Doe v. Celebrity Cruises Inc

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:24-cv-20822-GAYLES/GOODMAN

JANE DOE,

Plaintiff,

v.

CELEBRITY CRUISES, INC., and

RAYMOND SMITH,

Defendants.

________________________________________/

ORDER

THIS CAUSE comes before the Court upon Defendant Celebrity Cruises Inc.’s Motion to

Dismiss the [Amended] Complaint (“Celebrity’s Motion”), [ECF No. 14], and Defendant

Raymond Smith’s Motion to Dismiss Amended Complaint Pursuant to Federal Rule of Civil

Procedure 12(b)(5) (“Smith’s Motion”), [ECF No. 19]. The Court has reviewed the Motions and

the record and is otherwise fully advised. For the reasons that follow, Celebrity’s Motion is denied,

and Smith’s Motion is granted.

BACKGROUND

Plaintiff brings this action against Defendants Celebrity Cruises, Inc. (“Celebrity”) and

Raymond Smith (“Smith”) following an alleged assault onboard Celebrity’s vessel, the

Constellation. 1

1 In analyzing Celebrity’s Motion, the Court accepts the allegations in Plaintiff’s Amended Complaint as true. See

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

I. The Incident

In March 2023, Plaintiff and her husband took a cruise aboard the Constellation. Their

cabin was next to the cabin of another passenger, Defendant Smith. On the evening of March 4,

2023, Plaintiff left her cabin to go out for a snack. Her husband was not feeling well, so he stayed

behind and went to sleep. When Plaintiff returned to her cabin, she realized she had forgotten her

key. She knocked on the door, but her husband did not hear her. While she was knocking, Smith

came out of his cabin and offered for Plaintiff to come into his cabin to access her room through

an adjoining door. Because Plaintiff believed that Smith shared his cabin with a woman, Plaintiff

agreed and went into Smith’s cabin to access her room. Once inside, Smith physically and sexually

assaulted Plaintiff. Plaintiff was able to fight Smith and make it out of his cabin. She began banging

on her own cabin door again and yelling for help, at which time her husband woke and opened

their cabin. Smith was detained by ship security, removed from his cabin, and held in the ship’s

custody for the remainder of the trip.

During and after the attack, Smith was visibly inebriated, smelled profusely of alcohol, and

slurred his words. Plaintiff contends that Celebrity’s bartenders, who continued to serve Smith

alcohol throughout the day and night of the attack, would have easily perceived the signs of

Smith’s intoxication.

At the end of the cruise, a Celebrity crewmember took Plaintiff to a room to be questioned

by the FBI and directed her to leave her luggage outside of the room. Plaintiff complied. When

she left the room after being questioned, her luggage and the crewmember were gone. The luggage,

containing over $7000 worth of jewelry, was never recovered.

II. The Ticket Contract

To purchase a ticket and board Celebrity’s cruises, passengers must agree to Celebrity’s

ticket contract which provides, in pertinent part:

EXCEPT AS PROVIDED IN SECTION 10(b) WITH REGARD TO CLAIMS

OTHER THAN FOR PERSONAL INJURY, ILLNESS OR DEATH OF A

PASSENGER, IT IS AGREED BY AND BETWEEN PASSENGER AND

CARRIER THAT ALL DISPUTES AND MATTERS WHATSOVER ARRISING

UNDER, IN CONNECTION WITH OR INCIDENT TO THIS AGREEMENT . .

. SHALL BE LITIGATED, IF AT ALL, IN AND BEFORE THE UNITED

STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

LOCATED IN MIAMI-DADE COUNTY, FLORIDA. . . .

[ECF No. 20-1]. In is undisputed that Plaintiff entered into a ticket contract with Celebrity

(“Plaintiff’s Ticket Contract”) and that Smith entered into his own ticket contract with Celebrity

(“Smith’s Ticket Contract”).

III. Smith’s Contacts with Florida

As set forth in his declaration,2 Smith has no contacts with Florida aside from boarding the

cruise in Tampa, Florida. [ECF No. 19-1]. There is no evidence that Smith has resided or

maintained any type of physical presence in Florida. Id. He has conducted no business; operated,

controlled, or directed any entity; owned real or personal property; had employees, officers, or

agents; paid taxes; had a bank account or phone number; solicited business; earned revenue; or

previously participated in litigation in Florida. [ECF No. 19-1]. Plaintiff has not disputed the

substance of Smith’s declaration.

III. Procedural History

Plaintiff filed her Amended Complaint on March 11, 2024, alleging claims against

Celebrity for negligence based on the assault (Count I), negligent failure to warn (Count II), and

2 For purposes of Smith’s Motion, the Court may consider matters outside of the pleadings. See Atmos Nation LLC v.

Alibaba, No. 15-cv-62104, 2016 WL 1028332, at *1 n.2 (S.D. Fla. Mar. 15, 2016).

negligence based on the lost luggage (Count V), and against Smith for battery (Count III) and

assault (Count IV). [ECF No. 8].

In Count I, Plaintiff sets forth a list of risk creating conditions that caused her injuries

including that Celebrity (a) failed to provide adequate supervision and security aboard the vessel;

(b) over-served and/or carelessly provided alcohol to Smith; (c) failed to maintain a reasonably

safe environment on the cruise; (d) failed to adequately train its security personnel and bartenders

to stop serving alcohol to passengers after they become visibly intoxicated; (e) failed to adequately

supervise bar staff to prevent over-service of alcohol; (f) failed to implement policies and

procedures for security and bartenders regarding serving alcohol to impaired and intoxicated

passengers; (g) failed to enforce its “Guest Conduct Policy” and internal policies regarding

intoxicated passengers and over-service of alcohol; (h) failed to effectively monitor passengers’

alcohol consumption; and (i) failed to use reasonable care under the circumstances. Id. ¶ 24. In

Count II, Plaintiff sets forth additional risk creating conditions that caused her injuries, including

that Celebrity failed to warn Plaintiff (j) of the danger of being attacked by an intoxicated

passenger; (k) that the bartenders on the ship would over-serve visibly intoxicated passengers; (l)

that passengers have been assaulted and raped on its vessels in the past; (k) of the dangers

associated with negligent over-service of alcohol to passengers; and (n) of past attacks by

intoxicated passengers and the dangers of sexual assault aboard Celebrity vessels. Id. ¶ 30.

Plaintiff alleges that Celebrity had actual or constructive notice of the risk creating

conditions because it “knew violent acts committed on passengers or crew is a foreseeable result

of overserving alcohol based on past claims made of the over-serving of alcohol resulting in other

injuries and assaults.” Id. ¶¶ 23, 29. In support, Plaintiff cites to another case in this district, Newell

v. Celebrity Cruises, Inc., Case No. 18-20743-Altonaga, in which a crewmember alleged she was

assaulted by an intoxicated crewmember who Celebrity had over-served. Id. In addition, Plaintiff

alleges that Celebrity and its sister-company, Royal Caribbean Cruises, have had many claims and

lawsuits against them in which passengers or crewmembers have alleged that they were assaulted

or raped due to a crewmember over-serving alcohol to the assailants. Id.

Celebrity has moved to dismiss the claims against it, arguing Plaintiff fails to adequately

allege that it had notice of a dangerous condition for Counts I and II and that Plaintiff

impermissibly commingles allegations of direct and vicarious liability in Count V. Smith has

moved to dismiss the claims against him for lack of personal jurisdiction. The Court first addresses

whether it has personal jurisdiction over Smith before turning to whether Plaintiff has adequately

alleged her claims against Celebrity.

DISCUSSION

I. The Court Does Not Have Personal Jurisdiction Over Smith

“A plaintiff seeking to establish personal jurisdiction over a nonresident defendant ‘bears

the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of

jurisdiction.’” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013)

(quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). When a defendant

submits evidence in support of its challenge to personal jurisdiction, “the burden traditionally

shifts back to the plaintiff to produce evidence supporting jurisdiction.” Id. (quoting Madara v.

Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)). “Where the plaintiff’s complaint and supporting

evidence conflict with the defendant’s affidavits, the court must construe all reasonable inferences

in favor of the plaintiff,” Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,

1257 (11th Cir. 2010) (citation omitted), and still must “accept the facts alleged in the complaint

as true, to the extent they are uncontroverted by the defendant’s affidavits.” Madara, 916 F.2d at

1514.

The Court undertakes a two-step inquiry in determining whether personal jurisdiction over

a nonresident defendant exists. First, the court must determine whether the exercise of jurisdiction

is appropriate under Florida Statute § 48.193, Florida’s long-arm statute. Second, the court must

determine whether personal jurisdiction over the defendant violates the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. Mutual Serv. Ins. Co. v. Frit Indus., Inc.,

358 F.3d 1312, 1319 (11th Cir. 2004).

Here, Plaintiff does not allege any basis under Florida’s long-arm statute which would

provide this Court with personal jurisdiction over Smith or make any attempt to establish that the

exercise of jurisdiction over Smith comports with the Due Process Clause of the Fourteenth

Amendment. Nor could she. The Amended Complaint is devoid of any allegations establishing

that Smith has a connection to Florida, and Smith’s uncontested declaration clearly establishes that

he has no presence or activity in Florida. [ECF No. 19-1]. Rather, Plaintiff’s sole—misplaced—

argument is that the forum selection clause in Smith’s Ticket Contract establishes personal

jurisdiction in this case. The Court disagrees.

First, Plaintiff cannot enforce the forum selection clause in Smith’s Ticket Contract

because she is not a party to that agreement. See Wills v. Royal Caribbean Cruises, No. 17-cv-

21890, 2018 WL 1449519, at *2 (S.D. Fla. Mar. 21, 2018) (holding that a plaintiff could not

enforce a forum selection clause in ticket contract between another passenger and Royal Caribbean

because the plaintiff was a “non-party” to that contract). Second, and “[m]ore importantly, under

Florida law, a forum selection clause is not a sufficient basis for conferral of personal jurisdiction

unless there is an independent basis for personal jurisdiction under Florida’s long arm statute.”

Wills, 2018 WL 1449519, at *2. See also Baker v. Carnival, 06-21527, 2006 WL 3360418, at *6

(S.D. Fla. Nov. 20, 2006) (holding that “a forum selection clause alone is insufficient to establish

personal jurisdiction.”); Proudfoot v. Thayer, 877 F.2d 912, 920 (11th Cir. 1989) (“Florida courts

will not exercise jurisdiction solely on the basis of a contractual provision conferring jurisdiction

if the nonresident defendant’s acts do not satisfy the state long-arm statute.”). As Plaintiff has

failed to allege any basis for this Court’s personal jurisdiction over Smith beyond the forum

selection clause, Smith’s Motion to Dismiss shall be granted.3

II. Plaintiff Adequately Alleges Her Claims Against Celebrity

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). “Threadbare recitals of the elements

3 In a footnote in response to Smith’s Motion, Plaintiff requests that, in the event the Court finds jurisdiction lacking

in Florida, that her claims against Smith be transferred to the District of Utah pursuant to 28 U.S.C. § 1404. Plaintiff,

however, fails to address any of the requisite elements for a transfer to another district. Moreover, it is unclear whether

Plaintiff requests that the entire action be transferred or just the claims against Smith. As a result, the Court denies

Plaintiff’s request. Should Plaintiff wish to proceed with claims against Smith, she must file a new action in the

appropriate venue.

of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at

678. Therefore, a complaint that merely presents “labels and conclusions or a formulaic recitation

of the elements of a cause of action” will not survive dismissal. Id. (internal quotation omitted).

A. Negligence

To bring a maritime 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) (citation omitted). “This

standard requires, as a prerequisite to imposing liability, that the carrier have had actual or

constructive notice of a risk creating condition . . . .” Holland v. Carnival Corp., 50 F. 4th 1088,

1094 (11th Cir. 2022) (internal quotation omitted). Therefore, “a shipowner’s actual or

constructive knowledge of the hazardous condition arises as part of the duty element in a claim

seeking to hold the shipowner directly liable for its own negligence.” Id.

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

NCL, 209 F. Supp. 3d 1248, 1250 (S.D. Fla. 2016). “Constructive notice arises 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. (internal quotation omitted).

“Alternatively, a plaintiff can establish constructive notice with evidence of substantially similar

incidents in which conditions substantially similar to the occurrence in question must have caused

the prior accident.” Newbauer v. Carnival Corp., 26 F.4th 931, 935 (11th Cir. 2022) (internal

quotation omitted).

Celebrity argues that Plaintiff fails to allege that it had notice of a risk creating condition.

The Court disagrees. Plaintiff alleges that Smith attacked her because (1) Celebrity crewmembers

over-served him alcohol despite his clear intoxication and (2) Celebrity failed to train its staff to

stop serving visibly intoxicated passengers and to have procedures to prevent the same. Plaintiff

further alleges that Celebrity had actual or constructive notice of these risk creating conditions

because of the Newell action4 and other, unspecified actions against Celebrity and its sister-

company. The Court finds that, at this stage of the litigation, these allegations are sufficient to

show that Celebrity had notice of a risk creating condition—namely that a passenger might be

assaulted by an intoxicated passenger who had been over-served alcohol. See K.T. v. Royal

Caribbean Cruises, 931 F.3d 1041, 1045 (11th Cir. 2019) (holding that allegations that Royal

Caribbean, among other things, “knew or should have known, that the high risk to its passengers

of crime and injury aboard the vessels was enhanced by [its] sale of copious quantities of alcohol

on its vessels . . . [were] enough to establish that the danger of sexual assault . . . was foreseeable,

and indeed was known, to Royal Caribbean.”).5 Accordingly, Celebrity’s motion to dismiss Count

I shall be denied.

B. Negligent Failure to Warn (Count II)

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 v. Carnival Corp., 482 F. Supp. 3d 1256, 1268 (S.D. Fla. 2020)

(citations omitted). In Count II, Plaintiff alleges that Celebrity failed to warn her about the dangers

of (1) being attacked by intoxicated passengers, (2) bartenders over-serving alcohol to passengers,

and (3) prior attacks on Celebrity ships. Moreover, as detailed above, Plaintiff alleged that

4 In the Newell action, the plaintiff alleged that she was raped on a Celebrity vessel by a crewman who was “over

served alcohol in the crew bar, becoming highly intoxicated.” 18-cv-20743-CMA, [ECF No. 1]. The case settled. Id.

[ECF No. 100].

5 In KT, passengers on a Royal Caribbean Cruise raped a minor after she was served alcohol. After the district court

dismissed the claims for lack of notice, the Eleventh Circuit reversed, finding the complaint adequately alleged notice.

Celebrity had knowledge of prior incidents by virtue of the Newe// action and other claims and

actions. Based on these allegations, the Court finds that Plaintiff has adequately stated a claim for

negligent failure to warn. Therefore, Celebrity’s motion to dismiss Count II shall be denied.

C, Negligence Resulting in Loss of Property (Count V)

In Count V, Plaintiff alleges that Celebrity “is vicariously liable for the actions of its

crewmembers” who instructed her to leave her luggage outside of a room unattended. [ECF No. 8

4 49]. Celebrity argues that Plaintiff intermingles direct and vicariously liability claims in Count

V and that, therefore, it should be dismissed. The Court disagrees. While Plaintiff does not include

the word “vicarious” in the title of the Count, she clearly alleges that Celebrity 1s vicariously liable

for the actions of its employee. Plaintiff confirms, in her response to Celebrity’s Motion, that Count

V is pled as a claim for vicarious liability. Accordingly, Celebrity’s motion to dismiss Count V

shall be denied.

CONCLUSION

Based on the foregoing, itis ORDERED AND ADJUDGED as follows:

1. Defendant Celebrity Cruises Inc.’s Motion to Dismiss the [Amended] Complaint,

[ECF No. 14], is DENIED.

2. Defendant Raymond Smith’s Motion to Dismiss Amended Complaint Pursuant to

Federal Rule of Civil Procedure 12(b)(5), [ECF No. 19], is GRANTED. Plaintiff's

claims against Smith are DISMISSED without prejudice.

DONE AND ORDERED in Chambers at Miami, Florida, this 24th day of March, 2025.

of

DLs

UNITED STATES DIST JUDGE

10