Lobo v. Celebrity Cruises, Inc.
| Decision Date | 10 September 2009 |
| Docket Number | Case No. 08-23386-CIV. |
| Citation | 667 F.Supp.2d 1324 |
| Parties | Inacio LOBO, on behalf of himself and others similarly situated, Plaintiffs, v. CELEBRITY CRUISES, INC. and Federazione Italianan Transporti, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Charles R. Lipcon, Jason Robert Margulies, Michael A. Winkleman, Lipcon Margulies & Alsina, Tonya Jean Meister, Meister Law LLC, Miami, FL, for Plaintiffs.
Sanford Lewis Bohrer, Scott Daniel Ponce, Holland & Knight, Kathleen Marie Phillips, Anne Janet Deases, Phillips Richard & Rind, Miami, FL, Richard J. Dodson, Dodson Hooks & Frederick APLC, Baton Rouge, LA, for Defendants.
ORDER GRANTING IN PART MOTIONS TO DISMISS [DE 41, 45]
THIS CAUSE is before the Court upon Defendant Celebrity Cruises, Inc.'s and Defendant Federazione Italianan Transporti's ("Union") Motions to Dismiss Plaintiffs' Amended Complaint [DE 41 and 45]. Plaintiffs filed responses [DE 64 and 65], and Defendants filed replies [DE 72 and 75]. I held oral argument on the Motions on July 17, 2009. Having reviewed the pleadings and relevant case law, I conclude that the Labor Management Relations Act and the National Labor Relations Act do not apply to foreign seaman aboard foreign vessels, and that Plaintiffs have therefore failed to state a claim under Counts I and II of their Amended Complaint, the hybrid claims against Celebrity and the Union. I further conclude that, because the duty of fair representation is a judicially-created statutory duty under the federal labor laws, which laws do not apply to Plaintiffs' cause of action, it is unlikely that Count III, breach of duty of fair representation against the Union, can stand. However, because Count III was not fully briefed by the parties, and because I conclude that service of process by direct mail on the Union of non-translated documents was insufficient under the Hague Convention, I dismiss Count III without prejudice and permit Plaintiffs to file and serve a Second Amended Complaint in accordance with the guidance set forth in this Order.
Celebrity Cruises, Inc. ("Celebrity") is a foreign corporation registered to conduct business in Florida. (Am. Compl. ¶ 3). Celebrity is a resident of Florida and uses Miami, Florida as its base of operations for a passenger cruise line. (Id.). Plaintiffs are residents of India who were employed by Celebrity as cabin stewards aboard cruise ships. (Id. at ¶¶ 4-14). Plaintiffs' employment was governed by sign-on employment agreements which incorporated a Collective Bargaining Agreement ("CBA") between Federazione Italianan Transporti ("Union"), a non-resident of Florida, and Celebrity. (Id. at ¶¶ 21, 23). As cabin stewards, Plaintiffs typically provided services to approximately forty (40) passengers daily. (Id. at ¶ 24). Plaintiffs' compensation for these services consisted almost entirely of tips received from passengers. (Id. at ¶ 25). Plaintiffs' employment contracts required Celebrity to recommend to its passengers that they pay gratuities in accordance with the CBA, and Celebrity provided literature to its passengers stating that it is customary to pay gratuities to certain of its employees and suggesting a rate of $3.50 per person per day for cabin stewards. (Id. at ¶¶ 26, 30).
According to Plaintiffs, Celebrity placed assistant cabin stewards or assistant stateroom attendants on its ships to work in tandem with cabin stewards, and imposed upon cabin stewards, including Plaintiffs, a requirement to share personally the wages earned with the assistant cabin stewards. (Id. at ¶ 33). Celebrity did not suggest to its passengers that they pay any gratuity to the assistant cabin stewards. (Id. at ¶ 34). Additionally, before August 31, 2002, Celebrity imposed upon Plaintiffs a requirement that they share wages with the Chief Housekeeper, at a rate of $0.50 per passenger, per day, to the extent the passengers do not themselves provide such gratuities, which are suggested by Celebrity. (Id. at ¶ 36).
Plaintiffs allege that these requirements constitute a serious breach to the provisions of the CBA between Celebrity and the Union. Accordingly, on April 11, 2005, named Plaintiff Inacio Lobo filed a Second Amended Complaint against Celebrity in the United States District Court for the Southern District of Florida (Case No. 04-22132-ASG, "Lobo I"), alleging breach of the employment agreement. (Id. at ¶ 38). I evaluated the relevant contracts and governing law, and pursuant to the CBA and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, I compelled the parties in Lobo I to submit to arbitration. (Id.).2
According to the Amended Complaint, at the pre-arbitration conference, Plaintiff Lobo learned that Celebrity and the Union had exchanged the names of proposed arbitrators without Lobo's knowledge or input, and, despite Lobo's opposition, Celebrity and Union unilaterally appointed an arbitrator with minimal experience of knowledge in maritime matters, wage law, and class arbitration. (Id. at ¶ 41). On July 10, 2008, the first arbitration was held to determine whether the CBA prohibited class arbitration, and on September 11, 2008, the arbitrator denied class arbitration. (Id. at ¶ 42).
Plaintiffs allege that Union and Celebrity conspired to allow the failure of the petition for class action arbitration, and that such conduct was in breach of the Union's statutory duty of fair representation. Accordingly, on April 3, 2009, Plaintiffs filed an Amended Complaint and Demand for Jury Trial [DE 37] ("Complaint"), including class action allegations, asserting three claims for relief: a Hybrid Claim Against Union for Breach of its Duty of Fair Representation (Count I), under the National Labor Relations Act, 29 U.S.C. § 159; a Hybrid Claim Against Celebrity for Breach of the Collective Bargaining Agreement and Violations under the Seaman's Wage Act, 46 U.S.C. § 10313 (Count II); and a Non-Hybrid Action Against Union for Breach of Duty [of] Fair Representation (Count III). Celebrity and the Union moved to dismiss Plaintiffs' Amended Complaint [DE 41 and 45].
On a motion to dismiss, the court accepts a complaint's well-pleaded allegations as true and evaluates all inferences derived from those facts in the light most favorable to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir.2003); Hoffend v. Villa, 261 F.3d 1148, 1150 (11th Cir.2001). The court is not required to accept a plaintiffs legal conclusions, nor are conclusory allegations entitled to be assumed true. Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (). Although a plaintiff need not state in detail the facts upon which he bases his claim, Fed.R.Civ.P. 8(a)(2) demands "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 n. 3, 167 L.Ed.2d 929 (2007) (). A complaint must state a plausible claim for relief, and "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss. Id. The well-pled allegations must nudge the claim "across the line from conceivable to plausible." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974; see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252 (11th Cir.2009).
Defendants Celebrity and the Union seek to dismiss the Amended Complaint on multiple grounds. Celebrity argues that the Labor Management Relations Act and the National Labor Relations Act do not apply to foreign seaman aboard foreign vessels, and therefore do not apply to the hybrid claims asserted in Counts I and II of the Amended Complaint. Celebrity also argues that Plaintiffs' claims fail because there has been no arbitration decision on the merits of Plaintiffs' wage claims, and that Plaintiffs' claims are barred by the doctrine of laches. In addition to adopting and further briefing the substantive arguments raised by Celebrity, Defendant Union argues that it was not served properly under the Hague Convention, and contests personal jurisdiction in this Court.
During oral argument, I addressed with the parties the various possible grounds for dismissal and the procedure for handling the motions to dismiss. As to the Union, while I would generally address questions of personal jurisdiction before reaching the merits of a case, the parties agreed that it would be a more productive use of judicial resources, as well as the parties' resources, if I were to first address the substantive issues in the case. Further, Celebrity agreed that, while it provided alternate bases for dismissal, the primary issue is whether the federal labor laws apply Plaintiffs' claims. I therefore turn first to the parties' arguments regarding the application of the Labor Management Relations Act and the National Labor Relations Act to Counts I and II of the Amended Complaint, Plaintiffs' hybrid claims against the Union and Celebrity. I then turn to Count III, Plaintiff's nonhybrid claim against the Union, and finally address service of translated documents under the Hague Convention.
A hybrid claim is a type of claim in which an employee simultaneously asserts (1) a claim against his or her employer, pursuant to § 301 of the Labor Management...
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Lobo v. Celebrity Cruises, Inc.
...asserting both hybrid and non-hybrid claims for the tips he and other cabin stewards had not received.4Lobo v. Celebrity Cruises, Inc. (“ Lobo II”), 667 F.Supp.2d 1324 (S.D.Fla.2009). His hybrid claim against his employer, Celebrity Cruises, Inc. (“Celebrity”), was that it breached the wage......
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Mitchell v. Volkswagen Group of Am. Inc.
...Article 10(a) permits service of process by mail, and the Eleventh Circuit has not yet addressed the issue. See Lobo v. Celebrity Cruises, 667 F.Supp.2d 1324, 1338 (S.D.Fla.2009) (discussing how some circuits find the word “send” does not encompass service of process while other circuits fi......