Moreno v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 1:19-cv-22900-JLK

DESIREE MORENO,

Plaintiff,

v.

CARNIVAL CORPORATION,

a Panamanian Corporation d/b/a

CARNIVAL CRUISE LINE, and

VACATION AND TOUR CONSULTANTS,

d/b/a KANTOURS,

Defendants.

______________________________________/

OMNIBUS ORDER ON DEFENDANTS’ MOTIONS TO DISMISS

THIS MATTER is before the Court on Defendants’ Motions to Dismiss (DE 26 and DE 27). The Court

has also considered Plaintiff’s Responses (DE 39 and DE 40), Defendants’ Replies (DE 46 and DE 48), and is

otherwise fully advised.

I.BACKGROUND

This case arises from a slip-and-fall on a water taxi during an excursion from a Carnival cruise.1 Plaintiff

Desiree Moreno was a lawful passenger aboard the cruise ship, the Carnival Horizon, which was owned and

operated by Defendant Carnival Corporation. (Second Am. Compl. ¶ 6). The Horizon docked at St. Kitts, West

Indies on or about March 27, 2019 (Id.¶ 34), and Plaintiff departed the ship and participated in a shore excursion.

(Id. ¶ 35). This excursion was operated by Defendant Kantours and had been marketed by Carnival. (Id. ¶ 24).

While stepping from a wet dock area onto steps leading to a water taxi vessel, Plaintiff slipped and fell, sustaining

injuries. (Id. ¶¶ 36–38).

This action was filed on July 12, 2019. (See Compl., DE 1). Plaintiff brought numerous claims against

Carnival and Kantours, including negligence and breach of contract as a third-party beneficiary. (Id.). Pursuant

to Fed R. Civ. P. 15(a)(1)(B), Plaintiff filed an Amended Complaint on August 30, 2019. (DE 10). Upon motion

of Carnival, the Court dismissed Plaintiff’s Amended Complaint on January 10, 2020, finding it was “replete with

conclusory, vague, and immaterial facts not obviously connected to any particular cause of action.” (Or. Granting

in Part Carnival’s Mot. Dismiss, DE 22 at 4) (quoting Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d

1313, 1322 (11th Cir. 2015)). Plaintiff was given leave to amend the complaint to more clearly establish the

factual and legal basis for her claims. (Id.). Plaintiff’s (operative) second Amended Complaint was filed on

February 24, 2020, alleging negligence against Carnival (Count I), negligent hiring against Carnival (Count II),

negligence against Kantours (Count III), apparent agency against Carnival (Count IV), and joint venture against

Carnival and Kantours (Count V). (See DE 24 and DE 25). Carnival and Kantours now move to dismiss the

second Amended Complaint. (See DE 26 and DE 27) (the “Motions”).

Carnival filed its Motion to Dismiss on March 9, 2020, arguing that the second Amended Complaint fails

to state a cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 26). Kantours filed a separate

Motion to Dismiss on March 19, 2020, challenging this Court’s personal jurisdiction over it pursuant to Federal

Rule of Civil Procedure 12(b)(2). (DE 27). This case was then stayed due to logistical difficulties posed by the

COVID-19 pandemic. (See DE 32 and DE 36). Once the stay expired, Plaintiff filed its Responses to these

Motions on June 1, 2020 and June 2, 2020, respectively. (DE 39 and DE 40). Carnival filed its Reply Brief on

June 16, 2020 (DE 46), and Kantours filed its Reply Brief on June 19, 2020 (DE 48). This opinion deals with

these two separate Motions to Dismiss. (DE 26 and DE 27).

II.LEGAL STANDARD

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this “plausibility” standard, a plaintiff must plead

“factual content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678. A complaint must contain “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. While the Court’s review

is generally confined to the four corners of the complaint, when “the plaintiff refers to certain documents in the

complaint and those documents are central to the plaintiff’s claim, then the Court may consider the documents

. . . for purposes of Rule 12(b)(6) dismissal.” Brooks, 116 F.3d at 1369.

III.DISCUSSION

A. Carnival Corporation’s Motion to Dismiss

Carnival moves to dismiss the claims for apparent agency (Count IV) and joint venture (Count V). (DE

26 at 1–2). Regarding the claim for apparent agency, Carnival argues that “Count IV should be dismissed because

the materials that [Plaintiff] references in the Second Amended Complaint and makes central to her apparent

agency claim (i.e. several sections of Carnival’s website and Shore Excursions Brochure) establish that

independent contractors operated all tours and thus contradict her allegations. For this reason, this claim/theory

of vicarious liability fails as a matter of law.” (Id.). Regarding the claim for joint venture, Carnival argues that

“Count V should be dismissed because the very Tour Operator Agreement (“TOA”) that Plaintiff references in

the Amended Complaint and make[s] central to her claim contradicts her allegations. . . . For this reason, this

claim/theory of vicarious liability fails as a matter of law.” (Id. at 2). In response, Plaintiff argues that Carnival

is relying on documents outside the four corners of the complaint, which the court may not consider on a motion

to dismiss for failure to state a claim. (See DE 39 at 3–8).

After careful consideration, the Court agrees with Plaintiff. On a motion to dismiss for failure to state a

claim, the Court is generally confined to the four corners of the complaint unless “the plaintiff refers to certain

Here, the extrinsic documents on which Carnival relies (like the excursion brochure and the guest ticket contract)

are not “central” to Plaintiff’s claim for apparent agency, which can be proven by evidence of varying kind and

degree. “Unless the alleged agency relationship is to be proven exclusively by analysis of the contract between

principal and agent (in which case the question is an issue of law), the relationship is generally a question of fact

and should be analyzed by looking at the totality of the circumstances.” Banco Espirito Santo Intern., Ltd. v. BDO

Intern., B.V., 979 So. 2d 1030, 1032 (Fla. 3d DCA 2008).

Stated differently, since Plaintiff’s theory of vicarious liability is based (in part) on Carnival’s outward

“manifestations” of an agency relationship (Second Am. Compl., ¶ 72), the Court is faced with a factual issue

more appropriately addressed at summary judgment. See also Aronson v. Celebrity Cruises, Inc., 30 F. Supp. 3d

1379, 1397 (S.D. Fla. 2014) (Williams, J.) (“While Plaintiff does refer to the liability waiver in his complaint,

this document is not so central to Plaintiffs claim as to compel the Court to stray from the four corners of the

complaint at this stage of the litigation. Waiver and release are more properly considered as affirmative defenses.

For these reasons, the Court will confine its analysis to the complaint itself and find that Plaintiff has stated a valid

claim for apparent agency.”) (internal citations omitted). Plaintiff’s claim for apparent agency therefore survives

dismissal.

For similar reasons, the Court also finds that Plaintiff has stated a valid claim for joint venture. In seeking

dismissal of the joint venture claim, Carnival relies on the disclaimer contained in the Tour Operator Agreement

between Carnival and Kantours, which provides that “[n]othing related in this agreement shall be construed as

constituting OPERATOR and CARNIVAL as . . . joint venturers.” (TOA ¶ 11, DE 8-7). But the Court is not

persuaded. “Plaintiff did not attach the Tour Operator Agreement to [her] Complaint and, while Plaintiff refers

to an “agreement,'' [she] does not necessarily refer to the Tour Operator Agreement. Accordingly, the Court

cannot conclude that the Tour Operator Agreement is central to Plaintiff s claim,” rendering it improper to

consider on Carnival’s Motion to Dismiss. Winter v. Royal Caribbean Cruises Ltd., Case No. 14-cv-23978-

not constitute a joint venture, a subsequent course of conduct may have created such a joint venture agreement,

and the Amended Complaint only references an ‘agreement.’” Ash v. Royal Caribbean Cruises, Ltd., Case No.

13-cv-20619, 2014 WL 6682514, at *8 (S.D. Fla. Nov. 25, 2014) (emphasis in original). Staying within the four

corners of the complaint, the Court finds that Plaintiff has asserted a valid claim for joint venture, and Carnival’s

Motion to Dismiss is denied.

B. Kantours’ Motion to Dismiss

In a separate Motion, Kantours seeks dismissal of the second Amended Complaint for lack of personal

jurisdiction. (See Mot. Dismiss, DE 27). Through an affidavit attached to the Motion, the Executive Chairman

of Kantours attests that “Kantours has always been incorporated and authorized to do business in St. Kitts and

has never been incorporated, licensed, registered to do business and/or qualified to do business within the State

of Florida or any other state in the United States.” (Decl. of Clayton Perkins, DE 27-1 ¶ 4). The Executive

Chairman also attests that “Kantours has never operated, conducted, engaged in, transacted business in or carried

on a business or business venture within the State of Florida or any other state in the United States.” (Id. ¶ 8).

It is well settled that whether a federal court has personal jurisdiction over a defendant involves a two-part

inquiry. First, the Court must determine whether the complaint alleges sufficient jurisdictional facts to bring the

action within the ambit of Florida’s long arm statute, which is codified at § 48.193, Fla. Stat. Venetian Salami

Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). Second, the Court must determine whether sufficient

minimum contacts exist to satisfy the due process requirements of the United States Constitution.

1. Long-Arm Statute

Florida's long-arm statute provides two bases for exercising personal jurisdiction over a non-resident

defendant. Under § 48.193(1), Fla. Stat., specific jurisdiction derives from a Defendant’s activities within the

forum state. “By contrast, under Fla. Stat. § 48.193(2), general jurisdiction is conferred over the defendant if he

or she engaged in substantial and not isolated activity within Florida, whether or not the claim arises from that

2013). Here, Plaintiff appears to invoke the “specific jurisdiction” clause of § 48.193(1) and not the “general

jurisdiction” clause of § 48.193(2), but in any event, the Court finds that it lacks personal jurisdiction over

Kantours under both subsections.

1. Specific Jurisdiction

“A nonresident defendant may be subject to ‘specific’ personal jurisdiction under subsection 48.193(1)

if the person commits any of the acts enumerated in the subsection within Florida and the cause of action arose

from the act.” Zapata v. Royal Caribbean Cruises, Ltd., Case No. 12-cv-21897, 2013 WL 1100028, at *2 (S.D.

Fla. Mar. 15, 2013). One such category of enumerated acts includes “[o]perating, conducting, engaging in, or

carrying on a business or business venture in this state or having an office or agency in this state.” § 48.193(1)(a),

Fla. Stat.

Plaintiff relies on this subsection, alleging that Kantours is subject to specific personal jurisdiction in Florida by:

“advertis[ing], market[ing], and/or sell[ing] the subject excursion tickets through Carnival’s website and app,

which are administered in Florida; maintaining a bank account in Florida; and receiving payment for its

excursions in Florida,” among other things. (Second Am. Compl. ¶ 13). But these allegations, even if true, do not

satisfy Florida’s long-arm statute because Plaintiff’s underlying cause of action for negligence does not “arise

from” Kantours’ limited business activities within the state.

Indeed, Plaintiff alleges that she was injured during a shore excursion occurring in St. Kitts, West Indies,

but there is no connection between this incident and Kantours’ maintenance of a bank account in Florida, nor is

there a connection between the sale of the excursion tickets in Florida and the alleged negligence that occurred

in St. Kitts. See Lapidus, 2013 WL 646185, at *4 (“Similarly, in the instant case, there is no connexity between

the sale of excursion tickets via a website administered in Florida and Plaintiff’s claims that Defendants’

negligence in Hawaii caused his injuries.”).

contained in the Tour Operator Agreement between Carnival and Kantours. The Tour Operator Agreement

provides, in pertinent part:

In the event of litigation, the prevailing party shall be entitled to recover all costs incurred

in connection with the litigation, including, without limitation, reasonable attorney’s fees.

OPERATOR 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

Excursion or the terms of this Agreement. (DE 8-7 ¶ 14(c)) (emphasis added).

Plaintiff argues that Kantours has consented to personal jurisdiction in Florida by executing the

above-referenced contract with Carnival, but the Court disagrees. Plaintiff cannot enforce a contract to

which she was not a party, and of which she was not a third-party beneficiary.2 Her claims arise from the

negligence that (allegedly) occurred during a shore excursion, not from the contractual relationship

between Carnival and Kantours. In other words, “Plaintiff has provided no compelling reason that [her]

interests are ‘completely derivative’ of Defendant Carnival’s or Defendant [Kantours’] in regard to the

[Tour Operator Agreement].” Meyer v. Carnival Corp., 938 F. Supp. 2d 1251, 1257 (S.D. Fla. 2013).

Thus, Plaintiff cannot enforce the “consent to jurisdiction” provision. And since Plaintiff has failed to

otherwise establish that her injuries arose from Kantours’ business activities within Florida, the Court

finds that it lacks specific personal jurisdiction over Kantours.

2. General Jurisdiction

The Court now analyzes the second basis for exercising jurisdiction over a non-resident defendant

under Florida’s long-arm statute, § 48.193(2), Fla. Stat. This provision allows Florida courts to exercise

jurisdiction over a non-resident defendant “who engages in substantial and not isolated activity within

this state . . . whether or not the claim arises from that activity.” Id. Here, the second Amended Complaint

is devoid of facts alleging that Kantours engaged in business activity within Florida, much less activity

that was “substantial and not isolated.” In addition, the Court has considered the affidavit furnished by

the Executive Chairman of Kantours, who attests that Kantours has never conducted business in Florida.

See also Black v. Acme Markets, Inc., 564 F.2d 681, 683 n.3 (5th Cir. 1977) (“In ruling on a motion to

dismiss for lack of personal jurisdiction, the allegations of the complaint, except insofar as controverted

by the defendant's affidavit, must be taken as true.”) (emphasis added).3 The Court therefore lacks general

jurisdiction over Kantours under Florida’s long-arm statute.

3. Due Process and Minimum Contacts

Having concluded that Florida’s long-arm statute provides no basis for exercising jurisdiction

over Kantours, the Court need not address the second inquiry: whether the exercise of jurisdiction

comports with due process. Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir. 1999). “A

fundamental and longstanding principle of judicial restraint requires that courts avoid reaching

constitutional questions in advance of the necessity of deciding them.” Santamorena v. Ga. Military Coll.,

147 F.3d 1337, 1343 (11th Cir. 1998).

4. Jurisdictional Discovery

Finally, the Court endeavors to address Plaintiff’s attempt to engage in jurisdictional discovery.

Plaintiff requests a thirty-day period to conduct limited jurisdictional discovery, but Plaintiff has not

identified the specific discovery that she requires. Nor has Plaintiff shown how additional discovery

would help establish jurisdiction. Plaintiff has failed to allege sufficient facts to make out a prima facie

case of personal jurisdiction over Kantours. (See generally ¶ B, supra).

Accordingly, it is ORDERED, ADJUDGED, AND DECREED as follows:

1. Carnival’s Motion to Dismiss (DE 26) be, and the same is, hereby DENIED;

2. Carnival shall file its Answer or other responsive pleading to Plaintiff’s Second Amended

Complaint within twenty (20) days from the date of this Order;

3. Kantours’ Motion to Dismiss (DE 27) is hereby GRANTED; and

4, The Clerk of Court shall TERMINATE Defendant Vacation and Tour Consultants, d/b/a/

Kantours from this case.

DONE AND ORDERED in chambers at the James Lawrence King Federal Justice

Building and United States Courthouse, Miami, eT 14" day gf September, 2020.

JAMES LAWRENCE KING fi

UNITED STATES DISTRICT UGE

cc: All Counsel of Record