involved a standard vehicle accident where the alleged
negligence was that the vehicle was “operated by a person who was not experienced in the
workings of the vehicle.” 2010 WL 11575228. Zhang involved a freak accident in which the
plaintiff was paralyzed from the waist down when the bus he was riding in hit a pothole. (D.E.
11-1, at 3). In neither situation would the normal operation of the excursion place put the cruise
line on notice that it was a dangerous condition.

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 “maintains a department in its headquarters in Florida devoted to creating,
developing, promoting, marketing, coordinating, explaining, selling, overseeing,
supervising, auditing, tracking and monitoring its ports of call…including the
subject ‘A Golden Eagle Sailaway’ shore excursion” (Compl. at ¶ 126)

 “maintains a specified group of employees and crew members on each of its ships,
including the Adventure of the Seas, to promote, market, coordinate, explain,
oversee, supervise, and sell these excursions as well as to assist the various tour
operators, including Defendant Out Island Charters to carry out and perform
excursions…, including the subject ‘A Golden Eagle Sailaway’ shore excursion.”
(Compl. at ¶ 127)

And Plaintiffs also have alleged that this dangerous condition proximately caused Ms. Sibblis’s

death and Plaintiffs’ injuries. (Compl. at ¶ 8 (“Barbara Solis drowned while attempting to get to

the beach.”); Compl. at ¶ 6 (“Nicole Woodley, Barbara Sibblis and Clarice Lee, along with

minors K.W., M.W. and C.W. Jr. feared for their safety and struggled to get to the beach.”)).

These allegations sufficiently plead the notice requirement of Plaintiffs’ negligence

claims. In Twyman v. Carnival Corp., 410 F. Supp. 3d 1311 (S.D. Fla. 2019), the court held that

the plaintiff had sufficiently pled that the cruise line defendant had notice of the dangerous

condition in a case involving plaintiffs whose son was killed in a jet ski accident during a shore

excursion. In so holding, the court cited the plaintiffs’ allegations that the cruise line “knew or

should have known based on [the cruise line’s] inspections and its operation of the Cruise Center

of the possible dangers involved in having Wet Money Enterprise [the independent operator] rent

jet skis to passengers without adequate operational instructions.” Id. at 1320. See also Celestino

v. Royal Caribbean Cruises, Ltd., 2018 6620114, *4 (S.D. Fla. Oct. 15, 2018) (magistrate

recommended denial of motion to dismiss negligence claim where “Plaintiff has alleged that

[defendant] visited and participated in the excursion prior to offering the tour on its vessels and

that circumstances during that vetting process should have made the cruise line aware that the

Segways were defective and dangerous”).

Indeed, the defendant in Twyman, represented by the same counsel who now represent

Royal in this case, also focused selectively on a handful of more general allegations to argue that

the plaintiffs had not sufficiently pled notice. The district court, nevertheless, refused to

disregard the rest of the allegations and found that notice had been adequately pled:

Certainly, some of Plaintiffs’ allegations, standing alone, are far
too general and conclusory to demonstrate Carnival was on notice

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of a dangerous condition involving Wet Money Enterprise and the
Cruise Center. Yet, the Court will not ignore the other facts
alleged, which, as explained, “are plausible and raise a reasonable
expectation that discovery could supply additional proof of
Carnival’s liability.” Chaparro [v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012)]. Plaintiffs have alleged enough facts at this
stage to allow their claims to go forward.

Twyman, 410 F. Supp. 3d at 1322 (emphasis in original). This Court should do the same here and

decline Royal’s invitation to examine the Complaint through an unduly narrow lens.

IV. Plaintiffs have stated a claim that Royal negligently selected and retained
Out Island Charters

Royal offers only a token argument in opposition to Plaintiffs’ negligent selection and

retention claim, and understandably so. Royal argues baldly that Plaintiffs “fail to allege any fact

to establish how [Royal] would have had such knowledge [of Out Island’s incompetence] prior

to or after selecting them.” (Mot. at 8) (emphasis in original). Notably, Royal has challenged

only the sufficiency of the allegations regarding the second, or “knowledge,” element of the

negligent selection and retention claim. (See Mot. at 8). Thus, Royal does not dispute that

Plaintiffs sufficiently pled the first and third elements of the claim, thereby acknowledging that

Plaintiffs sufficiently pled that Out Island “was incompetent or unfit to perform the work” and

that “such incompetence or unfitness proximately caused [the plaintiffs’] injuries.” Gayou v.

Celebrity Cruises, Inc., 2012 WL 2049431, *5 (S.D. Fla. June 5, 2012).

A review of the Complaint shows that Plaintiffs also have pled facts to support the

second element of their negligent selection and retention claim—namely, that Royal “knew or

reasonably should have known of the particular incompetence or unfitness.” Gayou, 2012 WL

2049431, at *5. In fact, the allegations discussed above to demonstrate Royal had notice of the

dangerous condition also establish Royal’s knowledge of Out Island’s incompetence.

Specifically, the Complaint alleges that Royal maintained employees at its headquarters in

Florida and at shore excursion desks aboard its ships charged with “overseeing, supervising,

auditing, tracking and monitoring” as well as “assist[ing] the various tour operators, including

Defendant Out Island Charters to carry out and perform excursions… including the subject ‘A

Golden Eagle Sailaway’ shore excursion.” (Compl. at ¶¶ 126-27). In the course of Royal’s heavy

involvement and oversight of the subject shore excursion, Royal either knew or should have

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known that Out Island was incompetent because Out Island “failed to provide adequate flotation

devices” even though the excursion “consisted of passengers swimming in deep ocean water

with strong currents with only a foam noodle for flotation.” (Compl. ¶¶ 113, 115).

Accordingly, Plaintiffs have pled “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678.

V. Plaintiffs have stated a claim for negligent misrepresentation

A. Plaintiffs have pled their claim with enough particularity to satisfy Rule 9(b)

To satisfy Rule 9(b) in the Eleventh Circuit, a plaintiff must allege: “(1) precisely what

statements were made in what documents or oral representations or what omissions were made,

and (2) the time and place of each such statement and the person responsible for making (or, in

the case of omissions, not making) same, and (3) the content of such statements and the manner

in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the

fraud.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). The rule, like any

other, must be viewed and applied in the proper context. The Eleventh Circuit has noted that the

purpose of the particularity requirement in Rule 9(b) is to “alert[] defendants to the precise

misconduct with which they are charged and protect[] defendants against spurious charges of

immoral and fraudulent behavior.” Durham v. Business Mgmt. Assocs., 847 F.2d 1505, 1511

(11th Cir. 1988). As the Eleventh Circuit cautioned in Durham, “[t]he application of the rule,

however, must not abrogate the concept of notice pleading.” Id. See also Holguin v. Celebrity

Cruises, Inc., 2010 WL 1837808, *2 (S.D. Fla. May 4, 2010) (“Rule 9(b) must be read in

conjunction with the liberal notice pleading standard of Fed. R. Civ. P. 8.”).

Notwithstanding Defendant’s generic arguments about Plaintiffs’ purportedly imprecise

allegations, the Complaint is sufficiently pled under Rule 9(b) and Eleventh Circuit precedent.

Plaintiffs have alleged that Royal supplied false and misleading information “relating to the

shore excursions offered by Defendant Royal” and “relating to the subject ‘A Golden Eagle

Sailaway’ shore excursion.” (Compl. at ¶¶ 170(a)-(d)). Specifically, Plaintiffs alleged that Royal

Caribbean shore excursion desk employees made several misrepresentations and omissions “[o]n

or about February 20, 2019…[when] Plaintiffs and Barbara Sibblis purchased and booked the

‘A Golden Eagle Sailaway’ at the Royal Caribbean excursion desk.” (Compl. ¶ 76). As for the

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time of the misrepresentations and omissions, it occurred in the early morning before 9:15 a.m.,

as the Shore Excursion Ticket (which Defendant attached to its motion) indicates that passengers

were required to meet at 9:15 to depart for the tour. (See D.E. 11-5).4

As for the content of the representations and omissions, Plaintiffs alleged that the shore

excursion desk employee:

 “identified the excursion as easy and perfect for the young and older ages of their
group” (Compl. ¶ 79);5

 “did not inform its passengers, including the Plaintiffs or Barbara Sibblis, that the
sail boat would disembark the passengers into the ocean in deep water with only
foam noodles as a flotation device to get to the beach” (Compl. ¶ 81);

 “did not inform its passengers, including the Plaintiffs or Barbara Sibblis, that the
adults would not be provided with life jackets or other reasonable flotation
devices to get to the beach” (Compl. ¶ 82);

 “did not inform its passengers, including the Plaintiffs or Barbara Sibblis, that
they may encounter strong ocean currents and/or other dangerous sea conditions
after disembarking the sail boat to get to the beach” (Compl. ¶ 83);

 “did not inform its passengers, including the Plaintiffs or Barbara Sibblis, that
they should be a strong swimmer in order to go to the beach on this excursion”
(Compl. ¶ 84).

As for the last two elements—i.e., Plaintiffs’ reliance upon and how Royal benefitted

from the misrepresentations and omissions—Plaintiffs have pled those as well. As for reliance,

Plaintiffs alleged they “relied on the representations provided by Royal Caribbean that it was

‘easy’ and ‘appropriate for the ages in their group’ in making their decision to purchase the ‘A

Golden Eagle Sailaway’ shore excursion” (Compl. ¶ 85) and they “purchased the subject shore

excursion based on the recommendation of the Royal Caribbean employee at the shore excursion

desk onboard the cruise ship.” (Compl. ¶ 86). (See also Compl. ¶ 87 (“Had Plaintiffs and Barbara

Sibblis known that the subject shore excursion would involve strong ocean currents and/or other

dangerous sea conditions after disembarking the sail boat without appropriate flotation devices to

get to the beach, they would not have purchased the ‘A Golden Eagle Sailaway’ shore

4 As Defendant notes in its motion, with citations to authority, the Court may consider the Shore
Excursion Ticket in deciding this motion. (See Mot. at 14 n.2).
5 Consistent with this allegation, Plaintiffs also alleged that they were given a Royal Caribbean
marketing document that described the subject shore excursion as appropriate for passengers
with a “Minimum Age: 4 years.” (See Compl. ¶ 80) (quoting the document).

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excursion.”)). Finally, Plaintiffs alleged that Royal “made the misrepresentations of material

fact…to induce cruise ship passengers to purchase the shore excursions it developed, created,

coordinated, marketed, and directly sold.” (Compl. ¶ 171).

B. Plaintiffs have pled that Royal misrepresented material facts

In light of the section directly above, the Court can easily dispose of Defendant’s

remaining argument for dismissing the negligent misrepresentation claim. As was the case with

Defendant’s notice argument, Defendant seeks to focus the Court’s attention on certain

allegations, while ignoring other allegations that plainly plead the elements of the negligent

misrepresentation claim. Thus, Royal argues that “Plaintiffs fail to sufficiently plead that RCL

made any misrepresentation of material fact” (Mot. at 10), citing cases holding that

representations that something is “safe,” or “reliable” or “reputable” are not factual and,

therefore, not actionable. (Mot. at 11). But Plaintiffs have pled much more. As discussed in the

section immediately above, Plaintiffs have alleged, with specificity, that Royal misrepresented

and omitted several material facts, concerning the activities entailed in the “A Golden Eagle

Sailaway” shore excursion. (See p. 10 supra) (citing to Compl. ¶¶ 79-84). Accordingly, Plaintiffs

have alleged sufficient facts to state a claim for negligent misrepresentation.

VI. Plaintiffs have pled sufficient facts to hold Royal vicariously liable under a
theory of apparent agency

In moving to dismiss Plaintiffs’ vicarious liability claim based on apparent agency, Royal

asks this Court to ignore the well-pled facts of the Complaint and make a determination of fact

that Plaintiffs’ belief that Out Island was acting as Royal’s agent was “unreasonable.” Under

binding Eleventh Circuit precedent, this is beyond the Court’s role on a motion to dismiss.

To state a claim under an apparent agency theory, a plaintiff must show “first, a

representation by the principal to the plaintiff, which, second, causes the plaintiff reasonably to

believe that the alleged agent is authorized to act for the principal’s benefit, and which, third,

induces the plaintiff’s detrimental, justifiable reliance upon the appearance of agency.” Franza v.

Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1252 (11th Cir. 2014). Notably, in Franza, a

maritime case in which the Eleventh Circuit reversed the grant of a motion to dismiss, the Court

held: “absent any statutory mandate to the contrary, the existence of an agency relationship is a

question of fact under the general maritime law.” Id. at 1235-36. See also Celestino v. Royal

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Caribbean Cruises, Ltd., 2018 WL 6620114, *5 (S.D. Fla. Oct. 15, 2018) (“Eleventh Circuit

precedent holds that ‘the existence of an agency relationship is a question of fact under the

general maritime law.’”) (quoting Franza); Gentry v. Carnival Corp., 2011 WL 4737062, *4

(S.D. Fla. Oct. 5, 2011) (denying motion to dismiss apparent agency theory because

“reasonableness is a question of fact which cannot be decided on a motion to dismiss”).

Because Royal challenges only the second element—the requirement that Plaintiffs plead

they “reasonably” believed that Out Island was authorized to act for Royal’s benefit (Mot. at 13-

15)—Plaintiffs address only that issue. Royal cites to the Shore Excursion Guide and Shore

Excursion Ticket, which contain language stating that unidentified “providers” of shore

excursions are “independent tour operators” and “independent contractors…not acting as agents

or representatives of” Royal. (Mot. at 14). Based on this, Royal argues that Plaintiffs’ belief that

Out Island was Royal’s agent was “unreasonable as a matter of law.” (Mot. at 13).

To begin, Plaintiffs note that the alleged “disclaimer” in the Shore Excursion Guide is

buried in a boilerplate legal disclosure on page 82 of an 83-page document. (See D.E. 11-4, at 3).

Royal attached to its motion only three pages, including the disclosure page, giving the

impression that the disclosure appears in a simple 3-page document.6 As for the Shore Excursion

Ticket, the version filed by Defendant reflects that the “disclaimer” language, apparently, is

found on the back of the ticket. Here, again, Royal has filed the document in extremely large

format, creating the impression that the disclaimer language was far more prominent than it was

on the back of the physical ticket allegedly provided to Plaintiffs and Ms. Sibblis.

More importantly, the cases cited by Royal do not support dismissal based on Royal’s

“unreasonable as a matter of law” argument. Royal cites Hajtman v. NCL (Bahamas) Ltd., 526 F.

Supp. 2d 1324, 1328 (S.D. Fla. 2007), and Wolf v. Celebrity Cruises, Inc., 683 Fed. Appx. 786

(11th Cir. 2017). In Hajtman, the District Court granted the defendant’s motion to dismiss a

complaint where the plaintiff sought to hold the cruise line vicariously liable for the actions of

the ship’s medical staff based on apparent agency. This Court found the plaintiff’s “belief of

alleged agency” to be unreasonable based on well-established case law. See Hajtman, 526 F.

Supp. 2d at 1328-29 (“Given the longstanding maritime principle that carriers and shipowners

6 Only upon close inspection of the document does a reader notice the tiny page numbers in the
bottom-right corner (1/83, 2/83, and 82/83), indicating that Royal filed only pages 1, 2 and 82 of
an 83-page document.

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are not vicariously liable for the acts of their medical staff,…it is unreasonable for Plaintiff to

believe that Jane and Dr. Doe were Defendant’s Agents.”). Notably, the holding of Hajtman has

since been abrogated by Franza, where the Eleventh Circuit held that cruise lines can, in fact, be

held vicariously liable under agency principles for the negligence of their on-ship medical staff.

772 F.3d at 1248.

Wolf does not support Royal’s argument, either, as it was decided at the summary

judgment stage – not on a motion to dismiss. 683 Fed. Appx. at 789. Indeed, other than Hajtman,

which is discussed above, Plaintiffs are not aware of any case in this Circuit where a district

court dismissed an apparent agency theory of liability at the motion to dismiss stage. Another

District Court deciding a motion to dismiss recently rejected Royal’s identical argument, stating:

Royal claims that because the Complaint “references” the
passenger cruise ticket, Royal Caribbean’s website, and the
Aviomar shore excursion ticket—and that those documents, read
together, include text advising passengers that shore excursions are
operated by independent contractors—“any belief Aviomar was
[Royal Caribbean’s agent] would be unreasonable.” Indeed,
Defendant states that we have no choice but to dismiss the claim,
as such a conclusion is outcome determinative “as a matter of
law.”

We disagree. Eleventh Circuit precedent holds that “the existence
of an agency relationship is a question of fact under the general
maritime law.” Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d
1225, 1235-36 (11th Cir. 2014) (collecting cases; emphasis added).
This should be well-known to Defendant at this point, a conclusion
made all the more evident when one looks at the cases it cites in
support of its argument; almost all were decided at summary
judgment, after a complete development of the factual record had
taken place.

Celestino, 2018 WL 6620114, at * 4-5 (alterations and emphasis in original).7

Celestino is no outlier. In fact, the great weight of authority in this District shows that

motions to dismiss claims based on apparent agency are routinely denied. See Aronson v.

Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1396 (S.D. Fla. 2014); Zapata v. Royal Caribbean

Cruises, Ltd., 2013 WL 1296298, *5 (S.D. Fla. Mar. 27, 2013); Lapidus v. NCL America LLC,

7 The District Court adopted, in full, the Magistrate Judge’s Report & Recommendation in
Celestino. See Celestino v. Royal Caribbean Cruise Lines, Ltd., 2018 WL 6620873 (S.D. Fla.
Nov. 2, 2018).

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2012 WL 2193055, *5 (S.D. Fla. June 14, 2012); Gayou v. Celebrity Cruises, Inc., 2012 WL

2049431, *8-9 (S.D. Fla. June 5, 2012); Gibson v. NCL (Bahamas) Ltd., 2012 WL 1952667, *7

(S.D. Fla. May 30, 2012). Indeed, in Gayou, a case cited throughout Royal’s motion to dismiss,

the district court dismissed the actual agency claim based on the ticket disclaimer, but allowed

the apparent agency claim to proceed. 2012 WL 2049431, at *9-10.

While Royal’s challenge to this count is limited to its contract-based argument discussed

above, Plaintiffs note that they have pled sufficient facts to plausibly allege that they reasonably

believed that Out Island was authorized to act as Royal’s agent. (See Compl. ¶ 194(a)-(e)

(alleging Royal intensely marketed the subject excursion on its website and in printed brochures

without mentioning Out Island as the tour operator; Royal employees aboard the ship sold the

subject excursion without identifying Out Island as tour operator; receipts for the subject

excursion indicated the transaction was exclusively with Royal; ticket stub for subject excursion

bears Royal’s logo); Compl. ¶ 134(e)-(f) (alleging Royal recommended its passengers should

“not engage in excursions…that are not sold through Royal” and “[u]ntil Plaintiffs and Barbara

Sibblis actually participated in the ‘A Golden Eagle Sailaway’ shore excursion, [their] exclusive

contact concerning the excursion was with Royal Caribbean”)).

VII. Plaintiffs have sufficiently pled Royal’s vicarious liability based on a joint
venture theory

Defendant’s joint venture argument, similarly, asks this Court to leap ahead and make a

factual determination, even though this case has only just reached the pleading stage. To the

extent that Defendant relies on the language in the Tour Operator Agreement to argue Plaintiffs

have not pled a joint venture theory of liability, the Court should reject that argument. Judge

Goodman addressed this very issue and denied Royal Caribbean’s motion to dismiss in a similar

shore excursion case, explaining why it was inappropriate to grant the motion based solely on the

language of the agreement:

The Tour Operator Agreement is not necessarily central to
Plaintiffs’ negligence-liability-by-way-of-joint-venture theory. A
joint venture, like a partnership, can be created by express or
implied contract, and, as Defense counsel acknowledged at the
Hearing, two parties could create a joint venture notwithstanding a
prior written contract foreclosing such a possibility. So, while the
Tour Operator Agreement states that it does not constitute a joint

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CASE NO.: 20-CV-20692-KMM

15

venture, a subsequent course of conduct may have created such a
joint venture agreement.

Ash v. Royal Caribbean Cruises Ltd., 2014 WL 6682514, *8 (S.D. Fla. Nov. 25, 2014)

(emphases in original; internal citation omitted). Another district court reached that same

conclusion in Celestino, denying the defendant’s motion to dismiss and acknowledging that,

under Eleventh Circuit precedent, “[a] joint venture can be created by an implied contract, and

creation of such a venture can be inferred from the parties’ conduct.” Celestino, 2018 WL

6620114, at *6 (citing Williams v. Obstfeld, 314 F.3d 1270, 1275-76 (11th Cir. 2002), and

Pinnacle Port Community Ass’n v. Orenstein, 872 F.2d 1536, 1539 (11th Cir. 1989)).

Royal makes a cursory argument that the joint venture theory also should be dismissed

because Plaintiffs have not pled sufficient factual allegations. A joint venture theory requires a

plaintiff to plead: “(1) a community of interest in the performance of a common purpose; (2)

joint control or right of control; (3) a joint proprietary interest in the subject matter; (4) a right to

share in the profits; and (5) a duty to share in any losses which may be sustained.” Ash, 2014 WL

6682514, at *8. Royal has challenged only the sufficiency of Plaintiffs’ allegations of the last

two elements. (See Mot. at 16) (arguing “Plaintiffs’ allegations are entirely conclusory as they

simply allege that ‘Royal Caribbean shared profits and losses with Out Island Charters for the ‘A

Golden Eagle Sailaway’ Shore Excursion,’ without any factual support.”). But Plaintiffs have

alleged more. For example, they alleged:

 “Royal Caribbean determined the amount of money charged for the subject
excursion” (Compl. ¶ 134(f));

 Royal Caribbean collected the fee and provided Plaintiffs with a receipt for the
subject excursion (Compl. ¶ 134(g));

 “The fee was split between Royal Caribbean and Out Island Charters.” (Compl. ¶
214);

 “Royal Caribbean and Out Island shared any losses sustained from the joint venture.”
(Compl. ¶ 218)

That is enough to withstand a motion to dismiss in this District. See Ash, 2014 WL

6682514, at *8 (finding Plaintiffs sufficiently pled this element where they alleged “the fee for

the tour was split among the Defendants and that the Defendants shared any losses sustained by

the joint venture” and “that the parties intended to create a joint venture and had a right to share

in the profits”); Gentry, 2011 WL 4737062, at *7 (finding Plaintiffs sufficiently pled this element

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16

where plaintiff alleged cruise line “determined the amount of money that the excursion entities

would charge, paid the excursion entities a portion of the sales for excursion tickets sold, and

collected money on behalf of the excursion entities”).

VIII. Royal’s arguments concerning Plaintiffs’ negligent infliction of emotional
distress claims are meritless

Royal’s arguments concerning Plaintiffs’ negligent infliction of emotional distress

(NIED) claims ignores the factual allegations in the Complaint. The law governing NIED claims

in maritime cases is well-established in the Eleventh Circuit. To plead a claim, a plaintiff must

allege (1) the plaintiff is “placed in immediate risk of physical harm by defendant’s negligent

conduct”; and (2) the plaintiff suffered “mental or emotional harm (such as fright or anxiety) that

is caused by the negligence of another and that is not directly brought about by a physical injury,

but that may manifest itself in physical symptoms.” Chaparro v. Carnival, 693 F.3d 1333, 1337-

38 (11th Cir. 2012). Plaintiffs have alleged sufficient facts to support both requirements.

A. All Plaintiffs have alleged they were within the “zone of danger”

Defendant attempts to re-cast Plaintiffs’ allegations as being limited to merely witnessing

Ms. Sibblis’s drowning (Mot. at 17), but Plaintiffs have plainly alleged much more. Here,

Plaintiffs alleged that they feared for their lives because they were actually in the same deep

waters and experiencing the same strong ocean currents as Ms. Sibblis as they all struggled to

reach the beach.

 “The wind and sea conditions made it very difficult for the passengers, including
Barbara Sibblis and Plaintiffs to get from the catamaran anchored in deep water to
the beach.” (Compl. ¶ 98);

 “Nicole Woodley, Barbara Sibblis and Clarice Lee, along with minors K.W.,
M.W., and C.W. Jr., feared for their safety and struggled to get to the beach.”
(Compl. ¶ 99);

 “Nicole Woodley and Clarice Lee, along with minors K.W., M.W., and C.W. Jr.,
eventually made it to the beach; however, Barbara Sibblis had been separated
from them as they struggled to get the young children and themselves safely to the
beach.” (Compl. ¶ 100).

These allegations make clear that Plaintiffs were squarely in the zone of danger as they struggled

to reach the beach with Ms. Sibblis until the moment she was unable to keep up and became

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17

separated from the other Plaintiffs. Accordingly, Plaintiffs were subjected to the same dangerous

condition caused by Royal’s negligence that claimed Ms. Sibblis’s life.8

That is sufficient to satisfy the “zone of danger” test in this circuit. For example, in

Twyman v. Carnival Corp., 410 F. Supp. 3d 1311, 1325(S.D. Fla. 2019), a father and son were

jet skiing in the same waters when the son was fatally injured in a collision with another jet ski.

The district court held that the father had sufficiently pled that he was in the zone of danger,

based on his allegations that:

(1) He was in the immediate area and entered the water following
the jet ski collision; (2) he “feared the immediate risk of being
struck by other jet skis and/or other watercrafts traveling in the
vicinity of…[Decedent’s] unresponsive body when he was
attempting to rescue his son”; (3) he “feared the immediate risk of
drowning as he struggled to lift his son’s unresponsive body out of
the water and onto a jet ski in order to transport…[Decedent’s]
body to shore for emergency medical assistance”

Id. at 1325. On the other hand, the court found the decedent’s mother was not in the zone of

danger, based on the fact that she “was on the beach when the accident occurred.” Id. at 1326.

Plaintiffs in this case are more like the father in Twyman, as they were exposed to the

same dangerous conditions that ultimately killed Ms. Sibblis and did not merely witness the

condition from afar. See also Chaparro, 693 F.3d at 1338 (holding plaintiffs were in zone of

danger where they alleged they “were trapped in the bus during the shooting [that killed the

decedent], that they feared for their lives, that they witnessed [the decedent’s] shooting and

death…”); Blair v. NCL (Bahamas) Ltd., 212 F. Supp. 3d 1264, 1271-72 (S.D. Fla. 2016)

(holding plaintiff was in zone of danger where he “not only witnessed his sister’s drowning and

the failed attempts to save her, but also was placed in immediate risk of physical harm by his

own near drowning in the pool caused by the [cruise line defendant’s] failure to have a

lifeguard”); Martins v. Royal Caribbean Cruises, Ltd., 174 F. Supp. 3d 1345, 1356 (S.D. Fla.

2016) (plaintiffs sufficiently pled zone of danger where they alleged they were exposed to same

bacteria that caused decedent’s death from food poisoning aboard cruise ship).

8 While Royal argues that “Plaintiffs have not pled what actually befell Decedent in the water”
(Mot. at 18), that argument is specious. (See Compl. ¶ 8) (“Barbara Sibblis drowned while
attempting to get to the beach.”).

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CASE NO.: 20-CV-20692-KMM

18

B. All Plaintiffs have sufficiently alleged that they suffered “physical
symptoms” under the law in this Circuit

Finally, the Court should reject Royal’s cursory argument that Plaintiffs have not

sufficiently alleged that they “suffered a physical manifestation as a result of their emotional

distress.” (Mot. at 18). Plaintiffs alleged that they suffered “repetitive, ongoing, and/or

continuous physical symptoms and manifestations to include depression, post-traumatic stress,

insomnia, and/or nightmares.” (Comp. ¶¶ 270-76).

Royal baldly asserts, without citation to any authority, that these “are emotional in nature,

not physical.” (Mot. at 18). Royal is wrong, as courts have recognized similar allegations as

sufficient to plead “physical symptoms” in connection with an NIED claim. See Crusan v.

Carnival Corp., 2015 WL 13743473, *3-4 (S.D. Fla. Feb. 24, 2015) (denying motion to dismiss

and finding plaintiffs sufficiently pled NIED claim where they alleged “insomnia, depression,

rapid heartbeat, and vomiting”). Accord Gerhart v. Carnival Corp., 2015 WL 12533127, *2

(S.D. Fla. Feb. 13, 2015) (denying defendant’s motion for summary judgment on NIED claim

based on evidence that plaintiffs suffered “continuous nightmares” and “posttraumatic stress

syndrome”); Terry v. Carnival Corp., 3 F. Supp. 3d 1363, 1370 (S.D. Fla. 2014) (denying

defendant’s motion for summary judgment on NIED claim based on evidence that plaintiff

suffered “sleeplessness and nightmares [that] are continuous in nature”). Accordingly, Plaintiffs

have sufficiently alleged this element of their NIED claims.

IX. Actual Agency and Third-Party Beneficiary Claims

With regard to Plaintiffs’ claims for vicarious liability based on actual agency (Count 4)

third-party beneficiary breach of contract (Count 12), Plaintiffs recognize that the weight of

authority in this District is against them. Nevertheless, to preserve this issue for potential

appellate review, Plaintiffs respectfully submit that this case is still at the pleadings stage and

they have pled sufficient factual allegations to avoid dismissal. Accordingly, Plaintiffs submit

this Court should deny Royal’s motion to dismiss those counts, as well.

CONCLUSION

For all the reasons stated above, the Court should deny Defendant’s Motion to Dismiss in

its entirety.

Case 1:20-cv-20692-KMM Document 21 Entered on FLSD Docket 04/09/2020 Page 18 of 20

CASE NO.: 20-CV-20692-KMM

19

Respectfully submitted by:

MEISTER LAW, LLC.
[email protected]
[email protected]
Courthouse Tower, Suite 750
44 West Flagler Street
Miami. Florida 33130
Telephone: (305) 590-5570
Facsimile: (305) 675-3787

-and-

RUSSO APPELLATE FIRM, P.A.
[email protected]
7300 North Kendall Drive, Suite 600
Miami, Florida 33156
Telephone: (305) 666-4660
Facsimile: (305) 666-4470

Counsel for Plaintiffs

By: ____/s/ Paulo R. Lima
PAULO R. LIMA
Florida Bar No. 0064364
[email protected]
ELIZABETH K. RUSSO
Florida Bar No. 260657
[email protected]

Case 1:20-cv-20692-KMM Document 21 Entered on FLSD Docket 04/09/2020 Page 19 of 20

CASE NO.: 20-CV-20692-KMM

20

CERTIFICATE OF SERVICE

I do hereby certify that on this 9th day of April, 2020, I have filed a copy of the foregoing

with the CM/ECF System, which will generate notices of Electronic Filing to all parties that have

appeared in this matter.

____/s/ Paulo R. Lima

Case 1:20-cv-20692-KMM Document 21 Entered on FLSD Docket 04/09/2020 Page 20 of 20

3/11/2020 Welcome to Royal Caribbean International

rcclebrochure.ua.verbinteractive.com/excursions.php?ship=AD&date=2019-02-16&currency=USD 1/83

CARIBBEAN

CRUISE
S H O R E E X C U R S I O N G U I D E

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3/11/2020 Welcome to Royal Caribbean International

rcclebrochure.ua.verbinteractive.com/excursions.php?ship=AD&date=2019-02-16&currency=USD 2/83

Sailing Itinerary*

Day Port* Arrive Depart Activity

Sat Feb 16 Fort Lauderdale, Florida – 5:30 pm Docked

Sun Feb 17 Cruising – – Cruising

Mon Feb 18 Labadee, Haiti 7:00 am 4:00 pm Docked

Tue Feb 19 San Juan, Puerto Rico 1:00 pm 9:00 pm Docked

Wed Feb 20 Philipsburg, St. Maarten 8:00 am 6:00 pm Docked

Thu Feb 21 Basseterre, St. Kitts 7:00 am 5:00 pm Docked

Fri Feb 22 Cruising – – Cruising

Sat Feb 23 Cruising – – Cruising

Sun Feb 24 Fort Lauderdale, Florida 5:30 am – Docked

*All itineraries are subject to change without notice.

General Information
Terms and Conditions

A D V E N T U R E O F T H E S E A S
SAILING: 16 – FEB – 2019

Summary of Tours
Online Shore Excursions reservations for your sailing will be available up until 13-Feb-2019 11:59 PM EST (Two days prior to
your sailing). If you are within the cut-off time, please be sure to visit our Shore Excursions desk to make your reservations
onboard.*

Labadee, Haiti – 18-Feb-2019

Tour
Code Tour Title Difficulty Level Restrictions Depart Duration

Adult
Price

Child
Price

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3/11/2020 Welcome to Royal Caribbean International

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Many tours allow time for guests to shop or explore independently; however that time is limited and can be modified as
needed during the tour. Please review the tour description and/or visit the Shore Excursions desk, onboard your ship, for
timing on independent shopping and exploration.

Tour Transportation

Please keep in mind that transportation varies throughout the world. Vehicles used for shore excursions may not have air
conditioning, restroom facilities and/or seat belts/restraints. For the comfort of all guests, smoking is not allowed on any
vehicles used during shore excursions.

Transportation at Ports

Because several ports are not located in the city center, we arrange a shuttle bus service for a fee in those ports. Guests can
also utilize the local services. A list of these specific ports can be found onboard.

Promptness

It is essential that ALL guests be back onboard no later than 30 minutes prior to the scheduled departure time.  This
information is posted daily at the gangway. Although shore excursions meet these schedule requirements, even if you are not
on a tour, you are also responsible for being back onboard the ship on time. If for any reason a tour is delayed, the shipboard
management team will await the tour’s return. However, guests on tours with vendors not advertised through Royal Caribbean
International are responsible for ensuring their return to the ship on time as it will not wait for them, despite any delays.

Legal Responsibility

Royal Caribbean International offers shore excursions for guest convenience and peace of mind. Although we have carefully
selected the finest excursions at each port, services are provided by independent tour operators. Royal Caribbean
International will not be responsible or liable for any loss, damage, injury, costs, or delays resulting from or in conjunction with
your use of these services.

Royal Caribbean International acts only as the agent of the supplier of these services and does so on the sole condition that
no liability of any kind, however caused, shall attach to Royal Caribbean International or its agents, servants or employees in
connection with or arising there from. All tickets, coupons and vouchers issued by Royal Caribbean International for shore
excursions made on behalf of guests are solely subject to the terms and conditions of the person or company providing
those transportation facilities ashore.

Symbols/Icons & Definitions

We created descriptions for all shore excursions available on your cruise vacation. You can reference our summary of tours
here or online at www.RoyalCaribbean.com/shoreexcursions.

Often times tour operators establish age, weight and height requirements for the safety and comfort of our guests. Each tour
also has an assigned activity level of mild, moderate or strenuous, so you can determine if the tour is appropriate for you and
your group.

The symbols below act only as a guideline, so guests must make their own judgment regarding tour participation. We
encourage guests to always consider any pre-existing medical conditions and consult with their physician if they have
concerns about their physical capabilities.

Terms and Conditions

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 1:19-cv-20179-KMW

ENID PORRATA DORIA,

Plaintiff,

VS.

ROYAL CARIBBEAN CRUISES, LTD.,
et aI.

Defendant.

/

ORDER

THIS MATTER is before the Coud on Defendant Royal Caribbean Cruises Ltd.’s

(‘lRoyal Caribbean”) Motion to Dismiss (DE 9). Plaintiff Enid Porrata Doria ($dDoria”) filed

a response in opposition (DE 10), and Royal Caribbean filed a reply (DE 11). For the

reasons set fodh below, Defendant’s Motion to Dismiss (DE 9) is GRANTED.

1. BACKGROUND

On April 5, 2018 Doria was a passenger aboard Royal Caribbean’s Harmony of

the Seaswhen he purchased an ATV excursion experience in Cozumel, Mexico, operated

by Renta Safari Sa De CV (”Renta”) from Royal Caribbean. (DE 1 at 8). That day, while

padicipating in the ATV excursion, he suffered injuries when he crashed his ATV into a

tree. (DE 1 at 9). Doria submits that while on the excursion, Renta staff failed to provide

adequate direction to padicipants, and that Royal Caribbean m isrepresented that the

excursion would occur on ”did roads” when it actually took place over ”rough terrain.” (DE

1 at 9).

1

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Doria alleges that, in purchasing the excursion, he relied on Royal Caribbean’s

representations that the excursion would be safe.(DE 1 at 7). Such representations

included promotional materials made available by Royal Caribbean through their website,

brochures, presentations, and staff at the cruse ship’s shore excursion desk, indicating

the shore excursions were dloperated by Royal Caribbean and/or safe.” (DE 1 at 6-7).

Accordingly, Doria filed this Iawsuit alleging the following eight causes of action

arising from his injuries: (1) misleading advedising in violation of Florida Statute Section

817.41 against both defendants’, (2) negligent misrepresentation against Royal

Caribbean’, (3) negligence against Royal Caribbean’, (4) negligence against Renta’, (5)

negligence against defendants based on apparent agency or agency by estoppel’, (6)

negligence against defendants based on joint venture between Royal Caribbean and

Renta; (7) third-party beneficiary against both defendants’, and (8) breach of fiduciary duty

against both defendants.

Royal Caribbean moved to dismiss Counts I through 111, and Counts V through VIII

for failure to state a claim. (DE 9).

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts

to state a claim that is dlplausible on its face.” Ashcroft e. /qba/, 556 U.S. 662, 678 (2009)

LEGAL STANDARD

(quoting Bell Atlantic Corp. ?.Twombly, 550 U.S. 544, 570 (2007)).The purpose of this

requirement is tlto give the defendant fair notice of what the claim is and the grounds upon

which it rests.” Twombly, 550 U.S. at 555. The Court’s consideration is Iimited to the

allegations presented. See GSA Inc. v. Long Cty., 999 F.2d 1508, 1510 (1 1th Cir. 1993).

AII factual allegations are accepted as true and aII reasonable inferences are drawn in the

plaintiff’s favor. See Speaker B. U.&. Dep’f of HeaIth & Human Selvs. Ctrs. for Disease

2

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Control & Prevention, 623 F.3d 1371 , 1379 (1 1th Cir.2010),. see also Roberts ?. Fla.

Power & Light Co., 146 F.3d 1305, 1307 (1 1th Cir. 1998). Nevedheless, while a plaintis

need not provide ”detailed factual allegations,” the allegations must consist of more than

1$a formulaic recitation of the elements of a cause of action.” Twombly, 55O U.S. at 555

(internal citations and quotations omitted). tlAdditionally, ‘conclusory allegations,

unwarranted factualdeductions or Iegal conclusions masquerading as facts will not

prevent dismissal.”’U.S. ex rel. Keeler B. Eisai, Inc., 568 F. App’x 783, 792-93 (1 1th Cir.

2014) (quoting Davila v. Delta Air Lines, lnc., 326 F.3d 1 183, 1 185 (1 1th Cir. 2003)). The

i’llactual allegations must be enough to raise a right of relief above the speculative Ievel.”

Yaffg v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (1 1th Cir. 2007) (quoting Twombly, 550 U.S.

at 545).

In addition to the

Procedure 8(a) and

requirements of Twombly, Iqbal, and Federal Rules of Civil

12(b)(6), claims sounding in fraud are subject to the pleading

standards of Federal Rule of Civil Procedure 9(b). See U.S. ex. re/. Clausen v. Lab. Corp.

of Am., Inc., 290 F.3d 1301 , 1309-10 (1 1th Cir. 2002)’, Gayou v. Celebrity Cruises, Inc. ,

No. 1 1-23359-C1V, 2012 W L 2049431, at *3 (S.D. Fla. June 5, 2012). Rule 9(b)(6)

provides that ”Iiln allegations of fraud or mistake, a pady must state with padicularity the

circumstances constituting fraud or mistake” but that d’Emlalice, intent, knowledge, and

other conditions of a person’s mind shall be averred generally.” Fed. R. Civ. P. 9(b). Rule

9(b) is satisfied if the plaintiff pleads .t(1) precisely what statements were made in what

documents or oral representations or what omissions were made, and (2) the time and

place of each such statement and the person responsible for making (or, in the case of

omissions, not making) same, and (3) the content of such statements and the manner in

3

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which they misled the plaintiff, and (4) what the defendants obtained as a consequence

of the fraud.” Ziemba B. Cascade Intj Inc. , 256 F.3d 1 194, 1202 (1 1th Cir. 2001) (quoting

Brooks v, Blue Cross & Blue Shield of FIa., Inc. , 1 1 6 F.3d 1 364, 1371 (1 1th Cir. 1997)).

Fudher, when an injury is alleged to have occurred ”upon a ship in navigable

waters,” federal maritime Iaw applies. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d

1332, 1 334 (1 1th Cir. 1984) (citing Kermarec B. Compagnie Generale Transatlantique,

358 U.S. 625, 628 (1959)). Passenger suits against a cruise Iine alleging tods are subject

to general maritime Iaw. Keefe tt Bahama Cruise Line, lnc., 867 F.2d 1318, 1320 (1 1th

Cir. 1989). Maritime Iaw also applies to alleged incidents that occur during the course of

the cruise at offshore excursions or other pods-of-call since the itnecessary precursors . .

. occurred while the ship was on navigable waters.” Doe v. Celebrity Cruises, Inc., 394

F.3d 891 , 901 (1 1th Cir. 2004).

111. ANALYSIS

A. Count I – Misleading Advertising in Violation of Florida Statute Section

817.41 and Count 11 – Negligent Misrepresentation

Doria alleges that Royal Caribbean made and disseminated false or misleading

materials regarding the safety of the ATV excursion. (DE 1). Claims arising under Florida

Statute Section 817.41 and Florida common Iaw negligent misrepresentation must allege:

(1) misrepresentation of a material fact; (2) that the
representor made the m isrepresentation without knowledge
as to its truth or falsity or under circum stances in w hich he

ought to have known its falsity’, (3) that the representor
intended that the misrepresentation induce another to act on

it; and (4) that injury resulted to the party acting in justifiable
reliance on the m isrepresentation.

4

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Ceithaml v. Celebrity Cruises: Inc., 207 F. Supp. 3d 1345, 1352-3 (S.D. Fla. 2016) (citing

Holguin v. Celebrity Cruises, Inc., No. 10-20212-CIV, 2010 W L 1837808, at *1 (S.D. Fla.

May 4, 2010))., see also Smith B. Mellon Bank, 957 F. 2d 856, 858 (1 1th Cir. 1992) (1dIn

order to prove a violation of Section 817.41, Florida Iaw requires the plaintiff to prove

reliance on the alleged misleading advertising, as well as each of the other elements of

the common Iaw tod of fraud in the inducement.”).

As an allegation of fraud, negligent misrepresentation is subject to the heightened

pleading standard of Rule 9(W which requires a plaintiff to establish ”the fwho, what,

when, where, and how’ of the fraud.” Ceithaml, 207 F. Supp. 3d at 1353 (citing Gameld

v. NDC Hea/lh Corp., 466 F. 3d 1255, 1262 (1 1th Cir. 2006))., see Ziemba, 256 F. 3d at

1202 (i$RuIe 9(b)’s heightened pleading standard requires that the complaint set fodh . . .

precisely what statements were made in what documents or oral representations.Dl; see

also Gayou, No. 1 1-23359-Civ-SCOLA, 2012 W L 2049431, at *7 (dismissing an allegation

of misleading advertisement and negligent misrepresentation because the complaint was

not temporally precise).

In its Motion, Royal Caribbean argues that Doria has failed to meet the Rule 9(b)

standard. (DE 9 at 2). In suppod of this contention, Royal Caribbean cites Judge Ungaro’s

recent decision in Serra-cruz v. Carnival Corp. No. 1:18-cv-23033-UU, (DE 30 at 7) (S.D.

Fla. Feb. 12, 2019).There, Judge Ungaro applied the Rule 9(b) standard to claims of

negligent misrepresentation under Florida common Iaw and Florida Statute Section

817.41 w here the facts were substantially sim ilar to those in this case. Id. The plaintiff in

Serra-cruz alleged Carnival made misleading statements as to the safety of an AW

excursion sold on its cruise ship. Id. at 1 1. ln her complaint the plaintiff provided quotes

5

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from dlcarnival’s promotional material, brochures and/or website” describing the

excursion. Id. at 8. Because the plaintiff referred to the sources of the materials ‘Iin the

collective as ‘Carnival’s promotional material”’ rather than naming the sources with

padicularity, Judge Ungaro ruled that the allegations in the complaint were insufficient to

satisfy the Rule 9(b) standard ld. at 9.

Doria concedes that the heightened pleading standard of Rule 9(b) is applicable

to Counts I and ll, but argues that he has pleaded his factual allegations with sufficient

padicularity to satisfy the heightened standard. (DE 10 at 2). However, like the plaintiff in

Serra-crtpz, Doria’s pleading fails to provide the sources of the allegedly m isleading

materials. ln response to Royal Caribbean’s Motion, Doria points to paragraphs eighteen

through twenty-three of the Complaint. (DE 10 at 2). There, Doria- like the plaintiff in

Serra-cruz- lists the sources of the allegedly misleading materials in the collective: ”the

information and/or material (Royal Caribbean) made available and/or distributed to the

Plaintiff . . . .” (DE 1 at 6). Doria also contends that the particularity standard is satisfied

by the allegations in paragraph twenty-eight of the Complaint where he states merely that

Royal Caribbean represented its excursions as ”guided” and on ”dirt roads.” (DE 10 at 2′,

DE 1 at 8-9). These allegations fail to provide the Coud- and the Defendants- with the

respective sources of these representations or facts suppoding his claim that these

representations were actually made to Doria.

Therefore, Doria has not met the heightened pleading standard of Rule 9(b). See

Ceithaml, 207 F. Supp. 3d at 1353. And because Counts I and 11 are pleaded with identical

factual allegations, Count 11 similarly does not meet the heightened pleading standard for

the reasons stated above. See Serra-cruz, No. 1:18-cv-23033-UU, at 7 (dismissing

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counts of misleading advisement and negligent misrepresentation for failure to meet the

Ruel 9(b) standard where both counts were identically pleaded). Because neither Count

I nor Count 11 are sufficiently pleaded under the Rule 9(b) standard, the Coud need not

address the merits of these claims at this stage. Accordingly, Counts I and 11 are

dismissed without prejudice with Ieave to amend.

B. Count III – Negligence Against Royal Caribbean

Doria’s third Count alleges Royal Caribbean was negligent in promoting the ATV

excursion and not warning passengers of its alleged dangers.To state a claim for

negligence against a shipowner, a plaintiff llmust show: (1) that defendant owed plaintiff

a duty; (2) that defendant breached that duty; (3) that this breach was the proximate cause

of plaintiff’s injury’, and (4) that plaintiff suffered damages.” Isbell 1. Carnival Corp., 462 F.

Supp. 2d 1232, 1236 (S.D. Fla. 2006) (citing Hasenfus B. Secord, 962 F.2d 1556, 1559-

60 (1 1th Cir. 1992))., see also Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (1 1th Cir.

2012) (1tIn analyzing a maritime tort case, we rely on general principles of negligence

Iaw.”) (quoting Daigle ?. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)).

Pursuant to federal maritime Iaw, the duty of care that cruise operators owe

passengers is ordinary reasonable care under the circumstances, ”which requires, as a

prerequisite to im posing Iiability, that the carrier have actual or constructive notice of the

risk-creating condition.” See Keefe ?. Baham a Cruise Line, Inc., 867 F.2d 1318, 1322

(1 1th Cir. 1989). A facet of the duty of reasonable care is the cruise ship operator’s ”duty

to warn of known dangers beyond the point of debarkation in places where passengers

are invited or reasonably expected to visit.” Serra-crtpz,No. 1 :18-cv-23033-UU, at 14

(quoting Chaparro, 694 F.3d at 1336). The duty to warn only extends to dangers ”which

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the carrier knows, or reasonably should have known” to exist. See id. (quoting Wolf v.

Celebrity Cruises lnc., 683 F. App’x 786, 794 (1 1th Cir. 2017)).

Doria alleges Royal Caribbean’s duty to warn was triggered when it received notice

of the excursion’s allegedly unsafe conditions through its ”initial approval process and/or

its yearly inspections of the subject excursion” and ‘dother cruise ship passengers being

injured on ATV excursions.” (DE 1 at 9). Royal Caribbean argues that Doria has failed to

allege facts showing Royal Caribbean knew of the dangers of the ATV excursion. (DE 9

at 8).

The reasoning and analysis in Serra-cruz is again applicable here. There, the

plaintiff also alleged that Carnival breached its duty by not warning of the ATV excursion’s

allegedly dangerous conditions. See No. 1:18-cv-23033-UU, at 15. To show Carnival had

notice of the dangerous conditions, the plaintiff in Serra-cruz pointed to ‘dcarnival’s initial

approval process . . . Carnival’s yearly inspections (and) prior incidents involving

Carnival passengers injured on ATV excursionsz” See id. The coud dismissed plaintiff’s

negligence claim , finding that the plaintiff failed to sufficiently plead notice by not

specifying which yearly inspection, prior incidents, or factors in the approval process put

Carnival on notice. Id. at 16.

Like the plaintiff in Serra-cruz, Doria does not allege which inspection put Royal

Caribbean on notice or whether the allegedly dangerous condition of the terrain was

present at the time of the initial approval process. (DE 1 at 9). Fudher, Doria does not

provide allegations regarding which ATV accident should have put Royal Caribbean on

notice; instead, Doria alleges only that ”other cruise ship passengers” were injured. (DE

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1 at 9).1 Doria’s Complaint is pled with even less specificity than that dismissed in Serra-

Cruz. W hile the Serra-cruz complaint pointed to accidents involving other Carnival

passengers, No. 1:18-cv-23033-UU, at 15, Doria refers only to I’other cruise ship

passengers”. (DE 1 at 9). Doria does not state whether these other ATV accidents

involved passengers from Royal Caribbean, occurred on the ddrough terrain” of Cozumel,

or were operated by Renta in Cozumel. (DE 1 at 9).

This Coud agrees with Royal Caribbean that Doria has failed to plead sufficient

facts alleging that Royal Caribbean had actual or constructive notice of the dangerous

conditions of the ATV excursion. Although Doria recites a Iong Iist of conclusory

statements, the Complaint fails to adiculate a triggered duty to warn on the part of Royal

Caribbean.z (DE 1 at 19-23). Therefore, this Court need not consider the remaining

elements of Doria’s negligence claim at this stage. Count Ill is dismissed without prejudice

with Ieave to amend.

C. Count V – Negligence Based on Apparent Agency or Agency by Estoppel

Next, Doria claims Royal Caribbean is Iiable for the negligence of the Excursion

Entities under a theory of apparent agency. In response, Royal Caribbean attaches

Doria’s cruise ticket contract, his shore excursion ticket, and the Tour Operator

Agreement (;1TOA”) between Royal Caribbean and Renta to its Motion. Royal Caribbean

argues these documents discredit Doria’s claim for negligence under an apparent agency

theory. (DE 9 at 1 1). However, consideration of these releases would be improper at the

l Doria references three other matters, but gives no citations or any factual detail. (DE 1 at 9).
2 W hile the Coud notes that many details of the ATV excursion’s prior condition and Royal Caribbean’s
knowledge of those prior excursions may not be adduced prior to discovery, the Complaint in its current
iteration nevedheless fails to meet the Keefe standard of alleging actual or constructive notice. See Keefe

867 F.2d 1318 at1322 (1 1th Cir. 1989).

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motion to dismiss stage as the release of Iiability is more properly considered an

affirmative defense.3 See Fed. R. Civ. P. 8(c)(1). Therefore, the Coud will not consider

Royal Caribbean’s exhibits and will Iook only to the four corners of the Complaint for

purposes of deciding Royal Caribbean’s Motion to Dismiss Count V.

Royal Caribbean argues that Count V should be dismissed because it is a theory

of Iiability which is dependent on the sufficiency of the underlying negligence claim. (DE

9 at 10). After carefully reviewing the padies’ briefing and relevant caselaw, the Coud

agrees with Royal Caribbean that, because Doria’s underlying negligence claim is

based On apparent agency mustdismissed without prejudice, his claim for negligence

also be dismissed without prejudice. Brown e. Carnival Corp. et aI., 202 F. Supp, 3d 1332,

1340 (S.D. Fla. 2016) (dismissing ”apparent agency” claim where court already found that

plaintiff failed to state @ plausible negligence claiml’, Zapafa, 2013 W L 1296298, at *5 (1$1

already have determ ined that the insufficiency of Plaintiff’s factual allegations warranted

the dismissal without prejudice of Plaintiff’s negligence claim. Accordingly, Plaintiff’s

apparent agency claim must be dismissed without prejudice as weII.”).

However, the Coud finds that, were Doria’s underlying negligence claim sufficiently

pleaded, his claim for apparent agency would be factually suppoded at the motion to

dismiss stage. Allegations suppoding Doria’s claim include: (1) Royal Caribbean making

aII ddarrangements for the subject excursion without effectively disclosing that the subject

excursion was being run by another entityi” (2) marketing llthe subject excursion using its

3 Generally, a court may not consider anything beyond the face of the complaint and any documents
attached thereto in deciding a motion to dism iss. See Financial Sec. Assurance, Inc. v. Stephens, Inc., 500

F.3d 1276, 1284 (1 1th Cir. 2007). There is an exception to this rule, however, where the plaintiff refers to
a document in its complaint, the document is central to the plaintifrs claim , its contents are not in dispute,
and the defendant attaches the document to its motion to dismiss. Id. Although the Complaint references

Royal Caribbean’s website (DE 1 at 27) (which contains the passenger ticket contract), the Court will not
consider these documents at this stage of the litigation.

1 0

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company Iogoi” (3) recommending that passengers ttnot engage in excursions . . . not

sold through” Royal Caribbean’, (4) maintaining a ”shore excursion desk” where it sold

and provided information for excursions’, (5) collecting Doria’s fee; and (6) issuing Doria

a receipt for his fee. (DE 1 at 27-28). Several other courts in this District have found similar

factual allegations sufficient to suppod a negligence claim under an apparent agency

theory of Iiability. See, e.g. , Aronson B.Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379,

1396-97 (S.D. Fla. 2014),. Gayou, 2012 W L 2049431 , at *8-9., Zapala, 2013 W L 1296298,

at *5., Lapidus v. NCL America LLC, et aI., No. 12-21 183, 2012 W L 2193055, at *5 (S.D.

Fla. Jun. 14, 2012)., Gibson e. NCL (Bahamas) Ltd. et aI., No 1 1-24343-C1V, 2012 W L

1952667, at *7 (S.D. Fla. May 30, 2012). Nevedheless, because the underlying

negligence claim is insufficiently pleaded,Count V is dismissed without prejudice with

Ieave to renew in an amended complaint.

D. Count VI – Negligence Against Defendants Based on Joint Venture

In Count VI, Doria alleges Royal Caribbean was vicariously Iiable for Renta’s

negligence based on a joint venture theory. The Eleventh Circuit recognizes several

”signposts” or ”Iikely indicia” that suggest the existence of a joint venture such that one

defendant may be held vicariously Iiable for the negligent acts of a joint venture padner.

Fulcher’s Point Pride Seafood; Inc. v. MN Theodora Maria, 935 F.2d 208, 21 1 (1 1th Cir.

1991). These include (1) the intention of the padies to create a joint venture’, (2) joint

control or right of control’, (3) joint proprietary interest in the subject matter of the joint

venture’, (4) the right of aII venturers to share in the profits’, and (5) the duty of b0th to

share in the losses. See Hung Kang Huang v. Carnival Corp., 909 F. Supp. 2d 1356,

1361 (S.D. Fla. 2012) (citing Skeen B. Carnival Corp. , No.08-22618-C1V, 2009 W L

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1 1 17432, at *3 (S.D. Fla. April 24, 2009)), abrogated on other grounds, Franza B, Royal

Caribbean Cruises, Ltd. , 772 F.3d 1225, 150 n. 1 8 (1 1th Cir. 2014). Of these factors, the

Eleventh Circuit in Fulcher noted that llltlhe padies’ intentions are impodant” in

determining whether a joint venture exists. 935 F.2d at 21 1 (quoting Sasportes v. MN

SOL DE COPACABANA, 581 F.2d 1204 (5th Cir. 1978)).

Royal Caribbean contends that its TOA4 with Renta undermines Doria’s joint

venture allegation:

Operator’s relationship with Cruise Line during the Term of
this Agreement shall be that of an independent contractor.

Operator shall not represent that it has any power, right or
authority to bind Cruise Line or to assume or create any
obligation or responsibility, express or implied, on behalf of

Cruise Line or in the Cruise Line’s name. Nothing related in
this Agreement shall be construed as constituting Operator
and Cruise Line as padners, or as treating the relationships of
em ployer and em ployee, franchisor and franchisee, master

and servant or principal and agent or joint venture between
the Padies hereto.

(DE 9 at 14).

4 Royal Caribbean attached its standard TOA with Renta to its Motion to Dismiss. (DE 9 at 14). This
agreement was made central to Doria’s Complaint by his assertion that Royal Caribbean and Renta

î’entered into an agreement.” (DE 1 at 30). Thus, the Court may consider this undisputed document, central
to and referenced in the Complaint, without conveding Royal Caribbean’s M otion to Dism iss into a motion

for summary judgment. See, e.g., Zapata, 2013 WL 1296298, at *4 (reviewing a TOA for a joint venture
claim where the plainti# made the agreement central to their complaintl’, Day B. ray/or, 400 F.3d 1272,
1276 (1 1th Cir. 2005) ($$Our prior decisions also make clear that a document need not be physically attached
to a pleading to be incorporated by reference into it; if the document’s contents are alleged in a complaint
and no pady questions those contents, we may consider such a document provided it m eets the centrality

requirement imposed in Hors/ey.”); Horsley v’. Feldt, 3O4 F.3d 1 125, 1 134 (1 1th Cir. 2002) (a coud may
consider documents central to the plaintiffs’ claim and undisputed under the incorporation by reference

doctrine without conveding the motion into summary judgmentl’ Gmss v. White, 340 Fed. App’x. 527, 534
, !(1 1th Cir

. 2009) (finding no error in the district coud s consideratlon of a document referenced in the second
amended complaint but attached only to the plaintiff’s opposition to a motion to dismissl; Brooks v. Blue
Cross & Blue Shield of FIa., Inc. , 1 16 F.3d 1364, 1369 (1 1th Cir. 1997) (ldWhere the plaintiff refers to cedain
documents in the complaint and those documents are central to the plaintiff’s claim, then the Coud may

consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal.n).

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This Coud previously dismissed a negligence claim based on allegations of a joint

venture in Ceithaml. 207 F. Supp. 3d at 1353. There, the TOA presented nearly identical

Ianguage, releasing Carnival from any purpoded joint venture with shore excursions

companies. Id. at 1354. This Coud held that such a contract unambiguously showed no

intention on the part of Carnival to enter into a joint venture with excursion companies.s

Id.

Although Doria maintains that his pleading satisfies each element of a joint

venture, the Court finds Doria’s bare allegation- that Renta and Royal Caribbean

‘d’shared a common purpose’ which was to doperate the subject excursion”’- to be

factually insufficient to show the intent to enter into a joint venture. (DE 10 at 14). See

Zapata, 2013 W L 1296298, at *6′, Skeen, 2009 W L 1 1 17432, at *3 (dismissing joint

venture claim where Ssplaintifffailled) to assed that the padies intended to enter into a joint

venture”). This is true especially in Iight of the express Ianguage of the TOA, which

negates any such intent on the pad of Defendants. Thus, because Doria has failed to

allege the existence of a joint venture, and because the terms of the TOA unambiguously

foreclose any argument that Royal Caribbean intended to enter into a joint venture with

Renta, Count Vl of the Complaint is dismissed with prejudice. See Zapala, 2013 W L

1296298, at *6 (dismissing a joint venture claim with prejudice where a TOA’s

”unambiguous provisions” directly contradicted the plaintiff’s allegations).

E. Count VII – Third-party Beneficiary

5 In Ceitham ( this Court relied on Zapala v. Royal Caribbean Cruises, Ltd., No. 12-21 897-CIV, 2013 W L
*6 (S D, Fla. Mar. 27, 2013), which held that an identical contractual provision negated an1296298, at .

allegation of intent between the cruise Iine and excursion company to enter into a joint venture.

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In Count VlI, Doria alleges Royal Caribbean breached a third-pady beneficiary

contract. To plead a breach of a third-pady beneficiary contract, Plainti# must allege (1)

the existence of a contract to which Plainti# is not a party’, (2) an intent, either expressed

by the padies, or in the provisions of the contract, that the contract primarily and directly

benefit Plaintiff’, (3) breach of that contract by one of the padies; and (4) damages to

Plainti: resulting from the breach.Lapidus, 924 F. Supp.zd at 1360-61 . For a third pady

to have a Iegally enforceable right under the contract, the benefit to the third pady must

be the ‘ddirect and primary object of the contracting padies.” Bochese e. Town of Ponce

Inlet, 405 F.3d 964, 982 (1 1th Cir. 2005). The third padies do not need to be specifically

named in the contract to qualify as intended beneficiaries, as ”Iong as the contract refers

to a well-defined class of readily identifiable ‘persons that it intends to benefit.” Belik v.

Carlson Travel Group, Inc., 864 F. Supp.zd 1302, 1 312 (S.D. Fla. 201 1) (internal citations

omitted). However, the padies’ intent to benefit the third pady d’must be specific and must

be clearly expressed in the contract in order to endow the third-pady beneficiary with a

Iegally enforceable right,” and an dlincidental” benefit to a third pady is insufficient to

sustain a claim . Bochese, 405 F.3d at 982.

In his Com plaint, Doria alleges that the terms of an agreement between Royal

Caribbean and Renta demonstrate their intent to ”benefit (Royal Caribbean) passengers,

including the plaintiff. . . .” (DE 1 at 32). On the other hand, Royal Caribbean argues that

the element of intent is disproven by the TOA. (DE 9 at 17). Royal Caribbean cites section

12.10 of the Agreement, which directly addresses the question of third-pady beneficiaries:

”this Agreement shall not be deemed to provide third padies with any remedy, claim , right

or action or other rightx” (DE 9 at 17).

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In Zapala e. Royal Caribbean Cruises, Judge Cooke faced similar allegations and

an identical third-pady beneficiary clause. 2013 W L1296298, at *5. The coud dismissed

the third-pady beneficiary claim with prejudice,finding that the contract ”expressly

disclaims any intent to benefit Plaintiff.” Id.,’ see also Gayou, 2012 W L 2034931 , at *1 1

(dismissing a claim for third-pady beneficiary claim where the contract’s terms d’expressly

disclaimed” any intent to benefit third padies). This Coud agrees with the reasoning and

analysis in Zapala and Gayou, and finds that the TOA expressly disclaims any intent for

the contract to benefit Doria. Therefore, Doria’s third-pady beneficiary claim, Count VII, is

dismissed with prejudice.

F. Count VIII – Breach of Fiduciary Duty Against Royal Caribbean

Finally, Doria brings a claim against Royal Caribbean for breach of fiduciary duty.

Royal Caribbean argues that to im pose a fiduciary duty on a ship owner would require

applying a heightened standard of care. (DE 9 at 18). Doria alleges that Royal Caribbean

had fiduciary duties such as selecting and offering safe excursions to passengers and

making arrangements with excursion providers for the benefit of passengers. (DE 1 at

37). Royal Caribbean moves to dismiss this Count on the basis that imposing such a

fiduciary duty on a cruise ship operator would go beyond the typical duty for cruise ships

of ‘ùreasonable care under the circumstances.” (DE 9 at 18) (citing Kermarec, 79 S. Ct. at

410).

d’To state a claim for breach of fiduciary duty in Florida, the plaintiff must show: (i)

the existence of a fiduciary duty;(ii) the defendant breached that duty; and (ii) the

defendant’s breach proximately caused the plaintil’s damages.” Lindquist B. Linxian, No.

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1 1-23876-C1V, 2012 W L 381 1800, at *4 (S.D. Fla. Sept. 4, 2012) (citing Gracey v. Eaken

837 So. 2d 348, 353 (FIa. 2002)).

The coud in Serra-crtpz dealt with a substantially sim ilar allegation and dismissed

the claim with prejudice. See No. 1:18-cv-23033-UU, at 23. There, the court held that

”maritime Iaw does not impose a fiduciary duty upon ship-owners.” ld. Additionally, Judge

Ungaro noted that ”no coud in this Circuit . . . has ever held a cruise Iine to owe a fiduciary

duty to its passengers.” ld. at 24. Fudhermore, other common carriers, such as airlines,

dddo not owe a fiduciary duty to Etheir) passengers.”. Id. (citing Karkomi v. Am. Airlines, Inc.

717 F. Supp. 1340, 1343 (N.D. 111. 1989)).6 Assigning to Royal Caribbean a fiduciary duty

to its passengers would ascribe a heightened standard of care beyond the well-

established ‘dreasonable care underthe circumstances.” Id. at 23. Therefore, Doria’s claim

for breach of fiduciary duty fails as a matter of Iaw. See Serra-cruz, No. 1:18-cv-23033-

UU, at 23-4. Accordingly, Count VIII is dismissed with prejudice.

IV. CONCLUSION

For the reasons set fodh above, is ORDERED AND ADJUDGED that

Defendant’s Motion to Dismiss (DE 9) is GRANTED IN PART. The Coud finds Plaintiff’s

allegations in Counts 1, lI, 111, and V are DISMISSED W ITHOUT PREJUDICE, and Counts

Vl, VIl, and VIII are DISMISSED W ITH PREJUDICE under Federal Rule of Civil

6 Doria contends that Royal Caribbean owes a fiduciary duty to its passengers because, by selling and
booking excursions, it acted as a travel agent, thereby adopting the fiduciary duties and liabilities of a travel

agent. (DE 10 at 20). To suppod this contention, Doria cites an Illinois state case, United Airlines, Inc. v.
Lerrler, 87 111. App. 801 (111. App. Ct. 1980). In Lerner, the plaintis sued the airline that sold him his ski
vacation travel package, because he was not warned that avalanches at the destination may cause road
closures which impeded access to his Iodging. /d. The coud found that, although the airline may be
considered a travel agent, it was not Iiable for breaching a fiduciary duty by failing to warn of ”possible
hindrances” to his vacation. Id. at 802. This Coud need not decide whether Royal Caribbean was a travel
agent, but notes that if it were, it would not be Iiable for breaching a fiduciary duty by not disclosing potential
dangers involved with the ATV excursion. In any case, the Court finds that Lerner is neither helpful nor
persuasive in ruling on Royal Caribbean’s Motion to Djsm iss Count VlII.

1 6

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Procedure 12(b)(6). Plaintiffs shall file an amended complaint within 21 days of the date

of this order.

/)- i–‘–‘d a y o f J u n e , 2 0 1 9 .DONE AND ORDERED in Chambers in Miami, Florida, this

KATHLE M. W ILLIAMS

UNITED S ATES DISTRICT JUDGE

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