Ruben v. Silversea Cruises, Ltd.
| Decision Date | 25 February 2020 |
| Docket Number | Case No. 19-cv-22241-BLOOM/Louis |
| Parties | RONNA RUBEN, Plaintiff, v. SILVERSEA CRUISES, LTD. (INC.) and MEDIPORT SERVICES, Defendants. |
| Court | United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida |
THIS CAUSE is before the Court upon Defendant Silversea Cruises, Ltd.'s ("Silversea") Motion to Dismiss Plaintiff's Second Amended Complaint, ECF No. [32] ("Silversea's Motion"); Defendant Mediport Services' ("Mediport") Motion to Dismiss Plaintiff's Second Amended Complaint, ECF No. [35] ("Mediport's Motion"); Plaintiff Ronna Ruben's ("Plaintiff") Motion for Leave to Conduct Jurisdictional Discovery, ECF No. [39] ("Motion for Jurisdictional Discovery"); and Plaintiff's Motion for Leave to File Third Amended Complaint, ECF No. [44] ("Motion to Amend"), (collectively, the "Motions"). The Court has carefully reviewed the Motions, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, Silversea's Motion is denied; Mediport's Motion is granted; Plaintiff's Motion for Jurisdictional Discovery is denied; and Plaintiff's Motion to Amend is denied.
On May 31, 2019, Plaintiff initiated the instant personal injury action against Silversea only for injuries sustained during a bicycle excursion in Corsica, France. ECF No. [1] ("Complaint"). On June 28, 2019, Plaintiff amended her Complaint to add Mediport as a Defendant. ECF No. [7] ("First Amended Complaint").1 On October 11, 2019, this Court granted in part and denied in part Silversea's Motion to Dismiss the First Amended Complaint, and granted Plaintiff leave to amend, ECF No. [28], which Plaintiff did on October 18, 2019, ECF No. [29] ("Second Amended Complaint").
In the Second Amended Complaint, Plaintiff alleges that she was a passenger on one of Silversea's cruise ships — the Silver Muse — during an eight-day voyage beginning on July 8, 2018. Id. ¶ 16. On July 10, 2018, Plaintiff and her husband participated in a bicycle excursion that consisted of a guided tour of Bastia, Corsica, France. Id. ¶ 19. Plaintiff booked this excursion through one of Silversea's representatives in advance of sailing and, in doing so, Plaintiff relied on the fact that Silversea held the operator of the excursion out as its agent. Id. ¶¶ 20-21. Mediport was the tour operator of the bicycle excursion Plaintiff participated in and Mediport exercised control over the tour guides operating the excursion. Id. ¶¶ 13-14. Plaintiff alleges that Silversea was "responsible for supervising and/or vetting and/or screening and/or selecting the [excursion] tour operator," and it exercised control over the tour guides and the operation of the excursion. Id. ¶ 22. In booking this excursion, Plaintiff believed, based on Silversea's representations, that it consisted of "a leisurely bike tour on flat surfaces to view the scenery and natural preserve of the surrounding area." Id. ¶ 24.
Upon commencing the excursion, Plaintiff discovered that, rather than being a leisurely bicycle tour on a manual bike, the excursion involved riding and operating an electric bicycle, which Plaintiff was unfamiliar with and had never ridden, along "dangerous, high-trafficked roads without bicycle lanes at unreasonably dangerous speeds." Id. ¶ 25. Plaintiff alleges that, at onepoint during the excursion, the group had to ride on a two-lane highway with a speed limit of 110 kilometers per hour. Id. Moreover, the tour guides did not provide participants with any instruction on how to operate the electric bicycles, nor did they size the bikes to each rider before beginning the tour. Id. In addition, none of the tour guides spoke English and, during the tour, the rear guide separated from the excursion group, thus leaving the group with only a single guide leading in the front. Id.
During the excursion, Plaintiff was informed by a Silversea employee — who accompanied the group on the excursion to observe the performance of the excursion operator — that Silversea had not previously vetted the tour operator and that it was Silversea's first time conducting the excursion using this tour operator. Id. ¶ 26. This same Silversea employee had to act as an English interpreter for the guides during the excursion. Id. Plaintiff alleges that she and numerous other excursion participants expressed concerns about their safety to Silversea's employee and complained that they did not want to finish the tour because they were concerned that they would be injured. Id. ¶ 27. The Silversea employee acknowledged to Plaintiff "that the tour was not being conducted in a safe manner and was sufficiently concerned that passengers would suffer injuries that she contacted the [Silver Muse] prior to the end of the tour" and requested that a bus come pick the passengers up. Id. After contacting the cruise ship, Silversea's employee indicated that Plaintiff would need to continue the excursion until the group reached a better location because the bus was unable meet them at their current location. Id. Shortly thereafter, Plaintiff was thrown from her electric bike, sustaining injuries to her mouth, face, leg, elbow, and shoulder. Id. ¶ 28.
Plaintiff's Second Amended Complaint asserts seven counts: Count I - Negligence - Negligent Hiring (against Silversea); Count II - Negligence - Negligent Misrepresentation (against Silversea); Count III - Negligence - Failure to Warn (against Silversea); Count IV -Negligence - Apparent Agency (against Silversea); Count V - Negligence (against Mediport); Count VI - Negligence - Negligent Training (against Mediport); and Count VII - Negligence - Negligent Supervision (against Mediport). See generally id.
On November 13, 2019, Silversea filed its Motion to Dismiss pursuant to Rule 12(b)(6), requesting that this Court dismiss Counts I, II, III, and IV of Plaintiff's Second Amended Complaint with prejudice for her failure to state a claim. ECF No. [32]. Plaintiff filed her Response in Opposition to Silversea's Motion to Dismiss, ECF No. [33], to which Silversea filed a Reply, ECF No. [34]. Similarly, on December 9, 2019, Mediport filed its Motion to Dismiss premised on a lack of personal jurisdiction and on forum non conveniens. ECF No. [35]. Plaintiff filed her Response in Opposition, ECF No. [38], and Mediport filed its Reply, ECF No. [41].
Furthermore, on January 13, 2020, Plaintiff filed her Motion for Jurisdictional Discovery, requesting the Court's permission to conduct jurisdictional discovery as to Mediport, based on Mediport's submission of a declaration by Jacques Bindinelli in support of its Motion to Dismiss, which alleged that Mediport has little to no ties to Florida. See ECF No. [39]. Mediport filed its Response opposing Plaintiff's Motion for Jurisdictional Discovery, ECF No. [42], and Plaintiff filed her Reply, ECF No. [43].
On January 28, 2020, Plaintiff filed her Motion to Amend, seeking leave to amend her Second Amended Complaint to add an additional count against both Defendants for third-party beneficiary breach of contract, based on information Plaintiff obtained during the course of discovery. See ECF No. [44]; ECF No. [44-1] ("Third Amended Complaint"). Specifically, Plaintiff explains that, on January 3, 2020, Silversea served supplemental discovery responses to Plaintiff's August 28, 2019, request for production. ECF No. [44] at 2. Included in these supplemental discovery responses was a document titled "2018 Ground / Tour OperatorGuidelines," ECF No. [44-3] ("Tour Operator Guidelines"), which was incorporated by reference into an agreement between Mediport and Silversea, ECF No. [44] at 2. Plaintiff contends that the Tour Operator Guidelines contains language confirming her status as a third-party beneficiary to Defendants' contract, which warrants granting Plaintiff leave to file a Third Amended Complaint. Id.; see also ECF No. [44]. Pursuant to this Court's Order Setting Trial and Pre-trial Schedule, Requiring Mediation, and Referring Certain Matters to Magistrate Judge, the deadline to file any amended pleadings in this case was October 11, 2019. ECF No. [13] ("Scheduling Order"). Defendants each filed individual Responses in Opposition to Plaintiff's Motion to Amend, see ECF Nos. [46] & [47], to which Plaintiff filed a Reply, ECF No. [50].
The Court will address each motion in turn below.
"In a motion to dismiss for lack of personal jurisdiction, a court must accept the facts alleged in plaintiff's complaint as true, to the extent that they are not contradicted by defendant's affidavits." Kim v. Keenan, 71 F. Supp. 2d 1228, 1231 (M.D. Fla. 1999) (citing Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990)). "A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction." United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009).
"Once the plaintiff pleads sufficient material facts to form a basis for in personam jurisdiction, the burden shifts to the defendant to challenge plaintiff's allegations by affidavits or other pleadings." Carmouche v. Carnival Corp., 36 F. Supp. 3d 1335, 1388 (S.D. Fla. 2014), aff'd sub nom. Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201 (11th Cir. 2015). A defendantchallenging personal jurisdiction must present evidence to counter the plaintiff's allegations. Internet Sols. Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir. 2009).
"Where . . . the Defendant submits affidavit(s) to the contrary, the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction." Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002); see also Internet Sols. Corp., 557 F.3d at 1295; Cable/Home Commc'n Corp., 902 F.2d at 855. If the defendant...
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