Farrell v. Royal Caribbean Cruises, Ltd.
| Decision Date | 02 January 2013 |
| Docket Number | Case No. 11–24399–CV. |
| Citation | 917 F.Supp.2d 1248 |
| Court | U.S. District Court — Southern District of Florida |
| Parties | Dorcy A. FARRELL, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Dr. Yusuf Mahomedy, Dr. Maria Forero, and Zinhle Msali, Defendants. |
OPINION TEXT STARTS HERE
Carlos Felipe Llinas Negret, Law Offices of Lipcon, Margulies & Alsina P.A., Miami, FL, Jason Robert Margulies, Lipcon Margulies, Alsina & Winkleman, P.A., Miami, FL, for Plaintiff.
Amanda Lesley Jacobs, Royal Caribbean Cruises Ltd., Miami, FL, Jerry Dean Hamilton, Carlos Javier Chardon, Hamilton Miller & Birthisel LLP, Miami, FL, for Defendants.
ORDER GRANTING DEFENDANT DRS. FORERO AND MAHOMEDY'S MOTIONS TO QUASH SERVICE OF PROCESS AND TO DISMISS FOR LACK OF PERSONAL JURISDICTION (D.E. 51, 52), DENYING PLAINTIFF'S MOTIONS TO STAY RULING PENDING JURISDICTIONAL DISCOVERY (D.E. 61, 62), AND DENYING AS MOOT DEFENDANT DRS. FORERO AND MAHOMEDY'S MOTIONS FOR PROTECTIVE ORDERS TO STAY DISCOVERY (D.E. 78, 79)
THIS CAUSE is before the Court on Defendant Drs. Maria Forero and Yusuf Mahomedy's Motions to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction (D.E. 51, 52), filed August 24, 2012. On September 10, 2012, Plaintiff Dorcy A. Farrell filed Responses in Opposition (D.E. 61, 62, 63, 64), which included Motions to Stay Ruling on Defendants' Motions to Dismiss Pending 90 Days of Jurisdictional Discovery (D.E. 61, 62). Drs. Forero and Mahomedy filed Responses/Replies (D.E. 70, 72, 73, 75) on September 27, 2012.
Also before the Court are Drs. Forero and Mahomedy's Motions for Protective Orders to Stay Discovery (D.E. 78, 79), filed October 11, 2012. Plaintiff filed a consolidated Response in Opposition (D.E. 85) on November 8, 2012. Drs. Forero and Mahomedy filed Replies (D.E. 88, 89) on November 19, 2012.
Having considered the referenced filings and the record, the Court finds as follows.
In December 2010, Plaintiff was a passenger aboard the Royal Caribbean cruise ship, “Jewel of the Seas.” (Amended Complaint, D.E. 20 ¶ 14.)
On December 22, 2010, Plaintiff's ship docked in Georgetown, Grand Cayman. ( Id. ¶ 16.) Plaintiff went ashore and fell down some steps while walking adjacent to the port. ( Id.) She sustained injuries to her ankle and head. ( Id.) Plaintiff was brought back aboard the ship to receive medical attention. ( Id.)
The ship's medical personnel included Defendants Dr. Mahomedy, Dr. Forero, and Nurse Zinhle Msali. ( See id.) Dr. Mahomedy is a citizen and resident of South Africa. (Mahomedy Motion to Quash and Dismiss, D.E. 52 ¶ 5.) Dr. Forero is a citizen and resident of Columbia. (Forero Motion to Quash and Dismiss, D.E. 51 ¶ 5.)
Defendants x-rayed Plaintiff's ankle and diagnosed her with a sprain. (Amended Complaint, D.E. 20 ¶ 16.) They provided her with an elastic sock and ibuprofen. ( Id.)
Plaintiff ultimately left the ship and sought treatment onshore. ( Id.) She was later diagnosed with a severe ankle fracture and required immediate surgery. ( Id.) She also required removal of a hematoma resulting from her head injury. ( Id.)
Plaintiff subsequently filed this action against Dr. Mahomedy, Dr. Forero, Nurse Msali, and Royal Caribbean. ( See id. at 1.) Plaintiff alleges that the individual Defendants committed medical malpractice in failing to properly diagnose and treat her injuries. ( Id. at 20–23.) Plaintiff further alleges that Royal Caribbean was independently negligent in its failure, among other things, to provide adequate medical care ( id. at 5–8) or that it was jointly, vicariously, and/or contractually liable for the actions of the Defendant medical personnel ( id. at 8–20). Plaintiff asserts her causes of action under United States general maritime law and Florida state law. (
Plaintiffs Amended Complaint contains the following relevant jurisdictional allegations:
2.... Defendant, DR. YUSUF MAHOMEDY, is believed to be a citizen and resident of a country other than the United States of America. Upon information and belief, Defendants, DR. MARIA FORERO and ZINHLE MSALI, are believed to be residents of countries other than the United States of America.
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5. Defendants are subject to the jurisdiction of the Courts of this State.
6. Defendants, DR. YUSUF MAHOMEDY, DR. MARIA FORERO and ZINHLE MSALI, are believed to be non-residents of the State of Florida who provided in whole or in part medical care to Plaintiff, DORCY FARRELL, both inside and outside Florida state territorial waters aboard the Jewel of the Seas.
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10. At all times material hereto, Defendants, DR. YUSUF MAHOMEDY and DR. MARIA FORERO, were the ship's doctors working in the vessel's medical facility, with the intent of providing medical care to passengers, including DORCY FARRELL. Defendant, ZINHLE MSALI, was the ship's nurse working in the vessel's medical facility, with the intent of providing medical care to passengers, including DORCY FARRELL.
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13. At all times material hereto, ROYAL CARIBBEAN agreed to provide indemnity insurance coverage for Defendants, DR. YUSUF MAHOMEDY, DR. MARIA FORERO and ZINHLE MSALI, regarding the claims asserted in this action. Plaintiff is, and continues to be a third party beneficiary to that indemnification agreement. Further, these agreements subjected Defendants, DR. YUSUF MAHOMEDY, DR. MARIA FORERO and ZINHLE MSALI, to the jurisdiction of this Court.
(
Plaintiff served Drs. Forero and Mahomedy by substituted service on Florida's Secretary of State. (Forero Motion to Quash/Dismiss, D.E. 51 ¶ 7; Mahomedy Motion to Quash/Dismiss, D.E. 52 ¶ 7.)
The undisputed evidence now reveals that all medical treatment at issue in this case was rendered outside Florida territorial waters. ( See Forero Motion to Quash/Dismiss, D.E. 51 ¶ 4; Mahomedy Motion to Quash/Dismiss, D.E. 52 ¶ 4.)
Defendant Drs. Mahomedy and Forero move to quash service of process and to dismiss the Plaintiff's Complaint for lack of personal jurisdiction. ( See D.E. 51 at 1;D.E. 52 at 1.) Defendants first maintain that Plaintiff has failed to effectuate service in accordance with Florida law. ( See D.E. 51 at 3–12; D.E. 52 at 3–11.) Defendants further argue that Plaintiff's Complaint fails to establish personal jurisdiction over them. ( See D.E. 51 at 12; D.E. 52 at 11.) Defendants argue that because Plaintiff served them using substituted service on the Secretary of State, Plaintiff was required—yet has failed—to plead or otherwise establish that Defendants engaged in business within Florida and that their business operations gave rise to the present action. ( See D.E. 51 at 1315; D.E. 52 at 12–14.) In connection with their Motions to Dismiss, Defendants have submitted evidence that all medical treatment provided by Defendants to Plaintiff occurred outside of the State of Florida and its territorial waters. ( See D.E. 51 ¶ 4; D.E. 52 ¶ 4.) Defendants have also submitted declarations that (a) they have never contracted to insure any person, property, or risk located within Florida at any time; (b) they do not know and have never operated, conducted, engaged in, or carried on a business venture in Florida; (c) they each have or had only one bank account in Florida; and (d) they have never been engaged in any substantial activity within Florida or anywhere in the United States. ( See Forero Decl. D.E. 51–1 ¶¶ 8, 9, 15, 16; Mahomedy Decl., D.E. 52–1 ¶¶ 8, 10, 15, 16.)
Plaintiff responds, in relevant part, that Defendants' Motions and accompanying declarations contain factual assertions which Plaintiff cannot address without the benefit of jurisdictional discovery. ( See D.E. 61 at 4; D.E. 62 at 4.) Plaintiff argues that without discovery, she is unable to respond specifically to the four assertions enumerated above. ( See D.E. 61 at 5; D.E. 62 at 5.) Plaintiff thus moves to stay ruling on Defendants' Motions pending ninety days of jurisdictional discovery. ( See D.E. 61 at 8; D.E. 62 at 8.) Plaintiff does not dispute that all medical care at issue occurred outside Florida and its territorial waters. ( See D.E. 61 at 5; D.E. 62 at 5.)
Defendants respond that jurisdictional discovery should be denied, as Plaintiff provides no explanation of what discovery will demonstrate. ( See D.E. 70 at 5–6; D.E. 73 at 5–6.) In addition, as Plaintiff has propounded jurisdictional discovery requests on Defendants, Defendants move for protective orders quashing Plaintiff's requests. ( See D.E. 78 at 1; D.E. 79 at 1.)
A party may move for dismissal under Rule 12(b)(2) for lack of personal jurisdiction. Fed.R.Civ.P. 12(b)(2). The procedure for establishing and challenging personal jurisdiction is as follows:
First, the plaintiff must allege sufficient facts in his complaint to initially support long arm jurisdiction before the burden shifts to the defendant to make a prima facie showing of the inapplicability of the statute. If the defendant sustains this burden, the plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint.
Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000) (quoting Prentice v. Prentice Colour, Inc., 779 F.Supp. 578, 583 (M.D.Fla.1991)). Allegations in the complaint are accepted as true to the extent they are uncontroverted by defendant's non-conclusory affidavits or deposition testimony. Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir.1988). Where there is conflict between the parties' affidavits and deposition testimony, all reasonable inferences are drawn in favor of the plaintiff. Id.
Plaintiffs have a qualified “right” to jurisdictional discovery when a court's jurisdiction is genuinely in dispute. Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 730 n. 7 (11th Cir.1982). A “jurisdictional question is genuinely in dispute [when] the court cannot resolve the...
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