Thompson v. Carnival Corp.
| Decision Date | 30 March 2016 |
| Docket Number | Case No. 1:15-cv-24115-KMM |
| Citation | 174 F.Supp.3d 1327 |
| Court | U.S. District Court — Southern District of Florida |
| Parties | Timothy Thompson, Plaintiff, v. Carnival Corporation d/b/a Carnival Cruise Lines, et al., Defendants. |
Jacqueline Garcell, Jason Robert Margulies, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiff.
Jeffrey Eric Foreman, Andrew Douglas Craven, Lisandra Guerrero, Marcus G. Mahfood, Noah Daniel Silverman, Raquel Lauren Loret De Mola, Foreman Friedman, PA, Carlos Javier Chardon, Samantha S. Loveland, Hamilton, Miller & Birthisel, LLP., Miami, FL, for Defendants.
K. MICHAEL MOORE
This cause came before the Court upon Defendant Carnival Corporation's (“Carnival”) Motion to Dismiss Plaintiff's Complaint (ECF No. 19); and Defendants Delisle Walwyn & Co. Ltd. (“Delisle Walwyn”) and Vacation and Tour Consultants (St. Kitts) Ltd. d/b/a Kantours a/k/a Kantours Destination Services (“Kantours”) (collectively the “Excursion Entities”) Motion to Dismiss Plaintiff's Complaint (ECF No. 24) and related responses and replies.1 The Motions are now ripe for review. For the reasons set forth below, the Excursion Entities' Motion to Dismiss (ECF No. 24) is GRANTED and Carnival's Motion to Dismiss (ECF No. 19) is GRANTED IN PART.
This is a maritime personal injury action brought by Plaintiff Timothy Thompson (“Thompson”) against Carnival and the Excursion Entities seeking recovery for damages allegedly sustained by Thompson while participating in a shore excursion during a cruise aboard the Carnival Valor . See generally Compl. (ECF No. 1).
The Complaint alleges that Thompson was a paying passenger aboard the Carnival Valor in early December, 2014. Id. ¶ 13. During the cruise, Carnival offered passengers aboard the ship the opportunity to go on various shore excursions, including one called the “ATV Adventure.” Id. ¶ 15. Carnival advertised the excursions on its website, its promotional material, and at an excursion desk aboard the Carnival Valor . Id. ¶¶ 14, 16. Additionally, Carnival sold tickets for the shore excursions to its passengers, including Thompson, during the course of the subject cruise. Id. ¶ 17.
On December 12, 2014, Thompson participated in the “ATV Adventure” in St. Kitts, which is alleged to be marketed and promoted by Carnival, and owned and operated by the Excursion Entities, two foreign corporations.2 Id. ¶¶ 19, 29. While he was participating in the shore excursion, Thompson alleges that he suffered severe injuries when the brakes on the all-terrain vehicle (“ATV”) that he was riding failed and/or malfunctioned. Id. ¶ 21.
As a result, Thompson filed a five-count Complaint (the “Complaint”) against Defendants on November 3, 2015, asserting the following claims against Carnival: Negligence (Count I), Negligence for Apparent Agency or Agency by Estoppel (Count III), Joint Venture (Count IV) and a Third-Party Beneficiary claim (Count V). Thompson also brings a claim of negligence against the Excursion Entities (Count II). Carnival now moves to dismiss Counts I, III, IV, and V of the Complaint for failure to state a claim, while the Excursion Entities argue that the Court lacks personal jurisdiction over the foreign corporations.
In support of their motion to dismiss, the Excursion Entities argue that Thompson has failed to plead the minimum criteria necessary for the Court to exercise personal jurisdiction over them. The Excursion Entities' main contention is that their limited contacts with this forum are constitutionally inadequate for purposes of establishing personal jurisdiction. Thompson responds by arguing that: (1) the Excursion Entities expressly consented to jurisdiction in the Southern District of Florida in its agreement with Carnival3 ; (2) the Complaint alleges a sufficient basis for the Court to exercise general jurisdiction over the Excursion Entities; and (3) “[f]urther inquiry into the veracity of the statements made in the Excursion Entities' affidavit ... requires jurisdictional discovery on the Excursion Entities' contacts with Florida.” See Pl.'s Resp. (ECF No. 31) at 2. For the reasons that follow, the Court finds that it lacks personal jurisdiction over the Excursion Entities.
“Because federal courts ordinarily follow state law in determining the bounds of their jurisdiction over persons ... a federal court sitting in Florida must conduct a two-step inquiry to determine whether it has personal jurisdiction over a non-resident defendant.” Atmos Nation LLC v. Alibaba Grp. Holding Ltd ., No. 0:15–CV–62104–KMM, 2016 WL 1028332, at *2 (S.D.Fla. Mar. 15, 2016)
(citing Daimler AG v. Bauman , ––– U.S. ––––, 134 S.Ct. 746, 753, 187 L.Ed.2d 624 (2014) ). The first inquiry for a federal court, whether sitting in diversity or admiralty, is to look to the long-arm statute of the state—here Florida—and the cases interpreting that statute. Tarasewicz v. Royal Caribbean Cruises Ltd ., No. 14–CIV–60885, 2015 WL 3970546, at *18 (S.D.Fla. June 30, 2015). Second, the court must determine whether the exercise of personal jurisdiction “would violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.” Louis Vuitton Malletier, S.A. v. Mosseri , 736 F.3d 1339, 1350 (11th Cir.2013). Although “determining whether jurisdiction is appropriate under Florida's Long–Arm Statute is a separate inquiry from determining whether exercising personal jurisdiction comports with the Due Process Clause” it is clear that the constitutional requirements are “more restrictive.” Melgarejo v. Pycsa Panama, S.A ., 537 Fed.Appx. 852, 859 (11th Cir.2013) (quoting Internet Sols. Corp. v.
Marshall , 39 So.3d 1201, 1207 (Fla.2010) ).
Pursuant to Florida's long-arm statute a non-resident defendant can be subject to personal jurisdiction in two ways. First, a Florida court can exercise general personal jurisdiction—that is, jurisdiction over any claims against a defendant, whether they involve the defendant's activities in Florida—if the defendant engages in “substantial and not isolated activity” in Florida. Carmouche v. Tamborlee Mgmt., Inc ., 789 F.3d 1201, 1204 (11th Cir.2015)
(quoting Fla. Stat. § 48.193(2) ). Second, a Florida court can exercise specific personal jurisdiction—that is, jurisdiction over suits that arise out of or relate to a defendant's contacts with Florida—if the claim asserted against the defendant arises from the defendant's contacts with Florida, and those contacts fall within one of the enumerated categories set forth in section 48.193(1)(a). Schulman v. Inst. for Shipboard Educ., 624 Fed.Appx. 1002, 1004–05 (11th Cir.2015).
Thompson only alleges that the Court has general jurisdiction over the Excursion Entities. With respect to general jurisdiction, Florida's long-arm statute is coextensive with the “limits on personal jurisdiction imposed by the Due Process Clause.” Fraser v. Smith , 594 F.3d 842, 846 (11th Cir.2010)
(citing Woods v. Nova Companies Belize Ltd ., 739 So.2d 617, 620 (Fla. 4th DCA 1999) ). Due process “requires that the defendant have minimum contacts with the forum state and that the exercise of jurisdiction over the defendant does not offend ‘traditional notions of fair play and substantial justice.’ ” Mut. Serv. Ins. Co. v. Frit Indus., Inc ., 358 F.3d 1312, 1319 (11th Cir.2004) (quoting
Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). An exercise of general jurisdiction comports with due process when a defendant's contacts with Florida are “so ‘continuous and systematic’ as to render [the defendant] essentially at home in the forum state.” Daimler , 134 S.Ct. at 754 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011) ).
The burden lies with the plaintiff to establish a prima facie case of personal jurisdiction over a non-resident defendant.
Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino , 447 F.3d 1357, 1360 (11th Cir.2006)
. When a defendant submits affidavits contesting jurisdiction, the burden then shifts back to the plaintiff to produce evidence to support jurisdiction, unless “the defendant's affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction.” Louis Vuitton , 736 F.3d at 1350. 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. 12–21897–CIV, 2013 WL 1100028, at *2 (S.D.Fla. Mar. 15, 2013) (citing United Techs. Corp. v. Mazer , 556 F.3d 1260, 1280 (11th Cir.2009) ).
Because Thompson does not allege specific jurisdiction, the Court need only determine whether general jurisdiction exists over the Excursion Entities. Given recent decisions by the Supreme Court and the Eleventh Circuit the analysis of this issue practically ends before it begins.
Regarding general jurisdiction, the Supreme Court recently made a sweeping declaration “that only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there.” Daimler , 134 S.Ct. at 760
(citing Goodyear , 131 S.Ct. at 2851 ). In Daimler, the Court reinforced that there are two “paradigm bases” for asserting general jurisdiction over a corporation: its place of incorporation and its principal place of business. Id . at 759–60. The Court further determined that “a corporation's operations in a forum other than its formal place of...
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