Dome v. Celebrity Cruises Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:21-cv-20545-GAYLES/TORRES

IVONNE DOME,

Individually and as Personal Representative

for the Estate of ROBERT DOME, deceased,

ALEC DOME, and AUSTIN DOME,

Plaintiff,

v.

CELEBRITY CRUISES INC.,

Defendant.

_________________________________________/

ORDER

THIS CAUSE comes before the Court on Defendant Celebrity Cruises Inc.’s (“Defendant”

or “Celebrity”) Motion to Dismiss Plaintiffs’ Complaint (the “Motion”) [ECF No. 7]. The Court

has considered the Motion and the record and is otherwise fully advised. For the reasons that

follow, the Motion is granted in part and denied in part.

BACKGROUND1

Plaintiffs, Ivonne Dome (“Ivonne”), individually and as personal representative of the

Estate of Robert Dome (“Decedent”), and their children, Alec Dome (“Alec”) and Austin Dome

(“Austin”) (collectively, “Plaintiffs”), bring this wrongful death action against Defendant caused

by a SARS-CoV-2 (“COVID-19”) outbreak on board the Celebrity Eclipse (the “Eclipse”) in

March 2020. Ivonne and Decedent were passengers on the Eclipse between March 1 and March

1 As the Court proceeds on a motion to dismiss, it accepts the allegations in Plaintiffs’ Complaint as true. See Brooks

v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam).

30, 2020, during which they contracted COVID-19. Alec and Austin—who were not passengers

on the Eclipse—contracted COVID-19 from their parents after coming into contact with them on

March 30, 2020.

I. Factual Background

A. Effects of the COVID-19 Pandemic on the Cruise Ship Industry

The COVID-19 pandemic, which has persisted since December 2019, has had notable

effects on the cruise ship industry. For example, two cruise ships owned by Carnival Corporation

experienced numerous COVID-19 outbreaks while off the coast of Japan and California in

February 2020. On February 13, 2020, the Centers for Disease Control and Prevention (“CDC”)

published an Interim Guidance for Ships on Managing Suspected Coronavirus Disease 2019,

which provided ship operators with guidance on how to help prevent, detect, and medically

manage suspected COVID-19 infections on ships. Recommendations included “[i]dentifying and

isolating passengers and crew with possible symptoms of COVID-19,” “[d]enying boarding of a

passenger or crew member who is suspected to have COVID-19,” and quarantining “[p]assengers

and crew members who have had high-risk exposures to a person suspected of having COVID-19

. . . .” [ECF No. 1 at 10–11 ¶ 29] (citation omitted). On March 7, 2020, United States officials met

with top cruise industry executives to address the impact of COVID-19 on the cruise industry. On

March 8, 2020, the United States Department of State, in conjunction with the CDC, recommended

“that U.S. citizens should not travel by cruise ship given the CDC’s findings which support the

increased risk of infection of COVID-19 in a cruise ship environment.” Id. at 13 ¶ 34 (citation and

internal quotation marks omitted). On March 14, 2020, the CDC issued its first No Sail Order,

which applied to cruise ship operators.

B. The Celebrity Eclipse Voyage

On February 5, 2020, prior to the Eclipse setting sail, Defendant emailed prospective

Eclipse passengers—including Ivonne and Decedent—indicating that in light of the “global

developments related to the coronavirus,” “any guest, or crewmember, who [had] traveled to, from,

or through China, Hong Kong or Macau within 15 days of departure [would] be unable to board”

the Eclipse. Id. at 5. The email further indicated that increased health screening requirements

would be implemented and outlined Defendant’s “numerous proactive steps to maintain high

health standards onboard [its] ships . . . .” Id. at 6.

On March 1, 2020, the Eclipse set sail from Argentina for a fourteen-night journey through

Argentina and Chile, with approximately 2,500 passengers—including Ivonne and Decedent—and

750 crew members. On March 2, 2020, a passenger aboard the Eclipse began exhibiting flu-like

symptoms consistent with COVID-19.2 On March 9, 2020, numerous passengers aboard the

Eclipse began exhibiting respiratory symptoms consistent with COVID-19 and sought medical

care on the ship. On March 15, 2020, the Port of San Antonio, Chile—where the Eclipse was

supposed to disembark passengers—denied the Eclipse entry to the port due to concerns of

passengers and crew members who may have had COVID-19. Defendant continued to allow

passengers to enjoy the voyage as normal without implementing quarantining and/or physical

distancing measures.

On March 17, 2020, the Captain of the Eclipse issued a letter to the passengers stating that

the ship had been denied entry and, therefore, would set sail for San Diego, California in order to

disembark. Noting the “uncertainty during the escalation of this unprecedented situation,” the letter

stated that “a full schedule of entertainment, activities[,] . . . dining options,” and complimentary

2 Symptoms of COVID-19 include fever, dry cough, and/or shortness of breath, and it can cause severe pneumonia,

acute respiratory distress syndrome, septic shock, multi-organ failure, and death. [ECF No. 1 at 7 ¶ 16].

beverage service would be provided during the remainder of the journey. Id. at 17–18 ¶ 36(v). The

letter further stated that “[a]ll guests onboard remain[ed] healthy and happy . . . .” Id. Following

the letter, Ivonne and Decedent continued participating in activities on the Eclipse because they

were led to believe—based on the representation that passengers remained healthy—that they were

safer on the vessel than on land. On March 26, 2020, a passenger aboard the Eclipse presented to

the ship’s infirmary and complained of COVID-19-like symptoms.

On March 28, 2020, the Captain of the Eclipse issued a second letter to passengers, which

announced the vessel’s arrival to San Diego on March 30, 2020, and detailed debarkation

procedures for passengers. The letter directed passengers to maintain social distancing standards

of six feet apart during debarkation and at the airport. The letter further stated that throughout the

duration of the journey “a full schedule of entertainment, activities[,] and dining options,” would

continue, including complimentary in-stateroom movies and beverage service. Id. at 20–21

¶ 36(y). The letter reiterated that “[a]ll guests onboard remain[ed] healthy and happy.” Id. Again

relying on the statements in the letter, Ivonne and Decedent continued to believe that they were

safe on the Eclipse and that there were no COVID-19 cases onboard; as a result, both continued to

participate in activities.

On March 29, 2020, Decedent began to experience unusual fatigue, a symptom associated

with COVID-19, while aboard the Eclipse. On March 30, 2020, the Eclipse docked in San Diego,

California, and passengers were permitted to disembark. Ivonne and Decedent returned to their

home in New Jersey that day, though both felt that they were experiencing fatigue and flu-like

symptoms consistent with COVID-19. Unaware of their parents’ symptoms, Alec and Austin

picked their parents up from the airport and drove them home. On April 2, 2020, Decedent tested

positive for COVID-19. On April 5, 2020, Alec and Austin began experiencing fatigue and flu-

like symptoms consistent with COVID-19. On April 12, 2020, Decedent passed away at a hospital

in New Jersey.

II. Procedural History

On February 9, 2021, Plaintiffs filed this twenty-one-count wrongful death action against

Defendant. [ECF No. 1]. In the Complaint, Ivonne, individually and on behalf of the Estate of

Decedent, raises the following claims against Defendant: (1) three counts of negligent failure to

warn (Counts I, III, and IV); (2) two counts of negligent misrepresentation (Counts II and XV);

(3) four counts of negligent management of an infectious disease outbreak aboard a vessel (Counts

V, VI, VII, and VIII); (4) three counts of negligent boarding (Counts IX, X, and XI); (5) three

counts of general negligence (Counts XII, XIII, and XIV); and (6) four counts of intentional

infliction of emotional distress (“IIED”) (Counts XVI, XVII, XVIII, and XIX). Id. Alec and Austin

also bring two claims against Defendant: (1) negligent failure to warn (Count XX); and (2)

negligent management of an infectious disease outbreak aboard a vessel (Count XXI). Id. On June

1, 2021, Defendant filed the instant Motion to Dismiss. [ECF No. 7].

LEGAL STANDARD

To survive a motion to dismiss brought pursuant to Federal Rule of Civil

Procedure 12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face,’” meaning that it must contain “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) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). While a court must accept well-pleaded factual allegations as true,

“conclusory allegations . . . are not entitled to an assumption of truth—legal conclusions must be

supported by factual allegations.” Randall v. Scott, 610 F.3d 701, 709–10 (11th Cir. 2010). “[T]he

pleadings are construed broadly,” Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120

(11th Cir. 2006), and the allegations in the complaint are viewed in the light most favorable to the

plaintiff. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1270 (11th Cir. 2016). At bottom,

the question is not whether the claimant “will ultimately prevail . . . but whether his complaint [is]

sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011)

(internal quotation and citation omitted).

DISCUSSION

Defendant’s Motion seeks to dismiss various portions of the Complaint. First, Defendant

argues that the Death on the High Seas Act (“DOHSA”) applies to Plaintiffs’ claims and therefore

their demand for pecuniary damages must be stricken. Second, Defendant argues that Plaintiffs’

negligent misrepresentation claims lack the necessary specificity under Federal Rule of Civil

Procedure 9(b) and are based on non-actionable statements. Third, Defendant argues that it does

not owe a duty of care to Alec and Austin, nor was it on notice of Ivonne and Decedent’s illness.

Finally, Defendant argues that Plaintiffs’ intentional infliction of emotional distress claims fail

because Plaintiffs fail to establish that Defendant’s actions were outrageous as a matter of law.

The Court first addresses its jurisdiction over this matter and then considers each argument in turn.

I. The Court’s Jurisdiction

The Court must consider whether it maintains subject matter jurisdiction over this case

because “[f]ederal courts have an obligation to examine sua sponte their own jurisdiction over a

case, notwithstanding the contentions of the parties.” DeRoy v. Carnival Corp., 963 F.3d 1302,

1311 (11th Cir. 2020) (citing Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.

1999)). “That is so because subject-matter jurisdiction underlies a court’s power to hear a case.”

Id. (“[S]ubject-matter jurisdiction can never be forfeited or waived.”). In their Complaint,

Plaintiffs state that the Court has “subject matter jurisdiction over this case pursuant to 28 U.S.C.

§ 1332 because the Parties are completely diverse and the matter in controversy exceeds, exclusive

of interest and costs, the sum specified by 28 U.S.C. § 1332.” [ECF No. 1 at 1 ¶ 3]. Plaintiffs

allege, in the alternative, that “if diversity jurisdiction does not apply, then this matter falls under

the Court’s admiralty jurisdiction.” Id. As to Plaintiffs, the Complaint states that they are “citizens

of the United States and residents of New Jersey.” Id. at 1 ¶ 1. As to Defendant, the Complaint

states that it “is a foreign entity which conducts its cruise-related business from its principal place

of business in Miami, Florida.” Id. at 1 ¶ 2.

“Federal courts are courts of limited subject-matter jurisdiction.” Thermoset Corp. v. Bldg.

Materials Corp. of Am., 849 F.3d 1313, 1317 (11th Cir. 2017) (citing PTA-FLA, Inc. v. ZTE USA,

Inc., 844 F.3d 1299, 1305 (11th Cir. 2016)). A district court’s subject-matter jurisdiction is limited

to one of three types: “(1) jurisdiction under a specific statutory grant; (2) federal question

jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C.

§ 1332(a).” PTA-FLA, 844 F.3d at 1305 (quoting Baltin v. Alaron Trading Corp., 128 F.3d 1466,

1469 (11th Cir. 1997)). A district court enjoys federal question jurisdiction over “all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A district

court also enjoys diversity “jurisdiction of all civil actions where the matter in controversy exceeds

the sum or value of $75,000 . . . and is between . . . citizens of different States . . . .” 28 U.S.C.

§ 1332(a)(1). “Diversity jurisdiction requires complete diversity: every plaintiff must be diverse

from every defendant.” Torreyes v. Godiva Chocolatier, Inc., 424 F. Supp. 3d 1276, 1280 (S.D.

Fla. 2019) (citing Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)).

“Citizenship, not residence, is the key fact that must be alleged in the complaint to establish

diversity for a natural person.” Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). Moreover,

“citizenship should be ‘distinctly and affirmatively alleged.’” Kantrow v. Celebrity Cruises Inc.,

533 F. Supp. 3d 1203, 1214–15 (S.D. Fla. 2021) (Toms v. Country Quality Meats, Inc., 610 F.2d

313, 316 (5th Cir. 1980)). “Residence alone is not enough.” Travaglio v. Am. Express Co., 735

F.3d 1266, 1269 (11th Cir. 2013). “Citizenship is equivalent to ‘domicile’ for purposes of diversity

jurisdiction. . . . A person’s domicile is the place of his true, fixed, and permanent home and

principal establishment, and to which he has the intention of returning . . . .” McCormick v.

Aderholt, 293 F.3d 1254, 1257–58 (11th Cir. 2002) (per curiam) (citations and internal quotation

marks omitted) (quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974)). See also Wells Fargo

Bank, N.A. v. Bonaby, No. 17-CIV-20266, 2017 WL 364460, at *2 (S.D. Fla. Jan. 25, 2017) (noting

that citizenship “requires both residence in a state and an intention to remain there indefinitely”

(citation and internal quotation marks omitted)). Additionally, “a corporation shall be deemed to

be a citizen of every State and foreign state by which it has been incorporated and of the State or

foreign state where it has its principal place of business” for diversity jurisdiction purposes. 28

U.S.C. § 1332(c)(1).

Based on the face of the Complaint, the Court cannot determine whether diversity

jurisdiction exits in this matter. Specifically, Plaintiffs fail to allege their states of citizenship;

instead, they allege their states of residence. See Kantrow, 533 F. Supp. 3d at 1215 (“Because

Plaintiffs alleged their state of residency and not their state of citizenship, they have failed to

properly plead their citizenship for purposes of diversity jurisdiction.” (citation omitted)). For

purposes of diversity jurisdiction, “[r]esidency is necessary, but insufficient, to establish

citizenship in a state.” Smith v. Marcus & Millichap, Inc., 991 F.3d 1145, 1149 (11th Cir. 2021).

However, “it is undisputed that the Court has admiralty jurisdiction over this case irrespective of

Plaintiffs’ failure to allege diversity jurisdiction . . . .” Kantrow, 533 F. Supp. 3d at 1216 (citing

Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1365 (11th Cir. 2018) (“Personal-injury claims by

cruise ship passengers, complaining of injuries suffered at sea, are within the admiralty jurisdiction

of the district courts.”)). See also Moyer v. Rederi, 645 F. Supp. 620, 627 (S.D. Fla. 1986)

(“Repeatedly the courts have declared that wrongful death actions deriving from an injury on the

high seas fall under admiralty jurisdiction, even if death did not occur until the injured party had

been brought on land.”).

Because admiralty jurisdiction exists over this matter, “[m]aritime law governs actions

arising from alleged torts committed aboard a ship sailing in navigable waters.” Guevara v. NCL

(Bah.) Ltd., 920 F.3d 710, 720 (11th Cir. 2019) (citing Keefe v. Bah. Cruise Line, Inc., 867 F.2d

1318, 1320 (11th Cir. 1989) (per curiam)); see also Everett v. Carnival Cruise Lines, 912 F.2d

1355, 1358 (11th Cir. 1990) (“Even when the parties allege diversity of citizenship as the basis of

the federal court’s jurisdiction (as they did in this case), if the injury occurred on navigable waters,

federal maritime law governs the substantive issues in the case.” (citations omitted)). “In the

absence of well-developed maritime law, courts may supplement the maritime law with general

common law and state law principles.” Marabella v. NCL (Bah.) Ltd., 437 F. Supp. 3d 1221, 1225

(S.D. Fla. 2020) (citing Smolnikar v. Royal Caribbean Cruises Ltd., 787 F. Supp. 2d 1308, 1315

(S.D. Fla. 2011)); see also Just v. Chambers, 312 U.S. 383, 388 (1941) (“With respect to maritime

torts we have held that the State may modify or supplement the maritime law by creating liability

which a court of admiralty will recognize and enforce when the state action is not hostile to the

characteristic features of the maritime law or inconsistent with federal legislation.”).

II. Whether DOHSA Applies to Plaintiff’s Claims

In its Motion, Defendant argues that DOHSA applies to Plaintiffs’ claims and, therefore,

Plaintiffs’ request for non-pecuniary damages should be stricken. [ECF No. 7 at 3–6]. Specifically,

Defendant argues that “DOHSA provides the exclusive remedy” to Plaintiffs’ claims because they

allege that Decedent “began to experience symptoms of COVID-19 while aboard the Eclipse on

March 29, 2020,” id. at 4, and, therefore, “alleges [that] he contracted COVID-19 on the high

seas,” id. at 3. Plaintiffs argue that it cannot be determined at this stage of the litigation whether

DOHSA applies to Plaintiffs’ claims. [ECF No. 12 at 1–4]. Specifically, Plaintiffs argue that a

factual dispute remains as to whether Decedent “contracted COVID-19 within three (3) miles of

California (which would preclude DOHSA application as a matter of law) or on the high seas

(which could invoke DOHSA application).” Id. at 2.

DOHSA, 46 U.S.C. § 30301 et seq., “was enacted to provide a uniform and effective

wrongful death remedy for survivors of persons killed on the high seas.” Eisenman v. Carnival

Corp., 424 F. Supp. 3d 1303, 1306 (S.D. Fla. 2019) (quoting Offshore Logistics, Inc. v. Tallentire,

477 U.S. 207, 214 (1986)). DOHSA provides, in relevant part, that:

When the death of an individual is caused by wrongful act, neglect, or default

occurring on the high seas beyond 3 nautical miles from the shore of the United

States, the personal representative of the decedent may bring a civil action in

admiralty against the person or vessel responsible. The action shall be for the

exclusive benefit of the decedent’s spouse, parent, child, or dependent relative.

42 U.S.C. § 30302. “Where an action for wrongful death exists under DOHSA, the statute provides

the exclusive remedy.” Perricone v. Carnival Corp., No. 15-CIV-20309, 2016 WL 1161214, at *5

(S.D. Fla. Mar. 24, 2016) (citations and internal quotation marks omitted). Specifically, “[t]he

recovery . . . shall be a fair compensation for the pecuniary loss sustained by the individuals for

whose benefit the action is brought.” 42 U.S.C. § 30303. Therefore, DOHSA “limits a plaintiff’s

recovery . . . [and] forecloses recovery for emotional injury and punitive damages.” LaCourse v.

PAE Worldwide Inc., 980 F.3d 1350, 1355 (11th Cir. 2020), cert. denied, 141 S. Ct. 2702 (2021).

See also Smith v. Carnival Corp., 584 F. Supp. 2d 1343, 1351 (S.D. Fla. 2008) (“Non-pecuniary

damages are not recoverable [under DOHSA].”). See also Lasky v. Royal Caribbean Cruises, Ltd.,

850 F. Supp. 2d 1309, 1312 (S.D. Fla. 2012) (“As a preliminary matter, it is well-settled that where

DOHSA applies, it preempts all other forms of wrongful death claims under State or general

maritime law.”).

“Whether DOHSA is the applicable law is determined by the location where the negligence

occurred.” Perricone, 2016 WL 1161214, at *5. “[A] cause of action under DOHSA accrues at the

time and place where an allegedly wrongful act or omission was consummated in an actual injury,

not at the point [where] previous or subsequent negligence allegedly occurred.” Fojtasek v. NCL

(Bah.) Ltd., 613 F. Supp. 2d 1351, 1354 (S.D. Fla. 2009) (quoting Moyer v. Rederi, 645 F. Supp.

620, 627 (S.D. Fla. 1986)). See also Perricone, 2016 WL 1161214, at *5 (“As long as the wrongful

act, neglect, or default occurred on the high seas, DOHSA applies and preempts all other

remedies.”). Courts that have considered whether DOHSA applies to COVID-19-related wrongful

death actions “have concluded that the place where the plaintiff contracted COVID-19 determines

DOHSA applicability.” Paul v. Celebrity Cruises Inc., No. 21-CIV-20814, 2021 WL 7082839, at

*9 (S.D. Fla. July 15, 2021) (collecting cases).

With regard to where Ivonne and the Decedent contracted COVID-19, the Complaint

alleges that they were passengers on the Eclipse between March 1 and March 30, 2020, and

contracted COVID-19 while aboard. The Eclipse departed from Argentina on March 1 for a

fourteen (14) night Argentinian and Chilean cruise. The following day, a passenger (or passengers)

aboard the Eclipse became symptomatic with flu-like symptoms consistent with a COVID-19

diagnosis. Plaintiffs allege that on March 9, 2020, numerous passengers began exhibiting

respiratory symptoms aboard the vessel, which were consistent with positive COVID-19

diagnoses, and sought medical care aboard the vessel. On March 15, 2020, the Eclipse was denied

the ability to dock in San Antonio, Chile because of concerns of COVID-19 on the ship. As a

result, the Eclipse set sail for San Diego to disembark passengers. According to Plaintiffs, on

March 26, 2020, a passenger aboard the vessel visited the ship’s infirmary and complained of

symptoms consistent with a positive COVID-19 diagnosis. On March 29, 2020, Decedent began

to feel unwell, including unusual fatigue—“a classic early symptom associated with a positive

COVID-19 diagnosis.” Id. at 21 ¶ 36(z). The next day, Ivonne and Decedent disembarked the

Eclipse when it docked in San Diego.

Notably, the Complaint fails to specifically allege whether the Eclipse was on the high seas

when Decedent contracted COVID-19—that is, whether the Eclipse was beyond three nautical

miles from the shore of the United States when he contracted COVID-19. See 42 U.S.C. § 30302.

Whether Plaintiffs intentionally omit this detail or not, the Court cannot determine at this time

whether DOHSA applies to Plaintiffs’ claims. Presumably, Decedent contracted COVID-19 prior

to March 29, 2020, when he began to exhibit COVID-19 symptoms. See, e.g., Symptoms, Ctrs. for

Disease Control & Prevention (Feb. 22, 2021), https://www.cdc.gov/coronavirus/2019-

ncov/symptoms-testing/symptoms.html (last visited Mar. 19, 2022) (“Symptoms may appear 2-14

days after exposure to the virus.”). However, such a determination is better made at summary

judgment with the benefit of discovery. See Macias v. Celebrity Cruises Inc., No. 21-CIV-20813,

2021 WL 5853585, at *6 (S.D. Fla. Nov. 19, 2021), report and recommendation adopted, No. 21-

CIV-20813, 2021 WL 5834269 (S.D. Fla. Dec. 8, 2021). Therefore, Defendant’s request to strike

Plaintiffs’ request for non-pecuniary damages in its Motion shall be denied without prejudice.

III. Negligent Misrepresentation Claims

Defendant also moves to dismiss Plaintiffs’ negligent misrepresentation claims (Counts II

and XV), arguing that they fail to meet the heightened pleading standard under Federal Rule of

Civil Procedure 9(b) and are based on non-actionable language. [ECF No. 7 at 6–9]. Defendant

challenges two statements in the Complaint regarding Defendant’s alleged misrepresentations to

Ivonne and Decedent. The first states as follows:

Misrepresenting to IVONNE DOME and ROBERT DOME while aboard the vessel

that “[a]ll guests onboard remain healthy and happy” and/or misrepresenting that

no person onboard had COVID-19; when in fact, a person(s) aboard the vessel

during the subject voyage complained to Defendant/its agent(s) of symptoms

consistent with COVID-19 and later tested positive and/or Defendant could not

reasonably test the person(s) to confirm their diagnosis and reliably advise other

passengers about whether or not there was an absence of COVID-19 cases aboard

the vessel.

[ECF No. 1 at 28 ¶ 57(a)]. The second states as follows:

Misrepresenting to IVONNE DOME and ROBERT DOME aboard the vessel that

“[a]ll guests onboard remain healthy and happy” and/or misrepresenting that no

person onboard had COVID-19; when in fact, a person(s) aboard the vessel during

the subject voyage had displayed symptoms consistent with COVID-19 diagnoses.

Id. at 52 ¶ 136(a). As to the alleged misrepresentation that “no person onboard [the Eclipse] had

COVID-19,” Defendant argues that Plaintiffs fail to provide the requisite detail or specificity

required of Rule 9(b). [ECF No. 7 at 6–7]. As to the Captain’s statement that “[a]ll guests onboard

remain healthy and happy,” Defendant argues that the “broad generalizations regarding safety and

health” that were made in the letters sent to passengers during the voyage “cannot form the

foundation of a negligent misrepresentation claim” because the statements fail to state a material

fact. Id. at 8–9.

In order to bring a claim for negligent misrepresentation, a plaintiff must allege:

(1) misrepresentation of a material fact; (2) that the representor made the

misrepresentation without knowledge as to its truth or falsity or under

circumstances in which he ought to have known of its falsity; (3) that the

representor intended that the misrepresentation induce another to act on it; and (4)

that injury resulted to the party acting in justifiable reliance on the

misrepresentation.

Ceithaml v. Celebrity Cruises, Inc., 207 F. Supp. 3d 1345, 1352–53 (S.D. Fla. 2016) (quoting

Holguin v. Celebrity Cruises, Inc., No. 10-CIV-20212, 2010 WL 1837808, at *1 (S.D. Fla. May

4, 2010)). Because negligent misrepresentation is a fraud-based claim, it is subject to the

heightened pleading standard of Federal Rule of Civil Procedure 9(b), which is satisfied if the

Complaint states:

(1) precisely what statements were made in what documents or oral representations

or what omissions were made, and (2) the time and place of each such statement

and the person responsible for making (or, in the case of omissions, not making)

same, and (3) the content of such statements and the manner in which they misled

the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.

Woodley v. Royal Caribbean Cruises, Ltd., 472 F. Supp. 3d 1194, 1206 (S.D. Fla. 2020) (quoting

Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)). “[T]o pass Rule 9(b) muster,

the Complaint must set forth particular allegations about the ‘who, what, when, where, and how’

of the fraud.” Ceithaml, 207 F. Supp. 3d at 1353 (quoting Garfield v. NDC Health Corp., 466 F.3d

1255, 1262 (11th Cir. 2006)).

The Court need not engage in an overly extensive analysis of the disputed

misrepresentations in the Complaint because two judges in this District have since considered

identical language in cases related to the COVID-19 outbreak on the Eclipse. In Landivar v.

Celebrity Cruises Inc., Chief District Judge Cecilia M. Altonaga considered the statements that

“no person onboard had COVID-19” and that “[a]ll guests onboard remain healthy and happy” on

a motion to dismiss. Case No. 21-CIV-20815, [ECF No. 21 at 11–14] (S.D. Fla. July 12, 2021).

As to the first statement, Judge Altonaga found that the statement did not meet the heightened

pleading standard of Rule 9(b) because it did not “specify who said ‘no person onboard had

COVID-19’ or when, where, and how the statement was made.” Id. at 12. As to the second

statement, Judge Altonaga found that representations that “[a]ll guests onboard remain healthy and

happy” could give rise to a cognizable negligent misrepresentation claim because “guests’ health

status is an ascertainable fact and statements regarding guests’ health status are thus objective by

nature.” Id. at 13. As a result, Judge Altonaga denied the motion to dismiss as to the negligent

misrepresentation claims. Id. at 14.

In Martin v. Celebrity Cruises, Inc., District Judge Jose E. Martinez also considered the

statements that “no person onboard had COVID-19” and that “[a]ll guests onboard remain healthy

and happy” on a motion to dismiss. Case No. 21-CIV-20816, [ECF No. 26 at 4–8] (S.D. Fla. Mar.

11, 2022). As to the first statement, Judge Martinez also found that the statements that “no person

onboard had COVID-19” failed to meet the heightened pleading standard of Federal Rule of Civil

Procedure 9(b) “because Plaintiffs did not specify who made the statement and when, where, and

how the statement was made.” Id. at 6. As to the second statement, Judge Martinez determined

that “a reasonable passenger onboard the Celebrity Eclipse at the time Defendant is alleged to have

made the subject statement could be found to have reasonably relied on that statement.” Id. at 8.

As a result, Judge Martinez also denied the motion to dismiss as to the negligent misrepresentation

claims. Id.

The Court finds no need to stray from Judge Altonaga or Judge Martinez’s analyses, which

apply with equal force to the alleged misrepresentations here. Plaintiffs fail to provide the detail

necessary to bring a claim for negligent misrepresentation based on the statement that “no person

onboard had COVID-19.” However, the Captain’s statement that “[a]ll guests onboard remain

healthy and happy”—which Plaintiffs properly support with “the ‘who, what, when, where, and

how’ of the fraud”—is sufficient to support a claim for negligent misrepresentation. See Ceithaml,

207 F. Supp. 3d at 1353 (quoting Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir.

2006)). Therefore, Defendant’s Motion shall be denied as to Counts II and XV of the Complaint.

IV. Duty of Care to Non-passengers

In its Motion, Defendant seeks to dismiss all claims brought by Alec and Austin. [ECF No.

7 at 10–11]. First, Defendant argues that it does not owe Alec or Austin a duty of care because

neither were passengers on the Eclipse and both contracted COVID-19 six days after being in a

car with their parents. Id. Second, Defendant argues that Plaintiffs fail to allege that Defendant had

actual or constructive notice that Ivonne and Decedent were infected with COVID-19 or that they

were contagious. Id. at 11. Plaintiffs rely on a “foreseeable zone of risk” theory to argue that Alec

and Austin “were foreseeable plaintiffs in connection with Defendant’s intentional

misrepresentation as to the (erroneous) absence of COVID[-19] on the vessel” and “that they

would contract COVID-19 from their cruise passenger parents . . . .” [ECF No. 12 at 15].

Generally, a cruise line “is not liable to passengers as an insurer, but only for its

negligence.” Keefe, 867 F.2d at 1322 (quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d

1332, 1334 (11th Cir. 1984)). To bring a negligence claim, 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.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (per

curiam) (citing Zivojinovich v. Barner, 525 F.3d 1059, 1067 (11th Cir. 2008) (per curiam)).

“It is clearly established that cruise lines owe their passengers a duty to warn of known or

foreseeable dangers.” Marabella v. NCL (Bah.), Ltd., 437 F. Supp. 3d 1221, 1225 (S.D. Fla. 2020)

(citation omitted). The cruise line operator’s duty of care is one that is “reasonable . . . under the

circumstances.” Adams v. Carnival Corp., 482 F. Supp. 3d 1256, 1271 (S.D. Fla. 2020) (“A cruise

line operator owes its passengers a duty of reasonable care under the circumstances.”). “The duty

to warn extends only to specific, known dangers . . . , not to general hazards.” Singh v. Royal

Caribbean Cruises Ltd., --- F. Supp. 3d ---, No. 20-CIV-24987, 2021 WL 6884873, at *11 (S.D.

Fla. Dec. 10, 2021). However, the cruise line operator must have “actual or constructive notice of

the risk-creating condition . . . .” Keefe, 867 F.2d at 1322. Thus, a cruise line operator breaches its

duty to warn where: “(1) a dangerous condition existed that caused the claimed injury; and (2) a

defendant had actual or constructive notice of the dangerous condition.” Adams, 482 F. Supp. 3d

at 1268 (citations omitted).

The Court finds that Alec and Austin’s claims against Defendant are without merit. First,

Plaintiffs fail to establish that Defendant owed a duty to Alec or Austin, who were never passengers

on the Eclipse. See Adams, 482 F. Supp. 3d at 1271 (“A cruise line operator owes its passengers a

duty of reasonable care under the circumstances.” (emphasis added)). In fact, Plaintiffs do not

present a single case which supports the proposition that the alleged negligence of a cruise line

operator on the high seas can be extended to a non-passenger. Such an argument implies a

“foreseeable zone of risk” that stretches Defendant’s duty of care well beyond its reasonable

bounds. Contra Keefe, 867 F.2d at 1322 (“[T]he benchmark against which a shipowner’s behavior

must be measured is ordinary reasonable care under the circumstances . . . .”).

Second, Plaintiffs fail to properly allege that Defendant had actual or constructive notice

that any passenger on the Eclipse in fact had COVID-19. Rather, Plaintiffs merely allege that other

passengers exhibited symptoms consistent with COVID-19. While Plaintiffs attempt to establish

notice based on the “increased risk of infection of COVID-19 in a cruise ship environment” and

passengers exhibiting symptoms consistent with COVID-19, see [ECF No. 12 at 15], Defendant

must have actual or constructive notice of “specific, known dangers . . . , not to general hazards.”

Singh, 2021 WL 6884873, at *11.

Because Plaintiffs fail to establish their negligence claims as to Alec and Austin,

Defendant’s Motion shall be granted, and Counts XX and XXI of the Complaint shall be dismissed

with prejudice.

V. Intentional Infliction of Emotional Distress Claims

Defendant also moves to dismiss the IIED claims, arguing that Plaintiff’s allegations “do

not rise to the level of outrageousness sufficient to support an IIED claim.” [ECF No. 7 at 12]. In

opposition, Plaintiffs argue that Defendant “misrepresenting a material fact to the Plaintiffs

concerning the positive health” of all guests on the Eclipse “is sufficiently ‘outrageous’ to support

all of Plaintiffs’ IIED claims . . . .” [ECF No. 12 at 19–20].

“Although maritime law does not explicitly provide a cause of action for emotional

distress, Plaintiffs may nevertheless state an IIED claim in a maritime context.” Markham v.

Carnival Corp., No. 12-CIV-23270, 2012 WL 12866787, at *3 (S.D. Fla. Dec. 3, 2012). “Courts

sitting in admiralty typically look to the standards set out in the Restatement (Second) of Torts

§ 46 (1965) as well as state law to evaluate claims for intentional infliction of emotional distress.”

Broberg v. Carnival Corp., 303 F. Supp. 3d 1313, 1317 (S.D. Fla. 2017) (quoting Wu v. NCL

(Bah.) Ltd., No. 16-CIV-22270, 2017 WL 1331712, at *2 (S.D. Fla. Apr. 11, 2017)). “That

standard is the same one used by Florida courts to evaluate claims of intentional infliction of

emotional distress.” McIntosh v. Royal Caribbean Cruises, Ltd., 5 F.4th 1309, 1315 n.3 (11th Cir.

2021) (citing Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278–79 (Fla. 1985)). In order to

state a claim for IIED, a plaintiff must allege: “(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.” Blair v. NCL (Bah.) Ltd., 212 F. Supp. 3d 1264, 1269 (S.D.

Fla. 2016).

Here, the parties dispute whether Defendant’s conduct was sufficiently outrageous to

support a claim for IIED. To establish the “extreme and outrageous conduct” element of an IIED

claim, “a plaintiff must allege facts that show that a defendant’s actions were ‘so outrageous in

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

regarded as atrocious, and utterly intolerable in a civilized community.’” Blair, 212 F. Supp. 3d at

1270 (quoting Metro. Life Ins. Co., 467 So. 2d at 278–79). “While there is no exhaustive or

concrete list of what constitutes outrageous conduct, Florida common law has evolved an

extremely high standard.” Broberg, 303 F. Supp. 3d at 1317–18 (quoting Garcia v. Carnival Corp.,

828 F. Supp. 2d 1334, 1339 (S.D. Fla. 2012)). Moreover, whether conduct is sufficiently

“outrageous” is a question of law for the Court to decide. Blair, 212 F. Supp. 3d at 1269–70.

In their Complaint, Plaintiffs allege that Defendant recklessly inflicted emotional distress

on Ivonne and Decedent in the following ways:

(1) “Failing to timely and/or adequately screen passengers on land before

allowing them to board the vessel for the subject voyage . . . so that

Defendant could claim plausible deniability and/or ignorance as to their

knowledge COVID-19 aboard the subject vessel if/when it actually

occurred.”

(2) “Failing to timely restrict passengers’ buffet/group dining aboard the vessel,

quarantine passengers and/or crew[,] and/or enact physical distance

requirements aboard the vessel, . . . and instead, continuing to allow

passengers and/or crew to congregate in close proximity to one another

aboard the vessel for meals and/or entertainment.”

(3) “Misrepresenting to passengers aboard the vessel that ‘[a]ll guests onboard

remain healthy and happy’ and/or misrepresenting that no person onboard

had COVID-19; when in fact, a person(s) aboard the vessel during the

subject voyage had displayed symptoms consistent with COVID-19

diagnoses; as such, Defendant’s communications with passengers

contrasted with the reality they observed aboard the vessel, thus causing

fear and/or apprehension amongst passengers.”

[ECF No. 1 at 54 ¶ 141(a); 56 ¶ 147(a); 58 ¶ 157(a)]. Two judges in this District have found that

similar or identical allegations do not rise to the level of “outrageousness” needed to satisfy an

IIED claim.

In Kantrow v. Celebrity Cruises, Inc., Senior District Judge Joan A. Lenard found identical

allegations to the ones here did not rise to the level of outrageousness needed to support an IIED

claim. 510 F. Supp. 3d 1311, 1323–26 (S.D. Fla. 2020). There, the plaintiffs argued that Celebrity

“lied, concealed the truth, and/or misrepresented to passengers, including [the plaintiffs], that all

passengers aboard the vessel at that time were ‘healthy’ – implying that no one on the ship had

contracted COVID-19 – when Celebrity knew that was not the case.” Id. at 1323–24 (citations,

internal quotation marks, and alternations omitted). Judge Lenard found that the plaintiffs’

“allegations that Defendant lied, concealed, and misrepresented to its passengers that everybody

onboard the Eclipse was healthy when it knew that was false . . . fails to rise to the level of

outrageousness required by the applicable case law.” Id. at 1325–26.

Similarly, in Paul v. Celebrity Cruises Inc.—a case in which a passenger died from

COVID-19 after being on the Eclipse—Judge Lenard found that similar allegations do not meet

the high bar needed to satisfy the “extreme and outrageous” standard of an IIED claim. 2021 WL

7082839, at *13–15. There, the plaintiffs’ allegations of Celebrity “knowingly and intentionally

failing to order passengers to isolate in their staterooms” and “deciding to conceal from passengers

that a passenger on the subject voyage had symptoms of coronavirus . . . to make profit rather than

ensure the reasonable safety and welfare of its passengers” were insufficient to sustain a claim for

IIED because they did not satisfy the “extreme and outrageous conduct” element of the claim. Id.

at *15 (citation omitted).

Finally, in Macias v. Celebrity Cruises Inc.—yet another case involving a passenger who

died of COVID-19 after being on the Eclipse—Chief Magistrate Judge Edwin G. Torres found

that similar allegations related to Defendant’s conduct on the Eclipse were insufficient to support

a claim for IIED because they did not satisfy the “extreme and outrageous conduct” element of the

claim. 2021 WL 5853585, at *4–5. There, the plaintiffs argued that:

Defendant’s failure to warn them that [persons] aboard the Celebrity Eclipse had

symptoms consistent with COVID-19, Defendant’s failure to test symptomatic

persons aboard the Celebrity Eclipse for COVID-19, Defendant’s failure to

recommend isolation and to quarantine symptomatic persons aboard the Celebrity

Eclipse, Defendant’s failure to suspend buffet service and other social gatherings,

Defendant’s disbursement of free alcoholic beverages to passengers, and

Defendant’s affirmative misrepresentation that “all guests” aboard the Celebrity

Eclipse remained in good health after March 15, 2020 exceeds “all possible bounds

of decency” and should be regarded as “atrocious and utterly intolerable” in a

civilized community.

Id. at *4. Judge Torres determined that, similar to Kantrow and Paul, “the conduct alleged to have

taken place aboard the Celebrity Eclipse in March 2020 . . . fail[s] to ‘rise to the level of

outrageousness’ required by law.” Id. at *5 (citations omitted). Importantly, Judge Torres

considered two cases that Plaintiffs rely on here to support their IIED claim, finding that identical

allegations to the ones in the Complaint “pale by comparison” and that “Defendant’s actions might

sound in negligence but certainly do not exceed all possible bounds of decency.” Id. (considering

Thomas v. Hickman, No. 06-0215-AWI, 2007 WL 470611 (E.D. Cal. Feb. 9, 2007) and Dominguez

v. Equitable Life Assurance Soc’y of U.S., 438 So. 2d 58 (Fla. 3d DCA 1983)).

The Court finds that the allegations in the instant Complaint fair no better. While they may

support claims of negligence on the part of Defendant during the Eclipse voyage, they fail to show

that Defendant’s actions “were ‘so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community.’” Blair, 212 F. Supp. 3d at 1270 (quoting Metro. Life Ins. Co., 467 So. 2d

at 278-79). Therefore, Defendant’s Motion shall be granted and Counts XVI, XVII, XVIII, and

XIX of Plaintiffs’ Complaint shall be dismissed with prejudice. See Macias, 2021 WL 5853585,

at *5 (dismissing ITED claims with prejudice); Pau/, 2021 WL 7082839, at *15 (dismissing ITED

claim with prejudice); Kantrow, 510 F. Supp. 3d at 1326 (dismissing ITED claims with prejudice).

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant Celebrity Cruises Inc.’s Motion to Dismiss Plaintiffs’ Complaint, [ECF

No. 7], is GRANTED in part and DENIED in part.

2. Defendant’s Motion is DENIED without prejudice regarding the applicability of

the Death on the High Seas Act.

3. Defendant’s Motion is DENIED as to Counts IJ and XV of Plaintiffs’ Complaint.

4. Defendant’s Motion is GRANTED as to Counts XVI, XVII, XVIII, XIX, XX, and

XX] of Plaintiffs’ Complaint.

5. Plaintiffs’ Complaint, [ECF No. 1], is DISMISSED with prejudice as to Counts

XVI, XVII, XVII, XTX, XX, and XXII.

DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of March, 2022.

i». £

UNITED STATES DIST JUDGE

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