Ceithaml v. Celebrity Cruises, Inc.

• Decision Date: 14 September 2016
• Docket Number: Case No. 15-24139-CIV-WILLIAMS
• Citation: 207 F.Supp.3d 1345
• Parties: Jennifer CEITHAML, Plaintiff, v. CELEBRITY CRUISES, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

207 F.Supp.3d 1345

Jennifer CEITHAML, Plaintiff,

v.CELEBRITY CRUISES, INC., Defendant.

Case No. 15-24139-CIV-WILLIAMS

United States District Court, S.D. Florida.

Signed September 14, 2016

Entered September 15, 2016

John H. Hickey, Esq., for Plaintiff.

Carlos J. Chardon and Samantha Loveland of Hamilton, Miller & Birthisel, LLP, for Defendant.

ORDER

KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Defendant Celebrity Cruises, Inc.'s ("Celebrity"') motion to dismiss Plaintiff Jennifer Ceithaml's Complaint. (DE 9; Response DE 11; Reply DE 16). Ceithaml sues Celebrity for injuries she sustained while zip-lining during a shore excursion in Dominica. For the reasons below, Celebrity's motion to dismiss (DE 9) is GRANTED.

I. BACKGROUND¹

Ceithaml was a cruise passenger aboard the Celebrity Summit on December 9, 2014 when she purchased from Celebrity a "zip-line excursion ride" in Dominica run by Wacky Rollers Adventure Vacations and Expeditions, Ltd. ("WRAVE"). (DE 1 ¶ 11). She rode the WRAVE zip-line that same day and suffered a compound fracture of her left ankle when she continued past the ride's landing platform and struck a tree. (DE 1 ¶¶ 38, 49).

Ceithaml claims that when she purchased the ride, she was relying on Celebrity's representations that the ride was safe. (DE 1 ¶ 21). These representations included Celebrity's statement on its website, and by personnel at the Summits onboard "excursion desk," that all Celebrity excursions "are planned by insured partners who adhere to the highest safety standards in the industry." (DE 1 ¶¶ 12a, 12j, 15, 16, 18, 20, 21). Ceithaml alleges that Celebrity also implicitly vouches for the safety of its excursions because it offers, promotes, markets, and otherwise organizes and sells tickets for the excursions (DE 1 ¶¶ 12b-12g, 23, 24); "arranges for transportation" to the excursion site (DE 1 ¶ 12h); makes excursions "part and parcel" of the cruise vacation experience by providing passengers with literature (DE 1 ¶ 14); uses its logo to market the excursions (DE 1 ¶ 18); selects its excursion operators (DE 1 ¶ 22); has a joint venture and agency relationship with WRAVE (DE 1 ¶¶ 12i, 19, 36, 37); and "receives a substantial amount of income from the sale" of excursions and "in fact splits the excursion revenue with the owner of the excursion" (DE 1 ¶ 25).

Despite these representations, however, Ceithaml claims that the WRAVE zip-line ride was deficient in a number of ways: (1) it had no braking system or emergency brake (DE 1 ¶¶ 30, 31); (2) the landing platform at the end of the ride was "too small for the rider to have adequate space for a landing" (DE 1 ¶ 29); (3) WRAVE failed to train either riders or its employees operating the zip-line (DE 1 ¶ 32-34); and (4) the WRAVE employee assigned to catch her at the zip-line's endpoint was not paying attention (DE 1 ¶ 38). Ceithaml states that these and other deficiencies listed in the Complaint² brought the ride well below industry safety standards (DE 1 ¶ 28) and were the proximate cause of her injuries (DE 1 ¶ 38).

Seeking redress for her injuries, Ceithaml filed this lawsuit on November 5, 2015 alleging five putative causes of action against Celebrity: (1) direct negligence in choosing and monitoring WRAVE; (2) negligent misrepresentation in its literature, in onboard media, and on its website regarding the safety and quality of the WRAVE zip-line ride; (3) vicarious liability resulting from the negligence of its joint venture partner WRAVE; (4) vicarious liability resulting from the negligence of its apparent agent WRAVE; and (5) vicarious liability resulting from the negligence of its actual agent WRAVE. On December 9, 2015, Celebrity moved to dismiss all counts for failure to state a claim.

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is "plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The purpose of this requirement is "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. The Court's consideration is limited to the allegations presented. See GSW, Inc. v. Long Cty. , 999 F.2d 1508, 1510 (11th Cir.1993). All factual allegations are accepted as true and all reasonable inferences are drawn in the plaintiff's favor. See Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention , 623 F.3d 1371, 1379 (11th Cir.2010) ; see also Roberts v. Fla. Power & Light Co. , 146 F.3d 1305, 1307 (11th Cir.1998). Nevertheless, while a plaintiff need not provide "detailed factual allegations," the allegations must consist of more than "a formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and quotations omitted). "Additionally, ‘conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.’ " U.S. ex rel. Keeler v. Eisai, Inc. , 568 Fed.Appx. 783, 792–93 (11th Cir.2014) (quoting Davila v. Delta Air Lines , Inc. , 326 F.3d 1183, 1185 (11th Cir.2003) ). The "[f]actual allegations must be enough to raise a right of relief above the speculative level." Watts v. Fla. Int'l Univ. , 495 F.3d 1289, 1295 (11th Cir.2007) (quoting Twombly , 550 U.S. at 545, 127 S.Ct. 1955 ).

In addition to the requirements of Twombly, Iqbal , and Federal Rules of Civil Procedure 8(a) and 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. rel. Clausen v. Lab. Corp. of Am., Inc. , 290 F.3d 1301, 1309–10 (11th Cir.2002) ; Gayou v. Celebrity Cruises, Inc. , No. 11–23359–CIV, 2012 WL 2049431, at *3 (S.D.Fla. June 5, 2012). That rule 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 condition of mind of a person shall be averred generally." Fed. R. Civ. P. 9(b). Rule 9(b) is satisfied if the 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) ).

III. DISCUSSION

As an initial matter, the Court—like Celebrity—has difficulty discerning which causes of action Ceithaml intends to bring and which facts are relevant to Ceithaml's claims. This confusion is attributable to two features of the Complaint.

First, the Complaint separates multiple theories of negligence into different causes of action based on whether the claim sounds "directly" in Celebrity's negligence (Counts 1 and 2) or "vicariously" in WRAVE's negligence (Counts 3, 4, and 5). Theories of vicarious liability, however, are not independent causes of action; instead, they are theories of liability for other claims. See Barabe v. Apax Partners Europe Managers, Ltd. , 359 Fed.Appx. 82, 84 (11th Cir.2009) (affirming district court's dismissal of "Joint Venture" and "Agency Relationship" counts because these counts "do not plead independent causes of action"); Lewis v. City of St. Petersburg , 260 F.3d 1260, 1262 n. 1 (11th Cir.2001) ("In Florida, a private person would be liable for its agent's acts occurring within the scope and course of the agency relationship, so long as those acts breached a duty of care owed to the plaintiff and that breach caused the plaintiff to suffer damages.") (citing Bennett v. Godfather's Pizza, Inc. , 570 So.2d 1351 (Fla.App.3d Dist.Ct.1990) ); Flaherty v. Royal Caribbean Cruises, Ltd., 15–22295–CIV, 2015 WL 8227674, at *6 (S.D.Fla. Dec. 7, 2015) ("actual and apparent agency are not independent causes of action, but instead theories of liability") (citations omitted).

Second, the Court has difficulty discerning which facts are relevant to Ceithaml's claims because Ceithaml's 42-page Complaint lists—without any factual context—34 breaches of duty in support of the negligence and negligent misrepresentation claims (DE 1 ¶¶ 54, 65) and 28 breaches of duty in support of the three vicarious liability claims (DE 1 ¶¶ 79, 85, 96). What few relevant facts Ceithaml alleges about her injury are insufficiently matched to these shotgun-style recitations, making any meaningful assessment of her claims difficult. If Ceithaml chooses to file an amended complaint, she might heed the counsel of another court of this District reviewing a claim against a cruise line for injuries suffered during a shore excursion:

The Court refuses to go line-by-line and determine which of Carnival's alleged breaches are appropriate and supported by law; rather, the burden will remain on Plaintiff to review her Complaint and ensure that each factual allegation is supported by law and plausible facts, and is alleged in good faith.

Brown v. Carnival Corp. , No. 1:16–CV–21448-UU, 202 F.Supp.3d 1332, 1338, 2016 WL 4613385, at *3 (S.D.Fla. Aug. 15, 2016).

Because of these two overarching pleading issues, Ceithaml has failed to provide Celebrity with fair notice of what her claims are and has failed to provide a "short and plain statement of the claim showing that the pleader is entitled to relief" as the Federal Rules of Civil Procedure require. See Fed. R. Civ. P. 8(a)(2). This is an independent ground for dismissal. Thompson v. Carnival Corp. , No. 1:15–CV–24115–KMM, 174 F.Supp.3d 1327, 1341, 2016 WL...