Toyling Maa v. Carnival Corporation and PLC

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

TOYLING MAA, individually and CV 20-6341 DSF (SKx)

as personal representative of the

ESTATE OF WILSON MAA, and Order DENYING Plaintiffs’

the ESTATE OF WILSON MAA, Motion to Remand (Dkt. 24) and

Plaintiffs, GRANTING Defendants’ Motions

to Dismiss (Dkts. 17, 19)

v.

CARNIVAL CORPORATION &

PLC and PRINCESS CRUISE

LINES, LTD.,

Defendants.

Defendants Carnival Corporation and Carnival plc (erroneously

sued as Carnival Corporation & PLC), and Princess Cruise Lines Ltd.

move to dismiss Plaintiffs Toyling Maa and the Estate of Wilson Maa’s

Complaint in its entirety. Dkt. 17-1 (Carnival Mot.); Dkt. 19-1

(Princess Mot.). Plaintiffs oppose, Dkt. 21 (MTD Opp’n), and move to

remand, Dkt. 24 (Remand Mot.). Defendants oppose Plaintiffs’ motion.

Dkt. 29 (Remand Opp’n). The Court deems these matters appropriate

for decision without oral argument. See Fed. R. Civ. P. 78; Local Rule

7-15. For the reasons stated below, motion to remand is DENIED and

the motions to dismiss are GRANTED.

I. BACKGROUND

On March 5, 2020, Toyling and Wilson Maa set sail on the Coral

Princess from San Antonio, Chile. Dkt. 1-1 (Compl.) ¶¶ 2, 12-13. On

March 14, 2020, nine days into the cruise, the passengers received the

“first notification . . . that anything had changed” when they were “no

longer permitted to go ashore at their scheduled ports of call.” Id. ¶ 73.

No other heightened protective measures were taken and “life aboard

the Coral Princess continued as usual.” Id. On March 17, 2020, all

passengers had their temperatures taken. Id. ¶ 74. On March 19,

2020, the ship arrived at Buenos Aires, Argentina where about 500

passengers were permitted to disembark. Id. ¶ 76. The remaining

passengers were informed that the Coral Princess would be departing

for Fort Lauderdale, Florida. Id. ¶ 78. By March 30, 2020, several

passengers had reported feeling ill, including Mr. Maa who had

developed a fever. Id. ¶¶ 82, 92. Some were tested for Coronavirus,

however, because Coral Princess did not have the ability to obtain test

results on the ship, it was unknown at that time if any passengers or

staff had the virus. Id. ¶ 82.

On March 31, 2020, Princess provided an update that the medical

center on the ship reported a “higher-than-normal number of people

presenting influenza-like symptoms.” Id. ¶ 83. It then asked

passengers to self-isolate in their rooms “given the concern surrounding

COVID-19 (coronavirus).” Id. Until that date, passengers enjoyed “free

run of the ship.” Id. Based on the March 31 update, Mrs. Maa

contacted medical staff aboard the ship and a doctor came to her cabin

and administered a COVID-19 test to Mr. Maa. Id. ¶ 93. The doctor

recommended that Mr. Maa get x-rayed, but the medical staff at the

medical center advised that there was no reason to do so. Id. ¶¶ 93- 94.

That same day, the ship made a stop in Barbados where 13 test

samples were transmitted; 12 of those tests were positive. Id. ¶¶ 84-

85. By April 3, 2020, two passengers had died onboard from COVID-19,

a fact Defendants failed to disclose. Id. ¶ 86.

The Fort Lauderdale Coast Guard denied permission for the

Coral Princess to dock; it finally docked in Miami, Florida on April 4,

2020. Id. ¶¶ 87-88. Passengers requiring immediate medical attention

were taken to the hospital, but other passengers were not permitted to

disembark until April 6, 2020. Id. ¶ 88. The Maas remained on the

boat and on April 4 Mr. Maa was put on oxygen. Id. ¶ 96. Around 2

p.m. medical staff advised that they called an ambulance because the

ventilator on board was not strong enough. Id. ¶ 98. However, an

ambulance was not called until about 9 p.m. Id. ¶¶ 99-101. Mrs. Maa

also began exhibiting symptoms of COVID-19, including fever, chills,

and coughing. Id. ¶ 97. At 10 p.m., the ambulance finally arrived and

took Mr. Maa to the hospital; he died two hours later. Id. ¶¶ 101-102.

Around 4 p.m. the next day, an ambulance took Mrs. Maa to the

hospital, id. ¶ 103, where she remained until April 22, 2020, id. ¶ 104.

She returned home to California on April 24, 2020. Id. ¶ 105.

Plaintiffs bring two claims for negligence, one of which is a

“survivor cause of action.”

II. LEGAL STANDARD

A. Remand

“Federal courts are courts of limited jurisdiction” and “possess

only that power authorized by [the] Constitution and statute . . . .”

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A

defendant may remove an action to federal court if the federal court

could exercise subject matter jurisdiction over the action. 28 U.S.C.

§ 1441(a). “The removal statute is strictly construed against removal

jurisdiction” and “[t]he defendant bears the burden of establishing that

removal is proper.” Provincial Gov’t of Marinduque v. Placer Dome,

Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). If a defendant fails to meet

its burden of establishing the Court has subject matter jurisdiction, the

suit is remanded. 28 U.S.C. § 1447(c).

B. Motion to Dismiss

Rule 12(b)(6) allows an attack on the pleadings for failure to state

a claim on which relief can be granted. “[W]hen ruling on a defendant’s

motion to dismiss, a judge must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S.

89, 94 (2007) (per curiam). However, a court is “not bound to accept as

true a legal conclusion couched as a factual allegation.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007)). “Nor does a complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (alteration in

original) (quoting Twombly, 550 U.S. at 557). A complaint must “state

a claim to relief that is plausible on its face.” Twombly, 550 U.S. at

570. This means that the complaint must plead “factual content that

allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. There must

be “sufficient allegations of underlying facts to give fair notice and to

enable the opposing party to defend itself effectively . . . and factual

allegations that are taken as true must plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing

party to be subjected to the expense of discovery and continued

litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

Ruling on a motion to dismiss will be “a context-specific task that

requires the reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the

complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is

entitled to relief.’” Iqbal, 556 U.S. at 679 (alteration in original)

(citation omitted) (quoting Fed. R. Civ. P. 8(a)(2)). As a general rule,

leave to amend a complaint that has been dismissed should be freely

granted. Fed. R. Civ. P. 15(a).

III. DISCUSSION

A. Motion to Remand

“The district courts shall have original jurisdiction, exclusive of

the courts of the States, of: (1) Any civil case of admiralty or maritime

jurisdiction, saving to suitors in all cases all other remedies to which

they are otherwise entitled.” 28 U.S.C. § 1333(1). The Supreme Court

has interpreted the so-called “saving-to-suitors” clause to bar state

courts from considering “those maritime causes of action begun and

carried on as proceedings in rem” but “leave[s] state courts ‘competent’

to adjudicate maritime causes of action in proceedings ‘in personam.’”

Madruga v. Superior Court of State of Cal. in & for San Diego Cty., 346

U.S. 556, 560-61 (1954). “Therefore, a plaintiff with in personam

maritime claims has three choices: He may file suit in federal court

under the federal court’s admiralty jurisdiction, in federal court under

diversity jurisdiction if the parties are diverse and the amount in

controversy is satisfied, or in state court.” Ghotra by Ghotra v. Bandila

Shipping, Inc., 113 F.3d 1050, 1054 (9th Cir. 1997). “The same

substantive law pertains to the claim regardless of the forum, a type of

‘reverse-Erie’ to ensure the uniform application of admiralty law.” Id.

at 1055; see also Adamson v. Port of Bellingham, 907 F.3d 1122, 1126

(9th Cir. 2018) (“[I]f the district court could have maritime jurisdiction

over a tort claim, ‘[s]ubstantive maritime law controls’ the claim,

‘whatever the forum or asserted basis of jurisdiction.’” (alteration in

original) (quoting Unigard Sec. Ins. Co. v. Lakewood Eng’g & Mfg.

Corp., 982 F.2d 363, 366 n.1 (9th Cir. 1992))); King v. Alaska S.S. Co.,

431 F.2d 994, 996 (9th Cir. 1970) (where a plaintiff “sustained injuries

aboard a ship upon navigable waters” that were “caused by conduct

which occurred on those waters . . . , the legal rights and liabilities

arising from the conduct in question are measurable by the standards

of maritime law”).1

At least until 2011, it was generally accepted that “saving clause

claims brought in state court [we]re not removable under 28 U.S.C.

§ 1441 absent some other jurisdictional basis, such as diversity or

federal question jurisdiction.” Morris v. Princess Cruises, Inc., 236

F.3d 1061, 1069 (9th Cir. 2001); see also Dirkse v. Nu Venture Diving

Co., No. LA CV17-08554 JAK (MRWx), 2018 WL 6133683, at *3 (C.D.

Cal. May 21, 2018) (collecting cases). In 2011, the removal statute was

amended in a potentially relevant way. Previously, it permitted

removal “without regard to the citizenship or residence of the parties”

only where “the district courts have original jurisdiction founded on a

1 Plaintiffs’ argument that federal jurisdiction is not exclusive, Remand Mot.

at 11-12, misses the point and has no bearing on whether removal was

proper. Regardless of whether this case proceeds in state or federal court,

admiralty law will apply. Therefore, regardless of forum, Plaintiffs’

arguments “that federal admiralty statutes” do not “preempt alternative

state law remedies,” Mot. at 12, will be resolved under admiralty law.

claim or right under the Constitution, treaties or laws of the United

States.” See 28 U.S.C. § 1441(b) (2006). “Any other such action shall

be removable only if none of the parties in interest properly joined and

served as defendants is a citizen of the State in which such action is

brought.” Id. The 2011 amendments removed this limitation. The

Ninth Circuit has not yet spoken as to the effect this change has, if any,

on the removability of maritime claims where diversity jurisdiction

does not exist. For purposes of this motion, the Court assumes, without

deciding, that the 2011 amendments to the Federal Rules of Civil

Procedure did not change the rule that the saving-to-suitors clause

generally prohibits removal.

However, that does not end the inquiry. Defendants contend the

Maas’ cruise tickets contained a forum selection clause requiring them

to bring this lawsuit in federal court and waiving any right to seek

remand and that, because of this waiver, the animating reasons behind

preventing removal, such as protecting remedies available at law and

the balance between state and federal courts, are irrelevant. See

Remand Opp’n at 1-2, 5-9. Plaintiffs contend removal is a procedurally

improper way to enforce a forum selection clause, and in any event, the

forum selection clause is not enforceable. Remand Mot. at 13-15;

Remand Reply at 1, 6.

1. Whether the Forum Selection Clause Waives Right to

Seek Remand

Defendants contend Plaintiffs waived their right to seek remand

based on a forum selection clause requiring cruise ship passengers to

bring all suits in federal court that can be brought in federal court.2

See Remand Opp’n at 6. Specifically, the ticket contract states:

2 Plaintiffs do not dispute that this action could have been brought in federal

court under the Court’s admiralty jurisdiction. See Remand Mot. at 10; see

also DeRoy v. Carnival Corp., 963 F.3d 1302, 1311-12 (11th Cir. 2020)

(federal courts have subject matter jurisdiction over “personal-injury claims

for injuries that occurred at sea” because “those claims fall squarely within

the admiralty jurisdiction of the district courts” and “when admiralty is the

All claims or disputes involving Emotional Harm, bodily

injury, illness to or death of any Guest whatsoever,

including without limitation those arising out of or relating

to this Passage Contract or Your Cruise, shall be litigated

in and before the United States District Courts for the

Central District of California in Los Angeles, or as to those

lawsuits over which the Federal Courts of the United

States lack subject matter jurisdiction, before a court

located in Los Angeles County, California, U.S.A., to the

exclusion of the courts of any other country, state, city,

municipality, county or locale. You consent to jurisdiction

and waive any objection that may be available to any such

action being brought in such courts.

Dkt. 29-1 (Steinke Decl.) ¶ 15.3 This forum selection clause

unambiguously covers Plaintiffs’ claims, which are based on the Maas

being infected with COVID-19 “on the Coral Princess and Mr. Maa

eventually d[ying] from the virus,” Compl. ¶ 114, which caused Mrs.

Maa “great physical, mental, emotional, and nervous pain and

suffering,” id. ¶ 118. Therefore, the Court now turns to the question of

whether such a clause can waive Plaintiffs’ right to seek remand of

their claims.

Under the removal statute, procedural defects may be waived.

See Kelton Arms Condominium Owners Ass’n v. Homestead Ins., 346

F.3d 1190, 1192 (9th Cir. 2003) (“procedural requirements exist

primarily for the protection of the parties” and “can be waived”); see

also Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544-45 (5th Cir. 1991)

(“the word ‘procedural’ in section 1447(c) refers to any defect that does

not involve the inability of the federal district court to entertain the

suit as a matter of its original subject matter jurisdiction”). In Morris,

only basis for jurisdiction, then admiralty jurisdiction applies, regardless of

how the plaintiff designates her case”).

3 It appears Defendants inadvertently failed to include the referenced

attachments to the Steinke Declaration.

the Ninth Circuit held that the protections provided by the savings-to-

suitors clause were procedural, and therefore could be waived. 236

F.3d at 1069 (because it was the “removal proceedings, which ‘are in

the nature of process,’ [that] were defective,” “the district court’s

removal jurisdiction is not destroyed where the plaintiff fails to seek

remand” because the claims at issue “arise under maritime law” and

therefore “they would have invoked the court’s admiralty jurisdiction

had [the plaintiff] brought them originally in federal court.” (quoting

Baris, 932 F.2d at 1545).

Plaintiffs contend that “Morris creates no higher barrier to

proceeding in state court than to hold plaintiffs to their choice when

they waive saving to suitors by failing to seek remand” and “[t]his very

filing therefore eliminates Morris as a possible basis for upholding

defendants’ removal, and, in fact, supports remand.” Remand Mot. at

10 (citing Morris, 236 F.3d at 1069). They note that Morris “did not

reach the issue of a supposed pre-litigation contractual waiver of the

right to resist removal.” Id. at 13; see also Remand Reply at 8 (“[T]he

plaintiff’s waiver of their right to proceed in a state forum had nothing

at all to do with any forum selection clause, but rather resulted from

the plaintiff’s complete failure to object to the removal being

improper.”). While this is true, Plaintiffs present no reasoned basis

why Morris should be limited to waiver due to failure to seek remand

after removal. To the contrary, like the plaintiffs in Morris, the Maas

should also be held “to their choice when they waive saving to suitors”

by agreeing to a forum selection clause. Therefore, the reasoning

behind Morris extends to a pre-litigation agreement to waive remand.

The Court acknowledges the lack of case law on the issue, presumably

because there are limited situations in which federal courts have

subject matter jurisdiction over a case, but where removal is otherwise

not permitted. Nevertheless, the case law supports the Court’s

conclusion. First, the Ninth Circuit has routinely enforced waivers of

the right to remove in forum selection clauses. See, e.g., Ferrari,

Alvarez, Olsen & Ottoboni v. Home Ins. Co., 940 F.2d 550, 554 (9th Cir.

1991) (noting that defendant “could waive all or a part” of its “right to

remove” in a forum selection clause). There is no reason why waivers of

the right to remand should be treated differently.

Additionally, the Court looks to how other courts have treated an

analogous issue – waiver of the forum defendant rule. Like the

savings-to-suitors clause, under the forum defendant rule, “if the

plaintiff chooses to bring his claims in state court against a resident

defendant, the defendant cannot remove the case to federal court, even

if the case could have been originally brought in federal court under

diversity jurisdiction.” Capital Rest. Grp., LLC v. Burger King Corp.,

No. 19-22131-Civ-Scola, 2019 WL 5102162, at *2 (S.D. Fla. Oct. 11,

2019). In Capital Restaurant, “the Plaintiff [wanted] to bring its state

claims in state court but, pursuant to the forum selection clause, [had

to] bring its claims in the Southern District of Florida if the court has

subject matter jurisdiction.” Id. The forum selection clause stated that

“the parties ‘agree that, in the event of litigation arising out of or in

connection with this Agreement in these courts, they will not contest or

challenge the jurisdiction or venue of these courts.’” Id. at *3. The

district court concluded that “the Plaintiff waived any right to bring its

case in state court or rely on the resident defendant rule to remand to

state court” because “[t]he parties unambiguously agreed to litigate in

federal court if there is federal jurisdiction.” Id. Other district courts

have reached the same conclusion. See, e.g., Uboh v. U.S. Equestrian

Found., 384 F. Supp. 3d 780, 785-86 (E.D. Ky. 2019) (holding that “a

party may prospectively waive a removal defect based on the forum

defendant rule in a contractual forum selection provision,” relying in

part on cases holding that waivers of removal in forum selection clauses

were permissible); Nanotech Entm’t, Inc. v. R&T Sports Mktg., Inc.,

No. 14-61608-CIV, 2014 WL 12611203, at *2 (S.D. Fla. Sept. 24, 2014)

(“the ‘forum defendant rule’ imposed by section 1441(b)(2) is not a

jurisdictional limitation, and is instead a procedural hurdle to remand”

that “a party may waive”); cf. Klayman v. Judicial Watch, Inc., 185 F.

Supp. 3d 67, 72 (D.D.C. 2016) (“Just as a permissive forum selection

clause does not have the effect of waiving a party’s right to remove, the

Court concludes that a permissive forum selection clause does not

waive a party’s right to remand based on the forum defendant rule.”).

Here the forum selection clause requires actions to be brought in

federal court if the federal court has subject matter jurisdiction and

states that cruise passengers “consent to jurisdiction and waive any

objection that may be available to any such action being brought in

such courts.” Steinke Decl. ¶ 15. The Court finds these cases

persuasive in concluding that a forum selection clause like the one at

issue here may act as a valid waiver of a plaintiff’s right to seek

remand of admiralty cases.

Next, Plaintiffs contend the Supreme Court held in Atlantic

Marine Construction Co., Inc. v. United States District Court for the

Western District of Texas that “there were only two proper procedural

mechanisms for a defendant who seeks to enforce a forum-selection

clause in federal court – neither of which are a motion for removal or

remand.” Dkt. 37 (Remand Reply) at 1 (citing Atl. Marine, 571 U.S. 49,

52, 60-61 (2013). According to Plaintiffs, the Court must therefore

ignore the forum selection clause in deciding whether removal was

proper. Id. at 1, 6. But Atlantic Marine does not apply here. That

case considered the situation where a plaintiff improperly chooses to

file in a particular federal court, when another federal court, state

court, or foreign court is mandated by a forum selection clause. It does

not address the proper method to enforce a forum selection clause

selecting a federal court in the same location as the state court in which

a plaintiff chose to file suit. It is true that in the cases cited by

Defendants, the defendants generally sought dismissal in the state

court, rather than removal to the federal court. See Korman v.

Princess Cruise Lines, Ltd., 32 Cal. App. 5th 206, 223 (2019) (affirming

dismissal of action brought by a passenger who was injured on a

Princess cruise ship for forum non conveniens based on an identical

forum selection clause); DeRoy, 963 F.3d at 1315-16 (“binding case law

in state court would have required the state court to dismiss [the

plaintiff’s] claim in accordance with the forum-selection clause”);

Lischinskaya v. Carnival Corp., 56 A.D.3d 116, 121 (N.Y. App. Div.

2008) (“the Saving to Suitors Clause does not bar dismissal of the

plaintiff’s claim on the basis of the forum selection clause to which she

agreed”); Remand Opp’n at 8 (collecting cases). However, nothing in

these opinions indicates that a motion to dismiss based on forum non

conveniens is the sole method by which the defendant could enforce the

clause.

Plaintiffs also contend “litigants cannot automatically create

removal jurisdiction by contract where none would otherwise exist,”

and “[e]ven given mutual contractual assent to do so, proceeding in a

given location or forum still requires a statutory basis for jurisdiction.”

Remand Mot. at 13. But here the parties are not creating removal

jurisdiction; they are waiving any objections to removal jurisdiction.

And there is a statutory basis for jurisdiction under section 1333(1)

providing district courts with original admiralty jurisdiction. Plaintiffs

also contend that “the contract language contemplates proceeding in

state or federal court, but saving to suitors limits the parties’ access to

federal jurisdiction.” Id. The Court disagrees. First, the contract

contemplates proceeding in state court only where the claims could not

be brought in federal court. And because this action undoubtedly could

have been brought in federal court, the contract does not authorize it to

be brought in state court. Second, the saving-to-suitors clause does not

limit access to federal jurisdiction; rather it provides state courts with

concurrent jurisdiction in certain situations. A Washington state

appellate court convincingly rejected a similar argument:

The Oltmans contend that under the federal savings to

suitors clause they were entitled to file in state court, and

that when they did so, the federal court was deprived of

subject matter jurisdiction. That being the case, they

reason, they were entitled to file in state court under the

exception in the forum selection clause permitting suit to be

brought in King County courts if the federal district court

lacked subject matter jurisdiction. Their argument is

circular.

Oltman v. Holland Am. Line USA, Inc., 163 Wash. 2d 236, 259 (2008).

Moreover, that a plaintiff’s decision to file in state court does not

deprive the federal court of subject matter jurisdiction formed the basis

of the holding in Morris. 236 F.3d at 1069 (“a state plaintiff may waive

the improper removal of a savings clause claim” because “the federal

court would have had original jurisdiction over the claim in the first

instance”); see also Korman, 32 Cal. App. 5th at 223 (rejecting

argument that “failure to remove the matter to federal court within 30

days strips the federal court of subject matter jurisdiction”).

For these reasons, the Court concludes that the forum selection

clause at issue here (to the extent enforceable, as discussed below)

warrants denial of remand because Plaintiffs have waived their right to

object to removal and to seek remand.

2. Whether the Forum Selection Clause is Enforceable

At the outset, Defendants make a procedural objection to

Plaintiffs’ arguments that the forum selection clause is not enforceable.

The Remand Motion states only that “Plaintiffs anticipate much

disputation about contract terms in California state court” and “may

raise any number of challenges to Defendants’ asserting the Passage

Contract as a defense,” and then lists some examples.4 Remand Mot. at

14-15. Defendants contend Plaintiffs do not actually argue that the

contract is unenforceable, but only list potential arguments, which is

insufficient to obtain remand. Instead, Defendants argue, Plaintiffs

“would need to establish that the allegations in support of removal in

the Notice are insufficient as a matter of law, or they would need to

4 The motion included the following four examples: 1) the Maas “made their

original travel bookings through Costco Travel, not directly with

Defendants,” Remand Mot. at 14 (citing Compl. ¶ 90); 2) “Defendant Princess

later announced an intention to impose ‘an aggressive regime of cancellation

penalties’ constraining Plaintiffs’ ability to reschedule without expense,” id.

at 14-15 (citing Compl. ¶ 91); 3) “Defendants have not yet made an argument

or showing as to when the Passage Contract purportedly went into effect,” id.

at 15; and 4) Defendants did not “reasonably communicate[] [the terms] to

otherwise unwitting passengers,” id. Defendants persuasively showed why

each of these examples do not invalidate the forum selection clause here.

Remand Opp’n at 12-17. Moreover, Plaintiffs did not respond to Defendants’

arguments or provide any further argument that the forum selection clause is

not enforceable on one or more of these grounds.

challenge and disprove a fact necessary to support removal.” Remand

Opp’n at 10-11. Because Plaintiffs do not do this, Defendants contend

they have not met their burden of showing that the forum selection

clause is unenforceable. Plaintiffs do not address this argument in

their Reply, instead contending that “there are serious factual and legal

issues concerning the validity of the contract between the parties and

the terms therein.” Remand Reply at 1. However, Plaintiffs fail to

explain why they did not fully raise those factual and legal issues in

their Remand Motion.5 “Enforceability of a forum selection clause in a

passenger cruise contract ‘is a case in admiralty, and federal law

governs the enforceability of the forum-selection clause . . . .’”

Schlessinger v. Holland Am., N.V., 120 Cal. App. 4th 552, 557 (2004)

(alteration in original) (quoting Carnival Cruise Lines, Inc. v. Shute,

499 U.S. 585, 590 (1991)), as modified (July 9, 2004). “Both California

and federal law presume a contractual forum selection clause is valid

and place the burden on the party seeking to overturn the forum

selection clause.” Korman, 32 Cal. App. 5th at 216 (2019) (quoting

Schlessinger, 120 Cal. App. 4th at 558). Therefore, the burden is on

Plaintiffs to show that the forum selection clause is invalid, not the

other way around. Plaintiffs have failed to meet that burden.

First, Plaintiffs effectively fail to address the recent cases holding

that identical, or nearly identical, forum selection clauses are valid.

See, e.g., Korman, 32 Cal. App. 5th at 223 (2019) (affirming dismissal of

action brought by a passenger who was injured on a Princess cruise

ship for forum non conveniens on the basis of an identical forum

selection clause); DeRoy, 963 F.3d at, 1315-16 (“While the saving-to-

suitors clause gives state and federal courts concurrent jurisdiction

over admiralty in personam cases such as this one, parties are free to

5 Plaintiffs invoke the rule that “[a]ny doubt about removal is to be resolved

in favor of remand.” Remand Reply at 10 (quoting Gaus v. Miles, 980 F.2d

564, 566 (9th Cir. 1992)). However, Plaintiffs are not free to create “doubt” by

intimating that they might make certain arguments after the case is

remanded (if it is remanded). Doubt refers to arguments made, and facts

presented, in the motion for remand.

contract for a federal forum for potential claims, provided, of course,

that the federal forum has independent subject-matter jurisdiction. . . .

[I]n the absence of a binding federal holding that the district court did

not enjoy jurisdiction over [plaintiff’s] claim, binding case law in state

court would have required the state court to dismiss her claim in

accordance with the forum-selection clause.”); see also Remand Opp’n

13 (citing Loving v. Princess Cruise Lines, Ltd., No. 08-cv-2898-JFW,

2009 WL 7236419, at *3-4 (C.D. Cal. Mar. 5, 2009)); id. at 14 (collecting

cases).6

Next, Plaintiffs attempt to raise a number of new arguments in

their Reply as to why the forum selection clause in unenforceable. A

“district court need not consider arguments raised for the first time in a

reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). In

any event, Plaintiffs’ arguments fail. First, Plaintiffs contend “the

passage contract which Defendants want this Court to enforce was not

presented to Plaintiffs prior to their booking of the cruise nor upon

entering the transaction.” Remand Reply at 1; id. at 6-7 (“here,

Defendant admits plaintiffs were not provided with the passage

contract or made of aware of their entry into the contract until after the

transaction”).7 However, Plaintiffs provide no legal argument or

citation to case law that requires the passage contract to be provided

prior to booking. To the contrary, many cruise line cases require only

that the passenger “had an opportunity to review the contract before

boarding.” Schlessinger, 120 Cal. App. 4th at 559 (emphasis added).

The Maas booked the cruise and received the terms and conditions

more than a year prior to boarding. Steinke Decl. ¶¶ 3-4, 16, 18.

Plaintiffs cannot reasonably contend that this is an insufficient amount

of time for review. See Schlessinger, 120 Cal. App. 4th at 559

(“plaintiffs booked the cruise months in advance and had ample

6 Plaintiffs’ attempt to distinguish some of these cases, Remand Mot. at 13-

14, is unpersuasive.

7 Defendants note that the passage contract was available to the Maas online

prior to booking. Steinke Decl. ¶ 11.

opportunity to become acquainted with the terms of the contract via the

brochure, HAL’s web site and their travel agent”).

Plaintiffs also contend that it was insufficient for the terms and

conditions to be contained solely in a hyperlink in a PDF attached to a

confirmation email in part because Defendants do “not specify what

page in the PDF included the link to the claimed passage contract.”

Remand Reply at 2; id. at 7 (“plaintiffs were required to click into a

PDF attached to an email, and then click into a link (on some unknown

and as yet unidentified page of the PDF) to then finally view the

passage contract”). As noted above, this was clearly an oversight, as

Defendants purported to attach the described PDF to the Steinke

Declaration. See Steinke Decl. ¶ 4. Nevertheless, it is Plaintiffs’

burden to show that the hyperlink’s location in the PDF renders the

forum selection clause invalid. More importantly, that PDF was not

the only notice the Maas received containing the passage contract. The

Maas also were required to enter immigration information through the

Cruise Personalizer. See id. ¶ 6. On logging into the Cruise

Personalizer, a dialog box with the passage contract pops up, requiring

that the person logged into the account check a box confirming that

each passenger on the ticket agrees to the terms and conditions before

proceeding. Id. ¶¶ 8-9. The Maas agreed to the passage contract in

this manner on March 16, 2019. Id. ¶ 16.8

8 Plaintiffs contend the only relevant contract was the one applicable in

January 2019 at the time they booked their cruise because the confirmation

email stated “[u]pon booking the Cruise, each Passenger explicitly agrees to

the terms of the Passage Contract

(https://www.princess.com/legal/passage_contract/).” Remand Reply at 2-3

(alteration in original) (citing Steinke Decl. ¶ 4). And because “the passage

contract was revised, amended, and/or changed after plaintiffs allegedly

agreed to it in January 2019, when they booked the cruise and first received

the Booking Confirmation PDF email[,] [t]here was no meeting of the minds.”

Id. at 3. However, Plaintiffs provide no evidence that any material terms

were changed between January and February 2019. Moreover, Plaintiffs

provide no legal basis for discounting their March 2019 acceptance of the

Finally, Plaintiffs contend Defendants fail to submit evidence

that “that the passage contract online never changes,” “that plaintiffs

agreed to the passage contract terms as presented in the declaration,”

and “that the terms of the passage contract plaintiffs allegedly agreed

to were not unliterally changed by defendants thereafter and prior to

the cruise.” Remand Reply at 2. But Steinke does declare that “the

clauses at issue in this motion are identical in all versions of the

Passage Contract.” Steinke Decl. ¶ 11. Plaintiffs provide no evidence

to the contrary.9 Plaintiffs also challenge Steinke’s “personal

knowledge of the plaintiffs’ acceptance of the passage contract or . . .

personal knowledge of which passage contract plaintiffs allegedly

accepted.” Remand Reply at 2. But Steinke declares that he “obtained

[the information in his declaration] through the business records

created automatically and contemporaneously with the events

described here and maintained in the ordinary court of business,”

Steinke Decl. ¶ 1; see also id. ¶¶ 3, 8, and that he is “personally

familiar with the company’s Booking Terms and Conditions, Passage

Contract, and the systems in place to notify guests of these documents

and to confirm their acceptance of the Passage Contract,” id. ¶ 10. This

is sufficient.

Because Plaintiffs have failed to meet their burden of

establishing that the forum selection clause is invalid or unenforceable,

the Court concludes that Plaintiffs have waived their right to seek

remand. Therefore, Plaintiffs’ motion to remand is DENIED.

terms and conditions just because they had already “entered” into the

contract in January. Remand Reply at 3-4.

9 Plaintiffs do contend that the version of the passage contract available

online was apparently revised in February 2019, while the Maas bought their

cruise tickets in January 2019, prior to the revision. Remand Reply at 3.

However, based on the Steinke Declaration, there is no evidence that the

purported February 2019 revision changed the relevant provisions of the

contract. Moreover, as discussed above, the Maas agreed to the contract at

issue in March 2019, after the purported February 2019 revision. See

Steinke Decl. ¶ 16.

B. Motion to Dismiss

1. Choice of Law

Defendants correctly assert that Plaintiffs’ claims are governed

by federal maritime law. Princess Mot. at 2-3; Carnival Mot. at 4.10

Federal maritime law applies when 1) “the tort occurred on navigable

water or . . . injury suffered on land was caused by a vessel on

navigable water” and 2) “the tort ha[s] a ‘significant relationship to

traditional maritime activity.’” Adamson, 907 F.3d at 1126 (quoting In

re Mission Bay Jet Sports, LLC, 570 F.3d 1124, 1126 (9th Cir. 2009)).

“[V]irtually every activity involving a vessel on navigable waters” is a

“traditional maritime activity sufficient to invoke maritime

jurisdiction.” Taghadomi v. United States, 401 F.3d 1080, 1087 (9th

Cir. 2005) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge &

Dock Co., 513 U.S. 527, 542 (1995)). Here, Plaintiffs allege that

Defendants continued operations without taking certain measures

onboard the Coral Princess to protect the Maas and other passengers

from contracting COVID-19. See, e.g., Compl. ¶ 113; see also Carnival

Mot. at 5. Personal injury claims aboard cruise ships consistently

satisfy this test. See, e.g., DeRoy, 963 F.3d at 1312 (negligence claims

based on personal injury fall within admiralty jurisdiction because “the

incident precipitating [plaintiff’s] claim occurred while the [cruise ship]

was traveling at sea” and “unchecked personal injuries allegedly

resulting from a cruise-ship operator’s negligence have the potential to

disrupt maritime commerce, and [plaintiff] suffered her injury while

participating as a passenger on a cruise, which is a traditional

maritime activity”); Wallis v. Princess Cruises, Inc., 306 F.3d 827, 840-

41 (9th Cir. 2002) (“A cruise line’s treatment of paying passengers

clearly has potential to disrupt commercial activity, and certainly has

substantial relationship to traditional maritime activity” so general

maritime law applies to plaintiff’s claim for intentional infliction of

emotional distress); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318,

10 Plaintiffs do not address this argument. The Court construes Plaintiffs’

silence as agreement that federal maritime law applies to their claims.

1320 (11th Cir. 1989) (“the substantive law applicable to this action,

which involves an alleged tort committed aboard a ship sailing in

navigable waters, is the general maritime law”). Therefore, maritime

law applies to Plaintiffs’ claims.11

2. DOSHA

Defendants contend that the claims brought on behalf of the

Estate of Wilson Maa are preempted by the Death on the High Seas Act

(DOHSA).12 Carnival Mot. at 5; Princess Mot. at 8. DOHSA applies

where “the site of an accident [is] on the high seas” regardless of where

“death actually occurs or where the wrongful act causing the accident

may have originated. . . . It is . . . irrelevant that decisions contributing

to the [boat’s] unseaworthiness may have occurred onshore or within

territorial waters,” Bergen v. F/V St. Patrick, 816 F.2d 1345, 1348 (9th

Cir. 1987), opinion modified on reh’g, 866 F.2d 318 (9th Cir. 1989).

Plaintiffs ignore this binding Ninth Circuit case law and instead point

to irrelevant factual allegations that “Mr. Maa died on shore,” that

“numerous acts and omissions leading to the alleged harms undertaken

by Defendants not at sea, but on land,” and that “Defendants sold

11 As noted above, “if the district court could have maritime jurisdiction over

a tort claim, ‘[s]ubstantive maritime law controls’ the claim, ‘whatever the

forum or asserted basis of jurisdiction.’” Adamson, 907 F.3d at 1126

(alteration in original) (quoting Unigard, 982 F.2d at 366 n.1); see also

Ghotra, 113 F.3d at 1054 (same); King, 431 F.2d at 996 (where a plaintiff

“sustained injuries aboard a ship upon navigable waters” that were “caused

by conduct which occurred on those waters . . . , the legal rights and liabilities

arising from the conduct in question are measurable by the standards of

maritime law”).

12 DOHSA applies to any “wrongful act, neglect, or default occurring on the

high seas beyond 3 nautical miles from the shore of the United States.” 46

U.S.C. § 30302; Helman v. Alcoa Glob. Fasteners, Inc., 637 F.3d 986, 990-91

(9th Cir. 2011) (“[T]he term ‘high seas’ is defined for purposes of the statute

by the explicitly stated geographic boundary of ‘beyond three nautical miles’

from shore”).

Plaintiffs the air travel” from “their home base in California to South

America.” MTD Opp’n at 16 (citing Compl. ¶¶ 9, 15, 58-64, 77, 89-90).

Here, the “site of [the] accident” was clearly “on the high seas.”

See Wong v. Carnival Corporation & PLC, No. 2:20-cv-04727-RGK-SK,

Dkt. 35 at 7 (C.D. Cal. Sept. 4, 2020) (“[T]he relevant site would be the

place where [the deceased passenger] contracted COVID-19.”); Moyer v.

Rederi, 645 F. Supp. 620, 628 (S.D. Fla. 1986) (“The key operative fact

. . . is that the decedent’s illness commenced while he was participating

in the snorkeling expedition; i.e., while he was on the high seas, as

defined by DOHSA” and it does not matter that the plaintiff alleged

that “Defendants acted negligently both before and after the snorkeling

expedition”). Plaintiffs allege that they “both got COVID-19 on the

Coral Princess.” Compl. ¶ 114. Given that the Coral Princess departed

from Chile on March 5, 2020, id. ¶¶ 12-13, and did not leave the high

seas until April 4, 2020 when it arrived in Miami, Florida, see id. ¶ 95,

it is clear from the face of the Complaint that Mr. Maa contracted

COVID-19 on the “high seas.” The Complaint alleges that on March 29,

2020 “as the cruise ship remained at sea en route from Buenos Aires to

Fort Lauderdale, Mr. Maa began feeling unwell,” that on March 31,

2020, Mr. Maa was tested for COVID-19 and that his test was

processed in the Barbados, and that on April 1, 2020 he learned that he

tested positive. Id. ¶¶ 92-94. These facts clearly establish that Mr.

Maa was on the high seas at the time he contracted COVID-19.13

Therefore, DOHSA preempts the survival claims brought on

behalf of the Estate of Wilson Maa. See Bergen, 816 F.2d at 1350

(“DOHSA preempts state wrongful death law”); Dooley v. Korean Air

Lines Co., 524 U.S. 116, 118 (1998) (DOHSA does not permit “recovery

for the decedent’s pre-death pain and suffering . . . through a survival

action under general maritime law”). The claims asserted on behalf of

13 The Court GRANTS Princess’s unopposed request for judicial notice, Dkt.

22 (Princess Reply) at 3 & n.2, that “Barbados is approximately 1,598 miles

Southeast of the vessel’s ultimate destination of Miami, Florida.” Fed. R.

Evid. 201(b).

Mr. Maa are DISMISSED with leave to amend to bring an appropriate

claim under DOHSA.

3. Standing

Defendants contend Mrs. Maa has not adequately alleged that

she has been appointed to be the personal representative for Mr. Maa’s

estate or that she is Mr. Maa’s successor-in-interest. Princess Mot. at

5-8; Carnival Mot. at 15. Although Mrs. Maa alleges that she “is a

proper personal representative and heir pursuant to California law and

admiralty law,” Compl. ¶ 12, she does not allege that she was

appointed personal representative by a court and did not file the

required declaration under California law. On August 28, 2020, Mrs.

Maa filed a declaration pursuant to California Code of Civil Procedure

Section 377.32 declaring that she is Mr. Maa’s successor-in-interest.

Dkt. 28 (Maa Decl.). However, given the Court’s conclusion that

DOHSA applies to Mr. Maa’s claims, that declaration fails to satisfy the

requirement under DOSHA that Mrs. Maa be legally appointed as Mr.

Maa’s personal representative. See Helman v. Alcoa Glob. Fasteners,

Inc., 843 F. Supp. 2d 1038, 1042 (C.D. Cal. 2011) (finding it insufficient

for complaint to allege that plaintiffs were “successors-in-interest,”

instead requiring “allegation of court-appointment as personal

representatives”). Plaintiffs’ conclusory assertion that their

“allegations are sufficient,” MTD Opp’n at 16, is not enough to survive a

motion to dismiss. Any amended complaint should contain allegations

that Mrs. Maa is the court-appointed personal representative for Mr.

Maa’s estate.

4. Carnival’s Duty of Care

Carnival contends “Plaintiffs have not alleged that Carnival

Corporation or Carnival plc owed passengers on the Coral Princess a

legally cognizable duty of care.” Carnival Mot. at 6.14 It is “the

14 Plaintiffs do not address Carnival plc, which is a corporate affiliate of

Princess, separately from Carnival Corporation. The Complaint alleges that

“[t]his lawsuit is being brought against the dual-listed company and/or

Carnival Corporation. Compl. ¶ 14. Plaintiffs cannot bring a complaint

shipowner and the carrier” who owe a duty of care to their passengers.

Chan v. Soc’y Expeditions, Inc., 123 F.3d 1287, 1290-91 (9th Cir. 1997).

Plaintiffs do not plausibly allege that Carnival is the owner or carrier of

the Coral Princess, nor do they so argue in the Opposition. The

Complaint states in conclusory fashion that “[a]t all times hereto,

PRINCESS and CARNIVAL . . . controlled and operated the cruise

ship Coral Princess.” Compl. ¶ 17; see also id. ¶ 29 (“CARNIVAL

operates ‘nine cruise lines . . . .’”). However, Plaintiffs do not point to

any facts to support these assertions. To the contrary, the Complaint

alleges that “all major decisions regarding the operation of [Princess’s]

cruise ships are made at the headquarters in Santa Clarita, California.”

Compl. ¶15. And Carnival points to the passage contract which states

that Princess alone is the operator of the ship. Carnival Mot. at 7-8.

Further, the mere fact that Carnival Corporation is the corporate

parent of Princess is insufficient by itself to impose any duty on

Carnival. United States v. Bestfoods, 524 U.S. 51, 61 (1998) (“It is a

general principle of corporate law . . . that a parent corporation . . . is

not liable for the acts of its subsidiaries.”); see also Carnival Mot. at 8-9

(collecting cases). Therefore, Plaintiffs’ basis for including Carnival

appears based solely on their alter ego theory. See MTD Opp’n at 15

(“[T]he identity of Princess and Carnival, as established through

Plaintiffs’ alter ego allegations, renders th[e] critique” that “only

Princess, as formally disclosed owner/operator, can bear liability for

Plaintiffs’ injuries . . . irrelevant”).

“Federal courts sitting in admiralty generally apply federal

common law when examining corporate identity.” Chan, 123 F.3d at

1294.15 As Carnival notes, courts applying admiralty law can disregard

corporate separateness only where “the controlling corporate entity

exercise[s] total domination of the subservient corporation, to the

extent that the subservient corporation manifests no separate corporate

against one company “and/or” another company. Any amended complaint

must clarify which entity or entities are being sued.

15 Therefore, Plaintiffs’ citations to California law on alter-ego status, MTD

Opp’n at 12, 14, are inapposite.

interests of its own.” Carnival Mot. at 11 (quoting Chan, 123 F.3d at

1294). “Corporate separateness is respected unless doing so would

work injustice upon an innocent third party.” Chan, 123 F.3d at 1294

(quoting Kilkenny v. Arco Marine Inc., 800 F.2d 853, 859 (9th Cir.

1986)). “[F]ederal common law allows piercing of the corporate veil

where a corporation uses its alter ego to perpetrate a fraud or where it

so dominates and disregards its alter ego’s corporate form that the alter

ego was actually carrying on the controlling corporation’s business

instead of its own.” Id.

Here, Plaintiffs contend they have “alleged a unity of interest

between Princess and Carnival, including but not limited to, that

Princess is a ‘line’ of Carnival.” MTD Opp’n at 12 (citing Compl. ¶¶ 11,

19, 27-34). However, that Princess is a “line” of Carnival is just

another way of saying Princess is a subsidiary of Carnival, which, as

noted above, is not sufficient by itself to impose alter ego liability.16

Plaintiffs next contend that there is a “unity of ownership between

Princess and Carnival.” Id. at 12-13 (citing Compl. ¶¶ 18-21, 28-34). In

the cited paragraphs, Plaintiffs allege, among other things, that

Carnival “has ownership and control over” Princess as its wholly owned

subsidiary and “exerts control over PRINCESS’s business and day-to-

day operations,” and that Carnival and Princess “share the same Board

of Directors and almost all of the same executive officers, and appear to

use the same assets.” Compl. ¶¶ 19-21. First, Carnival contends that

these “conclusory . . . allegations of shared directors, executive officers,

and assets are nowhere near sufficient under the stringent governing

standard.” Carnival Mot. at 12; see also Dkt. 23 (Carnival Reply) at 5

(“Plaintiffs’ alter ego allegations are the exact sorts of conclusory

assertions that courts find insufficient”). The Court agrees.

Importantly, even taking Plaintiffs’ conclusory allegations at face

16 The same is true of Plaintiffs’ allegation that Carnival refers to Princess as

a “‘Carnival Brand’ cruise line” that is “part of our growing business.” Compl.

¶ 21. Plaintiff requests leave to amend to add the fact that “Princess is a

‘brand’ of Carnival,” MTD Opp’n at 13, but it is not clear how that allegation

would differ from Paragraph 21 of the current Complaint.

value, Carnival correctly contends that ownership coupled with

common officers or directors is insufficient to establish alter ego

liability. Carnival Reply at 5 (quoting 10 Fletcher Cyclopedia of the

Law of Corporations § 4878 (West 2019)); cf. United States v. Bestfoods,

524 U.S. 51, 61-62 (1998) (exercise of control as shareholder and

“duplication of some or all of the directors or executive officers” is not

“fatal”). Here, there are no facts to indicate that the alleged “control”

Carnival exercises over Princess extends beyond the control reasonably

expected of a sole shareholder to “total domination.” Chan, 123 F.3d at

1294. As Carnival points out, the allegation that “all major decisions

regarding the operation of [Princess’s] cruise ships are made at the

headquarters in Santa Clarita, California,” Compl. ¶15, “surely . . .

‘manifests’ at least some ‘separate corporate interests of its own.’”

Carnival Reply at 4 (quoting Chan, 123 F.3d at 1294).

Plaintiffs also contend that “an unjust result will occur if Princess

is treated as the sole actor since the chief medical officer for Princess,

who was also the author of the notice provided to Plaintiffs while

onboard the Coral Princess related to COVID-19, is employed by

Carnival and is the chief medical officer for all of Carnival’s lines.”

MTD Opp’n at 13 (citing Compl. ¶¶ 11, 65). As Carnival notes,

“Plaintiffs do not explain why it would be unjust to limit their suit to

the corporate subsidiary that actually operated Plaintiffs’ vessel and

that allegedly employed the individual they have identified.” Mot. at 7.

Nor is it obvious to the Court why the fact that Dr. Tarling is allegedly

employed by Princess and Carnival would lead to an unjust result.

Assuming Plaintiffs are correct that Dr. Tarling is employed by

Princess, his statements and knowledge can, if appropriate, be

attributed to Princess regardless of whether he is also employed by

Carnival.

The Court concludes Plaintiffs have not adequately alleged that

Carnival is the alter ego of Princess. See Wong, Dkt. 35 at 6 (holding

that nearly identical allegations do not plausibly allege that Carnival is

the alter ego of Princess). The Carnival entities are DISMISSED with

leave to amend.17

5. Group Pleading

Defendants argue that Plaintiffs’ Complaint should be dismissed

because it fails to explain which actions were taken by which

Defendant. Princess Mot. at 3 (“Plaintiffs’ Complaint makes it

impossible for PRINCESS to determine which claims are directed to

PRINCESS, and which acts or omissions Plaintiffs ascribe to

CARNIVAL”); Carnival Mot. at 10 (“This form of group pleading makes

it impossible to discern which defendant is responsible for any

particular course of conduct and can improperly be used to erase

corporate distinctions”).

“[U]nder the federal rules a complaint is required only to give []

notice of the claim such that the opposing party may defend himself or

herself effectively.” Starr, 652 F.3d at 1212. “[A] complaint which

lump[s] together . . . multiple defendants in one broad allegation fails to

satisfy [the] notice requirement of Rule 8(a)(2).” Adobe Sys. Inc. v. Blue

Source Grp., Inc., 125 F. Supp. 3d 945, 964 (N.D. Cal. 2015). Plaintiffs

contend that it is permissible to group defendants together where each

is “accused of participating in all of the wrongful conduct alleged to

have been carried out by some or all of the entity defendants.” MTD

Opp’n at 6 (quoting Tivoli LLC v. Sankey, No. SA CV 14-1285-DOC

(JCGx), 2015 WL 12683801, at *4 (C.D. Cal. Feb. 3, 2015)).

Specifically, some of the wrongful conduct was alleged to have been

committed by Dr. Tarling, who is purportedly a senior executive of

Carnival and Princess. Id. However, that Dr. Tarling was employed by

17 Plaintiffs seek to add allegations that “Princess is facing significant legal

liabilities this year alone . . . and there is also a concern about its financial

wherewithal considering that operations have also been shut down at times

and slowed down significantly due to COVID-19” and also that the

announcement to shut down Princess operations on March 12 was made by

Carnival for all of its cruise lines. MTD Opp’n at 13. Plaintiffs are not

limited to these allegations if they file an amended complaint.

both Princess and Carnival when he made certain statements does not

make both Princess and Carnival liable in negligence to Plaintiffs –

Plaintiffs still must allege a duty of care owed by each defendant. Dr.

Tarling’s joint employment by itself does not show that all three

Defendants participated in all of the wrongful conduct alleged.

Princess contends Tivoli is distinguishable because the entities in

that case were “closely related” and here, unlike in Tivoli, “it is

implausible that each and every allegation could implicate all three

defendants.” Princess Reply at 5-6; see also Carnival Reply at 7

(Plaintiffs “have not alleged facts to plausibly establish that each of

their factual allegations could possibly describe conduct undertaken by

Carnival Corporation, Carnival plc, and Princess.”). For example, the

Complaint states that “DEFENDANTS boarded the Coral Princess,”

Compl. ¶54, and that the “officers, directors, and/or managing agents of

DEFENDANTS, and/or each of them, made the negligent, wrongful,

unlawful, and/or reckless decision to continue cruise ship operations

without implementing any safety protocols . . . including but not limited

to . . . providing medical apparatuses” and “disinfecting,

decontaminating, and/or sanitizing the exposed surfaces of the cruise

ship prior to boarding passengers,” id. ¶ 113. Given that Princess

operated the ship, Plaintiffs do not explain how Carnival could have

participated in the boarding process, distributed personal protective

equipment to those on board, or sanitized the ship’s surfaces. To the

extent Plaintiffs are attempting to assert Carnival’s independent

liability, the Complaint does not plausibly allege that Defendants all

participated equally in every action alleged to have occurred; therefore

the use of the term “defendants” throughout the Complaint violates

Rule 8.!8 The Court grants Plaintiffs leave to amend to remedy this

deficiency. !9

IV. CONCLUSION

Plaintiffs’ motion to remand is DENIED. Defendants’ motions to

dismiss are GRANTED. All claims are DISMISSED with leave to

amend. An amended complaint must be filed no later than October 20,

2020. Failure to file by that date will waive the right to do so. Except

as stated otherwise in this Order, the Court does not grant leave to add

new defendants or new claims. Leave to add new defendants or new

claims must be sought by a properly-noticed motion.

IT IS SO ORDERED.

Date: September 21, 2020 ALOMa db _ 4 Cac

Dale S. Fischer

United States District Judge

18 Tf, however, Plaintiffs base Carnival’s liability solely on an alter ego theory,

it would likely be fair for the Defendants to be grouped together if Plaintiffs

are able to successfully allege Defendants’ alter ego status. Any amended

complaint should make clear whether Carnival’s alleged liability is based on

anything other than as Princess’s purported alter ego.

19 Princess also contends the SAC is an impermissible shotgun pleading

because the first paragraph in both causes of action incorporates each of the

preceding paragraphs. Princess Mot. at 5. Although the practice can be

improper in certain circumstances, it does not violate Rule 8 here because it

is clear from the face of the complaint what Defendants are alleged to have

done.

or