Serra-Cruz v. Carnival Corp.
| Decision Date | 19 September 2019 |
| Docket Number | Case No. 1:18-cv-23033-UU |
| Citation | 400 F.Supp.3d 1364 |
| Parties | Taryn SERRA-CRUZ, Plaintiff, v. CARNIVAL CORP., Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Jacqueline Garcell, Jason Robert Margulies, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiff
Jeffrey Eric Foreman, Noah Daniel Silverman, Miami, FL, for Defendant
ORDER GRANTING IN PART CARNIVAL'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT
THIS CAUSE is before the Court upon Defendant Carnival Corporation's Motion to Dismiss Plaintiff's Second Amended Complaint and Demand for Jury Trial (D.E. 36) (the "Motion").
The Court has considered the Motion, the pertinent portions of the record and is otherwise fully advised in the premises.
Unless otherwise indicated, the following facts are taken from the well-pleaded allegations in Plaintiff's Second Amended Complaint. D.E. 31.
Plaintiff, Taryn Serra-Cruz, is a citizen of New York. D.E. 31 ¶ 1. Defendant Carnival is a foreign corporation with its principal place of business in Florida. Id. ¶ 2. Carnival owns, operates, manages and controls the vessel, Carnival Splendor (the "Ship"). Id. ¶ 14. Wild Play Adventure ("WIPAD") is an entity based in the Dominican Republic.1 Id. ¶ 3. On or about August 17, 2017, Plaintiff was aboard the Ship as a cruise passenger. Id. ¶ 16. WIPAD owned and operated the excursion: "ATV Adventure and Beach" (the "Excursion"), which was offered, arranged for, sponsored, recommended, marketed, sold, co-operated and managed by Carnival. Id. ¶¶ 15, 17.
On or about August 5, 2017, Plaintiff visited Carnival's website. Id. ¶ 24. Carnival's website contained additional information regarding shore excursions, including the Excursion, and sold tickets for excursions. Id. ¶ 18. Carnival's website described the excursions as "our excursions," and represented that it "take[s] care of all the details and wait[s] for all Carnival excursions to return before departing," informed visitors that Carnival "hand selected the best local providers at every port of call," and recommended that passengers not engage in non-Carnival excursions or tours, particularly as Carnival's excursion providers are "required to carry insurance," although no details as to the adequacy or limits of such insurance were provided. Id. ¶ 21 (emphasis in original). Carnival's website also contained passenger reviews for each excursion, but Carnival controlled the content of these reviews by deleting or altering reviews that contain complaints or mention safety concerns. Id. ¶ 22. With respect to the Excursion, Carnival's website did not mention any required level of experience to participate and described it as "[m]oderate" with an "easy-to-handle" all-terrain vehicle ("ATV"). Id. ¶ 23. In contrast, Carnival classified other similar ATV excursions as extreme or difficult. Id. Unlike Plaintiff's amended complaint, D.E. 7, the Second Amended Complaint includes screenshots of Carnival's website containing these quoted phrases. Id. ¶¶ 21, 23.
After Plaintiff booked her cruise, Carnival sent her promotional material, providing information on various shore excursions, including the Excursion. Id. ¶ 17. Once aboard the Ship, Carnival informed passengers about the excursions available, including the Excursion, in a live presentation. Id. ¶ 19. In addition, Carnival's shore excursion desk onboard the Ship sold tickets and provided information about the various excursions, including the Excursion. Id. ¶ 20. In the promotional material and on Carnival's website, Carnival represented that the excursion providers were "reliable and reputable," that all shore excursions were "guided," and that Carnival selects its excursion providers because they have the "best reputation" in their respective ports. Id. ¶ 21. Plaintiff reviewed the promotional material shortly after boarding the Ship on August 13, 2017. Id. ¶ 24. All of the information Carnival provided was based on information provided to Carnival by WIPAD and based on Carnival's inspection and approval of the Excursion and WIPAD as an excursion operator. Id. ¶ 25.
Plaintiff purchased a ticket for the Excursion directly from Carnival and made all reservations through Carnival. Id. ¶ 26. Plaintiff understood from the promotional material that Carnival regularly inspected the facilities, the equipment (including the ATVs), and the operators to ensure that they were reasonably safe. Id. ¶ 28. Plaintiff also believed the Excursion was operated by Carnival as part of Plaintiff's Cruise aboard the Ship. Id. ¶ 29. However, the Excursion was actually operated by WIPAD. Id.
On or about August 17, 2017, Plaintiff participated in the Excursion in the Dominican Republic. Id. The Excursion consisted of participants navigating over rough, uneven, and/or steep terrain on ATVs for extended periods of time. Id. ¶ 30. At the beginning of the Excursion, and when passengers began navigating the trails, the tour guides did not provide sufficient instructions or supervision to participants concerning how to properly operate an ATV. Id. Plaintiff had difficulty maneuvering the ATV, and while attempting to navigate over the rough and uneven terrain, Plaintiff crashed, was thrown off the ATV, and the ATV landed on top of her. Id. As a result, Plaintiff suffered severe injuries. Id.
On July 26, 2018, Plaintiff filed her initial complaint against Defendants. D.E. 1. On August 15, 2018, Plaintiff filed her amended complaint against Defendants, alleging nine causes of action against Carnival relating to her incident on the ATV: (1) misleading advertising in violation of Fla. Stat. § 817.41 ; (2) negligent misrepresentation; (3) negligent selection and/or retention; (4) negligent failure to warn; (5) general negligence; and (6) breach of fiduciary duty. D.E. 7. In Count Six, Plaintiff brought a single claim for negligence against WIPAD. Id. Lastly, Plaintiff brought three causes of action against WIPAD and Carnival jointly: (7) negligence based on apparent agency or agency by estoppel; (8) negligence based on joint venture between carnival and WIPAD; and (9) breach of third-party beneficiary contract. D.E. 7. Carnival moved to dismiss the claims against it on August 29, 2018. D.E. 12.2
On February 12, 2019, this Court granted in part Carnival's motion to dismiss and ordered Plaintiff to file a second amended complaint. D.E. 30. This Court found Plaintiff's amended complaint amounted to a shotgun pleading because Plaintiff failed to explain which facts supported her numerous causes of action. D.E. 30 at 6. This Court also dismissed with prejudice Plaintiff's claim for breach of fiduciary duty against Carnival. Id.
On March 1, 2019, Plaintiff timely filed her Second Amended Complaint. D.E. 31. Plaintiff alleges eight causes of action against Carnival: (1) misleading advertising in violation of Fla. Stat. § 817.41 ; (2) negligent misrepresentation; (3) negligent selection and/or retention; (4) negligent failure to warn; (5) general negligence; (6) negligence based on apparent agency or agency by estoppel; (7) negligence based on joint venture; and (8) breach of third-party beneficiary contract. D.E. 31 at 17–51. On March 15, 2019, Carnival moved to dismiss the Second Amended Complaint for failure to state a claim under Rule 12(b)(6). D.E. 36. For the reasons that follow, the Court will deny Carnival's Motion, except as to Count Nine.
To state a claim for relief, Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." While a court, at this stage of the litigation, must consider the allegations contained in the plaintiff's complaint as true, this rule "is inapplicable to legal conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In addition, the complaint's allegations must include "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
In practice, 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 ). 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. Id. The plausibility standard requires more than a sheer possibility that a defendant has acted unlawfully. Id. When a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. Determining whether a complaint states a plausible claim for relief is a context-specific undertaking that requires the court to draw on its judicial experience and common sense. Id. at 679, 129 S.Ct. 1937.
Plaintiff alleges that Carnival made and disseminated false or misleading materials regarding the safety and difficulty level of the Excursion. The elements for a negligent misrepresentation claim under Florida common law and Fla. Stat. § 871.41 are:
(1) misrepresentation of a material fact; (2) that the representor made the misrepresentation without knowledge as to its truth or falsity or under circumstances...
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