Afkhami v. Carnival Corp.

• Decision Date: 28 January 2004
• Docket Number: No. 02-21957-CIV.,02-21957-CIV.
• Citation: 305 F.Supp.2d 1308
• Parties: Ali M. AFKHAMI, Anahita Afkhami, Farbod Afkhami, Fatemeh Z. Afkhami, Mehran Afkhami, and Shabnaz Taherkhani, Plaintiffs, v. CARNIVAL CORPORATION, d/b/a Carnival Cruise Lines, Defendant.
• Court: U.S. District Court — Southern District of Florida

305 F.Supp.2d 1308

Ali M. AFKHAMI, Anahita Afkhami, Farbod Afkhami, Fatemeh Z. Afkhami, Mehran Afkhami, and Shabnaz Taherkhani, Plaintiffs, v. CARNIVAL CORPORATION, d/b/a Carnival Cruise Lines, Defendant.

No. 02-21957-CIV.

United States District Court, S.D. Florida. Miami Division.

January 28, 2004.

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Jeffrey Daniel Rubinstein, Rubinstein & Associates, Miami, FL, Anthony A. Fatemi, Bethesda, MD, for Ali M. Afkhami, Anahita Afkhami, Farbod Afkhami, Fatemeh Z. Afkhami, Mehran Afkhami, Shabnaz Taherkhani, plaintiffs.

James Scott Bramnick, Carmen Sirkin Johnson, Akerman Senterfitt & Eidson, Miami, FL, for Carnival Corporation dba Carnival Cruise Lines, defendant.

ORDER ON PENDING MOTIONS

ALTONAGA, District Judge.

THIS CAUSE came before the Court upon Defendant, Carnival Corporation, d/b/a Carnival Cruise Lines' Partial Motion to Dismiss and Partial Motion to Strike Plaintiffs' Second Amended Complaint (D.E. 38); Defendant's Motion for Summary Judgment (D.E. 76); and Plaintiffs' Motion for Continuance of Trial (D.E. 100). The Court has reviewed the motions, the response and reply memoranda, the pertinent portions of the record, and applicable law.

I. PROCEDURAL BACKGROUND

In their Second Amended Complaint, Plaintiffs, Ali M. Afkhami ("Ali"), Anahita Afkhami ("Anahita"), Farbod Afkhami ("Farbod"), Fatemeh Z. Afkhami ("Fatemeh"), Mehran Afkhami ("Mehran") and Shabnaz Taherkhani ("Shabnaz") (collectively "Plaintiffs"), seek redress pursuant to 42 U.S.C. § 1981 (§ 1981) (Count I); 42 U.S.C. § 1983 (§ 1983) (Count II); and Title II of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000a et seq. ("Title II") (Count III). Count I alleges that Defendant, Carnival Corporation, d/b/a Carnival Cruise Lines (hereinafter "Carnival"), "violated Plaintiffs' right to make and enforce contracts" as well as "Plaintiffs' rights found in the Constitution or other federal laws," and that Carnival violated these rights "while acting under color of state law .... because Carnival uses the Port of Miami, pursuant to contractual agreements between the Defendant and the Port of Miami." (Second Amended Complaint, ¶¶ 18-19). Count II alleges only that Plaintiffs sue Carnival under § 1983 "because Defendant violated Plaintiffs' civil rights," without more. (Id. ¶ 24). Count III alleges that Carnival violated Title II because "Plaintiffs were denied access to a place of public accommodation, to wit: Defendant's cruise ships, on the basis of racially discriminatory acts by Defendant." (Id. ¶ 30). Plaintiffs seek compensatory damages for emotional distress, mental pain and suffering, mental anguish, and psychological injury, as well as punitive damages under Counts I, II and III.

On November 25, 2002, Carnival filed a Partial Answer and Affirmative Defenses, and a Partial Motion to Dismiss and Partial Motion to Strike the Second Amended Complaint (D.E. 37 & 38). On December 31, 2002, the Court granted Carnival's Partial Motion to Dismiss and Partial Motion to Strike by default based on Plaintiffs' failure to respond to the motion within the time required by the Rules (D.E. 47). On January 9, 2003, Plaintiffs' request for reconsideration of, and to set aside, the December 31, 2002 Order (D.E. 48), was granted. The December 31, 2002 Order was vacated on May 13, 2003 (D.E. 68) thus reinstating Carnival's Partial Motion to Dismiss and Partial Motion to Strike the Second Amended Complaint (D.E. 38), which is now ripe for consideration.

On July 31, 2003, Carnival filed a Motion for Summary Judgment (D.E. 76), and in support, a Statement of Undisputed Material Facts, transcripts of the depositions of the six Plaintiffs, and the declarations of Carnival employees, Pedro Arce, Clarissa Martinez, Robert Beh, Brendan Corrigan, and Christian Gonzalez. In response, Plaintiffs filed a Statement of Disputed Material Facts that identified only the following two issues of fact as "disputed":

1. Contrary to the contentions contained in paragraph 16 of Defendant's Statement of Undisputed Material Facts, no one from Defendant told Plaintiffs they could never sail on Defendant's ships again....

2. Further, paragraph 16 of Defendant's Statement of Undisputed Material Fact [sic], contradicts paragraph 29, as no where else is there a contention that in addition to Ms. Martinez, Christial [sic] Gonzalez also told Plaintiffs on January 6, 2002 that they could never cruise with Defendant ever again.

Plaintiffs also filed the Affidavit of Anahita in response to the Motion for Summary Judgment.

On January 26, 2004, Plaintiffs filed a Motion for Continuance of Trial premised on the pendency of these potentially dispositive motions, to which Defendant agrees.

II. FACTUAL BACKGROUND¹

Carnival operates cruise ships in the Caribbean, Gulf of Mexico, and Pacific Ocean. Plaintiffs had sailed on Carnival cruises on two occasions and had positive experiences. Indeed, they had such positive experiences on Carnival cruises that "because of that we actually wanted to go a third time." (Deposition of Ali M. Afkhami, 8:1-2). Farbod and his wife, Shabnaz, planned a third cruise as part of their honeymoon.

Farbod's family planned to join them on the cruise as part of a family vacation. These family members included Farbod's father, Ali; mother, Fatemeh; brother, Mehran; and sister, Anahita. All of them, with the exception of Shabnaz, are United States citizens and residents of Maryland, and were traveling with United States passports. All are of Iranian national origin and Persian descent, facts that are noted in their passports.

On November 16, 2001, Farbod purchased tickets for his family members through Expedia.com for a January 6, 2002 Carnival cruise on the ship, Victory. The Afkhami family traveled by car from their home in Maryland to Miami for the Carnival cruise. Plaintiffs received their tickets approximately one-to-two weeks prior to their January 6 cruise.

Carnival's ticket contract states at paragraph 4(e): "No Guest is permitted to bring on board the Vessel live animals (other than qualified service animals, with not less than 14 days advance notice given to Carnival)." Paragraph 6 reads:

6. (a) The Guest warrants that he and those traveling with him are physically fit to travel at the time of embarkation and is required to notify Carnival in writing at the time of booking the cruise of any physical disability or medical condition which may require special assistance during the voyage. Failure to do so will release Carnival from any liability for loss, damages, or other compensation arising from or related in any way to such disability or condition. Upon booking the cruise, guests who have special needs are required to contact Carnival's Special Needs Desk (305) 599-2600 (ext. 70025) to discuss the details of their special needs. Carnival reserves the right to require that any Guest, who is not self-sufficient, travel with a companion who shall take responsibility for any assistance needed during the voyage and in case of emergency.

(b) Carnival and the Master each reserves the right to refuse passage, disembark or confine to a stateroom any Guest whose physical or mental condition, or behavior would be considered in the sole opinion of the Captain and/or the ship's physician to constitute a risk to the Guest's own well-being or that of any other Guest or crew member.... Carnival and the Master reserve the right to disembark any guest whose behavior affects the comfort, enjoyment, safety or well being [sic] of other guests or of any crew.

By signing their boarding passes, Plaintiffs indicated that they received, read and agreed to the terms and conditions of the ticket contracts.

On January 6, 2002, Plaintiffs had tickets in their immediate possession for boarding purposes, had all other pertinent documentation, and arrived at the appropriate boarding time. After showing passports that noted their national origin, Plaintiffs cleared security with their baggage, and boarded the Victory, owned and operated by Carnival, then lying by Carnival's dock in Miami, Florida. The time of departure of the ship was advertised as 4:00 p.m. on January 6, 2002.

Notwithstanding the terms and conditions of their tickets, Plaintiffs boarded the Victory with a small wooden container of fifty to sixty live bees. Plaintiffs did not seek permission from Carnival prior to carrying the bees aboard the Victory nor die they advise Carnival that the bees were in their possession when they passed through security, or upon boarding. The container of bees was not discovered until after the Plaintiffs had boarded the Victory. The container was found in one of the three cabins booked by the Afkhamis. A warning on the container of bees cautioned, "[a]llergic reactions to honey bee stings can cause death. Use at your own risk." Plaintiffs had not read the terms and conditions of their ticket contracts prior to boarding the Victory on January 6, 2002, and therefore, they did not know that bringing the bees would violate their ticket contracts with Carnival.

Once on board the Victory, Plaintiffs broke up into separate groups. Approximately one hour after they boarded, Plaintiffs were called via the intercom system to the Plaintiffs' guest room where the bees had been discovered. Carnival's security staff responded as well as the Ship's agent on duty that day, Christian Gonzalez. Representatives of several federal agencies, including U.S. Customs ("Customs") and the Immigration and Naturalization Service ("INS"), were already on the ship investigating an unrelated incident. They also responded to the scene. Customs checked the Plaintiffs' luggage and INS checked their passports.

It is part of the Ship Agent's job to deal with any passenger problems and make sure the vessel sails as scheduled. The Victory was being significantly delayed in its departure because of the investigation involving the Afkhamis and the unrelated...