Cruz v. Carnival Corporation

United States District Court

for the

Southern District of Florida

Francisco Cruz, et al., Plaintiffs, )

)

v. ) Civil Action No. 23-22871-Civ-Scola

) In Admiralty

Carnival Corporation d/b/a )

Carnival Cruise Lines, Defendant. )

Order on Motion to Dismiss

This matter is before the Court on the Defendant Carnival Corporation’s

(“Carnival”) motion to dismiss the Plaintiffs’ complaint. (Mot., ECF No. 17.) The

Plaintiffs failed to timely respond to Carnival’s motion to dismiss. After careful

consideration of the briefing, the record, and the relevant legal authorities, the

Court grants Carnival’s motion. (Mot., ECF No. 17.)

1. Background1

The Plaintiffs Franco Cruz, Nancy Cruz, Kyle Espinoza, Krizel Cruz, Kyle

Espinoza next of friend for Leo Espinoza, Maria Cruz, Melinda Meade, Noemi

Rangel, Franco Cruz next of friend for Franco Mateo Cruz and Alina Victoria

Cruz, and David Meade (“Plaintiffs”) bring this action against Carnival alleging

claims for violations of the Texas Deceptive Trade Practices Act, breach of

contract, and various common law torts arising out of a week-long cruise in

March 2022 purchased with Carnival.

The Plaintiffs initially filed this suit in the 166th Judicial District Court,

Bexar County, Texas on May 4, 2023, seeking over $250,000 in damages.

(Compl., ECF No. 1-2.) Carnival removed the case to the United States District

Court for the Western District of Texas and then successfully moved to transfer

the case to this Court.2 (ECF Nos. 1, 9.)

1 Unless otherwise indicated, this background is based on the allegations in the complaint. For

the purposes of evaluating Carnival’s motion to dismiss, the Court accepts the Plaintiffs’ factual

allegations as true and construes the allegations in the light most favorable to them per Federal

Rule of Civil Procedure 12(b)(6).

2 Carnival removed the case to federal court by invoking federal diversity jurisdiction and

admiralty jurisdiction. However, Carnival’s diversity allegations are lacking. Perhaps most

obviously, while Carnival alleges that it is a citizen of Florida, it does not specify its place of

incorporation or principal place of business, leaving the Court unable to definitively determine

whether diversity jurisdiction exists here. See 28 U.S.C. § 1332(c)(1). Accordingly, the Court

proceeds under its admiralty jurisdiction instead. See Fed. R. Civ. P. 9(h)(1); see also Davis v.

Valsamis, Inc., 752 F. App’x 688, 691 (11th Cir. 2018) (explaining that a cruise passenger’s

In their complaint, the Plaintiffs allege that they purchased one-week

vacation packages on a Carnival ship departing Galveston, Texas on March 6,

2022. (Compl. ¶¶ 8, 10, ECF No. 1-2.) The Plaintiffs’ family members included

three young children: a three-year-old, an eleven-month-old, and a 6-month-old.

(Id. ¶ 8.)

On March 4, 2023, the Plaintiffs underwent COVID tests as required by

Carnival policy, and all of them, including all the minors, tested negative. (Id. ¶

9.) However, when they arrived at the Port of Galveston on March 6, 2023, the

Plaintiffs were told by Carnival boarding staff that their three-year-old child

would have to be tested again before going on the ship. (Id. ¶¶ 9–10.)

Once aboard the ship, the Plaintiffs were also informed by Carnival staff

that they would not be able to use the ship’s daycare services because all

children under the age of five were prohibited from attending the daycare due to

not being vaccinated. (Id. ¶ 11.) At the time, there was no COVID-19 vaccine

available for young children. (Id.) The Plaintiffs also discovered that, for the same

reason, certain other amenities throughout the ship were closed off to children

and that they had to pay additional fees if they wanted to disembark the ship.

(Id. ¶¶ 11–12.)

As a result of Carnival’s policies, the “Plaintiffs stayed on the ship for the

week; sleeping, eating, and walking around the ship on port days was all that

was made available to them.” (Id. ¶ 14.) The “Plaintiffs felt as if they were

captives, they felt discriminated against because of having small children, and

for not having all of [the] family vaccinated; even though certain vaccines were

not recommended at the time for certain ages[.]” (Id.)

Carnival now moves to dismiss the Plaintiffs’ complaint, arguing, among

other things, that their claims are time-barred under the terms of the parties’

cruise ticket contract.

2. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil

Procedure 12(b)(6), must accept all of the complaint’s allegations as true,

construing them in the light most favorable to the plaintiff. Pielage v. McConnell,

516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a

short and plain statement of the claim showing that the pleader is entitled to

relief, a plaintiff must nevertheless articulate “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “But where the well-pleaded facts do not permit the court to infer more

“ticket constitutes a maritime contract because its primary objective is to accomplish the

transportation of passengers by sea”).

than the mere possibility of misconduct, the complaint has alleged—but it has

not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)) (internal punctuation omitted). A

court must dismiss a plaintiff’s claims if she fails to nudge her “claims across the

line from conceivable to plausible.” Twombly, 550 U.S. at 570.

3. Discussion

As an initial matter, the Court can, and does, grant Carnival’s motion to

dismiss based on the Plaintiffs’ failure to respond to the motion at all. See Local

Rule 7.1(c) (“[E]ach party opposing a motion shall file and serve an opposing

memorandum of law no later than fourteen (14) days after service of the motion.

Failure to do so may be deemed sufficient cause for granting the motion by

default.”); see also, e.g., Reyes v. Scottsdale Ins. Co., Civil Action No. 20-21437-

Civ-Scola, 2020 U.S. Dist. LEXIS 71616, at *2 n.1 (S.D. Fla. Apr. 23, 2020)

(Scola, J.) (“The Plaintiffs’ failure to respond to the complaint constitutes an

independent basis to dismiss the complaint.”); Bradshaw v. Integon Nat’l Ins.

Co., No. 19-24806-CIV, 2019 U.S. Dist. LEXIS 212350, at *1 n.1, 2019 WL

6716364, at *1 (S.D. Fla. Dec. 10, 2019) (Scola, J.) (“Bradshaw’s failure to

respond to the complaint constitutes an independent basis to dismiss the

complaint.”). On this point, the Court notes that the Plaintiffs continue to be

represented by counsel and that this is not the first time they fail to respond to

one of Carnival’s motions. (See Order Transferring Venue 3, ECF No. 9 (noting

that Plaintiffs failed to timely respond to Carnival’s motion to transfer).)

Nonetheless, for reasons of judicial efficiency, the Court will also briefly

address Carnival’s argument that the Plaintiffs’ claims must be dismissed as

time-barred under the terms of the parties’ ticket contract. Carnival argues that

each count of the Plaintiffs’ complaint arose from the same cruise they took in

early March 2022, and, pursuant to the valid and binding cruise ticket contract

governing the parties’ relationship, the Plaintiffs were required to commence

legal proceedings within six months after landing from their voyage. The Court

agrees.

The cruise ticket contract at issue here provides, in relevant part, as

follows:

Legal proceedings to recover on any claim whatsoever other than for

personal injury, illness or death shall not be maintainable unless

commenced within six months after the date Guest is landed from

the Vessel … Guest expressly waives all other potentially

applicable state or federal limitation periods for claims which

include, but are not limited to, allegations concerning any and

all civil rights, the Americans With Disabilities Act (ADA), trade

practices and/or advertising.

(Cruise Ticket Contract ¶ 14(b), ECF No. 6-9.)3 By its plain terms, the contract

covers all the claims in the Plaintiffs’ complaint, none of which involve personal

injury, illness or death. Because the Plaintiffs landed from their cruise in early

March 2022, they were required by the terms of the contract to initiate their suit

no later than September 2022. However, the Plaintiffs did not file their case until

May of 2023, making it clearly time-barred.

Moreover, the Court has no reason to question the validity or enforceability

of the cruise ticket contract. Indeed, courts routinely enforce cruise ticket

contracts like the one at issue here. See, e.g., Carretta v. Royal Caribbean

Cruises, Ltd., 343 F. Supp. 3d 1300, 1303 (S.D. Fla. 2018) (Ungaro, J.)

(dismissing complaint for alleged violations of the Florida Deceptive and Unfair

Trade Practices Act as time-barred by the cruise ticket’s six-month limitations

provision); Friedhofer v. NCL (Bahamas) Ltd., No. 14-23294-CIV-MORE, 2015

U.S. Dist. LEXIS 7264, at *2, 2015 WL 588642, at *1 (S.D. Fla. Jan. 22, 2015)

(Moreno, J.) (“The Court also dismisses Plaintiffs’ breach of contract claims

because they are foreclosed by the six-month limitation in NCL’s cruise tickets.”);

Hubbert v. Carnival Corp., No. 12-23829-CIV-COHN/SELTZER, 2013 U.S. Dist.

LEXIS 128179, at *17, 2013 WL 4806908, at *5 (S.D. Fla. Sep. 9, 2013) (Cohn,

J.) (“[B]ecause the six month statute of limitations provided in the ticket contract

had expired prior to the commencement of this action, Plaintiffs’ claim [for stolen

property wa]s time barred.”).

Thus, the Court also finds that the Plaintiffs’ claims are subject to

dismissal as time-barred under the terms of the parties’ ticket contract.4

4. Conclusion

For the reasons stated above, the Court grants Carnival’s motion to

dismiss the complaint (Mot., ECF No. 17), dismissing the Plaintiffs’ case with

prejudice.

Additionally, the Court dismisses the Plaintiffs’ complaint without leave

to amend. The Plaintiffs have not requested leave to amend; nor have they

3 As Carnival correctly points out, because the Plaintiffs’ complaint attaches and specifically

incorporates their cruise ticket contract (see Compl. ¶ 26, ECF No. 1-2), the contract itself is

properly referenced and considered in ruling on Carnival’s motion to dismiss. See, e.g., Bickley v.

Caremark Rx, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) (“[W]here 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 part of the pleading for purposes of Rule 12(b)(6)

dismissal[.]” (quotation omitted)).

4 Because the Court concludes that the Plaintiffs’ claims are time-barred it declines to address

Carnival’s additional arguments for dismissal.

indicated any inclination to do so. See Wagner v. Daewoo Heavy Industries Am.

Corp., 314 F.3d 541, 542 (11th Cir. 2002) (“A district court is not required to

grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who

is represented by counsel, never filed a motion to amend nor requested leave to

amend before the district court.”); Avena v. Imperial Salon & Spa, Inc., ‘740 F.

App’x 679, 683 (11th Cir. 2018) (“[W]e’ve rejected the idea that a party can await

a ruling on a motion to dismiss before filing a motion for leave to amend.”);

compare with Carter v. HSBC Mortg. Services, Inc., 622 F. App’x 783, 786 (11th

Cir. 2015) (“A pro se plaintiff, however, must be given at least one chance to

amend the complaint before the district court dismisses the action with

prejudice, at least where a more carefully drafted complaint might state a

claim.”) (cleaned up) (emphasis in original).

Finally, the Clerk is directed to close this case.

Done and ordered at Miami, Florida on November 30, 2023.

Rabert N. Scola, Jr.

United States District Judge