Adams v. Carnival Corp.

• Decision Date: 31 August 2020
• Docket Number: Case No. 19-24578-CIV-WILLIAMS
• Citation: 482 F.Supp.3d 1256
• Court: U.S. District Court — Southern District of Florida
• Parties: Laurence ADAMS, Plaintiff, v. CARNIVAL CORP., et al., Defendants.

482 F.Supp.3d 1256

Laurence ADAMS, Plaintiff,

v.CARNIVAL CORP., et al., Defendants.

Case No. 19-24578-CIV-WILLIAMS

United States District Court, S.D. Florida.

Signed August 31, 2020

ORDER

KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Magistrate Judge Edwin G. Torres's Report and Recommendation ("Report") on Defendants’ Motions to Dismiss (DE 28, 35). (DE 43).

Upon an independent review of the Report (DE 43), Defendants’ Objections (DE 51, 53), Plaintiff's Response (DE 54), Defendants’ Replies (DE 57, 58), the record, and applicable case law, it is ORDERED AND ADJUDGED that the conclusions in the Report are AFFIRMED AND ADOPTED .

1. Carnival's Motion to Dismiss Counts I and II against it is DENIED ;

2. RF Adventure's Motion to Dismiss Count I against it is GRANTED ;

3. Carnival's Motion to Dismiss Counts III, IV, and V is DENIED ;

4. Carnival's Motion to Dismiss Count VII against it is DENIED ;

5. RF Adventure's Motion to Dismiss Count VII against it is GRANTED ;

6. Defendants’ Motions to Dismiss Count VIII is DENIED ; and

7. Defendants’ Motion to Dismiss Count IX is GRANTED .

Plaintiff shall file an amended complaint within 21 days of the date of this Order.

DONE AND ORDERED in Chambers in Miami, Florida, this 31st day of August, 2020.

REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTIONS TO DISMISS

EDWIN G. TORRES, United States Magistrate Judge

This matter is before the Court on Carnival Corporation and Carnival PLC's (collectively, "Carnival") motion to dismiss [D.E. 28] and RF Adventure St. Maarten NV's ("RF Adventure," and together with Carnival, "Defendants") motion to dismiss [D.E. 35] Laurence Adam's ("Plaintiff") amended complaint. Plaintiff responded to Carnival's motion on January 13, 2020 [D.E. 31] and RF Adventure's motion on February 26, 2020 [37] to which Carnival replied on January 27, 2020 [D.E. 34] and RF Adventure replied on March 4, 2020. [D.E. 39]. The Honorable Judge Kathleen M. Williams referred both motions to the undersigned on February 18, 2020. [D.E. 36]. The matter is now fully briefed and ripe for disposition. After careful consideration of the motions, responses, replies, relevant authority, and for the reasons discussed below, Carnival's motion to dismiss should be GRANTED in part and DENIED in part and RF Adventure's motion to dismiss should be GRANTED in part and DENIED in part . To the extent the pleading deficiencies identified herein are subject to cure, Plaintiff should be given leave to file a second amended complaint.

I. FACTUAL BACKGROUND

This action arises from injuries Plaintiff allegedly sustained while zip-lining in St. Maarten on November 14, 2018. At the time, Plaintiff was on cruise operated by Carnival. The zip-lining accident occurred while Plaintiff was participating in a shore excursion at the Rockland Estate eco-park, which was sold through Carnival. While zip-lining, Plaintiff alleges he was injured when the brakes failed, which caused Plaintiff's head to hit the zip-lining equipment. Plaintiff submits that before he zip-lined, RF Adventure staff failed to provide him with a helmet and adequate safety directions, and the zip-line had malfunctioning brakes and was not properly maintained or inspected.

Plaintiff alleges that he relied on Carnival's representations that it co-owned or co-operated the Rockland Estate eco-park and the excursion before purchasing the shore excursion. He also relied on the representation that the excursion would be "easy," compared to other zip-lining excursions located in the eco-park marketed as "extreme" or "difficult." Such alleged misrepresentations were included in promotional materials made available by Carnival through its website. The amended complaint specifically states that Carnival "co-owned, co-maintained and/or jointly controlled the Rockland Estate eco-park, including but not limited to, the [zip-lining excursion], and Carnival "sponsored, recommended, marketed, sold, co-operated and/or managed" the excursion in a way that mislead passengers into believing that the excursion was actually operated by Carnival.

In fact Carnival and RF Adventure entered into a contract to provide the zip-lining excursion to Carnival's passengers, including Plaintiff. Such contract has a provision that RF Adventure and Carnival are not joint ventures and that the contract is not intended to benefit any third-parties.

Plaintiff filed this lawsuit, alleging the following nine causes of action arising from his injuries: (1) misleading advertising in violation of Florida Statute Section 817.41 against Carnival and RF Adventure; (2) negligent misrepresentation against Carnival; (3) negligent selection and/or retention against Carnival; (4) negligent failure to warn against Carnival; (5) negligence against Carnival; (6) negligence against RF Adventure; (7) negligence against Defendants¹ based on apparent agency or agency by estoppel; (8) negligence against Defendants based on a joint venture between Carnival and RF Adventure; and (9) third-party beneficiary. Defendants move to dismiss all causes of action except Count VI, negligence against RF Adventure.

II. LEGAL STANDARD

In ruling on a defendant's motion to dismiss, a court takes the allegations in the complaint as true and construes the allegations "in the light most favorable to the plaintiff[ ]." Rivell v. Private Health Care Sys., Inc. , 520 F.3d 1308, 1309 (11th Cir. 2008) (citing Hoffman–Pugh v. Ramsey , 312 F.3d 1222, 1225 (11th Cir. 2002) ). "When considering a motion to dismiss, all facts set forth in [a plaintiff's] complaint ‘are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.’ " Grossman v. Nationsbank, N.A. , 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty. , 999 F.2d 1508, 1510 (11th Cir. 1993) ). A motion to dismiss under Rule 12(b)(6) "is granted only when the movant demonstrates that the complaint has failed to include ‘enough facts to state a claim to relief that is plausible on its face.’ " Dusek v. JPMorgan Chase & Co. , 832 F.3d 1243, 1246 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions ...." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and quotations omitted) (alteration in original). "To survive a motion to dismiss, a complaint must contain sufficient factual matter." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint does not suffice "if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 (alteration in original)). Factual content gives a claim facial plausibility. Id. "[A] court's duty to liberally construe a plaintiff's complaint in the face of a motion to dismiss is not the equivalent of a duty to re-write it for [a plaintiff]." Peterson v. Atlanta Hous. Auth. , 998 F.2d 904, 912 (11th Cir. 1993).

Additionally, where a cause of action sounds in fraud, Federal Rule of Civil Procedure 9(b) must be satisfied to the more relaxed standard of Rule 8. See U.S. ex rel. Clausen v. Lab. Corp. of Am., Inc. , 290 F.3d 1301, 1309-10 (11th Cir. 2002) ; Gayou v. Celebrity Cruises, Inc. , 2012 WL 2049431, at *3 (S.D. Fla. June 5, 2012). Rule 9(b) provides that "[i]n allegations of fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake" but that "[m]alice, 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 a plaintiff pleads:

(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) (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1371 (11th Cir. 1997) ).

Further, passenger suits against a cruise line alleging torts are subject to federal maritime law. Keefe v. Bahama Cruise Line, Inc. , 867 F.2d 1318, 1320 (11th Cir. 1989). And Maritime law applies to accidents that allegedly arise at an onshore excursion during a cruise. Aronson v. Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379, 1392 (S.D. Fla. 2014).

III. ANALYSIS

Carnival argues Plaintiff's (1) misleading advertising claims fail the heightened pleading standard of Rule 9(b) and fail to state the elements of a claim under Federal Rule of Civil Procedure 8 ; (2) negligence claims fail to allege enough facts to show that Carnival was on notice of the dangerous condition, (3) apparent agency claim must be dismissed as a matter of law because of a disclaimer on its website that RF Adventure was an independent contractor, (4) joint venture claim fails as a matter of law because of a provision in a contract between RF Adventure and Carnival that states they are not joint venturers, and (5) third party beneficiary claim fails because of a provision in the aforementioned contract that the parties had no intent to benefit third-parties. We address each argument in turn.

A. Counts I, II – Misleading Advertising and Negligent Misrepresentation

Both claims are grounded on identical allegations. Plaintiff claims that Carnival made and disseminated false and misleading advertisements regarding the zip-lining excursion, and RF Adventure contributed to these advertisements. Plaintiff alleges that Carnival made five separate misleading statements in the...