Marabella v. NCL (Bahamas), Ltd.

• Decision Date: 03 February 2020
• Docket Number: Case No. 19-cv-25185-BLOOM/Louis
• Citation: 437 F.Supp.3d 1221
• Parties: Barbara MARABELLA, Plaintiff, v. NCL (BAHAMAS), LTD., Defendant.
• Court: U.S. District Court — Southern District of Florida

437 F.Supp.3d 1221

Barbara MARABELLA, Plaintiff,

v.NCL (BAHAMAS), LTD., Defendant.

Case No. 19-cv-25185-BLOOM/Louis

United States District Court, S.D. Florida.

Signed February 3, 2020

Nicholas E. Karatinos, Pro Hac Vice, Law Offices of Nicholas E. Karatinos, Lutz, FL, Michael Nicholas Lygnos, Lygnos Law Firm, P.A., Clearwater, FL, for Plaintiff.

Rachael Mitchell Fagenson, Norwegian Cruise Line, Miami, FL, for Defendant.

OMNIBUS ORDER ON DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND PLAINTIFF'S MOTION TO STRIKE

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant, NCL (Bahamas), LTD.'s ("Defendant") Motion to Dismiss Plaintiff's Complaint, ECF No. [7] ("Motion to Dismiss") and Plaintiff's Motion to Strike NCL's Reply, ECF No. [12] ("Motion to Strike"). Plaintiff filed her Response to the Motion to Dismiss, ECF No. [10] ("Response"), to which Defendant filed its Reply, ECF No. [11] ("Reply"). The Court has considered the Motion to Dismiss, the Response, the Reply, the Motion to Strike, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion to Dismiss is denied and the Motion to Strike is denied.

I. BACKGROUND

This case stems from injuries allegedly sustained by Plaintiff while on a cruise operated by Defendant. Plaintiff alleges that on November 21, 2019, while aboard Defendant's vessel, the M/V Norwegian Pearl (the "Ship"), she fell with "great force" onto the exterior deck while walking towards the Ship's bow when a "strong wind twisted her body around counterclockwise and caused her to fall[.]" ECF No. [1] at ¶ 15. Plaintiff alleges that she fell on deck 13 approximately 10 feet away from the exterior doors leading out onto the deck. See id. Plaintiff claims that she sustained serious physical injuries to her body and extremities, including a separated shoulder and fractures to the upper humerus of her left arm. Id. at ¶ 20. She alleges that she incurred medical expenses as a result of her injuries, suffered physical handicap, and lost the benefit of a portion of her vacation. See id. at ¶¶ 21-22.

Plaintiff asserts a single claim for negligence based on multiple theories and seeks damages from Defendant for the injuries sustained in the incident. See ¶¶ 13-22. According to Plaintiff, her injuries arose from Defendant's negligence, which include its failure to restrict passenger access to the exit doors to the deck due to high wind conditions, its failure to warn persons exiting onto the deck of high wind conditions, and its failure to keep in place notice that passengers shall not use the exit doors to access the deck due to high winds and/or that exit doors to the deck are closed off due to high winds and/or that the high winds present a danger to passengers that use the exit doors to enter the outside deck area. See id. at ¶ 16.

Defendant now moves to dismiss the Complaint with prejudice on two grounds: (1) Defendant had no duty to warn Plaintiff about the dangerous condition of the wind on the outer deck because wind is an open and obvious danger; and (2) Plaintiff failed to allege proximate causation between Defendant's alleged negligence and Plaintiff's consequent injuries. ECF No. [7]. Plaintiff does not directly respond to Plaintiff's second argument regarding causation, but contends that the wind was not an open and obvious condition that obviated Defendant's duty to provide fair notice to her regarding the windy conditions on the exterior deck. ECF No. [10].¹ In the Reply, Defendant rehashes its previously asserted arguments from its Motion to Dismiss but further adds that dismissal is appropriate given Plaintiff's failure to expressly address the proximate cause arguments made by Defendant. ECF No. [11].

In the Motion to Strike, Plaintiff requests that the Court strike Defendant's Reply, ECF No. [11], because Defendant allegedly did not comply with S.D. Fla. L.R. 7.1(c)² and Rule 12(d), Fed. R. Civ. P., and to strike Defendant's Motion to Dismiss as well. See ECF No. [12]. Plaintiff argues that the Reply regurgitates arguments from the Motion to Dismiss and "adds little or nothing to those arguments." See id. Without any case law support, Plaintiff concludes and recommends that Defendant's filings should be stricken or denied with leave for Defendant to file Defendant's defenses as affirmative defenses in their stead. Id.

II. MOTION TO DISMISS

A. LEGAL STANDARD

A pleading in a civil action must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (explaining that Rule 8(a)(2)'s pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). Nor can a complaint rest on " ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). "To survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's factual allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp. , 693 F.3d 1333, 1337 (11th Cir. 2012) ; Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All. , 304 F.3d 1076, 1084 (11th Cir. 2002). "A facially plausible claim must allege facts that are more than merely possible.... The plausibility standard ‘calls for enough fact to raise a reasonable expectation that discovery will reveal evidence’ of the defendant's liability." Chaparro , 693 F.3d at 1337 (citations omitted) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

Further, although the Court is required to accept all of the factual allegations contained in the complaint and exhibits attached to the pleadings as true, this tenet is inapplicable to legal conclusions. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; Thaeter v. Palm Beach Cty. Sheriff's Office , 449 F.3d 1342, 1352 (11th Cir. 2006) ("When considering a motion to dismiss ... the court limits its consideration to the pleadings and all exhibits attached thereto." (internal quotation marks omitted)). "Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible." Chaparro , 693 F.3d at 1337. "Similarly, ‘unwarranted deductions of fact’ in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012) (quoting Aldana v. Del Monte Fresh Produce, N.A., Inc. , 416 F.3d 1242, 1248 (11th Cir. 2005) ); see also Iqbal , 556 U.S. at 681, 129 S.Ct. 1937 (stating conclusory allegations are "not entitled to be assumed true"); Chaparro , 693 F.3d at 1337 ("if allegations are indeed more conclusory than factual, then the court does not have to assume their truth" (citing Mamani v. Berzain , 654 F.3d 1148, 1153-54 (11th Cir. 2011) )).

B. APPLICABLE LAW

In cases involving alleged torts "committed aboard a ship sailing in navigable waters," the applicable substantive law is general maritime law, the rules of which are developed by the federal courts. Keefe v. Bahama Cruise Line, Inc. , 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec v. Compagnie Generale Transatlantique , 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) ). See also Everett v. Carnival Cruise Lines , 912 F.2d 1355, 1358 (11th Cir. 1990) ("Because this is a maritime tort, federal admiralty law should control. Even when the parties allege diversity of citizenship as the basis of the federal court's jurisdiction (as they did in this case), if the injury occurred on navigable waters, federal maritime law governs the substantive issues in the case."). In the absence of well-developed maritime law, courts may supplement the maritime law with general common law and state law principles. See Smolnikar v. Royal Caribbean Cruises, Ltd. , 787 F. Supp. 2d 1308, 1315 (S.D. Fla. 2011). The parties in the instant action do not dispute that maritime law governs. Compare ECF No. [1] at ¶ 9 with ECF No. [7] at 2.

C. DISCUSSION

The Court first addresses Defendant's argument that it owed no duty to warn Plaintiff of the windy condition on the Ship's exterior deck. The Court will then address Defendant's remaining argument that dismissal is appropriate because Plaintiff has failed to sufficiently plead proximate causation.

i. Duty to warn if there are open and obvious hazards

To plead a negligence cause of action under maritime law, a "plaintiff must allege that (1) the defendant had a duty to protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach actually and proximately caused the plaintiff's injury; and (4) the plaintiff suffered actual harm." Chaparro , 693 F.3d at 1336.

"A shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel." Id. (quoting Kermarec , 358 U.S. at 630, 79 S.Ct. 406 ). This duty of care is examined through the lens of "ordinary reasonable care under the circumstances." Keefe , 867 F.2d at 1322. "It is clearly established that cruise lines owe their passengers a duty to warn of known or foreseeable dangers." Flaherty v. Royal...