Melancon v. Carnival Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARION FRANCES MELANCON CIVIL ACTION

VERSUS NO. 19-9721

CARNIVAL CORPORATION D/B/A SECTION: B(5)

CARNIVAL CRUISE LINE, CARNIVAL

DREAM, AND ABC INSURANCE COMPANY

ORDER & REASONS

Before the Court are: (1) defendants Carnival Corporation

and the Carnival DREAM’s (“Carnival”) motion to dismiss for failure

to state a claim, or alternatively to transfer venue (Rec. Doc.

6); (2) plaintiff Marion Frances Melancon’s opposition (Rec. Doc.

10); and (3) defendants’ reply memorandum in support of dismissal

(Rec. Doc. 19). Accordingly,

IT IS ORDERED that defendants’ motion to dismiss (Rec. Doc.

6) is GRANTED, and the alternative transfer request is moot.

FACTS AND PROCEDURAL HISTORY

This is a case of admiralty and maritime jurisdiction, arising

under the General Maritime Law of the United States. Rec. Doc. 1

at ¶ 3. Plaintiff Marion Melancon is a resident of Louisiana and

domiciled in the Parish of East Baton Rouge. Rec. Doc. 1 at ¶ 2.

Defendant Carnival Corporation is domiciled in Florida. Id.

Plaintiff is “deaf, mute, visually impaired, and functionally

illiterate . . .” and communicates primarily through American Sign

Language (“ASL”). Id. at ¶ 10; see also Rec. Doc. 10 at 3. Shortly

after boarding the Carnival Dream cruise ship (the “Dream”) on

April 24, 2016, plaintiff slipped and fell on the deck of the

Dream, while the ship was at port in New Orleans, Louisiana. Rec.

Doc. 1 at ¶ 4, 5. Plaintiff alleges that this fall was caused by

a “foreign substance” on the deck of the Dream. Id.

Plaintiff claims that as a result of her alleged slip and

fall that she suffered injuries to her leg and hip, which required

surgical procedures. Id. at ¶ 6. Plaintiff further alleges that

her alleged injuries “continue to cause plaintiff great pain and

physical suffering, as well as mental suffering . . .” Id.

Plaintiff alleges that defendants have a duty to provide a

seaworthy vessel to its passengers, as contemplated under the

General maritime Law of the United States, and to keep the deck

safe for normal use by passengers of the Dream. Id. at 7. Plaintiff

also avers that the cause of her injuries and disability was due

to the negligence of defendants in failing to: (1) maintain the

premises in a safe condition; (2) warn of the unreasonably unsafe

condition; (3) adequately inspect the premises; (4) provide an

interpreter or services, as required by the Americans with

Disabilities Act; and (5) failure to meet the proper standard of

care. Id. at ¶ 8.

Plaintiff filed her complaint on April 24, 2019. Rec. Doc. 1.

Defendants answered the complaint with the instant motion to

dismiss, contending that plaintiff has failed to bring suit within

the stipulated period in the Ticket Contract. Rec. Doc. 6.

Defendant further contends that, should this case not be dismissed,

it should be transferred to the Southern District of Florida,

pursuant to the forum selection clause in the Ticket Contract.

Plaintiff has filed an opposition to the motion to dismiss

contending that she lacked the requisite capacity to consent to

the terms of the Ticket Contract (Rec. Doc. 10) and defendants

filed a reply to plaintiff’s opposition (Rec. Doc. 19).

LAW AND ANALYSIS

A. Motion to Dismiss Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows

a party to move for dismissal of a complaint for failure to state

a claim upon which relief can be granted. To survive a motion to

dismiss under Rule 12(b)(6), a plaintiff’s complaint “must contain

‘enough facts to state a claim to relief that is plausible on its

face.’” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In

other words, a plaintiff’s “[f]actual allegations must be enough

to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 555. “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)

(citing Twombly, 556 U.S. at 556).

When deciding whether a plaintiff has met his or her burden,

a court “accept[s] all well-pleaded factual allegations as true

and interpret[s] the complaint in the light most favorable to the

plaintiff, but ‘[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements’ cannot

establish facial plausibility.” Snow Ingredients, Inc. v.

SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir. 2016) (quoting Iqbal,

556 U.S. at 678) (some internal citations and quotation marks

omitted). Plaintiff must “nudge[] [his or her] claims across the

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

B. Evidence Attached to Motions to Dismiss

This Court declines to consider several of defendants’

attached exhibits to their 12(b)(6) motion to dismiss for failure

to state a claim. It is well-established that in deciding whether

to grant a motion to dismiss, a district court may not “go outside

the complaint.” See, e.g., Scanlan v. Texas A & M Univ., 343 F.3d

533, 536 (5th Cir.2003). If a district court considers other

information “outside the complaint,” it must treat the motion to

dismiss as a motion for summary judgment. Kennedy v. Chase

Manhattan Bank USA, 369 F.3d 833, 839 (5th Cir.2004). However,

“[d]ocuments that a defendant attaches to a motion to dismiss are

considered part of the pleadings if they are referred to in the

plaintiff's complaint and are central to [the] claim.” Causey v.

Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.

2004)(citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,

498–99 (5th Cir. 2000)). A court may also consider matters of

public record, and information subject to judicial notice when

analyzing a motion to dismiss for failure to state a claim. Cinel

v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994); Dorsey v.

Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008).

This Court declines to consider defendant Carnival’s website,

the declaration attached as exhibit A, or the Cruise Contract

Acceptance Report attached as exhibit B, as they are not matters

of public record, nor are they able to be considered under the

doctrine of judicial notice. Fed. R. Evid. 803(8) defines a public

record as “[a] record or statement of a public office.” Clearly,

Carnival’s website, Ticket Acceptance documentation, and

declaration, are not statements from a public office, subject to

any of the conditions set out in Fed. R. Evid. 803(8).

Further, the Court will not take judicial notice of the above

noted exhibits, as it is not permitted to do so. A court may take

judicial notice of a known adjudicative fact, “if the fact is ‘not

subject to reasonable dispute in that it is either (1) generally

known within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready determination by resort to

sources whose accuracy cannot be questioned.” Taylor v. Charter

Med. Corp., 162 F.3d 827, 829 (5th Cir. 1998)(quoting Fed. R. Evid.

201(b). This Court cannot determine that the accuracy of the above-

mentioned sources beyond question, and therefore declines to

consider them.

However, the Ticket Contract attached to defendants’ motion

will be considered by this Court as it is directly referenced in

plaintiff’s complaint and central to the issues in this case. Rec.

Doc. 1 at ¶ 10 (“Plaintiff further avers that the venue and

arbitration clauses contained within the boarding pass / cruise

contract supplied to plaintiff by defendant is (sic) invalid and

unenforceable . . .”)(emphasis added). The court will consider

plaintiff’s complaint and the Ticket Contract attached to

defendants’ motion to dismiss without converting the motion to a

motion for summary judgment. The aforementioned remaining exhibits

shall not be considered by this Court when analyzing this 12(b)(6)

motion for failure to state a claim.

C. General Maritime Law Governs the Formation of the Contract

The pertinent issue in this matter is whether plaintiff

Frances Melancon possessed the capacity to enter into the Ticket

Contract, thereby binding herself to the terms within. Defendant

contends that plaintiff has failed to adequately plead that she

lacks the requisite capacity to consent to the terms of the Cruise

Contract, and in fact, agreed to those terms. See Rec. Doc. 6.

Plaintiff opposes this contention by arguing that plaintiff is

deaf, mute, and “functionally illiterate.” See Rec. Doc. 10.

First, as this case involves a maritime contract1, and arises

under the federal admiralty and maritime jurisdiction, the issue

of plaintiff’s capacity and consent shall be construed pursuant to

federal law. Rec. Doc. 1 at ¶ 3(“This is a case of admiralty and

maritime jurisdiction arising under the General Maritime Laws of

the United States.”).

Plaintiff notes that the court’s ruling in Atlantic Marine

Const. Co., Inc. v. U.S. Dist. Ct. for the Western Dist. Of Texas,

did not address whether state or federal or state law controls in

an analysis of contractual capacity. Rec. Doc. 10 at 5. However,

in John W. Stone Oil Distrib., L.L.C. v. Penn Maritime., Inc., the

Eastern District of Louisiana recently addressed a contractual

consent issue in a maritime towage contract. See John W. Stone Oil

Distrib., L.L.C. v. Penn Mar., Inc., No. CV 17-4942, 2018 WL

6018804 (E.D. La. Nov. 16, 2018). In Stone, the Eastern District

of Louisiana noted “‘As a general rule, admiralty law applies to

all maritime contracts . . .’” Id. at *6 (quoting 1 THOMAS J.

SCHOENBAUM, ADMIRALTY & MAR. LAW § 5:1 (6th ed. 2018)). Further,

when determining whether the parties each assented to the contract,

1 “A passenger ticket for an ocean cruise is a maritime contract governed by

general maritime contract law.” Padel v. Carnival Corp., No. CIV.A. 97-1936,

1997 WL 732424, at *1 (E.D. La. Nov. 24, 1997)(citing Carnival Cruise Lines,

Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991)).

the court looked to the Restatement (Second) of Torts for guidance,

not Louisiana based contract law principles. Id. at *7. The Court

stated:

The general maritime law “is the product of the maritime

jurisprudence of the federal courts” and “‘is an amalgam

of traditional common law rules, modifications of those

rules, and newly created rules’” that are “‘drawn from

state and federal sources.’” Id. (quoting E. River

Steamship Corp. v. Transam. Delaval, Inc., 476 U.S. 858,

864-65 (1986)). Applying federal law in the context of

maritime contracts “includes looking to ‘principles of

general contract law’ that can be found in treatises or

restatements of the law.” Int'l Marine, L.L.C. v. FDT,

L.L.C., 619 F. App'x 342, 349 (5th Cir. Aug. 10, 2015)

(citing Univ. of Tex. Sys. v. United States, 759 F.3d

437, 443 (5th Cir. 2014) (quoting Franconia Assocs. v.

United States, 536 U.S. 129, 141-42 (2002))).

Id. at *6; See also Angel v. Royal Caribbean Cruises, Ltd., No.

02-20409-CIV, 2002 WL 31553524, at *4 n.3 (S.D. Fla. Oct. 22,

2002)(noting that a cruise ticket is a maritime contract and

governed by federal maritime law); Milanovich v. Costa Crociere,

S.p.A., 954 F.2d 763, 766 (D.C. Cir. 1992). As such, this court

will analyze whether plaintiff has stated a claim with reference

to the general maritime law, i.e. the principles of federal

contract law.

D. Plaintiff Did Not Lack Capacity to Properly Consent to The

Terms of the Ticket Contract

Defendants allege that plaintiff’s complaint fails to

adequately allege plaintiff lacked the requisite capacity to

consent to the terms of the Ticket Contract. Rec. Doc. 6-1 at 3.

In her complaint, plaintiff avers that “the venue and arbitration

clauses contained within the boarding pass/cruise contract

supplied to plaintiff by defendant[s] is (sic) invalid and

unenforceable, as plaintiff is deaf, mute, visually impaired and

functionally illiterate, and therefore did not have the capacity

to consent to the terms of said contract.” Rec. Doc. 1 at ¶ 10.

Plaintiff does not allege that she failed to enter into the

contract, but only that her alleged lack of capacity rendered said

contract unenforceable. Id. This Court finds that plaintiff’s

complaint fails to adequately allege that plaintiff lacked the

capacity to consent to the terms of the Ticket Contract.

It is a well-known principle that those who sign a written

instrument, even without reading its terms, will be bound by the

instrument’s terms. Am. Heritage Life Ins. Co. v. Lang, 321 F.3d

533, 538 (5th Cir. 2003)(citing Samson Plastic Conduit & Pipe Corp.

v. Battenfeld Extrusionstechnik GMBH, 718 F. Supp. 886, 890 (M.D.

Ala. 1989); St. Petersburg Bank & Trust Co. v. Boutin, 445 F.2d

1028, 1032 (5th Cir.1971)). The illiteracy, blindness, or

inability to understand the foreign language in which the contract

is written, does not excuse the signee of an instrument from

complying with its terms. Id. (citing Paper Express, Ltd. V.

Pfankuch Maschinen, 972 F.2d 753, 757 (7th Cir. 1992)). Although

blindness, inability to read, and the inability to comprehend a

foreign language of the signee do not void consent, a meeting of

the minds must still take place regarding the terms of the contract

for formation. Id. If a signee’s ignorance of the terms of a

contract are fraudulently induced by the signor, then consent will

be vitiated, as there has been no true meeting of the minds. Id.

(citing Samson Plastic, 718 F. Supp. at 890).

In American Heritage, the Fifth Circuit considered whether a

plaintiff who had a first-grade education, could not read, and

could only write his own name, was bound by a “stand-alone”

arbitration agreement that he signed in tandem with loans received

from the defendant. American Heritage, 321 F.3d at 535. The court

held that generally a person who signs or accepts a contract is

bound by its terms, regardless of their literacy. Id. at 538.

However, in American Heritage, the defendant had knowledge that

plaintiff was illiterate, and failed to inform him that he was

signing an arbitration agreement. Id. Therefore, the court held

that defendant’s knowledge of plaintiff’s illiteracy, and failure

to identify and explain the arbitration agreement to an illiterate

plaintiff, resulted in an invalidated arbitration agreement. Id.

In the present case, plaintiff did not allege that she was

induced, duped, or otherwise tricked into entering into the Ticket

Contract. Instead, plaintiff attempts to persuade this Court that

plaintiff lacked the requisite capacity to contract, and therefore

could not have created a valid contract due to her inability to

understand its terms. Rec. Doc. 1 at ¶ 10. Plaintiff’s complaint

alleges that she is deaf, mute, visually impaired, and functionally

illiterate, do not result in a finding that she lacked the

requisite capacity to consent to the terms in the Ticket Contract,

in the absence of fraudulent inducement by defendants. While

plaintiff has lifelong challenges, the fact remains that she has

not alleged that she is an incompetent, nor that she was

fraudulently induced into accepting the terms of the Ticket

Contract upon purchase. A such, plaintiff has failed to allege

sufficient facts to state a plausible claim that she lacked

capacity to consent to the terms of the Ticket Contract.

E. Plaintiff’s Claims Have Prescribed

Plaintiff’s claims have prescribed in accordance with the

terms of the Ticket Contract. Congress has explicitly authorized

cruise lines to shorten the time period to bring a personal injury

action against said cruise lines. 46 U.S.C. § 30508(b)(2) provides

in pertinent part:

The owner, master, manager, or agent of a vessel

transporting passengers or property between ports in the

United States, or between a port in the United States

and a port in a foreign country, may not limit by

regulation, contract, or otherwise the period for . . .

bringing a civil action for personal injury or death to

less than one year after the date of the injury or death.

(emphasis added). The only exception to the aforementioned

defendants’ rights to contractually limit the time period for

bringing personal injury actions is with respect to minors and

incompetents. 46 U.S.C. § 30508(d) provides:

If a claimant is a minor or mental incompetent . . . any

period provided by a contract for giving notice of the

claim is tolled until . . . 3 years after the injury or

death.

Courts have held that contractually created one-year

limitations on the period to bring an action for personal injury

are enforceable if “the cruise ticket provided the passenger with

reasonably adequate notice that the limit existed and formed part

of the passenger contract.” Nash v. Kloster Cruise A/S, 901 F.2d

1565, 1566 (11th Cir. 1990)(citing Kornberg v. Carnival Cruise

Lines, 741 F. 2d 1332, 1335 (11th Cir. 1984); Carpenter v. Klosters

Rederi A/S, 604 F. 2d 11, 13 (5th Cir. 1979); Annotation, Federal

View as to Effect of Conditions Appearing on Back or Margin of

Passenger’s Ticket for Ocean Voyage, 5 A.L.R. 394 (1970)). The

determination of whether the notice to passengers was reasonably

adequate is a question of law. Id. at 1567 (citing Shankles v.

Costa Armatori, S.P.A., 722 F.2d 861, 867 (1st Cir. 1983);

Barbachym v. Costa Line, 713 F.2d 216, 218 (6th Cir. 1983)).

The terms of the contract are binding on plaintiff in this

case. Plaintiff is not a minor, nor has plaintiff alleged that she

is an incompetent. Plaintiff merely contends that the Ticket

Contract’s terms are not binding on her due to defendants’ alleged

failure to “do all [they] reasonably could to warn the passenger

that the terms and conditions [of the Ticket Contract] were

important matters of contract affecting his legal rights.” Rec.

Doc. 10 at 7 (citing Lieb v. Royal Carribean Cruise Line, Inc.,

645 F. Supp. 232, 234 (S.D.N.Y 1986)). This Court is not persuaded

by plaintiff’s assertion.

First, the Ticket Contract states, in bold typeface, on the

first page:

IMPORTANT NOTICE TO GUESTS THIS DOCUMENT IS A LEGALLY

BINDING CONTRACT ISSUED BY CARNIVAL CRUISE LINES TO, AND

ACCEPTED BY, GUEST SUBJECT TO THE IMPORTANT TERMS AND

CONDITIONS APPEARING BELOW.

NOTICE: THE ATTENTION OF GUEST IS ESPECIALLY DIRECTED TO

CLAUSES 1, 4, AND 11 THOUGH 14, WHICH CONTAIN IMPORTANT

LIMITATIONS ON THE RIGHTS OF GUESTS TO ASSERT CLAIMS

AGAINST CARNIVAL CRUISE LINES, THE VESSEL, THEIR AGENTS

AND EMPLOYEES, AND OTHERS, INCLUDING FRUM SELECTION,

CHOICE OF LAW, ARBITRATION AND WAIVER OF JURY TRIAL FOR

CERTAIN CLAIMS.

IMPORTANT TERMS AND CONDITIONS OF CONTRACT – READ

CAREFULLY

Rec. Doc. 6, Exhibit C (Ticket Contract)(emphasis added). This

section of text is located at the very top of the first page of

the ticket contract, which was provided to plaintiff by defendants

Carnival. Id. Second, the language is in all bolded capital

letters, larger and more distinct that the remaining portions of

the contract. Id. The language then “especially direct[s]”

plaintiff to “clauses 1, 4, and 11 through 14, which contain

important limitations on the rights of guests to assert claims

against Carnival Cruise lines . . .” Id. The time limitation clause

is located within clause 13(a) of the Ticket Contract and states

in pertinent part:

Suit to recover on any [personal injury] claim shall not

be maintainable unless filed within one year after the

date of the injury . . .

Id. at 13.

Defendants cite Davis v. Valsamis, Inc., for support that the

notice located at the top of the first page of the Ticket Contract

provides sufficient notice. In Davis, the Eleventh Circuit held

that a cruise ticket contract, with the same verbiage and language

as the instant Ticket Contract, barred plaintiff’s claims due to

plaintiff’s failure to give timely notice of suit to defendants.

See Davis v. Valsamis 752 Fed. App’x 688 (11th Cir. 2018). The

court stated, “[e]ven when strictly construed, the ticket contract

unambiguously extends the rights afforded Carnival to Carnival’s

suppliers . . .and reasonably communicates that fact to

passengers.” Id. at 694.

Defendant has clearly shown that the Ticket Contract

contained sufficient language and notice to provide reasonably

adequate notice to plaintiff that there was a term limiting the

time period in which to bring a claim against defendants. Plaintiff

alleges in their complaint that the purported incident took place

on April 24, 2016. Rec. Doc. 1 at ¶ 5. Plaintiff filed their

complaint against defendants on April 24, 2019, three years after

the date of the accident, and two years after required time period

to bring suit. The period in which plaintiff contractually agreed

to bring her claim has passed, thus rendering her suit time barred.

Plaintiff has failed to state a claim against defendants

Carnival. Plaintiff entered into the Ticket Contract upon her

acceptance of the Ticket Contract, whose terms were binding on

plaintiff notwithstanding her physical limitations. Although this

Court is sympathetic to plaintiff’s physical limitations and

challenges, plaintiff’s complaint, and the controlling law,

mandate that this case be dismissed as plaintiff’s claims have

prescribed. Lastly, it is not necessary to delve into the

alternative motion to transfer venue, as this matter warrants

dismissal.

New Orleans, Louisiana this 28th day of February, 2020.

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE