Kennedy v. Carnival Corp.

Decision Date06 March 2019
Docket NumberCase No. 18-20829-Civ-WILLIAMS/TORRES
CourtU.S. District Court — Southern District of Florida
Parties Kathleen KENNEDY, individually as Personal Representative of the Estate of John Anthony Valantiejust-Riggle, Deceased for and on behalf of the Estate, and the Survivors thereof, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, and Operadora Isla de la Pasion SA DE CV, Defendants.

Jonathan Kyle Findley, Kurt B. Arnold, Adam D. Lewis, Pro Hac Vice, Kala F. Sellers, Pro Hac Vice, Kyle Findley, Pro Hac Vice, Arnold & Itkin LLP, Houston, TX, Thomas B. Scolaro, Thomas D. Graham, Leesfield Scolaro, PA, Miami, FL, for Plaintiff.

Jeffrey Eric Foreman, Noah Daniel Silverman, Foreman Friedman, PA, Carlos Javier Chardon, Hamilton, Miller & Birthisel, LLP, Miami, FL, for Defendants.


EDWIN G. TORRES. United States Magistrate Judge

This matter is before the Court on Carnival Corporation's ("Defendant" or "Carnival") motion to dismiss Kathleen Kennedy's ("Plaintiff") amended complaint. [D.E. 40]. Plaintiff responded on October 9, 2018 [D.E. 48] to which Carnival replied on October 26, 2018. [D.E. 55]. On November 5, 2018, the Court granted Carnival's request to supplement its motion and Plaintiff responded on December 10, 2018 [D.E. 64] to which Carnival replied on January 2, 2019. [D.E. 69]. Therefore, Carnival's motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authority, and for the reasons discussed below, Carnival's motion to dismiss should be GRANTED in part and DENIED in part .1


Plaintiff filed this maritime action on March 5, 2018 [D.E. 1] as the personal representative of the estate of John Anthony Valentiejus-Riggle (the "Decedent"). Plaintiff alleges that, on July 6, 2017, the Decedent was a passenger aboard the Carnival Freedom where he sustained an injury which ultimately led to his death. Plaintiff claims that the Decedent was injured while participating in the Isla Pasion shore excursion in Cozumel, Mexico which was owned and operated by Defendant Operadora Isla de la Pasion (the "Excursion Entity"). Plaintiff's complaint contained five causes of action. On August 7, 2018, Judge Williams adopted the undersigned's Report and Recommendation ("R & R") on Defendant's motion to dismiss. [D.E. 35]. On August 21, 2018, Plaintiff filed an amended complaint with four counts – three of which are aimed at Carnival.2 [D.E. 38].


In ruling on Defendant's motion to dismiss, the Court takes the allegations in the complaint as true and construes the allegations "in the light most favorable to the [P]laintiff[ ]." Rivell v. Private Health Care Systems, Inc. , 520 F.3d 1308, 1309 (11th Cir. 2008) (citing Hoffman–Pugh v. Ramsey , 312 F.3d 1222, 1225 (11th Cir. 2002) ). "When considering a motion to dismiss, all facts set forth in [Plaintiff's] complaint ‘are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.’ " Grossman v. Nationsbank, N.A. , 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty. , 999 F.2d 1508, 1510 (11th Cir. 1993) ). A motion to dismiss under Rule 12(b)(6) "is granted only when the movant demonstrates that the complaint has failed to include ‘enough facts to state a claim to relief that is plausible on its face.’ " Dusek v. JPMorgan Chase & Co. , 832 F.3d 1243, 1246 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions ...." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and quotations omitted) (alteration in original). "To survive a motion to dismiss, a complaint must contain sufficient factual matter." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A complaint does not suffice "if it tenders ‘naked assertion[s] devoid of ‘further factual enhancement.’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ) (alteration in original). Factual content gives a claim facial plausibility. Id. "[A] court's duty to liberally construe a plaintiff's complaint in the face of a motion to dismiss is not the equivalent of a duty to re-write it for [the plaintiff]." Peterson v. Atlanta Hous. Auth. , 998 F.2d 904, 912 (11th Cir. 1993).

A. Plaintiff's Current Capacity to Sue Does not Warrant Dismissal

Defendant argues that Plaintiff lacks standing to bring the claims asserted in her amended complaint because she is not the personal representative of the Decedent's Estate. Plaintiff claims, on the other hand, that any deficiencies with respect to her standing can be remedied and does not warrant dismissal of her amended complaint. Plaintiff states that she has initiated probate proceedings, and that any action she undertook on behalf of the Estate may relate back to the time of filing once she's appointed as the personal representative.

Only a real party in interest has the capacity to bring a lawsuit. See Tennyson v. ASCAP , 477 F. App'x 608, 610 (11th Cir. 2012) (citing Fed. R. Civ. P. 17 ). The purpose of Rule 17 "is to enable the defendant to avail himself of evidence and defenses that the defendant has against the real party in interest, and to assure him finality of the judgment, and that he will be protected against another suit brought by the real party at interest on the same matter." Celanese Corp. of Am. v. John Clark Indus. , 214 F.2d 551, 556 (5th Cir. 1954).3 "The capacity doctrine relates to the issue of a party's personal right to litigate in deferral court." Glickstein v. Sun Bank/Miami N.A. , 922 F.2d 666, 670 (11th Cir. 1991) abrogated on other grounds by Saxton v. ACF Indus., Inc. , 254 F.3d 959 (11th Cir. 2001).

To determine whether Plaintiff has the capacity to bring this lawsuit, we look to Florida law. See id. Under Florida law, the only party who has the capacity to sue on behalf of an estate is the duly appointed legal representative of the estate. Tennyson , 477 F. App'x at 611 (citing Brake v. Murphy , 687 So. 2d 842, 843 (Fla. 3d DCA 1996) ; Fla. Stat. Ann. § 733.607(1) ). Here, Plaintiff concedes that she is not a personal representative of the Decedent's Estate. But, she is currently seeking appointment in Florida state court.4

The Eleventh Circuit's decision in Glickstein is instructive on whether Plaintiff's capacity to sue warrants dismissal of this action. In Glickstein, the plaintiff was a party to an action in state court where he sought to be declared the personal representative of an estate. See Glickstein, 922 F.2d at 671. The plaintiff's "pleadings and responses [made it] abundantly clear [that] his appointment would be assured once the judgment of the probate court... became final." id. The Eleventh Circuit held that the district court erred when it granted a motion to dismiss against the plaintiff based on his status as a personal representative. id.

The Court explained that the district court should have stayed the proceedings to await the determination by the state court action of the estate representative. Id. Dismissal can still be an appropriate remedy, however, in situations where appointment as personal representative is speculative or unsuccessful. See, e.g., Graca v. Rosebank Maritime, Inc. , 2005 WL 6458603 (11th Cir. 2005) (holding that the district court did not abuse its discretion in denying the plaintiff's relief from dismissal because he failed to provide the district court with any assurance that he would be appointed personal representative.); Gubanova v. The Blackstone Group L.P. , 2013 WL 12064500 (S.D. Fla. Feb. 25, 2013) (dismissal is appropriate in Florida if a plaintiff has made no effort to obtain status as a personal representative).

In this case the record shows that Plaintiff is actively seeking appointment to be the personal representative of the estate. Although not definitive, Plaintiff's familiar connection with the decedent is undoubtedly strong. Therefore, Plaintiff has shown that there is a material likelihood that the appointment will ultimately be made. Consequently, Defendant's motion to dismiss on this basis should be DENIED . Having said that, of course, the entire matter may be revisited at a later stage of this litigation if it turns out that Plaintiff's promises are fading. Standing is a matter that can be raised at any time in a case. And certainly before any final judgment is ever entered Plaintiff's standing as personal representative cannot be in doubt. So the denial of the motion at this stage should be without prejudice to later review. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.").

B. The Death on the High Seas Act

Turning to the merits of the complaint's claims, Defendant maintains that DOHSA is Plaintiff's exclusive remedy and that, as a result, she is precluded from seeking non-pecuniary damages. The current complaint expressly seeks such damages; hence, Defendant seeks dismissal of those claims. Plaintiff argues, in response, that DOHSA does not apply because Plaintiff filed her action pursuant to 28 U.S.C. § 1333, and the general maritime law of the United States. Plaintiff also claims that she does not allege facts that implicate DOHSA and that Defendant's argument lacks merit. We turn first to the question whether DOHSA has any bearing at all...

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