Moreno v. Carnival Corp.

• Decision Date: 14 September 2020
• Docket Number: CASE NO. 1:19-cv-22900-JLK
• Citation: 488 F.Supp.3d 1233
• Parties: Desiree MORENO, Plaintiff, v. CARNIVAL CORPORATION, a Panamanian Corporation d/b/a Carnival Cruise Line, and Vacation and Tour Consultants, d/b/a Kantours, Defendants.
• Court: U.S. District Court — Southern District of Florida

488 F.Supp.3d 1233

Desiree MORENO, Plaintiff,

v.CARNIVAL CORPORATION, a Panamanian Corporation d/b/a Carnival Cruise Line, and Vacation and Tour Consultants, d/b/a Kantours, Defendants.

CASE NO. 1:19-cv-22900-JLK

United States District Court, S.D. Florida, Miami Division.

Signed September 14, 2020

Matthias Masayasu Hayashi, Spencer Marc Aronfeld, Coral Gables, FL, for Plaintiff.

Carlos Javier Chardon, Spencer Burgess Price, Hamilton, Miller & Birthisel, LLP, Miami, FL, Bruce R. Marx, Marlow, Adler, Abrams, Newman & Lewis, Coral Gables, FL, for Defendants.

OMNIBUS ORDER ON DEFENDANTS’ MOTIONS TO DISMISS

JAMES LAWRENCE KING, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Defendants’ Motions to Dismiss (DE 26 and DE 27). The Court has also considered Plaintiff's Responses (DE 39 and DE 40), Defendants’ Replies (DE 46 and DE 48), and is otherwise fully advised.

I. BACKGROUND

This case arises from a slip-and-fall on a water taxi during an excursion from a Carnival cruise.¹ Plaintiff Desiree Moreno was a lawful passenger aboard the cruise ship, the Carnival Horizon , which was owned and operated by Defendant Carnival Corporation. (Second Am. Compl. ¶ 6). The Horizon docked at St. Kitts, West Indies on or about March 27, 2019 (Id. ¶ 34), and Plaintiff departed the ship and participated in a shore excursion. (Id. ¶ 35). This excursion was operated by Defendant Kantours and had been marketed by Carnival. (Id. ¶ 24). While stepping from a wet dock area onto steps leading to a water taxi vessel, Plaintiff slipped and fell, sustaining injuries. (Id. ¶¶ 36–38).

This action was filed on July 12, 2019. (See Compl., DE 1). Plaintiff brought numerous claims against Carnival and Kantours, including negligence and breach of contract as a third-party beneficiary. (Id. ). Pursuant to Fed R. Civ. P. 15(a)(1)(B), Plaintiff filed an Amended Complaint on August 30, 2019. (DE 10). Upon motion of Carnival, the Court dismissed Plaintiff's Amended Complaint on January 10, 2020, finding it was "replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action." (Or. Granting in Part Carnival's Mot. Dismiss, DE 22 at 4) (quoting Weiland v. Palm Beach Cty. Sheriff's Office , 792 F.3d 1313, 1322 (11th Cir. 2015) ). Plaintiff was given leave to amend the complaint to more clearly establish the factual and legal basis for her claims. (Id. ). Plaintiff's (operative) second Amended Complaint was filed on February 24, 2020, alleging negligence against Carnival (Count I), negligent hiring against Carnival (Count II), negligence against Kantours (Count III), apparent agency against Carnival (Count IV), and joint venture against Carnival and Kantours (Count V). (See DE 24 and DE 25). Carnival and Kantours now move to dismiss the second Amended Complaint. (See DE 26 and DE 27) (the "Motions").

Carnival filed its Motion to Dismiss on March 9, 2020, arguing that the second Amended Complaint fails to state a cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 26). Kantours filed a separate Motion to Dismiss on March 19, 2020, challenging this Court's personal jurisdiction over it pursuant to Federal Rule of Civil Procedure 12(b)(2). (DE 27). This case was then stayed due to logistical difficulties posed by the COVID-19 pandemic. (See DE 32 and DE 36). Once the stay expired, Plaintiff filed its Responses to these Motions on June 1, 2020 and June 2, 2020, respectively. (DE 39 and DE 40). Carnival filed its Reply Brief on June 16, 2020 (DE 46), and Kantours filed its Reply Brief on June 19, 2020 (DE 48). This opinion deals with these two separate Motions to Dismiss. (DE 26 and DE 27).

II. LEGAL STANDARD

"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.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). To meet this "plausibility" standard, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937. A complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. While the Court's review is generally confined to the four corners of the complaint, when "the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents ... for purposes of Rule 12(b)(6) dismissal." Brooks , 116 F.3d at 1369.

III. DISCUSSION

A. Carnival Corporation's Motion to Dismiss

Carnival moves to dismiss the claims for apparent agency (Count IV) and joint venture (Count V). (DE 26 at 1–2). Regarding the claim for apparent agency, Carnival argues that "Count IV should be dismissed because the materials that [Plaintiff] references in the Second Amended Complaint and makes central to her apparent agency claim (i.e. several sections of Carnival's website and Shore Excursions Brochure) establish that independent contractors operated all tours and thus contradict her allegations. For this reason, this claim/theory of vicarious liability fails as a matter of law." (Id. ). Regarding the claim for joint venture, Carnival argues that "Count V should be dismissed because the very Tour Operator Agreement ("TOA") that Plaintiff references in the Amended Complaint and make[s] central to her claim contradicts her allegations.... For this reason, this claim/theory of vicarious liability fails as a matter of law." (Id. at 2). In response, Plaintiff argues that Carnival is relying on documents outside the four corners of the complaint, which the court may not consider on a motion to dismiss for failure to state a claim. (See DE 39 at 3–8).

After careful consideration, the Court agrees with Plaintiff. On a motion to dismiss for failure to state a claim, the Court is generally confined to the four corners of the complaint unless "the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim." Brooks , 116 F.3d at 1369. Here, the extrinsic documents on which Carnival relies (like the excursion brochure and the guest ticket contract) are not "central" to Plaintiff's claim for apparent agency, which can be proven by evidence of varying kind and degree. "Unless the alleged agency relationship is to be proven exclusively by analysis of the contract between principal and agent (in which case the question is an issue of law), the relationship is generally a question of fact and should be analyzed by looking at the totality of the circumstances." Banco Espirito Santo Intern., Ltd. v. BDO Intern., B.V. , 979 So. 2d 1030, 1032 (Fla. 3d DCA 2008).

Stated differently, since Plaintiff's theory of vicarious liability is based (in part) on Carnival's outward "manifestations" of an agency relationship (Second Am. Compl., ¶ 72), the Court is faced with a factual issue more appropriately addressed at summary judgment. See also Aronson v. Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379, 1397 (S.D. Fla. 2014) (Williams, J.) ("While Plaintiff does refer to the liability waiver in his complaint, this document is not so central to Plaintiffs claim as to compel the Court to stray from the four corners of the complaint at this stage of the litigation. Waiver and release are more properly considered as affirmative defenses. For these reasons, the Court will confine its analysis to the complaint itself and find that Plaintiff has stated a valid claim for apparent agency.") (internal citations omitted). Plaintiff's claim for apparent agency therefore survives dismissal.

For similar reasons, the Court also finds that Plaintiff has stated a valid claim for joint venture. In seeking dismissal of the joint venture claim, Carnival relies on the disclaimer contained in the Tour Operator Agreement between Carnival and Kantours, which provides that "[n]othing related in this agreement shall be construed as constituting OPERATOR and CARNIVAL as ... joint venturers." (TOA ¶ 11, DE 8-7). But the Court is not persuaded. "Plaintiff did not attach the Tour Operator Agreement to [her] Complaint and, while Plaintiff refers to an "agreement," [she] does not necessarily refer to the Tour Operator Agreement. Accordingly, the Court cannot conclude that the Tour Operator Agreement is central to Plaintiffs claim," rendering it improper to consider on Carnival's Motion to Dismiss. Winter v. Royal Caribbean Cruises Ltd. , Case No. 14-cv-23978-KING, DE 32 at *2 (S.D. Fla. July 24, 2015). "While the Tour Operator Agreement specifically states that it does not constitute a joint venture, a subsequent course of conduct may have created such a joint venture agreement, and the Amended Complaint only references an ‘agreement.’ " Ash v. Royal Caribbean Cruises, Ltd. , Case No. 13-cv-20619, 2014 WL 6682514, at *8 (S.D. Fla. Nov. 25, 2014) (emphasis in original). Staying within the four corners of the complaint, the Court finds that Plaintiff has asserted a valid claim for joint venture, and Carnival's Motion to Dismiss is denied.

B. Kantours’ Motion to Dismiss

In a separate Motion, Kantours seeks dismissal of the second Amended Complaint for lack of personal jurisdiction. (See Mot. Dismiss, DE 27). Through an affidavit attached to the Motion, the Executive Chairman of Kantours attests that "Kantours has always been incorporated and authorized to do business in St. Kitts and has never been incorporated, licensed, registered to do business and/or qualified to do business within the State of Florida or any other state in the United States." (Decl. of Clayton Perkins, DE 27-1 ¶ 4). The Executive Chairman also attests that "Kantours has never operated, conducted, engaged in, transacted...