Ridley v. NCL(Bahamas) Ltd.

• Decision Date: 14 October 2010
• Docket Number: Case No. 10–22711–CV.
• Citation: 824 F.Supp.2d 1355
• Parties: Mark Robert RIDLEY, as Personal Representative of the Estate of Mildred Ridley, deceased Robert Ridley, as Beneficiary, Plaintiff, v. NCL (BAHAMAS) LTD., Jens Hertig, Ph.D., Stefan Hofvendahl, M.D., Defendants.
• Court: U.S. District Court — Southern District of Florida

824 F.Supp.2d 1355

Mark Robert RIDLEY, as Personal Representative of the Estate of Mildred Ridley, deceased Robert Ridley, as Beneficiary, Plaintiff,

v.NCL (BAHAMAS) LTD., Jens Hertig, Ph.D., Stefan Hofvendahl, M.D., Defendants.

Case No. 10–22711–CV.

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

Oct. 14, 2010.

Anne Catherine Sullivan, Michael Andrew Mullen, Gaebe Mullen Antonelli & DiMatteo, Coral Gables, FL, for Plaintiffs.

Jeffrey Eric Foreman, Brett Michael Berman, Karina M. Cerda, Maltzman Foreman PA, Miami, FL, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court upon Defendant NCL (Bahamas) Ltd.'s Motion to Dismiss (DE # 7), filed August 25, 2010.¹ Plaintiffs' Complaint (DE # 1) seeks recovery for the death of Mildred Ridley, asserting that she was diagnosed as suffering from bilateral pneumonia while sailing as a passenger aboard the Norwegian Pearl. She was air-lifted from the Norwegian Pearl after her diagnosis and eventually taken to Miami for treatment, where she passed away less than a week later. The Complaint does not detail certain facts (i.e., where the Norwegian Pearl was located at the time of the air-lift or where Defendant NCL's negligent actions occurred), the omission of which is critical to Defendant NCL's Motion to Dismiss. Plaintiffs now seek to recover against both the cruise line and the individual ship doctors. Defendant NCL states numerous grounds for dismissal of Plaintiffs' six-count Complaint (DE # 1), filed July 27, 2010. After careful consideration and for the reasons set forth below, the Court determines that the motion should be granted.

I. Background

Robert Ridley and his wife, Mildred Ridley, entered into a written contract with Defendant NCL for a five-day cruise on the Norwegian Pearl from April 12, 2009 to April 17, 2009. Compl. ¶ 1. The Ridleys embarked on the cruise as scheduled and experienced no difficulties until April 16, 2009, when Mrs. Ridley visited the ship's infirmary for medical services. Compl. ¶ 4. At that time, she was diagnosed by Defendants Hertig and Hofvendahl with bilateral pneumonia and “provided with minimal treatment.” ² Compl. ¶¶ 5–6. One day later, Mrs. Ridley went into respiratory failure and was air-lifted from an undisclosed location by the U.S. Coast Guard to the Lower Keys Memorial Hospital in Key West, Florida. Compl. ¶ 7. She was later transferred to Baptist Memorial Hospital in Miami, where she passed away on April 23, 2009.

Mrs. Ridley's Estate's Personal Representative, Mark Robert Ridley, and Robert Ridley, her husband and beneficiary, subsequently filed suit. As stated above, their Complaint purports to state six causes of action. Those six causes of action include one for negligence (Counts I and V); ³ vicarious liability (Counts II and III); and loss of consortium (Counts IV and VI), against all three Defendants. Defendant NCL moves to dismiss only the four claims relevant to its own liability: Counts I–III, and Count VI.

II. Legal Standard

“For the purposes of a motion to dismiss, the Court must view the allegations of the complaint in the light most favorable to Plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom.” Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir.2003). A complaint may be dismissed if the facts as pleaded fail to state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1968–69, 1974, 167 L.Ed.2d 929 (2007) (abrogating former “unless it appears beyond a doubt that the plaintiff can prove no set of facts” standard and replacing it with a standard requiring “only enough facts to state a claim to relief that is plausible on its face”); Marsh v. Butler County, Ala., 268 F.3d 1014, 1037 (11th Cir.2001) (en banc) (“Pleadings must be something more than an ... exercise in the conceivable.”) (quoting United States v. Students Challenging Regulatory Ag. Proc., 412 U.S. 669, 688, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). Finally, “[i]n analyzing the sufficiency of the complaint, [the Court] limit[s] [its] consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir.2004).

III. Discussion

As alluded to above, Defendant NCL states numerous grounds for dismissal of the instant action: 1) dismissal of Plaintiffs' negligence claim, Count I, since Defendant owed no duty to Plaintiff; 2) insufficient allegations to support a claim against Defendant NCL for negligent hiring under Count I; 3) improper claims for vicarious liability in Counts II and III, where general maritime law does not permit such actions; 4) claims barred by the Death on the High Seas Act, 46 U.S.C. § 761; 5) lack of standing on the part of Robert Ridley; and 6) loss of consortium is not a recognized claim under general maritime law.

At the outset, it is conceded by all parties to this action that this Court has jurisdiction over the claims raised by Plaintiffs' Complaint because of the Court's admiralty jurisdiction.⁴ As such, each of Defendant's arguments will be addressed in the context of general admiralty law.

A. Death on High Seas Act and Florida's Wrongful Death Act

Because Defendant's claims regarding the application of the Death on the High Seas Act would bar Plaintiff's claims, this Court finds it appropriate to discuss at the outset. Defendant claims that the Death on the High Seas Act (“DOHSA”), 46 U.S.C. § 30302, is the sole remedy available to Plaintiffs, necessitating dismissal of Plaintiff's Complaint. According to its terms, DOHSA is applicable “whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any state.” 46 U.S.C. § 761. In relevant part, the statute states the following:

Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.

The Eleventh Circuit has consistently interpreted DOHSA as applying to maritime incidents occurring within the territorial waters of foreign states. Sanchez v. Loffland Bros. Co., 626 F.2d 1228 (5th Cir.1980); ⁵ Moyer, 645 F.Supp. at 623–24. Courts from other circuits have applied DOHSA is similar circumstances. See also Howard v. Crystal Cruises, Inc., 41 F.3d 527, 529–30 (9th Cir.1994) (applying DOHSA to a death which occurred within Mexico's territorial waters); Motts v. M/V Green Wave, 210 F.3d 565, 569–70 (5th Cir.2000) (recognizing application of DOHSA); Cormier v. Williams/Sedco/Horn Constructors, 460 F.Supp. 1010 (E.D.La.1978) (applying DOHSA to accident occurring in navigable river in Peru); Kuntz v. Windjammer “Barefoot” Cruises, Ltd., 573 F.Supp. 1277 (W.D.Pa.1983) (applying DOHSA to claim resulting from scuba death in Bahamas).

Moreover, it is well settled that DOHSA preempts conflicting state wrongful death statutes, see Offshore Logistics v. Tallentire, 477 U.S. 207, 227, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986), and makes the federal Act the exclusive remedy. See also Ford v. Wooten, 681 F.2d 712, 716 (11th Cir.1982) (“Where a cause of action exists for wrongful death under [the federal Act], no additional action exists under general maritime law for wrongful death”); Hughes v. Unitech Aircraft Serv., 662 So.2d 999, 1001 (Fla. 4th DCA 1995) (recognizing preemption of claims under Florida's Wrongful Death Act); Bailey v. Carnival Cruise Lines, Inc., 448 So.2d 1090, 1091 (Fla. 3d DCA 1984) (recognizing federal Act as exclusive remedy).

By its express terms, DOHSA does not permit the award of non-pecuniary damages. 46 U.S.C. § 762. See also Sanchez, 626 F.2d at 1230 (“DOHSA specifically limits recoverable damages to those pecuniary in nature.”).

Both sides seemingly concede that DOHSA bars any claims for wrongful death if the relevant actions occurred beyond American territorial waters. 46 U.S.C. § 761; Compl. of Am. Dredging Co., 873 F.Supp. 1539, 1546 n. 6 (S.D.Fla.1994). Yet, the parties dispute whether there are sufficient allegations in the Complaint to make this determination. Defendant, going beyond the four corners of the Complaint, claims that Mrs. Ridley was “first seen at the ship's medical facility while the ship was in port in Cozumel, Mexico.” (DE # 7 at 11 n. 4). However, the Complaint contains no such factual allegations. Instead, Plaintiff's Complaint is silent as to the location of the pertinent actions here. On those grounds, Plaintiffs contend dismissal of this action is inappropriate: they state that, because the Complaint did not state where those allegedly negligent actions took place, dismissal is inappropriate. Because the relevant actions could have occurred in territorial waters under Plaintiffs' reasoning, Plaintiffs' reasoning goes, DOHSA may not apply.⁶ (DE # 18 at 8–9).

Although it is well recognized in this Circuit and elsewhere that a plaintiff is master of his claim, see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987), where essential facts are required to be alleged, a plaintiff may not elude federal jurisdiction by omitting those facts. Here, whether DOHSA applies to the claims raised by Plaintiffs will be determined by the location of the allegedly negligent actions taken by Defendant NCL. As such, this Court will grant Defendant's motion to...