Bendlis v. NCL (Banamas), Ltd., Case No. 15–21250–CIV.

• Decision Date: 05 July 2015
• Docket Number: Case No. 15–21250–CIV.
• Citation: 112 F.Supp.3d 1339
• Parties: Karlens BENDLIS, Plaintiff, v. NCL (BANAMAS), LTD., Defendant.
• Court: U.S. District Court — Southern District of Florida

112 F.Supp.3d 1339

Karlens BENDLIS, Plaintiff,

v.NCL (BANAMAS), LTD., Defendant.

Case No. 15–21250–CIV.

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

Signed July 5, 2015.

Filed July 6, 2015.

Luis Alfonso Perez, Luis A Perez PA, Elizabeth Koebel Russo, Russo Appellate Firm, Miami, FL, for Plaintiff.

Darren Wayne Friedman, Jeffrey Eric Foreman, Marcus G. Mahfood, Foreman Friedman, PA, Miami, FL, for Defendant.

ORDER

DONALD L. GRAHAM, District Judge.

THIS CAUSE comes before the Court upon NCL's Motion to Compel Arbitration [D.E. 6], Plaintiff's Motion to Remand [D.E. 7], and Plaintiff's Motion to Stay [D.E. 8].

THE COURT has considered the Motions, the Responses and Replies thereto, pertinent portions of the record, and is otherwise fully advised in the premises. For the reasons stated below, NCL's Motion is GRANTED and Plaintiff's Motions are DENIED.

I. FACTUAL & PROCEDURAL BACKGROUND

Karlens Bendlis ("Plaintiff"), a citizen of Nicaragua, began working as a seaman for Norwegian Cruise Lines ("NCL") on May 17, 2009. [D.E. 1–1]. After Plaintiff completed his assignment on the Norwegian Star on March 11, 2011, he received a new assignment on the Norwegian Sun departing from Copenhagen, Denmark on June 13, 2011. [D.E. 1–1, 1–4]. NCL arranged and paid for Plaintiff's travel to and accommodations in Copenhagen. [D.E. 1]. However, prior to starting his assignment on the Norwegian Sun, Plaintiff suffered an episode of complete mental disorientation and was later admitted to a psychiatric ward. [D.E. 1–1, 1–2]. Plaintiff has since been diagnosed with a brain cyst

. Id.

Plaintiff commenced this action on November 24, 2014 in the Circuit Court of the Eleventh Judicial Circuit in and for MiamiDade County, Florida alleging NCL's liability for: (1) Failure to provide prompt and adequate medical care; (2) Failure to provide maintenance and cure; and (3) Intentional infliction of emotional distress. See Bendlis v. NCL (Bahamas), Ltd., Case No. 14 –CIV–24731, D.E. 1–1 at 2 (S.D.Fla. Dec. 15, 2014); [D.E. 1–2]. NCL removed that action to federal court on the basis that Plaintiff fraudulently pled his Jones Act claim. [D.E. 1–1]. NCL argued that Plaintiff was not an employee because his employment agreement concluded on March 11, 2 011 and he did not sign his new contract or begin his next assignment on the Norwegian Sun. Id. Plaintiff countered by moving to remand to a state forum on the basis that Jones Act claims are non-removable and Defendant did not meet its required burden of proving fraudulent pleading. Id.

In granting Plaintiff's Motion to Remand, Judge Altonaga held that: (1) Plaintiff did qualify as a "seaman" under the Jones Act; and (2) NCL did not meet the high burden of proof necessary to show that establishing a Jones Act claim was not possible. Id. Judge Altonaga did not consider Counts II and III of Plaintiff's Complaint. Id. On remand, Plaintiff filed a Second Amended Complaint re-alleging Counts I (specifying it as a Jones Act claim), II, and III. [D.E. 1–2, 7].

After removing the case to this Court for a second time, NCL now moves to compel arbitration pursuant to the signed arbitration clause in Plaintiff's Employment Agreement and the Collective Bargaining Agreement ("CBA"). [D.E. 1, 1–3, 6]. In turn, Plaintiff moves to remand and challenges NCL's second removal on the basis of a lack of circumstances to establish new and different grounds for removal. [D.E. 7]. Plaintiff also moves to stay this proceeding and argues that the issue of remand should be addressed first and, if denied, that he be given more time to respond to NCL's motion. [D.E. 8]. The Court will address the merits of the parties' Motions below.

II. APPLICABLE LAW & DISCUSSION

Two major issues confront the Court in this case. First, the Court must consider NCL's Motion to Compel Arbitration to determine which court, state or federal, should address Plaintiff's Jones Act claim. Next, the Court must consider Plaintiff's Motion to Remand to determine if jurisdiction exists over his claim.

A. NCL's Motion to Compel Arbitration

In its Motion, NCL asks the Court to compel arbitration pursuant to the clauses contained in the Employment Agreement and the CBA signed by Plaintiff. [D.E. 6]. NCL claims Plaintiff "agreed in writing that any claims, grievances, and disputes of any kind whatsoever ‘relating to or in any way connected with the Seaman's shipboard employment with Company’ shall be resolved exclusively by binding arbitration" pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention"). Id. In response, Plaintiff contends that no written agreement presently exists between the parties and no written agreement existed at the time of his mental disorientation because the prior Employment Agreement expired on March 11, 2011. [D.E. 10].

Essentially, NCL argues that the prior expired Employment Agreement does not necessarily terminate the arbitration clause contained therein. [D.E. 6]. Rather, NCL maintains that the Court should interpret the arbitration clause broadly to survive expiration of the contract. Id. Moreover, NCL argues that a dispute arising from an employer-employee relationship such as the Employment Agreement and CBA justifies survival of the arbitration clause. Id.

Accordingly, arbitration agreements are governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 3 (the "Convention"), codified at 9 U.S.C. §§ 202 –208 (2002). An arbitration agreement "confers federal subject[-]matter jurisdiction upon a district court because such a case is ‘deemed to arise under the laws and treaties of the United States.’ " Bautista v. Star Cruises, 396 F.3d 1289, 1294 (11th Cir.2005) (quoting 9 U.S.C. § 203 ). The Convention applies if four jurisdictional prerequisites are met:

(1) There is an agreement in writing ...; (2) the agreement provides for arbitration in the territory of a signatory of the Convention; (3) the agreement arises out of a legal relationship, whether contractual or not, which is considered commercial; and (4) a party to the agreement is not an American citizen.

Id. at 1294 n. 7. The Court is required to compel arbitration under the Convention when: (1) the four jurisdictional prerequisites are met, and (2) none of the Convention's affirmative defenses apply. Id. at 1294–95. An affirmative defense is defined as "a defense which ‘admits the essential facts of a complaint and sets up other facts in justification or avoidance.’ " Losada v. Norwegian (Bahamas) Ltd., 296 F.R.D. 688, 690 (S.D.Fla.2013) ; see also Katz v. Chevaldina, 2013 WL 2147156, at *1 (S.D.Fla. May 15, 2013) (holding that an affirmative defense is "one that admits to the complaint, but avoids liability, wholly or partly, by new allegations of excuse, justification or other negating matter"). The Convention limits such defenses to agreements that are "null and void, inoperative or incapable of being performed." Bautista, 396 F.3d at 1294–95, 1296 n. 9, 1301 (citing Convention, art. II, § 3).

Moreover, the Court applies a strong presumption in favor of enforcement of arbitration. Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257, 1269, 1275 (11th Cir.2011). However, "courts are not to twist the language of the contract to achieve a result which is favored by federal policy but contrary to the intent of the parties." Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1214 (11th Cir.2011) (quoting Goldberg v. Bear, Stearns & Co., 912 F.2d 1418, 1419–20 (11th Cir.1990) ). A claim arising under United States statutory law, such as a Jones Act claim, is arbitrable. Lindo, 652 F.3d at 1269, 1275–76 ; Bautista, 396 F.3d at 1303 (stating that the Convention precludes exemption for seamen's employment agreements).

Here, the four jurisdictional prerequisites are met based upon the facts and documents presented by NCL at the time of removal. See Pintando v. Miami–Dade Housing Agency, 501 F.3d 1241, 1243 n. 2 (11th Cir.2007). The Employment Agreement signed by Plaintiff on August 28, 2010 contains a written arbitration clause titled "12. ARBITRATION," which states in pertinent part:

Seaman agrees, on his own behalf ... that any and all claims, grievances, and disputes of any kind whatsoever relating to or in any way connected with the Seaman's shipboard employment with Company including, but not limited to, claims such as personal injuries, Jones Act claims, actions for maintenance and cure, unseaworthiness, wages, or otherwise, no matter how described, pleaded or styled, ... shall be referred to and resolved exclusively by binding arbitration pursuant to [the Convention].

[D.E. 1–4] (emphasis added). Additionally, the Employment Agreement incorporates by reference the CBA, which, under Article 8, Section 7, provides in relevant part:

(a) The NSU [Norwegian Seafarers' Union], Seafarer and NCL agree that all claims, grievances, and disputes of any kind whatsoever relating to or in any way connected with the Seafarer's shipboard employment with NCL including, but not limited to, claims such as personal injuries, Jones Act claims, actions for maintenance and cure, unseaworthiness, or otherwise, no matter how described, pleaded or styled, shall be referred to and resolved exclusively by binding arbitration pursuant to the ... [the Convention].

[D.E. 1–5] (emphasis added). Together, these two documents satisfy the first jurisdictional prerequisite of the Convention because they are agreements in writing. See [D.E. 1–4, 1–5]; Pysarenko v. Carnival Corp., 2014 WL 1745048, at *2 (S.D.Fla. April 30, 2014), aff'd, 581 Fed.Appx. 844 (11th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 2378, 192 L.Ed.2d 164 (2015) (finding the written agreement to meet the first jurisdictional element of the Convention's prerequisites).

Furthermore, the second jurisdictional prerequisite is provided for in the Employment Agreement, which states that "[t]he place of the arbitration shall be the...