Gary v. D. AGUSTINI & ASOCIADOS, SA

• Decision Date: 07 October 1994
• Docket Number: No. 94-0325-CIV.,94-0325-CIV.
• Citation: 865 F. Supp. 818
• Parties: Carlos GARY, Plaintiff, v. D. AGUSTINI & ASOCIADOS, S.A., Hallmark Cruise Services, Inc., Stellar Cruise Services, Ltd., and Stellar Maritime Services, Inc., Defendants.
• Court: U.S. District Court — Southern District of Florida

865 F. Supp. 818

Carlos GARY, Plaintiff, v. D. AGUSTINI & ASOCIADOS, S.A., Hallmark Cruise Services, Inc., Stellar Cruise Services, Ltd., and Stellar Maritime Services, Inc., Defendants.

No. 94-0325-CIV.

United States District Court, S.D. Florida.

October 7, 1994.

COPYRIGHT MATERIAL OMITTED

Sharon L. Wolfe, Charles R. Lipcon, Miami, FL, for plaintiff.

Peter W. Homer, Lorelei J. Van Wey, Greer, Homer & Bonner, P.A., Miami, FL, for D. Agustini & Asociados, S.A.

George O. Mitchell, Bruce R. Marx, Mitchell, McAlpin & Associates, P.A., Miami, FL, for Hallmark Cruise Services, Inc. and Stellar Cruise Services, Ltd.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS

HIGHSMITH, District Judge.

THIS CAUSE came before the Court upon the following motions:

(1) Defendant D. Agustini & Asociados, S.A.'s ("Agustini") motion to dismiss amended complaint;

(2) Agustini's request for oral argument on its motion to dismiss;

(3) Plaintiff Carlos Gary's joinder in the request for oral argument filed by Agustini; and

(4) Defendants Stellar Cruise Services, Ltd. ("Stellar") and Hallmark Cruise Services, Inc.'s ("Hallmark") motion to dismiss the amended complaint, or in the alternative, for a more definite statement.

For the reasons stated below, the Court grants in part the defendants' motions to dismiss the amended complaint. The remaining motions are denied as moot.

PROCEDURAL AND FACTUAL BACKGROUND

On June 4, 1994, Plaintiff Carlos Gary filed an amended seaman's class action complaint, invoking this Court's admiralty and maritime jurisdiction. Gary asserts that he is a seaman within the meaning of 28 U.S.C. § 1916, which entitles a seaman to commence an action in federal court without prepayment of costs. According to Gary, the defendants are maritime employers engaged in the business of supplying crew members, such as himself, to passenger vessels that sail in the United States and international waters.

As the basis for this class action suit, Gary alleges that he was required to pay an illegal fee of $450 to one or more of the defendants for an employment letter, prior to obtaining a position as utility man aboard the cruise ship Regent Rainbow. The amended complaint states that the Regent Rainbow sails out of Tampa, Florida, but provides no indication of its registry. Moreover, Gary does not state where he made the allegedly illegal payment of $450 to the defendants. The amended complaint refers to the employment letter Gary claims to have obtained in exchange for the $450 payment as Exhibit # 1. A review of the record reveals, however, that Gary failed to attach any exhibits to his pleading.

According to Gary, all of the potential class members, which he estimates to number 2,500, have been required to pay similarly illegal fees to one or more of the defendants in exchange for employment letters, prior to obtaining positions as crew members on passenger ships. Gary does not specify whether the potential class members sought work on the Regent Rainbow, or on other, unnamed, passenger ships, nor where those allegedly illegal payments were made.

Gary's amended complaint is in four counts: Count I alleges violations of 46 U.S.C. § 10314; Count II alleges conspiracy to violate 46 U.S.C. § 10314; Count IV is a claim for common law conversion; and Count V is a claim for unjust enrichment.¹ Defendant Agustini seeks dismissal of the amended complaint on the following grounds: failure to state a claim upon which relief can be granted as to all four counts, pursuant to Fed.R.Civ.P. 12(b)(6); insufficiency of service of process, pursuant to Fed.R.Civ.P. 12(b)(5); and lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2). Defendants Stellar and Hallmark have moved for dismissal of the amended complaint on the following grounds: failure to state a claim upon which relief can be granted as to all four counts, and as to the prayers for punitive damages and attorney's fees, pursuant to Fed.R.Civ.P. 12(b)(6); and insufficiency of process and/or insufficiency of service of process as to Stellar, pursuant to Fed.R.Civ.P. 12(b)(4) and (5).² In addition, all three defendants challenge the sufficiency of Gary's pleading as a class action complaint, within the meaning of Fed.R.Civ.P. 23. Stellar and Hallmark also move, in the alternative, for a more definite statement of the allegations contained in the amended complaint. The parties have requested that the Court first address the threshold issue of whether Gary has a private right of action under 46 U.S.C. § 10314(b), upon whose alleged violation Gary predicates this class action suit.

PRIVATE CAUSE OF ACTION ANALYSIS FOR SECTION 10314(b)

Title 46, United States Code, Section 10314 provides, in pertinent part:

(a)(1) A person may not—

(A) pay a seaman wages in advance of the time when the seaman has earned the wages;

(B) pay advance wages of the seaman to another person; or

(C) make to another person an order, note, or other evidence of indebtedness of the wages, or pay another person, for the engagement of seamen when payment is deducted or to be deducted from the seaman's wage.

(2) a person violating this subsection is liable to the United States Government for a civil penalty of not more than $500. A payment made in violation of this subsection does not relieve the vessel or the master from the duty to pay all wages after they have been earned.

(b) A person demanding or receiving from a seaman or an individual seeking employment as a seaman, remuneration for providing the seaman or individual with employment, is liable to the Government for a civil penalty of not more than $500.

(c) This section applies to a foreign vessel when in waters of the United States. An owner, charterer, managing operator, agent, or master of a foreign vessel violating this section is liable to the Government for the same penalty as an owner, charterer, managing operator, agent, or master of a vessel of the United States for the same violation.

46 U.S.C.A. § 10314 (West Pamphlet 1994).

Gary alleges that the defendants have violated section 10314(b) by charging him a fee in order to receive an employment letter. Section 10314(b) imposes a civil penalty on persons engaging in such conduct, but does not explicitly provide a remedy to the seaman who pays the illegal fee. In his response to the defendants' motions to dismiss, Gary acknowledges that section 10314(b)'s statutory language does not expressly provide seamen with a private right of action. Gary argues, however, that an implied right of action exists. In Gary's words, "Quite simply, this is a very common sense cause of action: it is illegal for shipowners to take pay-off money from unwitting seamen who need jobs; those seaman (sic) should be entitled to their money back." (Plaintiffs Consolidated Memorandum in Opposition to Defendants' Motions to Dismiss Amended Complaint, at 4).

The task of implying a private cause of action from the violation of a federal statute, however, is not as simplistic as Gary advocates with his "common sense" approach. In Cort v. Ash, the United States Supreme Court articulated the following four factors that courts should take into account when carrying out this task:

In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted" —that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975) (citations omitted).

In opinions following the Cort decision, the Supreme Court has converted the congressional intent factor "into the determinative factor, with the other three merely indicative of its presence or absence." Thompson v. Thompson, 484 U.S. 174, 189, 108 S.Ct. 513, 521, 98 L.Ed.2d 512 (1988) (Scalia, J., concurring in the judgment). Although not as forcefully as Justice Scalia's concurrence, the Thompson majority opinion authored by Justice Marshall also recognizes the preeminence of congressional intent analysis when, acknowledging the guiding role of the Cort factors, it states, "In determining whether to infer a private cause of action from a federal statute, our focal point is Congress' intent in enacting the statute." Thompson, 484 U.S. at 179, 108 S.Ct. at 516. Three years after the Thompson decision, the Supreme Court again stressed the primacy of congressional intent analysis, declaring that, "Recognition of any private right of action for violating a federal statute must ultimately rest on congressional intent to provide a private remedy." Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1101, 111 S.Ct. 2749, 2763, 115 L.Ed.2d 929 (1991) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2488, 61 L.Ed.2d 82 (1979)). In light of these developments, the Court's analysis shall focus on discerning congressional intent.

In ascertaining congressional intent to provide a private remedy, a court must review "the language or structure of the statute," and "the circumstances of its enactment." Thompson, 484 U.S. at 179, 108 S.Ct. at 516 (citing Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979)). As previously noted, nothing in the statutory language indicates congressional intent to provide a private right of action for violations of section 10314(b). Congress expressly provided a remedy for such violations, however, in the form of...