Serra-Cruz v. Carnival Corp.

• Decision Date: 18 September 2019
• Docket Number: Case No. 1:18-cv-23033-UU
• Citation: 400 F.Supp.3d 1354
• Parties: Taryn SERRA-CRUZ, Plaintiff, v. CARNIVAL CORP. and Wild Play Adventure – WIPAD, Defendants.
• Court: U.S. District Court — Southern District of Florida

400 F.Supp.3d 1354

Taryn SERRA-CRUZ, Plaintiff,

v.CARNIVAL CORP. and Wild Play Adventure – WIPAD, Defendants.

Case No. 1:18-cv-23033-UU

United States District Court, S.D. Florida.

Signed September 18, 2019

Jacqueline Garcell, Jason Robert Margulies, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiff.

Jeffrey Eric Foreman, Noah Daniel Silverman, Foreman Friedman, PA, Miami, FL, Carlos Javier Chardon, Hamilton, Miller & Birthisel, L.L.P., Miami, FL, for Defendants.

ORDER GRANTING DEFENDANT WIPAD'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

URSULA UNGARO, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Wild Play Adventure's Motion to Dismiss Plaintiff's Second Amended Complaint for Lack of Personal Jurisdiction (D.E. 37) (the "Motion").

The Court has considered the Motion, the pertinent portions of the record and is otherwise fully advised in the premises.

I. Background

Unless otherwise indicated, the following facts are taken from the Plaintiff's Second Amended Complaint. D.E. 31.

Plaintiff, Taryn Serra-Cruz, is a citizen of New York. D.E. 31 ¶ 1. Defendant Wild Play Adventure ("WIPAD") is an entity based in the Dominican Republic. Id. ¶ 3. Defendant Carnival, a foreign corporation with its principal place of business in Florida, owns, operates, manages and controls the vessel, Carnival Splendor (the "Ship"). Id. ¶ 14. 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. WIPAD entered into a contract with Carnival concerning the Excursion, titled the Standard Shore Excursion Independent Contractor Agreement (the "Agreement"). Id. ¶ 9; D.E. 40-1. The Agreement contains a "consent to jurisdiction" provision, which provides that WIPAD "consents to the personal jurisdiction over it and to the venue of the courts serving the Southern District of Florida in the event of any lawsuit to which CARNIVAL is a party and which is related to, in connection with, arising from or involving the Shore Excursions or terms in this Agreement." D.E. 40-1 ¶ 15(c).

On or about August 17, 2017, Plaintiff was aboard the Ship as a cruise passenger. D.E. 31 ¶ 16. The same day, Plaintiff participated in the Excursion in the Dominican Republic. Id. ¶ 29. Plaintiff had difficulty maneuvering the ATV during the Excursion, and while attempting to navigate over the rough and uneven terrain, Plaintiff crashed and was thrown off the ATV, which landed on top of her. Id. ¶ 29. As a result, Plaintiff suffered severe injuries. Id.

WIPAD moved to dismiss Plaintiff's first amended complaint for lack of personal jurisdiction on November 15, 2018, D.E. 20. This Court denied WIPAD's motion as moot on March 15, 2019 given Plaintiff's Second Amended Complaint. D.E. 32. The parties filed a joint motion requesting the court to deem WIPAD's motion to dismiss responsive to the Second Amended Complaint, D.E. 33, which the Court denied, noting that WIPAD must file a new motion. D.E. 35 at 2.

On March 1, 2019, Plaintiff timely filed her Second Amended Complaint. D.E. 31. Plaintiff alleges five causes of action against WIPAD: (1) misleading advertising in violation of Fla. Stat. § 817.41 ; (2) negligence; (3) negligence based on apparent agency or agency by estoppel; (4) negligence based on joint venture; and (5) breach of third-party beneficiary contract. D.E. 31 at 17–51. On March 15, 2019, WIPAD moved to dismiss the Second Amended Complaint for lack of personal jurisdiction. D.E. 37.

II. Legal Standard

"A federal district court sitting in diversity may exercise personal jurisdiction to the extent authorized by the law of the state in which it sits and to the extent allowed under the Constitution." Meier ex rel. Meier v. Sun Intern. Hotels, Ltd. , 288 F.3d 1264, 1269 (11th Cir. 2002) (citing Morris v. SSE, Inc. , 843 F.2d 489, 492 (11th Cir. 1988) ). The Court must determine whether WIPAD's activities satisfy Florida's long-arm statute and, if satisfied, whether the extension of jurisdiction comports with the due process requirements of the Fourteenth Amendment. Meier ex rel. Meier , 288 F.3d at 1269 (citing Posner v. Essex Ins. Co. , 178 F.3d 1209, 1215 (11th Cir. 1999) ("A federal court sitting in diversity may properly exercise jurisdiction over a defendant only if two requirements are met: (1) the long-arm statute, and (2) the Due Process Clause of the Fourteenth Amendment.")).

It is a plaintiff's burden to establish a prima facie case of personal jurisdiction over a foreign defendant. See Aronson v. Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379, 1385 (S.D. Fla. 2014) (citing Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino , 447 F.3d 1357, 1360 (11th Cir. 2006) ). When a defendant has submitted affidavits challenging a court's jurisdiction, the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction, unless the defense affidavits contain only conclusory assertions. Meier , 288 F.3d at 1271. A court must construe all reasonable inferences in favor of the plaintiff when the parties have submitted conflicting evidence of jurisdiction. Madara v. Hall , 916 F.2d 1510, 1514 (11th Cir. 1990). But, when the plaintiff offers no competent evidence to the contrary, a "district court may find that the defendant's unrebutted denials [are] sufficient to negate plaintiff's jurisdictional allegations." Zapata v. Royal Caribbean Cruises, Ltd. , No. 12-cv-21897-COOKE, 2013 WL 1100028, at *2, 2013 LEXIS 36030, at *6 (S.D. Fla. Mar. 15, 2013) (citing United Techs. Corp. v. Mazer , 556 F.3d 1260, 1280 (11th Cir. 2009) ).

III. Analysis

In its Motion, WIPAD argues that the Court cannot exercise personal jurisdiction over it because it is a Dominican corporation with its principal and only place of business in the Dominican Republic. D.E. 37 at 1. WIPAD further argues the Agreement does not support a finding of specific personal jurisdiction. In support of its Motion, WIPAD cites to the Declaration of Roberto Roman, WIPAD's Operations Manager. D.E. 37 at 3; D.E. 20 Ex. A. Plaintiff responds that the Agreement is sufficient for this Court to find specific jurisdiction under Fla. Stat. § 48.193(1)(a)(9). D.E. 40 at 2.¹ In the alternative, Plaintiff requests that she be permitted to engage in jurisdictional discovery. Id. at 16.

A. Florida's Long-Arm Statute

A defendant may be subject to Florida's long-arm statute through either specific jurisdiction and general jurisdiction. See, e.g. , Carmouche v. Carnival Corp. , 36 F. Supp. 3d 1335, 1340 (S.D. Fla. 2014) (citing Fla. Stat. § 48.193 (2016) ). Irrespective of the method, "Florida's long-arm statute is to be strictly construed." Carmouche , 36 F. Supp. 3d at 1340 (citing Sculptchair, Inc. v. Century Arts, Ltd. , 94 F.3d 623, 627 (11th Cir. 1996) ). "Since the extent of the long-arm statute is governed by Florida law, federal courts are required to construe it as would the Florida Supreme Court." Carmouche , 36 F. Supp. 3d at 1340 (quoting Cable/Home Comm. v. Network Prods. , 902 F.2d 829, 856 (11th Cir. 1990) ). Furthermore, "[i]n the absence of Florida Supreme Court precedent, federal courts must adhere to decisions of Florida's intermediate courts." Aronson v. Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379, 1385 (S.D. Fla. 2014) (citing Meier ex rel. Meier v. Sun Int'l Hotels, Ltd. , 288 F.3d 1264, 1271 (11th Cir. 2002) ).

i. Specific Jurisdiction

In her Complaint, Plaintiff alleges that WIPAD is subject to specific jurisdiction pursuant to Fla. Stat. § 48.193(1)(a)(1), (1)(a)(4), and (1)(a)(9). D.E. 31 ¶¶ 8, 9. In her response, Plaintiff reaches the merits only of subsection (1)(a)(9). D.E. 40.

1. Fla. Stat. § 48.193(1)(a)(1)

Subsection (1)(a)(1) confers jurisdiction over an out-of-state defendant for claims arising against a defendant who is "operating, conducting, engaging in, or carrying on a business venture in this state or having an office or agency in this state." Plaintiff alleges WIPAD is subject to personal jurisdiction under subsection (1)(a)(1) because WIPAD "reached out to Florida-based cruise lines, insurers, cruise industry associates, and/or premium financing companies for purposes of operating, conducting, engaging in, or carrying on a business or business venture" in Florida. D.E. 31 ¶ 8. WIPAD argues that Plaintiff has failed to show a nexus between the alleged tort and WIPAD's alleged activities in Florida. D.E. 37 at 6–7. In his Declaration, Mr. Roman states that WIPAD has never maintained any "officers, directors, employees, and/or agents within the State of Florida or elsewhere in the United States" and "has never operated, conducted, engaged in or carried on a business venture, or had an office or agency in Florida or elsewhere in the United States." D.E. 20 Ex. A ¶¶ 17, 20.

WIPAD is not subject to personal jurisdiction under subsection (1)(a)(1). Plaintiff has failed to allege any nexus between the alleged tort and WIPAD's alleged activities. See Brown v. Carnival Corp. , 202 F. Supp. 3d 1332, 1343 (S.D. Fla. 2016) (finding that the court could not exercise personal jurisdiction over the excursion operator partly because the plaintiff did not establish a nexus between the tort and defendant's business activities); Bloom v. A.H. Pond Co., Inc. , 519 F. Supp. 1162, 1168 (S.D. Fla. 1981) ("It is clear that doing business in this state is not a sufficient basis, standing along, upon which to predicate long-arm jurisdiction. There must also be some nexus or connection between the business that is conducted in Florida and the cause of action alleged."). In addition, Plaintiff wholly failed to respond to WIPAD's arguments relating to this Court's exercise of specific jurisdiction under subsection (1)(a)(1) and did not offer any evidence to rebut Mr. Roman's Declaration. D.E. 40 at 2–7. For these reasons, the Court rejects Plaintiff's argument that this Court should find...