Johnson v. Carnival Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-cv-24620-MCALILEY

(CONSENT CASE)

STEPHEN JOHNSON and

TORI AUSTIN,

Plaintiffs,

v.

CARNIVAL CORPORATION d/b/a

CARNIVAL CRUISE LINES,

Defendant.

________________________________/

ORDER GRANTING DEFENDANT’S MOTION

TO DISMISS AMENDED COMPLAINT

Defendant, Carnival Corporation d/b/a Carnival Cruise Lines (“Carnival”), filed a

motion to dismiss Plaintiffs’ Amended Complaint with prejudice (the “Motion”). (ECF

No. 41). Plaintiffs, Stephen Johnson and Tori Austin, filed a response memorandum, and

Carnival filed a reply. (ECF Nos. 42, 43). For the reasons that follow, the Court grants the

Motion and dismisses Counts II, IV and V with prejudice and Counts I, III and VI without

prejudice.

I. Procedural history

Plaintiffs filed their first Complaint against Carnival in November 2020. (ECF

No. 1). Carnival moved to dismiss six of the seven counts for failure to state a claim under

Federal Rule of Civil Procedure Rule 12(b)(6), and on the grounds that each claim was a

shotgun pleading. (ECF No. 12). The six counts Carnival challenged were: (1) actual

agency and respondeat superior, (2) apparent agency, (3) false imprisonment, (4)

intentional infliction of emotional distress (“IIED”), (5) negligent infliction of emotional

distress (“NIED”) and (6) negligent misrepresentation. (Id.). Carnival did not move to

dismiss Plaintiffs’ negligence claim.

In July 2021, the Court heard oral argument on that motion. See (ECF No. 35). At

that time, the Court addressed a number of deficiencies, to include that it was an improper

shotgun pleading. The Court dismissed without prejudice all but the negligence count.

(ECF No. 36).

In August 2021, Plaintiffs filed the Amended Complaint, which makes few changes

to the factual allegations. Plaintiffs do, however, replead some, but not all, of the claims

that were in the initial Complaint, and this includes dividing the negligence claim into two

counts. (ECF No. 38). The six counts are: (1) IIED as to Stephen Johnson, (2) IIED as to

Stephen Johnson and Tori Austin, (3) negligence as to Stephen Johnson, (4) negligence as

to Stephen Johnson and Tori Austin, (5) false imprisonment as to Stephen Johnson and

Tori Austin and (6) NIED as to Tori Austin. (Id.).

Carnival asks the Court to dismiss all counts with prejudice for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6) and, alternatively, to strike each

claim’s prayer for punitive damages. (ECF No. 41).

II. Background

The Court sets forth here Plaintiffs’ allegations that are pertinent to Carnival’s

Motion. The Court assumes, as it must at this stage of the proceedings, that Plaintiffs’

factual allegations are true, and it casts those facts in the light most favorable to Plaintiffs.

Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d

989, 994-95 (11th Cir. 1983) (citations omitted).

Plaintiffs Stephen Johnson and Tori Austin booked a five-day Western Caribbean

cruise together, which departed from Galveston, Texas on November 11, 2019, and was

scheduled to return there on November 16th. (ECF No. 38 ¶¶ 11-13).

On November 12th, while on board the cruise, Mr. Johnson became ill. (Id. ¶ 14).

He sought treatment and was eventually admitted to the ship’s infirmary. (Id. ¶¶ 14-17).

On November 14th, the ship arrived in Progreso, in Yucatan, Mexico. (Id. ¶ 18).

Mr. Johnson was transferred by ambulance from the ship to the Centro Medico Americano

Hospital (the “CMA Hospital” or “Hospital”) in Progreso. (Id.). Ms. Austin and Brian

Powell, a “port agent, who was an agent, servant or employee of Carnival”, accompanied

Mr. Johnson to the Hospital. (Id. ¶¶ 19-20). Mr. Powell left Plaintiffs at the Hospital and

the cruise ship departed Progreso. (Id. ¶ 20).

The conditions in the Hospital were “unsanitary and dangerous, with, for example,

blood drops and feces never properly cleaned from the floors and bed linens, overflowing

toilets and filthy rooms, bathrooms and hallways.” (Id. ¶ 58). The Hospital could not

provide the dialysis treatment that Mr. Johnson needed, so on November 16th, the Hospital

transported him to a different hospital, approximately twenty minutes away. (Id. ¶ 22).

After he received treatment there, Mr. Johnson was returned to the CMA Hospital the same

day. (Id.).

Mr. Johnson and Ms. Austin stayed at the CMA Hospital until Mr. Johnson’s

condition improved. (Id. ¶¶ 23-24). On November 18th, his treatments ended, and the

Hospital determined he could be discharged. (Id. ¶ 24). The Hospital advised Plaintiffs that

Mr. Johnson could leave the next day, but that he would not be discharged or allowed to

leave without full payment of the $14,260.43 medical bill. (Id. ¶¶ 24-25, 27).

On November 19th – the day Plaintiffs were scheduled to board another Carnival

ship to return to the United States – Bryan Powell and another “agent, servant or employee

of Carnival” came to the Hospital to accompany them back to the ship. (Id. ¶¶ 29-30).

Plaintiffs told them of the Hospital’s demands and that they could not make payment on

such short notice. See (id. ¶¶ 28, 31). Mr. Powell and the other individual stated that there

was nothing they could do and left Plaintiffs there. (Id. ¶ 32). Ms. Austin then spoke to a

U.S. Embassy representative, who told her that the Hospital cannot hold them there if they

are not receiving any medical treatment. (Id. ¶ 34).

Later that day, Plaintiffs tried to leave the Hospital on their own but were

unsuccessful. (Id. ¶¶ 37-41). Ms. Austin first left to pack some belongings for them while

Mr. Johnson stayed, as the Hospital would not let him go. (Id. ¶ 38). When she returned,

they walked out of the Hospital together through an emergency door. (Id. ¶ 39). While they

walked down a ramp outside the door, two Hospital employees – known as Miranda and

Felix – confronted them and told them they could not leave. (Id. ¶ 40). An altercation

ensued and Miranda took the top off a trash can and began to use it as a shield. (Id. ¶ 41).

Both Miranda and Felix repeatedly pushed Plaintiffs back up the ramp into the Hospital

and hit them. (Id. ¶¶ 41, 44). During the altercation, Miranda struck Mr. Johnson in the

dialysis port in his neck, which caused him to bleed, and struck his shoulder where the IV

shunts had been placed. (Id. ¶ 42).

Police arrived, spoke only to Miranda, and then left the Hospital. (Id. ¶¶ 45-46).

After they left, Felix pushed and shoved Mr. Johnson back into his room while he pleaded

to go home. (Id. ¶ 47). The Hospital needlessly reconnected Mr. Johnson to an IV and

administered unknown drugs to him. (Id. ¶ 57). This caused him to become lethargic and

semi-conscious. (Id.).

Later that evening, police arrived again and spoke to Plaintiffs. (Id. ¶¶ 49-51). Mr.

Johnson informed them that the Hospital was holding him against his will. (Id. ¶ 52). The

police asked if Plaintiffs had insurance, and Mr. Johnson responded that he did. (Id. ¶ 51).

Upon learning this, the police left. (Id. ¶ 53).

The next day, Ms. Austin walked three miles to the police station to file charges

against the Hospital, Miranda and Felix. (Id. ¶ 54). Plaintiffs later learned that when the

police spoke with Miranda on the day of the altercation, she lied and said that Mr. Johnson

had surgery and was suffering from an infection, and that it was not safe for him to leave.

(Id. ¶ 55).

On November 19th, 21st and 22nd, Carnival representatives continued to call Ms.

Austin to inquire about their condition. (Id. ¶ 59). Each time, Plaintiffs informed Carnival

of the situation and that the Hospital was holding them against their will. (Id. ¶ 60).

Carnival did not contact Plaintiffs again, until their story became national news. (Id. ¶ 61).

On November 22nd, Ms. Austin was scheduled to appear on Good Morning

America, and the night before, Carnival contacted Mr. Johnson’s sister. (Id. ¶¶ 65-66).

Carnival representatives told her that they wanted to have Ms. Austin paint a positive

picture of Carnival and state that Carnival was not aware of the Hospital’s reputation for

mistreatment of Americans. (Id. ¶¶ 67-68).

This, however, was false because “[i]t is directly contradicted by the US Embassy

and Department of State, which publishes a list of hospitals that are safe for American

citizens in Mexico. That list does not include [CMA] Hospital, because, the US Embassy

explains, there have been previous problems with US citizens at that hospital.” (Id. ¶¶ 70-

72).

Public interest in Plaintiffs’ situation grew and on November 23rd, a movie producer

contacted Plaintiffs and advised them that he would pay the medical bill. (Id. ¶¶ 64, 74).

He did so, and the Hospital released Plaintiffs on November 25th, a week after Mr. Johnson

had been cleared for discharge. (Id. ¶ 76). Representatives from the U.S. Embassy met

Plaintiffs, and Plaintiffs flew home the next day. (Id. ¶ 77). Mr. Johnson immediately went

to a hospital from the airport, where he was admitted for treatment, until December 2, 2019.

(Id. ¶ 78).

III. Standard

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

the plaintiff must plead facts that make out a claim that is plausible on its face and raises

the right to relief beyond a speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The mere

possibility that the defendant acted unlawfully is insufficient to survive a motion to dismiss.

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (citation omitted).

The Court’s evaluation is a “context-specific task” that requires it to “draw on its

judicial experience and common sense.” Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d

1327, 1333 (11th Cir. 2010) (citation omitted). In the process, the Court must draw “all

reasonable inferences” in favor of the plaintiff, St. George v. Pinellas Cnty., 285 F.3d 1334,

1337 (11th Cir. 2002), and must limit its consideration to the four corners of the complaint

and any attached exhibits. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.

2000) (citation omitted). The facts alleged must “give the defendant fair notice of what the

... claim is and the grounds upon which it rests”. Twombly, 550 U.S. at 555 (citation

omitted). Conclusory allegations are insufficient. Id.

IV. Analysis

General maritime law governs tort claims that arise on ships sailing in navigable

waters. Yusko v. NCL (Bahamas), Ltd., 4 F.4th 1164, 1167 (11th Cir. 2021) (citation

omitted). When Congress has not spoken on a maritime matter, courts rely on common law

tort principles. Id.

a. Negligence (Counts III and IV)

Plaintiffs assert two theories of negligence, that they plead in two different counts:

first, Carnival is liable for sending Mr. Johnson to the CMA Hospital and failing to warn

him of the dangerous conditions therein (Count III), and second, Carnival was negligent

when it allowed Plaintiffs to remain at the CMA Hospital without assistance. (Count IV).

See (ECF No. 38 ¶¶ 106-108, 118-20).

General principles of negligence law apply. Chaparro, 693 F.3d at 1336 (citation

omitted). “To plead negligence, a plaintiff must allege that (1) the defendant had a duty to

protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the

breach actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered

actual harm.” Id. (citations omitted).

Cruise lines owe their passengers a duty of “ordinary reasonable care under the

circumstances”. Id. (citation omitted). This includes “a duty to warn of known dangers

beyond the point of debarkation in places where passengers are invited or reasonably

expected to visit.” Wolf v. Celebrity Cruises, Inc., 683 F. App’x 786, 794 (11th Cir. 2017)

(quoting Chaparro, 693 F.3d at 1336). Whether the cruise line had a duty “hinges on

whether it knew or should have known” about the dangers. Guevara v. NCL (Bahamas)

Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (quoting Keefe v. Bahama Cruise Line, Inc., 867

F.2d 1318, 1322 (11th Cir. 1989)). Thus, as a prerequisite to imposing liability, the cruise

line must have had “actual or constructive notice of the risk-creating condition”. Chaparro,

693 F.3d at 1336 (citation omitted).

Actual notice exists when “the defendant knows of the risk creating condition.”

Bujarksi v. NCL (Bahamas) Ltd., 209 F. Supp. 3d 1248, 1250 (S.D. Fla. 2016) (citing Keefe,

867 F.2d at 1322). Constructive notice exists when “a dangerous condition has existed for

such a period of time that the shipowner must have known the condition was present and

thus would have been invited to correct it.” Id. (quoting Bencomo v. Costa Crociere S.P.A.

Co., No. 10-62437-CIV, 2011 WL 13175217, at *2 (S.D. Fla. Nov. 14, 2011), aff’d, 476

F. App’x 232 (11th Cir. 2012)).

i. Plaintiffs’ first negligence theory (Count III)

Carnival argues that Plaintiffs’ first theory of negligence1 fails because Plaintiffs do

not plead sufficient facts to allege “that Carnival had prior notice of CMA Hospital being

a risk-creating condition....” (ECF No. 41 at 10). Carnival asserts that Plaintiffs rely on

only one factual allegation for support: that “the U.S. Embassy and Department of State ...

publishes a list of hospitals that are safe for American citizens in Mexico” and that “that

list does not include [CMA] Hospital ....” (ECF No. 38 ¶¶ 71, 72) (emphasis in original);

(ECF No. 41 at 12). Carnival relies on the doctrine of incorporation by reference, to ask

the Court to consider this list (the “U.S. Embassy List”), which Carnival attached to its

Motion to Dismiss. (ECF No. 41-1). Courts may consider documents attached to a motion

to dismiss if they are “referred to in the complaint, central to the plaintiff’s claim, and of

undisputed authenticity”, and the U.S. Embassy List meets these criteria. Hi-Tech

Pharmaceuticals, Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1189 (11th Cir. 2018) (citations

omitted). Plaintiffs do not object. (ECF No. 42 at 11). The Court therefore considers the

U.S. Embassy List, as if it had been attached to the Amended Complaint.

Carnival argues that the U.S. Embassy List contradicts Plaintiffs’ assertion that

Carnival had notice that CMA Hospital was a hospital that presented a danger and should

be avoided. Carnival relies on this prominent disclaimer at the top of the List:

The U.S. Consulate Merida assumes no responsibility or

liability for the professional ability, reputation of, or the quality

of services provided by the following persons or institutions.

Inclusion on this list is in no way an endorsement by the

Department of State or U.S. Consulate or Consular Agencies.

1 This count is filed on behalf of Plaintiff Johnson only.

The order in which names appear has no significance or

preference. You may wish to consult other sources in the

selection of doctors and hospitals. The lists below contain

information on hospitals and doctors in Merida, Yucatan (and

other locations) ....

(ECF No. 41-1 at 1) (emphasis added). Carnival is correct. The List plainly states that

“[i]nclusion on this list is in no way an endorsement by the Department of State….” (ECF

No. 41-1 at 1). This makes it clear that the Consulate created a list of hospitals that it does

not endorse. The Consulate does not expressly state, or imply, that hospitals that are not on

the list must be avoided. The disclaimer directly contradicts Plaintiffs’ claim that “the U.S.

Embassy and Department of State ... publishes a list of hospitals that are safe for American

citizens in Mexico.” (ECF No. 38 ¶ 71). “[W]hen the exhibits contradict the general and

conclusory allegations of the pleading, the exhibits govern.” Griffin Indus., Inc. v. Irvin,

496 F.3d 1189, 1206 (11th Cir. 2007) (citing Associated Builders, Inc. v. Ala. Power Co.,

505 F.2d 97, 100 (5th Cir. 1974) and Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812,

813 (5th Cir. 1940)).

A central failing of the CMA Hospital, as alleged in the Amended Complaint, is that

the Hospital held Plaintiffs captive for payment. In Count III, Plaintiffs allege that

“Carnival had actual knowledge of the ‘no-go’ status of [the CMA Hospital] or should have

known that it was off limits for American citizens because it had been known to engage in

the same type of false imprisonment and extortion that occurred here.” (ECF No. 38 ¶ 103).

The List further undermines this allegation, as it warns that hospitals included on the List

engage in this behavior:

Please be aware that the U.S. Consulate and the Consular

Agencies will NOT pay your medical bills nor mediate a

billing dispute between you and the hospital or physician.

All doctors, hospitals or medical facilities, public or private,

will require full payment for services to be rendered, in cash or

by credit card, at the time of service. Most are NOT able to bill

your US insurance company for payment. Rather, they will

give you receipts for your payment so you may request

reimbursement form your U.S. insurance carrier; be sure to get

an itemized bill. We have had many cases of U.S. citizens not

allowed to discharge from local hospitals until payment is

made in full. If you believe you are being charged unfairly, you

may contact the Mexican government consumer rights

protection agency ....

(ECF No. 41-1 at 1) (bold in original, underline added).

This language also contradicts the allegation in paragraph 72 of the Amended

Complaint that the “list does not include [the CMA Hospital], because, the US Embassy

explains, there have been previous problems with US citizens at that hospital.” (ECF

No. 38 ¶ 72). The List, however, makes no reference to the CMA Hospital, at all, and it

plainly does not “explain” that there have been problems at that facility. Perhaps the

allegation at paragraph 72 is meant to suggest that the US Embassy has “explained” this in

some other communication. If so, the allegation is wholly inadequate, as the Amended

Complaint lacks any factual allegations to support this conclusory statement.

In sum, the plain language of the U.S. Embassy List does not support Plaintiffs’

allegation that Carnival had actual or constructive notice of the alleged dangers of the CMA

Hospital.

Plaintiffs argue that these other paragraphs in the Amended Complaint adequately

plead notice:

70. The statement by Carnival, that it had no knowledge of the

reputation of Centro Medico Americano Hospital, or that it had

a history of mistreating Americans, was false.

88/101. ... Carnival knew that Centro Medical Americano

Hospital was not an approved medical facility for US

passengers, that the Hospital was dangerous, unsanitary, and

that it had engaged in similar behavior in the past.

114. Carnival had actual knowledge of the "no-go" status of

Centro Medico Americano Hospital or should have known that

it was off limits for American citizens because it had been

known to engage in the same type of false imprisonment and

extortion that occurred there.

128. ... Carnival, through its agents, servants and employees,

negligently or intentionally breached its duties to Mr. Johnson

and Ms. Austin in allowing Mr. Johnson to be transported to

an unapproved hospital ...

(ECF No. 42 at 10) (quoting ECF No. 38 ¶¶ 70, 88, 101, 114, 128). I do not agree. These

are conclusions, that do not have the support of factual allegations that make it plausible

that Carnival was on notice. See, e.g., Nichols v. Carnival Corp., No. 19-cv-20836, 2019

WL 11556754, at *7 (S.D. Fla. June 21, 2019) (“Plaintiff argues that Carnival had or should

have had knowledge based on prior incidents ... which were or should have been reported.

... But Plaintiff does not allege what prior incidents may have occurred, and on what

excursions, nor how these incidents put Carnival on notice.”).

Plaintiffs also argue that an allegation in the initial Complaint, that there is

additional correspondence from the U.S. Embassy that placed Carnival on notice, supports

the sufficiency of its Amended Complaint. That allegation is: “The U.S. Embassy has

stated: ‘. . . [CMA] Hospital is not on the list, (of approved hospitals for Americans in

Mexico) due to previous problems experienced by other U.S. Citizens.’” (ECF No. 1 ¶ 95).

Allegations in the dismissed first Complaint are irrelevant, because “an amended complaint

supersedes the former pleadings.” TVPX ARS, Inc. v. Genworth Life & Annuity Ins. Co.,

959 F.3d 1318, 1327 (11th Cir. 2020) (alteration adopted) (internal quotation marks

omitted).2

Plaintiffs make this broad statement and cite three decisions as authority:

this Court and the Eleventh Circuit have held, time and again,

that factual allegations that CARNIVAL had knowledge of a

specific dangerous condition is [sic] sufficient to support a

claim that it knew or should have known about the dangers

posed, and thus [sic] sufficient to withstand a motion to

dismiss.

(ECF No. 42 at 9). Those three decisions, however, unlike the Amended Complaint, have

specific factual allegations that make it plausible that Carnival, in those cases, was on

notice, and therefore, they do not support Plaintiffs’ argument here.

First, the plaintiffs’ decedent (here, the “passenger”) in Chaparro v. Carnival Corp.,

was a cruise passenger who disembarked the ship in St. Thomas and visited Coki Beach

independently of the ship’s sponsored excursions. 693 F.3d at 1335. The passenger traveled

back to the ship in an open-air bus, past a funeral service for a gang member who recently

died in a gang-related shooting near the Beach. Id. Gang-related, retaliatory violence

erupted at the funeral, and shots were fired that killed the passenger. Id. Carnival moved to

dismiss the complaint, arguing that passenger’s shooting death was unforeseeable and thus

2 Even if this allegation were in the Amended Complaint, it would not solve the problem, as it

includes no facts about when, where, how or to whom this alleged statement was made. The Court

does not suggest that all those details would have to be plead, rather it notes that there are none.

The allegation is a conclusion, that a statement was made, without any factual support to make it

plausible.

Carnival had no duty to warn her of the danger. Id. at 1336. The trial court granted

Carnival’s motion and the Court of Appeals reversed. The appellate court noted that the

complaint included allegations that: Carnival was familiar with Coki Beach because it sold

excursions to passengers to that Beach, Carnival monitors crime in its ports of call and

therefore it generally knew of gang violence and public shooting in St. Thomas, it knew of

Coki Beach’s reputation for drug sales, theft and gang violence and it knew or should have

known of the gang member’s shooting and funeral. Id. at 1337. The Court of Appeals found

that the “facts alleged in the complaint are plausible and raise a reasonable expectation that

discovery could supply additional proof of Carnival’s liability.” Id. (citing Twombly, 550

U.S. at 556).

Next, the plaintiffs’ decedent (again, the “passenger”) in Twyman v. Carnival Corp.,

died during a jet ski excursion at the Grand Turk Cruise Center, which Carnival allegedly

owned, operated, managed, or controlled. 410 F. Supp. 3d 1311, 1315 (S.D. Fla. 2019).

The plaintiffs alleged that Carnival had crewmembers and personnel at the Cruise Center

and that it inspected the operations there, and therefore it knew or should have known of

the dangers presented by the jet ski operation. Id. at 1320. The trial court concluded that

these were sufficient factual allegations of notice, that survived Carnival’s motion to

dismiss.

The third case is Kennedy v. Carnival Corp., 385 F. Supp. 3d 1302 (S.D. Fla. 2019).

The passenger there was injured while participating in a shore excursion. Id. at 1311. The

plaintiff alleged that Carnival directly profited from the shore excursion, that it made

representations that it regularly oversees, monitors, and inspects the operations of its tour

operators, and that from this, Carnival knew or should have known of the danger. Id. at

1331. The Court found that “Plaintiff’s allegation that Defendant should have been aware

of the risk-creating condition during inspections of the excursion is sufficient to provide

actual or constructive notice of the risk-creating condition.” Id.

These three cases include factual allegations that made it plausible that Carnival

knew, or should have known, of the danger. In Chaparro, Carnival regularly sent

passengers to Coki Beach, it monitored crime in the areas where its passengers

disembarked and where it sent them on excursions, and therefore it likely knew of the

presence of gangs and gang violence in the location, and knew, or should have known, of

the gang member’s funeral and the risk of violence. In both Twyman and Kennedy, the

passenger was injured while participating in an excursion that Carnival oversaw,

monitored, and inspected. This makes it entirely plausible that Carnival knew, or should

have known, of dangerous conditions.

Plaintiffs’ conclusory argument – with no analysis of the cases – that these three

decisions should lead this Court to find that Plaintiffs have adequately plead notice, finds

no support in the facts of those cases. By comparison, here, Plaintiffs do not allege that

Carnival ever sent a passenger to the CMA Hospital or otherwise had any prior experience

with that Hospital, or that it monitored the bona fides of all hospitals near its ports of call.

Plaintiffs’ only factual allegation concerns the U.S. Embassy List, which contradicts

Plaintiffs’ claims of notice. Without factual allegations that make it plausible that

“discovery could supply additional proof of Carnival’s liability”, Chaparro, 693 F.3d at

1336, the Amended Complaint falls short of the standard set forth in Rule 12(b)(6).

For these reasons, the Court GRANTS Carnival’s motion to dismiss Count III, and

does so without prejudice. It is a close question whether Plaintiffs should be permitted

another opportunity to plead this negligence claim. The Court will give Plaintiffs one final

opportunity to do so. See Welch v. Laney, 57 F.3d 1004, 1009 (11th Cir. 1995) (“Where a

more carefully drafted complaint might state a claim upon which relief could be granted,

the district court should allow the plaintiff to amend the complaint rather than dismiss it.”).

ii. Plaintiffs’ second negligence theory (Count IV)

The second negligence count, which is filed on behalf of both Plaintiffs, begins with

assertions of multiple duties that Carnival owed them. Other than the first duty alleged in

paragraph 113 (which is the focus of the first negligence count), Carnival does not contest

these allegations. Count IV alleges that Carnival had the duty:

111. ... to use reasonable care to ensure the safety of its

passengers throughout the duration of the trip.

112. ... to provide prompt and appropriate medical care, to

make reasonable efforts to ensure the passengers’ safety and to

warn them of dangers about which Carnival had actual or

constructive knowledge.

113. ... to be aware of and protect its passengers from dangers

such as those posed by Centro Medico Americano Hospital, to

assist passengers in clearing Customs, to make security

arrangements when necessary, and to assist guests left behind

in arranging transport to the next port of call or other

destination.

(ECF No. 38 ¶¶ 111-13).

Notably, the Amended Complaint does not expressly allege that Carnival had a duty

to secure Plaintiffs’ release from the Hospital. Yet, this is indirectly suggested by these

allegations of Count IV, that Carnival breached its duties:

118. ... by allowing [Plaintiffs] to remain at Centro Medico

Americano Hospital without assistance.

119. ... by failure to ensure [Plaintiffs’] safe passage

throughout the duration of the trip, and by refusing to arrange

for their transportation home.

(Id. ¶¶ 118-19). Paragraph 118 suggests Carnival had the duty to assist Plaintiffs while at

the Hospital, but it does not state what that assistance was. Was Carnival obligated to pay

or negotiate the medical bill, or facilitate Plaintiffs’ escape, despite non-payment? We are

left to guess. Other allegations of the Amended Complaint suggest that Carnival, at least

in part, met the obligation set out in paragraph 119, “to arrange for [Plaintiffs’]

transportation home.” See (id. ¶¶ 29-30) (Plaintiffs were “scheduled to board another

Carnival ship to return to the United States” and “Mr. Powell and another agent … came

to the hospital to accompany them back to the new ship”).

In its Motion to dismiss Count IV, Carnival argues that it had no duty to “facilitate

[Plaintiffs’] escape from the hospital” and therefore the Court must dismiss that count.

(ECF No. 41 at 15). Notably, in its response memorandum, Plaintiffs do not dispute that

Count IV alleges that Carnival had this duty to facilitate their escape. Instead, Plaintiffs

lump together their argument in defense of both Counts III and IV (both negligence counts)

and do not address Carnival’s argument for dismissal of Count IV. Importantly, Plaintiffs

provide no legal authority that Carnival had a duty to secure Mr. Johnson’s release from

the Hospital. (ECF No. 42).

So, the first problem with Count IV is its failure to clearly put Carnival on notice of

the nature of the duty that it had to “assist” Plaintiffs when the Hospital refused to allow

Mr. Johnson’s discharge because of lack of payment. The existence of a duty is a question

of law, Wolf, 683 F. App’x at 794 (citing Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1339

(11th Cir. 2012)), and the second problem is that Plaintiffs provide no law that places such

a duty on Carnival.

For its part, Carnival cites several cases that support its position that once passengers

leave the ship, the cruise line’s duty is limited to a duty to warn of known dangers. See

(ECF No. 41 at 16-17) (citing Lipkin v. Norwegian Cruise Line, Ltd., 93 F. Supp. 3d 1311,

1324 (S.D. Fla. 2015); Kadylak v. Royal Caribbean Cruise, Ltd., 167 F. Supp. 3d 1301,

1309 (S.D. Fla. 2016); Mills v. NCL (Bahamas) Ltd., No. 13-24174-CIV, 2015 WL

11201209, at *6 (S.D. Fla. Apr. 10, 2015); Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d

248, 251 (Fla. 3d DCA 1985)). Of course, a duty, by Carnival, to secure Plaintiffs’ release

from a hospital, would exceed this limitation.

The Court notes that there is some authority for the notion that a cruise line might

have a duty that exceeds the standard duty to warn of known dangers, where, for example,

there is an agency relationship between it and the third party that caused the harm – at least

where that third party is an excursion operator. See Pucci v. Carnival Corp., 146

F. Supp. 3d 1281, 1287 n.4 (S.D. Fla. 2015) (“While generally the duty to warn is the most

relevant duty regarding off-vessel excursions, a cruise ship might have additional

obligations under the ‘reasonable care’ standard, if, for example, there is an agency

relationship between the cruise ship and the excursion operator.”). This is inapplicable

here, as Plaintiffs do not allege that an agency or partnership relationship existed between

Carnival and the CMA Hospital.

In sum, Plaintiffs have failed to support their negligence claim in Count IV with

legal authority that Carnival had a duty to facilitate their departure from the Hospital, when

Plaintiffs had not made payment. Even if Plaintiffs clearly replead the claim alleging such

a duty, it would fail as a matter of law. The Court GRANTS Carnival’s motion to dismiss

Count IV with prejudice. See L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1332

(11th Cir. 2020) (Courts may deny leave to amend “if amendment would be futile.”).

b. IIED (Counts I and III)

Plaintiffs allege two counts for IIED (Counts I and II), which mirror their negligence

claims. That is, the first theory of IIED rests on Carnival’s decision to send Plaintiffs to the

CMA Hospital, while the second is based on Carnival’s failure to assist Plaintiffs while

they were at the Hospital. See (ECF No. 38 ¶¶ 86-98).

The parties agree that the elements to state a claim for IIED are the following: “(1)

extreme and outrageous conduct; (2) an intent to cause, or reckless disregard to the

probability of causing, emotional distress; (3) severe emotional distress suffered by the

plaintiff; and (4) that the conduct complained of caused the plaintiff’s severe emotional

distress.” Broberg v. Carnival Corp., 303 F. Supp. 3d 1313, 1317 (S.D. Fla. 2017) (citing

Blair v. NCL (Bahamas) Ltd., 212 F. Supp. 3d 1264, 1269 (S.D. Fla. 2016)).

The extreme and outrageous conduct in the first element must be “so outrageous in

character, and so extreme in degree, as to go beyond all bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting

Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla. 1985)). “While there is

no exhaustive list or concrete list of what constitutes outrageous conduct, Florida common

law has evolved an extremely high standard.” Id. (citation omitted). This is an objective

determination that is a question of law, not of fact. Blair, 212 F. Supp. 3d at 1270 (citation

omitted).

Carnival argues that Plaintiffs fail to allege sufficient facts to support the first,

second and fourth elements. (ECF No. 41 at 6-7).

i. The first theory of IIED (Count I)

Plaintiffs bring this claim on behalf of Mr. Johnson. They allege that “Carnival knew

that [CMA] Hospital was not an approved medical facility for US passengers, that the

Hospital was dangerous, unsanitary, and that it had engaged in similar behavior in the past.”

(ECF No. 38 ¶ 88). For this, they rely on the same allegations regarding the U.S. Embassy

List, that are central to their first negligence claim. (See id. ¶¶ 71-72). They further allege

that “Carnival’s actions in directing or allowing Mr. Johnson to be taken to the [CMA]

Hospital went beyond the bounds of decency and were shocking, atrocious and utterly

intolerable in a civilized community” and “caused severe emotional and physical distress

to the Plaintiffs.” (Id. ¶¶ 90, 91).

For the reasons stated supra, Plaintiffs have failed to plead that Carnival had actual

or constructive notice that the CMA Hospital was dangerous. Without this, Plaintiffs’

allegation that Carnival’s decision to send Mr. Johnson to the Hospital was extreme and

outrageous conduct, or that it intended to cause, or recklessly disregard the probability of

causing, Mr. Johnson emotional distress, fails.

The Court therefore GRANTS Carnival’s motion to dismiss Count I, but because

the factual allegations mirror those under Count III, the Court dismisses Count I without

prejudice.

ii. Plaintiffs’ second theory of IIED (Count II)

Plaintiffs’ second theory of IIED alleges: “Carnival’s conduct in allowing the

Plaintiffs to be held against their will, ignoring the Plaintiffs’ plight, and refusing to take

action by involving the US Embassy, law enforcement, or others, also went beyond the

bounds of decency and was shocking, atrocious, and utterly intolerable in a civilized

community.” (ECF No. 38 ¶ 97).

As already noted, the Court knows of no legal authority that imposed on Carnival a

duty to secure Plaintiffs’ release from the CMA Hospital after Plaintiffs were unable to pay

the medical bill. With no such duty, Carnival’s conduct cannot meet the “extremely high

standard” that it engaged in extreme and outrageous conduct, or that it acted with “an intent

to cause, or reckless disregard to the probability of causing, emotional distress”. Broberg,

303 F. Supp. 3d at 1317-18.

For the foregoing reasons and for those stated in the Court’s analysis of Plaintiffs’

second theory of negligence, supra, the Court GRANTS Carnival’s motion to dismiss

Count II with prejudice.

c. NIED (Count VI)

Ms. Austin asserts one count of NIED against Carnival (Count VI). She alleges, in

sum, that “[i]n addition to her own injuries which resulted from being attacked while trying

to leave the hospital ... watching Mr. Johnson suffer as a result of Carnival’s actions in

transporting him to [the CMA Hospital] caused [her] additional psychological harm ...,

[which] has manifested itself as physical injuries ....” (ECF No. 38 ¶¶ 131-32).

To state a claim for NIED under federal maritime law, a plaintiff must allege

“mental or emotional harm (such as fright or anxiety) that is caused by the negligence of

another and that is not directly brought about by a physical injury, but that may manifest

itself in physical symptoms.” Chaparro, 693 F.3d at 1337-38 (quoting Consol. Rail Corp.

v. Gottshall, 512 U.S. 532, 544 (1994)). Federal maritime law has adopted the “zone of

danger” test, which limits recovery to those plaintiffs who are “placed in immediate risk of

physical harm by [defendant’s negligent] conduct.” Id. at 1338 (quoting Stacy v. Rederiet

Otto Danielsen, A.S., 609 F.3d 1033, 1035 (9th Cir. 2010)). Importantly, the claim

“requires an adequately pled underlying claim of negligence.” Id. at 1337.

Given Plaintiffs’ failure to plead a claim for negligence, this claim also fails. The

Court thus GRANTS Carnival’s motion to dismiss Count VI. As with Count III, the Court

dismisses Count VI without prejudice.

d. False imprisonment (Count V)

Plaintiffs allege one count of false imprisonment that is based on Plaintiffs’ forced

detention at the Hospital. They allege: “Although Carnival did not actively participate in

the restraint, it was the actions of Carnival’s agents, servants and employees that directly

or indirectly procured the occasion for the hospital to do so.” (ECF No. 38 ¶ 122).

Here, the common law principles expressed in the Restatement (Second) of Torts

apply. See Barnes v. Carnival Corp., No. 06-20784-CIV, 2007 WL 9702151, at *2 (S.D.

Fla. Apr. 12, 2007). The elements of false imprisonment are: “(a) an act intending to

confine another within boundaries fixed by the actor; (b) the act directly or indirectly

results in such a confinement; and (c) the confined person is conscious of the confinement

or is harmed by it.” Id.

Carnival argues that Plaintiffs fail to plead the first element, as they do not allege

that Carnival committed an act intending to confine Plaintiffs within boundaries fixed by

Carnival. (ECF No. 41 at 7).

Plaintiffs do not address this argument in their response. Rather, they focus on the

second element and argue that Carnival’s actions “directly or indirectly procured” the

Plaintiffs’ restraint by CMA Hospital. (ECF No. 42 at 6-7).

Carnival’s “act,” that is the focus of the Amended Complaint, was it taking Plaintiffs

to a hospital that it knew or should have known was dangerous. But, as noted, Plaintiffs

allege no facts that plausibly indicate that Carnival had, or should have had, this

knowledge.

Plaintiffs concede that Carnival did not actively participate in the Hospital’s

restraint of Plaintiffs, and importantly, Plaintiffs do not allege that Carnival is vicariously

liable for the actions of CMA Hospital. It is also true that Plaintiffs alleged no facts that

plausibly show that, by sending them to the Hospital, Carnival intended to confine them.

Moreover, there are no factual allegations to indicate that Plaintiffs’ confinement was

within boundaries set by Carnival. In sum, Plaintiffs’ factual allegations are plainly

insufficient to support a claim for false imprisonment.

The Court GRANTS Carnival’s motion to dismiss Count V. The Court dismisses

that Count with prejudice, as the Court has already provided Plaintiffs an opportunity to

replead this claim, and the underlying facts have not changed. Those facts cannot support

a claim for false imprisonment and therefore amendment would be futile. See Peterson,

982 F.3d at 1332.

e. Punitive damages

Carnival alternatively asks the Court to strike each claim’s prayer for punitive

damages. (ECF No. 41 at 17-19). Given the dismissal of all claims, there is no reason for

the Court to also strike the punitive damages claims.

The Court notes, however, that punitive damages could only be awarded for

intentional misconduct on Carnival’s part. Hall v. Carnival Corp., --- F. Supp. 3d ----,

No. 21-cv-20557, 2021 WL 1699878, at *4-5 (S.D. Fla. Apr. 29, 2021). To demonstrate

intentional misconduct, a plaintiff must show that “the defendant had actual knowledge of

the wrongfulness of the conduct and the high probability that injury or damage to the

claimant would result and despite that knowledge, intentionally pursued that course of

conduct.” Id. at *5 (citation omitted).

Plaintiffs have not plead this, and therefore the Amended Complaint does not

support a claim for punitive damages.

V. Conclusion

For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss the

Amended Complaint, (ECF No. 41). The Court DISMISSES WITH PREJUDICE

Counts II, TV and V and DISMISSES WITHOUT PREJUDICE Counts IJ, II and VI.

The Court further provides Plaintiffs leave to amend the Complaint, which Plaintiffs

shall file no later than December 10, 2021.

DONE and ORDERED in Miami, Florida this 19th day of November 2021.

f 5 c

jf . wey =

CHRIS McALILEY □

UNITED STATES MAGISTRATE JUDGE

25