Carmouche v. Carnival Corp.

• Decision Date: 06 August 2014
• Docket Number: Case No. 13–62584–CV.
• Parties: Tawana CARMOUCHE, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, and Tamborlee Management, Inc., d/b/a Belize Paradise Ltd., Defendants.
• Court: U.S. District Court — Southern District of Florida

36 F.Supp.3d 1335

Tawana CARMOUCHE, Plaintiff

v.CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, and Tamborlee Management, Inc., d/b/a Belize Paradise Ltd., Defendants.

Case No. 13–62584–CV.

United States District Court, S.D. Florida.

Signed Aug. 6, 2014.

Filed Aug. 7, 2014.

David C. Whitmore, Scheuermann & Jones, New Orleans, LA, Alvin Ernest Entin, Entin & Della Fera, Fort Lauderdale, FL, for Plaintiff.

Amanda Jean Sharkey Ross, Gregory R. Elder, Jeffrey Eric Foreman, Noah Daniel Silverman, Foreman Friedman, PA, Miami, FL, for Carnival Corp.

Carlos J. Chardon, Jerry D. Hamilton, Hamilton, Miller & Birthisel, LLP, Miami FL, for Tamborlee Management, Inc.

ORDER GRANTING DEFENDANT TAMBORLEE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

WILLIAM P. DIMITROULEAS, District Judge.

This matter is before the Court upon Defendant Tamborlee Management, Inc. d/b/a Belize Paradise, Ltd. (“Tamborlee”)'s Motion to Dismiss for Lack of Personal Jurisdiction [DE 35], filed herein on June 10, 2014. The Court has reviewed the Motion, responses and replies, all exhibits filed in the record, and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiff commenced the instant action on November 26, 2013. [DE 1]. According to the allegations of the Complaint, this is an action for negligence that arose on a shore excursion which was alleged to have been organized, promoted, advertised, marketed vouched for, and sold by Defendant Carnival Corporation (“Carnival”) for its cruise passengers, including Plaintiff. ¶¶ 6, 10, 13. Defendant, Tamborlee Management, Inc., d/b/a Belize Paradise Limited (“Tamborlee”) operated shore excursions for Carnival passengers in Belize and owned or had control over the facilities where Carnival's passengers were taken, and equipment, including vehicles, utilized by said passengers on such excursion. ¶ 19.

The cruise excursion on which the incident occurred took place in Belize. ¶ 9. On November 29, 2012, while on a Tamborlee shore excursion in Belize, “Plaintiff was riding on a bench in the back of a vehicle provided part of the excursion that had no seatbelts or harnesses when, suddenly and without warning, she was thrown across the vehicle onto a steel bench on the other side of the vehicle, causing her to fracture her ankle in multiple places as well as dislocating it.” ¶ 14.

Plaintiff's Complaint [DE 1] asserts two counts against Defendants, as follows: Count I—Negligence and Other Actions and Inactions of Carnival; and Count II—Negligence and Other Actions and Inactions of Tamborlee.

Defendant Carnival moved to dismiss Plaintiff's Complaint, which Motion the Court granted in part and denied in part on May 15, 2014. See [DE 33]. On May 29, 2014, Carnival filed its Answer and Affirmative Defenses. See [DE 34].

On May 4, 2014, Defendant Tamborlee first moved to dismiss for lack of personal jurisdiction. See [DE 17]. In response, Plaintiff sought to conduct jurisdictional discovery. See [DE 24]. Determining that jurisdictional discovery was warranted, and noting agreement by Tamborlee, the Court granted Plaintiff's request. See [DE 27]. After conducting jurisdictional discovery, Tamborlee renewed its motion, seeking to dismiss the instant action for want of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). See [DE 35].

II. STANDARD OF REVIEW

In analyzing a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), the court must: (1) determine whether the forum state's long arm statute provides a basis for jurisdiction; and (2) determine whether the exercise of jurisdiction comports with due process. Abramson v. Walt Disney Co., 132 Fed.Appx. 273, 275 (11th Cir.2005) (citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990) ). Because the reach of Florida's long arm statute is a question of state law, the court must construe the statute as would the Florida Supreme Court. Id. (citing Madara, 916 F.2d at 1514 ). Moreover, the Eleventh Circuit has noted that the statute should be strictly construed. See Oriental Imports and Exports, Inc. v. Maduro & Curiel's Bank, 701 F.2d 889, 891 (11th Cir.1983) (internal citations omitted).

Typically, where the parties submit evidentiary materials in support of their positions, consideration of those materials would convert the motion to dismiss into one for summary judgment. Steinberg v. A Analyst Ltd.,

2009 WL 806780, at *3 (S.D.Fla. Mar. 26, 2009) (citing Fed.R.Civ.P. 12(b) ). However, where the court has permitted the parties to engage in jurisdictional discovery, consideration of evidence outside the pleadings does not have such effect: “in the context of personal jurisdiction the motion remains one to dismiss even if evidence outside the pleadings is considered.” Id. (citing Bracewell v. Nicholson Air Services, Inc., 748 F.2d 1499, 1501 n. 1 (11th Cir.1984) ).

Absent an evidentiary hearing, the plaintiff bears the initial burden of presenting a prima facie case for personal jurisdiction. Internet Solutions Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir.2009). A plaintiff makes out a prima facie case if she presents sufficient evidence to withstand a motion for directed verdict. Madara, 916 F.2d at 1514 ; Cable/Home Commc'n Corp. v. Network Prod., Inc., 902 F.2d 829, 855 (11th Cir.1990). The court must accept the facts alleged in the plaintiff's complaint as true, to the extent that they are not contradicted by the defendant's affidavits. Cable/Home, 902 F.2d at 855. Once the plaintiff pleads sufficient material facts to form a basis for in personam jurisdiction, the burden shifts to the defendant to challenge plaintiff's allegations by affidavits or other pleadings. Prentice v. Prentice Colour, Inc., 779 F.Supp. 578, 586 (M.D.Fla.1991). If defendant sufficiently challenges plaintiff's assertions through affidavits, documents, or testimony, then the burden shifts back to plaintiff, who must affirmatively support its jurisdictional allegations and may not merely rely upon factual allegations set forth in the complaint. Id.; Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.1996). Where evidence conflicts, the court must construe all reasonable inferences in favor of plaintiff. Cable/Home, 902 F.2d at 855 ; Madara, 916 F.2d at 1514.

III. DISCUSSION

A. Facts relevant to personal jurisdiction analysis

Defendant Tamborlee is a foreign corporation, registered in and existing under the laws of Panama.¹ William Mackenzie (“Mackenzie”), a non-US citizen and a Belize resident, founded the company in 2004 with his friend and business acquaintance, Peter Norquoy (“Norquoy”), a South African national who operated shore excursions in Cozumel, Mexico, and Key West, Florida. See [DE 35] at ¶¶ 14, 15. In 2005, through contacts obtained by Norquoy, Mackenzie was able to procure a contract between Tamborlee and Carnival, wherein Tamborlee agreed to provide shore excursions to Carnival passengers in Belize. See Id. at ¶¶ 16, 18.

The initial contract between Tamborlee and Carnival, dated February 25, 2005, dictates that in the event of litigation, “[Tamborlee] consents to the personal jurisdiction over it and to the venue of the courts serving the Southern District of Florida in the event of any lawsuit to which CARNIVAL is a party and which is related to, in connection with, arising from or involving the Shore Excursion or the terms of this Agreement.” [DE 35–1] at pp. 20–23, ¶ 14(c). Pursuant to the contract, Tamborlee retains exclusive control over the shore excursion. Id. at ¶ 5. Further, the contract classifies Tamborlee an independent contractor, and notes that nothing in the agreement shall be construed as constituting an agency or joint venture relationship. Id. at ¶ 11.

Although Tamborlee is registered in Panama, the contract provides that it maintains a principal place of business at P.O. Box 6446, Key West, FL 33401. [DE 35–1] at p. 20. On June 16, 2005, almost four months after entering into the first shore excursion contract, Mackenzie executed an addendum modifying the contract, specifying the corporation name change to Tamborlee Management, Inc. d/b/a Belize Paradise Ltd. [DE 35–1] at p. 30. No modification to the corporate address was executed. See id. In December 2005, a second contract was executed setting forth the same terms present in the first, notably, the same Key West post office box and consent to personal jurisdiction clause. See [DE 35–1] at pp. 15–18.

Mackenzie attests that the address was placed in the agreement in error, and that Key West post office box has never been associated with Tamborlee, but rather belonged to an unrelated entity owned by or affiliated with Norquoy, with whom Carnival had existing shore excursion contracts.See [DE 35] at ¶¶ 18–23; Mackenzie Supp. Dec. [DE 35–1] at pp. 1–13, ¶¶ 52–55. Tamborlee points to emails sent to Carnival setting forth Tamborlee's Belize and Panama addresses, however, it does not identify in the record any correspondence to Carnival specifically stating that the Key West address in the contracts were erroneous. Although the contracts state that Tamborlee maintains a Key West address, neither Tamborlee nor Belize Paradise is licensed to do business in the State of Florida. See [DE 35] at ¶ 7. Tamborlee has entered into contracts with other cruise lines; no other contract contains the Key West address listed in the contract between Tamborlee and Carnival. See [DE 35] at ¶ 24.

Tamborlee does not directly advertise to its potential customers, but rather, its marketing is conducted entirely by the cruise lines. See [DE 39–2] at 79:5–24. Further, if a customer chooses to participate in a shore excursion, the customer books their reservation and purchases the ticket with the cruise line, not directly with Tamborlee. See [DE 39–2] at 70:15–71:4. Therefore, other than communicating with cruise line employees located in Florida, there is almost no direct contact with the State of Florida with respect to the sale of shore excursions.

Tamborlee maintains insurance...