Aragon v. NCL (Bahamas) LTD.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:24-cv-20670-DPG

RAFAEL ARAGON,

Plaintiff,

v.

NCL (BAHAMAS) LTD., et al.,

Defendants.

_______________________________________/

REPORT AND RECOMMENDATIONS

THIS CAUSE is before the Court on Defendant CTF BM Operations Ltd.’s (“CTF”)

Motion to Dismiss (ECF No. 59) and the Joint Motion to Vacate Rule B Attachment and

Garnishment filed by NCL (Bahamas) Ltd., NCL Corp. Ltd., Royal Caribbean Cruises Ltd., and

Celebrity Cruises Inc. (collectively, “Garnishees”) (ECF No. 58). The Honorable Darrin P. Gayles,

United States District Judge, has referred this case to me for a ruling on all pretrial non-dispositive

matters and a report and recommendation on all dispositive matters. (ECF No. 73). Plaintiff filed

responses to CTF’s Motion (ECF No. 67) and the Garnishees’ Motion (ECF No. 62). CTF and the

Garnishees each filed a reply brief (ECF Nos. 70, 71). Upon thorough consideration of the briefs,

the record, and the applicable law, I respectfully RECOMMEND that CTF’s Motion to Dismiss

(ECF No. 59) be GRANTED IN PART and DENIED IN PART; and the Joint Motion to Vacate

Rule B Attachment and Garnishment (ECF No. 58) be DENIED without prejudice.

I. BACKGROUND

A. Factual Background

Plaintiff’s Amended Complaint alleges the following facts.1 The Norwegian Sky is a cruise

ship owned and operated by Defendant NCL (Bahamas) Ltd. (“NCL”). (ECF No. 37 at ¶¶ 9–10).

Before embarking on his anticipated voyage aboard the Norwegian Sky, Plaintiff reviewed

Defendant NCL’s website, which contained information about shore excursions at scheduled stops.

(Id. at ¶¶ 11–12). Plaintiff became interested in an excursion called “Baha Bay Waterpark at Baha

Mar.” (Id. at ¶ 14). The web page on NCL’s website describing the excursion advised, “[t]he height

restriction for most attractions is 48" and above, please see bahabay.com for full ride restrictions.”

(Id.). A web page on bahabay.com provided the following description of “Thunderball,” a ride at

the Baha Bay Waterpark: “Nothing can prepare you for the thrill of plummeting down our high-

velocity, 6-story, 79 foot, near-vertical open drop slide Thunderball at Baha Bay waterpark in

Nassau, The Bahamas. Feel your adrenaline spike as you[] race towards the earth, safely landing

in just six inches of water.” (Id. at ¶ 15).

After Plaintiff booked passage on the Norwegian Sky, NCL sent Plaintiff promotional

materials bearing NCL’s logo that also provided information about available shore excursions. (Id.

at ¶ 16). Plaintiff believed that the shore excursions promoted by NCL, including the Baha Bay

Waterpark excursion, were exclusively operated by NCL. (Id.). NCL advised its passengers not to

purchase any excursions, tours, or activities off the cruise ship that were not sold by NCL. (Id.).

1 As explained below, the Motions challenge this Court’s subject matter jurisdiction. When a defendant facially attacks

a complaint for failure to sufficiently allege a basis of subject matter jurisdiction, the allegations in the complaint are

assumed to be true for purposes of the motion. See Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1230 (11th Cir.

2021).

After Plaintiff boarded the Norwegian Sky for his voyage, NCL employees conducted a

live presentation to passengers, during which NCL discussed the excursion options available to

passengers. (Id. at ¶ 17).

Plaintiff visited the shore excursion desk aboard the vessel on March 3, 2023. (Id. at ¶ 19).

At the desk, passengers could access promotional materials, talk to a NCL employee about

excursions, and purchase tickets for excursions. (Id. at ¶¶ 18–19). Plaintiff asked the NCL

employee about the Baha Bay Waterpark excursion. (Id. at ¶ 19). She showed Plaintiff promotional

material about the excursion, told him that she had participated in the Baha Bay Waterpark

excursion herself, assured him that the waterpark and slides were safe, and recommended that he

purchase a ticket. (Id.). Relying on the assurances made in the promotional material and by the

employee, Plaintiff purchased a ticket for the Baha Bay Waterpark excursion while aboard the

Norwegian Sky. (Id. at ¶¶ 19, 22–25).

Plaintiff participated in the Baha Bay Waterpark excursion on March 4, 2023. (Id. at ¶ 26).

Unbeknownst to Plaintiff at the time, the waterpark was primarily operated by Defendant CTF.

(Id. at ¶ 27). At the waterpark, Plaintiff went on the Thunderball ride. (Id. at ¶ 28). While going

down the Thunderball, Plaintiff shattered his calcaneus bone, ruptured his Achilles tendon, and

suffered a severe heel laceration. (Id.). Plaintiff underwent three surgeries for these injuries. (Id.).

B. Procedural History

Plaintiff filed an eleven-count complaint against NCL, CTF, Proslide Technology Inc.

(“Proslide”), and Proslide Technology LLC,2 asserting claims of misleading advertising, negligent

misrepresentation, negligence, and products liability. (“Original Complaint”). (ECF No. 1). CTF

moved to dismiss the claims against it for lack of personal jurisdiction. (ECF No. 16). In response,

2 Shortly thereafter, Plaintiff voluntarily dismissed his claims against Proslide Technology LLC without prejudice. See

(ECF Nos. 5, 7).

Plaintiff asked the Court to suspend adjudication of the motion to dismiss and grant Plaintiff leave

to conduct jurisdictional discovery. (ECF No. 23). Before the Court ruled on the motion to conduct

jurisdictional discovery, Plaintiff filed a motion to amend the Original Complaint (ECF No. 27),

which the Court granted. (ECF No. 36).

Plaintiff’s Amended Complaint followed. (ECF No. 37). NCL and Proslide answered the

Amended Complaint. See (ECF Nos. 43, 54, 78).3

The Amended Complaint brings the same eleven claims as the Original Complaint, with

one addition: a verified claim for Quasi In Rem Maritime Rule B Attachment and Garnishment

against CTF (“Count XII”). (ECF No. 37 at 35). Count XII asserts that Plaintiff’s in personam

claims against CTF “arise from a maritime tort and/or maritime contract.” (Id.). Plaintiff’s counsel

filed an affidavit swearing that to his knowledge, or on information and belief, CTF cannot be

found within this District but property belonging to CTF is within the District. (ECF No. 37-1).

Accordingly, Plaintiff moved the Court to issue a summons and process of maritime attachment

and garnishment pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims.

(ECF No. 38). The Court granted the motion (ECF No. 40), and the Clerk issued Summonses and

Processes of Maritime Attachment and Garnishment to NCL Corp. Ltd.; Magical Cruise Company,

Ltd. (“Magical Cruise”); Royal Caribbean Cruises Ltd. d/b/a Royal Caribbean Group; and

Celebrity Cruises, Inc. (ECF No. 41).

Magical Cruise answered the Process of Maritime Attachment and Garnishment, stating

that “it does not have in its hands any property, goods, chattels, credits, or effects belonging or

owing to” CTF in this District. (ECF No. 56 at 2). Plaintiff voluntarily dismissed Magical Cruise

3 Plaintiff and Proslide Technology Inc. have since settled and stipulated to the dismissal of the claims against Proslide

with prejudice. See (ECF Nos. 74, 82, 84).

as a garnishee without prejudice. (ECF No. 57). No other garnishee has filed an answer. Plaintiff

has not moved for compulsory process.

The Garnishees filed the instant Joint Motion to Vacate (ECF No. 58), and CTF filed its

Motion to Dismiss (ECF No. 59). Both Motions argue that the Court lacks subject matter

jurisdiction over Plaintiff’s claims. In the alternative, CTF argues that the Court lacks personal

jurisdiction over CTF, the Court should dismiss the claims against CTF on the grounds of forum

non conveniens, and Counts VII, VIII, and IX of the Amended Complaint fail to state a claim.

II. TIMELINESS OF MOTION TO DISMISS

After Plaintiff filed his Amended Complaint, CTF moved to extend the deadline to respond

by 30 days. (ECF No. 39). The Court granted the motion and ordered CTF to respond to the

Amended Complaint by December 14, 2024. (ECF No. 42). CTF filed its Motion to Dismiss on

December 24, ten days after the deadline. (ECF No. 59).

Plaintiff argues that the Motion should be denied as untimely. CTF’s counsel proffers that

he misread the deadline as December 24 rather than December 14 when marking the due date on

his calendar. See (ECF No. 70 at 8).

Federal Rule of Civil Procedure 6(b)(1)(B) authorizes the Court to extend the time to do

an act after the time has expired if the party failed to act because of excusable neglect. I find that

the proffer of CTF’s counsel is credible and constitutes excusable neglect. Therefore, I recommend

that the Court consider CTF’s Motion to Dismiss on its merits.

III. COUNTS VIII AND IX SHOULD BE DISMISSED AS WITHDRAWN

In response to CTF’s Motion to Dismiss, Plaintiff withdrew Counts VIII and IX. See (ECF

No. 67 at 31). Therefore, I recommend that the Court dismiss these claims.

IV. SUBJECT MATTER JURISDICTION

A. Legal Standard

To adjudicate the parties’ dispute, the Court must have original subject matter jurisdiction

over at least one claim. “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). “When a

plaintiff files suit in federal court, [he] must allege facts that, if true, show federal subject matter

jurisdiction over [his] case exists.” Travaglio v. Am. Express Co., 735 F.3d 1266, 1268 (11th Cir.

2013). “[I]f a complaint’s factual allegations do not assure the court it has subject matter

jurisdiction, then the court is without power to do anything in the case.” Id. at 1269.

B. Admiralty Jurisdiction

The Amended Complaint asserts that this Court has admiralty jurisdiction over this action.

(ECF No. 37 at ¶ 5). No other basis of subject matter jurisdiction is alleged or argued.

Federal district courts have original jurisdiction of any civil case of admiralty or maritime

jurisdiction. 28 U.S.C. § 1333(1); see also U.S. CONST. art. III, § 2. “The test for determining the

existence of admiralty jurisdiction under 28 U.S.C. § 1333(1) varies depending on the nature of

the claim asserted.” Broughton v. Fla. Int’l Underwriters, Inc., 139 F.3d 861, 864 (11th Cir. 1998).4

Here, all of Plaintiff’s claims are tort claims.

1. Law Governing Admiralty Tort Jurisdiction

Historically, determination of whether a tort fell within the court’s admiralty jurisdiction

depended entirely on “the locality of the wrong.” Exec. Jet Aviation, Inc. v. City of Cleveland, 409

U.S. 249, 253 (1972). “If the wrong occurred on navigable waters, the action [was] within

4 Compare Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995), with Norfolk S.

Railway Co. v. Kirby, 543 U.S. 14, 23–24 (2004) (distinguishing admiralty jurisdiction over contracts and admiralty

jurisdiction over torts).

admiralty jurisdiction; if the wrong occurred on land, it [was] not.” Id. Thus, admiralty courts

lacked jurisdiction over claims that a ship’s collision with a pier damaged the pier because

admiralty law treated the pier as an extension of land. See Jerome B. Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527, 532 (1995). Similarly, there was no admiralty jurisdiction when

a ship or appurtenance thereof caused injury to an individual standing on the pier because the

injury occurred on land. See Exec. Jet, 409 U.S. at 255 (discussing Smith & Son v. Taylor, 276 U.S.

179 (1928)).

Dissatisfied with these outcomes, Congress enacted the Admiralty Extension Act of 1948,

which provides: “The admiralty and maritime jurisdiction of the United States extends to and

includes cases of injury or damage, to person or property, caused by a vessel on navigable waters,

even though the injury or damage is done or consummated on land.” 46 U.S.C. § 30101(a).

Thus, the modern location test is met when the tort occurred on navigable water or when an injury

suffered on land was caused by a vessel on navigable water. Grubart, 513 U.S. at 534.

The traditional locality rule was further supplemented by the Supreme Court in Executive

Jet and its progeny. See Grubart, 513 U.S. at 532–34. In Executive Jet, an aircraft took off from

an airport, struck a flock of seagulls, and crashed and sank in the navigable waters of Lake Erie.

Exec. Jet, 409 U.S. at 250. The Supreme Court held “the mere fact that the alleged wrong ‘occurs’

or ‘is located’ on or over navigable waters . . . is not of itself sufficient to turn an airplane

negligence case into a ‘maritime tort.’” Id. at 268. Rather, the wrong must also “bear a significant

relationship to traditional maritime activity” to be cognizable in admiralty. Id. Because there was

no significant relationship between a land-based plane flying from one point in the continental

United States to another and traditional maritime activity, the federal courts could not exercise

admiralty jurisdiction over the tort claims. Id. at 272.

In subsequent cases, the Supreme Court elaborated on the connection requirement.

In Foremost Insurance Co. v. Richardson, the collision of two pleasure boats on navigable waters

satisfied the traditional maritime activity test because of “the potential disruptive impact upon

maritime commerce of” such collisions and admiralty law’s “traditional concern” for navigation.

Grubart, 513 U.S. at 533 (quoting Foremost, 457 U.S. 668, 675 (1982)) (citation modified).

And in Sisson v. Ruby, a fire that began on a pleasure boat docked on Lake Michigan and spread

to other boats also met the traditional maritime activity test because “the burning of docked boats

at a marina on navigable waters [is the sort of incident] likely to disrupt maritime commercial

activity,” and “the storage and maintenance of a vessel on navigable waters” bears a “substantial

relationship with traditional maritime activity.” Grubart, 513 U.S. at 534 (quoting Sisson, 497 U.S.

358 (1990)) (citation modified).

The Supreme Court has summarized the entire rule as follows:

[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C.

§ 1333(1) over a tort claim must satisfy conditions both of location and of

connection with maritime activity. A court applying the location test must determine

whether the tort occurred on navigable water or whether injury suffered on land

was caused by a vessel on navigable water. The connection test raises two issues.

A court, first, must assess the general features of the type of incident involved to

determine whether the incident has a potentially disruptive impact on maritime

commerce. Second, a court must determine whether the general character of the

activity giving rise to the incident shows a substantial relationship to traditional

maritime activity.

Id. (internal quotations and citations omitted).

Applying the rule summarized in Grubart, the Eleventh Circuit found that admiralty

jurisdiction existed in Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004). Because the

case involved “peculiar circumstances,” 394 F.3d at 901, the fundamental facts bear reciting.

Plaintiff Doe was a passenger on a pleasure cruise, and Aydin was a ship waiter. Id. at 897.

Aydin was assigned to wait on the table at which Doe was assigned to eat each night of the voyage.

Id. The ship arrived in Bermuda, a scheduled port-of-call. Id. At dinner, one of Doe’s friends asked

Aydin if he knew of any good places to go out on the island. Id. Aydin suggested that they go to

the Oasis disco club. Id. The Oasis was only a short walk from the ship; the ship was clearly visible

from the club. Id. at 897–98. When Doe’s group arrived at the Oasis, they found Aydin and other

crew members there. Id. at 898. Doe’s group and Aydin’s group spent time together at the club. Id.

Later, Aydin escorted some guests back to the ship and then returned to the Oasis. Id. Upon

returning, he discovered Doe lying on the ground outside, inebriated and sick. Id. Aydin escorted

Doe in the direction of the ship, but then walked past the ship to a public park, where he raped her.

Id. The ship was merely four or five steps from the boundary of the park. Id. After the assault,

Aydin and Doe walked onto the ship together and then went in separate directions. Id.

In determining that the location requirement was satisfied, the Eleventh Circuit noted that

the “incident effectively began and ended aboard the cruise ship,” and the battery itself “occurred

very close” to the ship. Id. at 901. Neither Doe nor Aydin “traveled any real distance from the ship”

at any point. Id. The “cruise ship allowed passengers to come and go from the ship as they elected.”

Id. In the panel’s view, “there was little practical difference between the port-of-call and other parts

of the ship.” Id.

The Doe Court discussed several other reasons for asserting admiralty jurisdiction, too.

[T]he stop in Bermuda was a scheduled port-of-call, and was an integral part of the

on-going cruise or maritime activity in this case. Ports-of-call not only add to the

enjoyment of a cruise but form an essential function of the cruise experience. . . .

When a passenger selects a particular cruise, ports-of-call or stopovers provide

those passengers with the “cruise experience” for which they are paying. Simply

put, the destinations or ports-of-call are frequently the main attraction.

Id. And:

More importantly, the purpose behind the exercise of this Court’s admiralty

jurisdiction is to provide for the uniform application of general maritime law.

Plainly, the standard of care that governs when a cruise line’s crew member assaults

a passenger should be uniform and not vary from port to port on a single cruise. . . .

We see no reason that cruise lines’ liability to their passengers while at a regularly-

scheduled port-of-call and in a crew member’s company should vary from port to

port . . . . [A] ruling that admiralty jurisdiction did not extend literally beyond the

gangplank in this case would upset the very uniformity that the Supreme Court has

determined is so important for maritime activity.

Id. at 902. Doe itself recognized that the case “may represent the outer boundaries of admiralty

jurisdiction over torts.” Id. at 901.

Relying on Doe and its language about the significance of ports-of-call and the importance

of uniformity, some courts of this District have held that a federal court may exercise admiralty

jurisdiction where a cruise ship passenger brings tort claims for injuries suffered on land at a

scheduled port-of-call or excursion.5 For several reasons, Doe should not be read as holding that

any injury suffered by a cruise ship passenger in a port-of-call—regardless of the circumstances—

is a maritime tort. See Goodwin v. Rios Tropicales, S.A., No. 04-22707-CIV, 2006 WL 8426843, at

*6 (S.D. Fla. Feb. 28, 2006) (Jordan, J.).

As an initial matter, “Doe involved an extreme set of facts.” In re Heritage Oaks 2013 LLC,

No. 23-CV-81197, 2024 WL 517989, at *2 (S.D. Fla. Feb. 9, 2024). “[T]he Eleventh Circuit went

to great lengths to explain why the unique, case-specific facts in Doe qualified for admiralty

jurisdiction.” Doe v. Classica Cruise Operator Ltd., No. 24-CV-80738, 2024 WL 4198169, at *3

(S.D. Fla. Sept. 19, 2024). The “incident effectively began and ended aboard the cruise ship.” Doe

v. Celebrity Cruises, 394 F.3d at 901. The plaintiff was a passenger; the perpetrator was a crew

member assigned to wait on her. At port, passengers could come and go from the ship as they

5 See Belik v. Carlson Travel Grp., Inc., 26 F. Supp. 3d 1258, 1264–65 (S.D. Fla. 2012); Randolph v. Baron, No. 06-

22358, 2007 WL 9706013, at *4 (S.D. Fla. Sept. 28, 2007); Skeen v. Carnival Corp., No. 08-22618-CIV, 2009 WL

1117432, at *2 (S.D. Fla. Apr. 24, 2009); Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-21196, 2009 WL

8659594, at *3–4 (S.D. Fla. Sept. 14, 2009); Gentry v. Carnival Corp., No. 11-21580-CIV, 2011 WL 4737062, at *1–

2 (S.D. Oct. 5, 2011); Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 2480612, at *5–6 (S.D. Fla.

June 3, 2014); Hoard v. Carnival Corp., No. 14-23660-CIV, 2015 WL 1954055, at *2 (S.D. Fla. Apr. 17, 2015);

Manukian v. Carnival Corp., No. 15-cv-21437, 2015 WL 9660017, at *2 (S.D. Fla. June 19, 2015); Brown v. Oceania

Cruises, Inc., No. 17-22645, 2017 WL 10379580, at *1 (S.D. Fla. Nov. 20, 2017).

pleased. The crew member suggested the club that Doe should visit; it was only a short walk from

the ship. Doe found the crew member there and they socialized. Doe agreed to the crew member’s

offer to escort her back to the ship, trusting him because he was a cruise line employee. The assault

occurred mere steps from the ship. In essence, “the Eleventh Circuit treated the location of the

injury in Doe as being on the ship itself.” Doe v. Classica Cruise, 2024 WL 4198169, at *3.

In addition, three important features of the Supreme Court’s admiralty jurisprudence

demonstrate why we should exercise caution before concluding that injuries occurring on land fall

within the court’s admiralty jurisdiction. First, Executive Jet and its progeny did not expand the

reach of admiralty jurisdiction but in fact confined it. Second, Norfolk Southern Railway Co. v.

Kirby, 543 U.S. 14 (2004), did not alter the test enunciated in Grubart. Finally, the Supreme Court

has rejected attempts to extend admiralty jurisdiction beyond its historic and statutory boundaries

even when the federal interest in maintaining uniform rules for vessels on navigable waters was

particularly strong.

In Executive Jet, the Supreme Court observed that some courts had mechanically applied

the locality rule and sustained admiralty jurisdiction despite a “lack of any connection between the

wrong and traditional forms of maritime commerce and navigation.” See 409 U.S. at 255–56. Other

courts held that, in addition to maritime locality, “some relationship between the tort and traditional

maritime activities” was necessary. Id. at 256. Executive Jet resolved that split by denying

admiralty jurisdiction in those cases “where the maritime locality of the tort [was] clear, but . . .

invocation of admiralty jurisdiction seem[ed] almost absurd.” Id. at 255. “Executive Jet did not

replace, but rather supplemented, the traditional location requirement for maritime tort jurisdiction.

In order for the federal maritime courts to exercise jurisdiction over a tort claim the tort still must

occur at a maritime situs.” Harville v. Johns-Manville Prods. Corp., 731 F.2d 775, 781–82 (11th

Cir. 1984), overruled on other grounds by Grubart, 513 U.S. at 544–48; see also Grubart, 513

U.S. at 547 (“Although the existing case law tempers the locality test with the added requirements

looking to potential harm and traditional activity, it reflects customary practice in seeing

jurisdiction as the norm when the tort originates with a vessel in navigable waters, and in treating

departure from the locality principle as the exception.” (emphasis added)).

Throughout his briefs, Plaintiff invokes the Supreme Court’s statement in Kirby that “the

shore is now an artificial place to draw a line,” 543 U.S. 14, 25 (2004). Put in proper context, the

Court’s full sentence reads: “While it may once have seemed natural to think that only contracts

embodying commercial obligations between the ‘tackles’ (i.e., from port to port) have maritime

objectives, the shore is now an artificial place to draw a line.” Id. Kirby is “[t]he Supreme Court’s

leading decision on [admiralty] contract jurisdiction.” SCHOENBAUM, 1 ADMIRALTY & MAR. LAW

§ 3:10 (6th ed.) (emphasis added). The Court carefully distinguished the inquiry for determining

whether a contract is a maritime one and that for determining whether a tort is a maritime one. See

Kirby, 543 U.S. at 23 (“[T]he boundaries of admiralty jurisdiction over contracts—as opposed to

torts or crimes—[are] conceptual rather than spatial . . . . To ascertain whether a contract is a

maritime one, we cannot look to whether a ship or other vessel was involved in the dispute, as we

would in a putative maritime tort case.” (internal quotations and citations omitted)). To come

within the federal courts’ admiralty jurisdiction, a tort must occur on navigable water or the injury

must be caused by a vessel on navigable water. See Grubart, 513 U.S. at 534. Kirby did not alter

that requirement.

The Supreme Court has long recognized that the desire for uniform rules of conduct and

liability for operators of vessels on navigable waters is “[t]he fundamental interest giving rise to

maritime jurisdiction.” Sisson v. Ruby, 497 U.S. 358, 367 (1990); see also, e.g., S. Pac. Co. v.

Jensen, 244 U.S. 205, 215 (1917). Yet, the Court declined “to extend shoreward the reach of the

maritime law further than Congress has approved” in a factual situation far closer to the historic

ambit of admiralty jurisdiction than cruise ship excursion cases: longshoremen injured on a pier

by pier-based equipment while loading a vessel on navigable waters. See Victory Carriers, Inc. v.

Law, 404 U.S. 202, 211 (1971). There, the Court wrote: “That longshoremen injured on the pier in

the course of loading or unloading a vessel are legally distinguished from longshoremen

performing similar services on the ship is neither a recent development nor particularly

paradoxical.” Id. at 212. While “[t]here is much to be said for uniform treatment of longshoremen

injured while loading or unloading a ship,” id. at 221 (internal quotations omitted), “in the absence

of explicit congressional authorization, we shall not extend the historic boundaries of the maritime

law.” Id. at 214. Thus, the federal interest in uniform maritime rules cannot, in and of itself, justify

an expansion of admiralty jurisdiction beyond its historic and congressionally authorized bounds.

2. Application to Plaintiff’s Claims

I now assess whether Plaintiff’s tort claims are within the Court’s original admiralty

jurisdiction. Each claim must meet the requirements of location and connection with maritime

activity. Cf. Grubart, 513 U.S. at 531 (“The parties do not dispute . . . that jurisdiction as to Counts

II and III . . . hinges on jurisdiction over the Count I claim.” (citing 28 U.S.C. § 1367)).

a. Counts III, V, VII, and X

Count III is a claim of General Negligence against NCL, and Count V is a claim of General

Negligence against CTF. In pertinent part, Plaintiff alleges that CTF failed to safely operate or

maintain the Thunderball ride (ECF No. 37 at ¶ 68b), NCL failed to ensure that CTF maintained

the Thunderball ride (id. at ¶ 57b), and as a result, Plaintiff suffered physical injuries and other

cognizable harms arising out of his physical injuries (see id. at ¶¶ 59, 70). Counts VII and X allege

theories of liability under which CTF’s failure to provide a safe Thunderball ride is imputed to

NCL.6

The location test is satisfied when either the tort occurred on navigable water or the injury

suffered on land was caused by a vessel on navigable water. See Anderson v. United States, 317

F.3d 1235, 1237 (11th Cir. 2003) (quoting Grubart, 513 U.S. at 534). “Under the locality test, the

tort occurs ‘where the alleged negligence took effect,’ rather than where the negligent act was

done.” Harville, 731 F.2d at 782 (quoting Exec. Jet, 409 U.S. at 266); accord Sperry Rand Corp.

v. Radio Corp. of Am., 618 F.2d 319, 321 (5th Cir. 1980) (“[S]o long as the place of the injury . . .

occurs upon navigable waters, the fact that the negligent act may have occurred on shore is of no

relevance.”).7

First, all the injuries Plaintiff allegedly suffered from NCL and CTF’s failure to provide a

safe ride occurred on land. Therefore, as to these claims, Plaintiff cannot satisfy the location test

under the first prong because these injuries did not occur on navigable waters; they occurred on

land.

Plaintiff argues that “[w]ell settled case law” in the Eleventh Circuit and this District

“support[s] a finding that under the facts of this case, the admiralty location test is satisfied.” (ECF

No. 62 at 8; ECF No. 67 at 8). The argument relies on Doe and this Court’s decisions in Balaschak8

6 Count VII alleges that CTF was the apparent agent of NCL and NCL is estopped to deny that CTF was its agent.

(ECF No. 37 at ¶¶ 77–78). Count X alleges that NCL’s duty to provide Plaintiff with a reasonably safe excursion was

non-delegable. (Id. at ¶ 104).

7 See also GE Seaco Servs., Ltd. v. Interline Connection, N.V., No. 09-23864-CIV, 2011 WL 98406, at *3 (S.D. Fla.

Jan. 12, 2011); Chartis Prop. Casualty Co. v. Frenchman’s Marina Resort, Ltd., No. 13-CV-80933, 2015 WL

12723104, at *4 (S.D. Fla. Jan. 16, 2015).

8 Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-21196, 2009 WL 8659594 (S.D. Fla. Sept. 14, 2009).

and Ash,9 while distinguishing our decisions in Goodwin,10 Doria,11 Thompson,12 Bowen,13

Heritage Oaks,14 and Classica Cruise.15 See (ECF No. 62 at 8–18; ECF No. 67 at 8–16). Plaintiff

contends that his case is similar to Doe because “the necessary precursors” occurred on navigable

waters (the purchase of the Baha Bay excursion ticket), the cruise was still in progress at the time

of injury, his injuries bore a connection to the cruise ship’s operation, and the purpose of admiralty

jurisdiction would be upset if the Court declines to extend admiralty jurisdiction to these

circumstances.

But this case is not like Doe. In Doe, the “incident effectively began and ended aboard the

cruise ship.” Doe, 394 F.3d at 901. The intentional tortfeasor was a crew member of the vessel.

Passengers could come and go from the ship as they pleased. The entire incident occurred within

the shadow of the ship, and the assault occurred mere steps from the ship.

None of Plaintiff’s allegations suggest that the Baha Bay waterpark was particularly close

to the docked vessel. Plaintiff was participating in a ticketed excursion off the ship; he was not

coming and going from the ship at the time of injury. No employees of NCL operated the waterpark

itself. Plaintiff has not pled facts to support a finding that his injuries occurred on navigable waters,

literally or effectively.

However, this does not end the locality inquiry because if the injury was caused by a vessel

on navigable waters, then the location test is met. Curiously, Plaintiff argues that the location test

is satisfied because Plaintiff’s injuries suffered on land were caused by a vessel on navigable water.

See (ECF No. 62 at 4–7; ECF No. 67 at 6–8). The argument goes: “NCL’s vessel, the Norwegian

9 Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 2480612 (S.D. Fla. June 3, 2014).

10 Goodwin v. Rios Tropicales, S.A., No. 04-22707-CIV, 2006 WL 8426843 (S.D. Fla. Feb. 28, 2006).

11 Doria v. Royal Caribbean Cruises, Ltd., No. 19-cv-20179, ECF No. 35 (S.D. Fla. Sept. 4, 2019).

12 Thompson v. Carnival Corp., No. 20-22217-Civ, 2021 WL 7542954 (S.D. Fla. Sept. 17, 2021).

13 Bowen v. Shore Excursions Grp., LLC, No. 23-60585-CIV, 2023 WL 11994332 (S.D. Fla. Oct. 12, 2023).

14 In re Heritage Oaks 2013 LLC, No. 23-CV-81197, 2024 WL 517989 (S.D. Fla. Feb. 9, 2024).

15 Doe v. Classica Cruise Operator Ltd., No. 24-CV-80738, 2024 WL 4198169 (S.D. Fla. Sept. 19, 2024).

Sky, while on navigable waters, caused Plaintiff’s injury” because “the promotional materials NCL

and CTF made available to Plaintiff while aboard the cruise vessel states that if Plaintiff took the

Thunderball ride, he would ‘safely land[] in just six inches of water.’” (ECF No. 62 at 4; ECF No.

67 at 6). The Admiralty Extension Act extends admiralty jurisdiction to “cases of injury . . . caused

by a vessel on navigable waters, even though the injury or damage is done or consummated on

land.” 46 U.S.C. § 30101(a). By Plaintiff’s own logic, Plaintiff’s injuries were caused by the

promotional materials NCL and CTF created and distributed; they were not “caused by a vessel on

navigable waters.”

Finally, Plaintiff briefly argues, in footnotes, that this case is analogous to Anderson v.

United States, 317 F.3d 1235 (11th Cir. 2003). There, the Eleventh Circuit held that a fighter jet

that departed from the USS John F. Kennedy was an appurtenance of the carrier when the jet

released two bombs, which injured the plaintiff.

Maritime law “treats an ‘appurtenance’ attached to a vessel in navigable waters as part of

the vessel itself.” Id. at 1237 (quoting Grubart, 513 U.S. at 535). “To determine whether an item

is an appurtenance to a vessel, we must look to the relation it bears to the actual service of the

vessel.” Id. at 1238 (citation modified). An appurtenance is “any specifically identifiable item that

is destined for use aboard a specifically identifiable vessel and is essential to the vessel’s

navigation, operation, or mission.” Id. (internal quotations omitted). The Eleventh Circuit reasoned

that the jet was on a mission of the U.S. Navy. Id. A Navy Captain testified that an aircraft carrier’s

jets “are the carrier’s primary offensive and defensive weapons. . . . The aircraft are an extension

of the ship’s ears (electronic monitoring) [and] eyes (surveillance) . . . .” Id. Thus, the Court

concluded that the jet was an appurtenance and the location test was satisfied.

Plaintiff merely states Anderson’s holding and has not explained how this case is analogous

to Anderson. See (ECF No. 62 at 8 n.6; ECF No. 67 at 10 n.5). Plaintiff has not cited, and I have

not found, any case of this circuit where a court extended the reasoning of Anderson to other

objects that were not attached to a vessel or tortfeasors who were not operating a vessel. In reaching

the conclusion that the jet was an appurtenance, the Eleventh Circuit relied on the testimony that

a naval carrier’s aircrafts are an extension of the ship’s ears and eyes. Plaintiff has not identified

an object that he contends is an appurtenance of the Norwegian Sky.

In summary, Counts III and V allege that because of NCL and CTF’s failure to provide a

safe Thunderball ride, Plaintiff suffered physical and psychological injuries at the Baha Bay

Waterpark. Those injuries occurred on land, not on navigable waters. The injuries were not caused

by a vessel on navigable waters or an appurtenance thereof. Because the requirement of location

is not satisfied, the Court lacks admiralty jurisdiction over these claims. Counts VII and X allege

theories that impute liability for CTF’s negligence to NCL; because the Court lacks admiralty

jurisdiction over the underlying negligence claim (Count V), the Court also lacks admiralty

jurisdiction over Counts VII and X.

b. Counts I, II, IV, and VI

Count I is a claim for Misleading Advertising in violation of section 817.41 of the Florida

Statutes against NCL and CTF. Count II is a claim for Negligent Misrepresentation against NCL

and CTF. The principal allegations underlying Counts I and II are essentially the same: Defendants’

promotional material represented that riders of the Thunderball “safely land[] in just six inches of

water” (ECF No. 37 at ¶¶ 21, 42, 50); Plaintiff would not have purchased a Baha Bay excursion

ticket, or thus taken the Thunderball ride, but for that representation (id. at ¶¶ 24, 46, 54); Plaintiff

did not land safely in six inches of water; and consequently, Plaintiff suffered injuries (id. at ¶¶ 25,

47, 55).

Count IV is a claim for Negligent Failure to Warn against NCL, and Count VI is a claim

for Negligent Failure to Warn against CTF. These Counts allege that NCL and CTF failed to warn

Plaintiff that the Thunderball could cause him serious injury, failed to warn him that CTF would

not safely operate or maintain the Thunderball, and failed to warn him that CTF’s employees were

not properly trained or supervised. See (id. at ¶¶ 63, 74). As with Counts I and II, Counts IV and

VI allege that Plaintiff would not have purchased a ticket for the excursion had Defendants

adequately warned Plaintiff. See (id. at ¶¶ 64, 75).

For each of these four claims, at least one of Plaintiff’s alleged injuries is his purchase of

a Baha Bay excursion ticket that he would not have purchased but for Defendants’

misrepresentations and failure to warn. This is a critical allegation for purposes of the location test.

In determining maritime locality, a tort occurs “where the alleged negligence took effect.” Harville,

731 F.2d at 782. We must look at “the place of the injury.” Sperry Rand Corp., 618 F.2d at 321;

see also Kuehne & Nagel v. Geosource, Inc., 874 F.2d 283, 288–89 (5th Cir. 1989). Plaintiff alleges

that Defendants’ misrepresentations and failure to warn caused him to buy the Baha Bay excursion

ticket. (ECF No. 37 at ¶¶ 24, 46, 54, 64, 75). Plaintiff further alleges that he purchased the ticket

while aboard the Norwegian Sky. (Id. at ¶ 19). Thus, the alleged negligence took effect—at least

in part—on navigable waters. I am therefore satisfied that the location test is met with respect to

Counts I, II, IV, and VI.

The four claims must also satisfy the connection requirement. The first issue of the

connection test assesses whether the “general features of the type of incident” has “a potentially

disruptive impact on maritime commerce.” Grubart, 513 U.S. at 534 (emphasis added). The second

issue asks whether the “general character of the activity giving rise to the incident” bears a

“substantial relationship to traditional maritime activity.” Id. (emphasis added) (internal quotations

omitted).

Naturally, the Garnishees narrowly define the scope of Plaintiff’s incident and the activity

giving rise to it. Limiting the analysis to injuries at land-based waterparks, Garnishees argue that

this type of incident does not have the potential to affect maritime commerce, and the operation of

waterparks (the activity giving rise to Plaintiff’s incident) does not have a substantial relationship

to traditional maritime activity. See (ECF No. 58 at 10–12). But these characterizations of the

incident and preceding activity are too narrow.

The first issue of the connection test “turns . . . on a description of the incident at an

intermediate level of possible generality.” Grubart, 513 U.S. at 538. The Supreme Court case

Sisson v. Ruby involved a fire that began in a pleasure vessel’s washer/dryer unit and spread to

other boats at a marina. See 497 U.S. at 360. “To speak of the incident as ‘fire’ would have been

too general to differentiate cases; at the other extreme, to have described the fire as damaging

nothing but pleasure boats and their tie-up facilities would have ignored, among other things, the

capacity of pleasure boats to endanger commercial shipping . . . .” Grubart, 513 U.S. at 538–39.

The Court “rejected both extremes and instead asked whether the incident could be seen within a

class of incidents that posed more than a fanciful risk to commercial shipping.” Id. at 539.

Similarly, to describe Plaintiff’s incident merely as a “waterpark injury” would ignore the

capacity of personal injuries on cruise ship excursions to impact maritime commerce—namely, the

cruise line industry. “[T]he cruise line industry is maritime commerce.” Doe, 394 F.3d at 900.

Cruise ship passengers’ injuries “on an excursion because of the negligence of a cruise ship has a

potentially disruptive impact on maritime commerce.” Balaschak, 2009 WL 8659594, at *4

(internal quotations omitted). The first issue of the connection test is satisfied.

As for the second connection inquiry, the activity giving rise to Plaintiff’s incident is not

only the operation of a waterpark, but also the promotion and sale of the Baha Bay excursion

during a pleasure cruise. See id. (“The general character of the activity giving rise to the incident

here is, among other things, Celebrity’s alleged negligence in selecting and promoting the”

excursion.). “[C]ruise line ports-of-call stops and onshore excursions are traditional maritime

activities.” Skeen v. Carnival Corp., No. 08-22618-CIV, 2009 WL 1117432, at *3 (S.D. Fla. Apr.

24, 2009) (citing Doe, 394 F.3d at 902); see Belik v. Carlson Travel Grp., Inc., 26 F. Supp. 3d 1258,

1265 (S.D. Fla. 2012); Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL

2480612, at *7 (S.D. Fla. June 3, 2014).

CTF emphasizes that in Ash, the second connection issue was only “barely” met. See 2014

WL 2480612, at *6. In CTF’s view, the central factor that satisfied the substantial relationship

inquiry in Ash and Balaschak was the fact that the land-based excursion defendants “provided

regularly scheduled transportation to and from the excursion and the plaintiff[s] [were] injured

while in transit.” (ECF No. 70 at 4). Neither case was so specific. In Ash, the responses to the

garnishments demonstrated that the excursion defendant was “under contract to Royal Caribbean

(and other cruise lines) to provide shore excursions.” 2014 WL 2480612, at *7. Plaintiff alleges

the same in his Amended Complaint. See (ECF No. 37 at ¶¶ 29, 73, 98). Ash accentuated the

significance of the excursion provider’s contractual relationship with the cruise line by contrasting

such a company with “a taxi owner who fortuitously picks up cruise passengers.” 2014 WL

2480612, at *7 (emphasis added).

In this case, Defendants’ alleged misleading advertising, negligent misrepresentation, and

failure to warn took effect, in part, on navigable waters. The incident caused by these torts has the

potential to disrupt maritime commerce. And the promotion and sale of pleasure cruise excursions

has a substantial relationship to traditional maritime activity. Therefore, the Court has admiralty

jurisdiction over Counts I, II, IV, and VI.

C. Counts III, V, VII, and X Should Be Dismissed for Lack of Subject Matter

Jurisdiction

For the reasons explained above, the Court lacks admiralty jurisdiction over Counts III, V,

VII, and X of the Amended Complaint. The Amended Complaint does not contain any alternative

basis on which the Court has subject matter jurisdiction. Nor has Plaintiff argued that the Court

has a source of subject matter jurisdiction other than admiralty jurisdiction.

Federal Rule of Civil Procedure 8(a)(1) requires a plaintiff to plead “a short and plain

statement of the grounds for the court’s jurisdiction.” On this record, the failure to plead an

alternative basis of subject matter jurisdiction is not merely a technical deficiency. Defendants

have not been put on notice that another basis of subject matter jurisdiction may exist, and thus,

they have not yet had a fair opportunity to demonstrate why the Court cannot or should not exercise

subject matter jurisdiction under a statute other than 28 U.S.C. § 1333.

Because admiralty jurisdiction is the only basis of jurisdiction asserted and these four

Counts are not within the Court’s admiralty jurisdiction, the Could should DISMISS Counts III,

V, VII, and X for lack of subject matter jurisdiction.

V. MARITIME ATTACHMENT

A. Legal Background

Codified in Rule B of the Supplemental Admiralty Rules, maritime attachment enables a

plaintiff in admiralty to obtain in personam jurisdiction over a defendant who is not found in the

district but whose property is found in the district. See World Wide Supply OU v. Quail Cruises

Ship Mgmt., 802 F.3d 1255, 1262 (11th Cir. 2015). The practice predates adoption of the

Constitution. See Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. De Navegacion,

773 F.2d 1528, 1532 (11th Cir. 1985). “It has two purposes: to secure a respondent’s appearance

and to assure satisfaction in case the suit is successful.” Swift & Co. Packers v. Compania

Colombiana Del Caribe, S.A., 339 U.S. 684 (1950).

To obtain a writ of marine attachment, a plaintiff must file a verified complaint and affidavit

“stating that, to the affiant’s knowledge, or on information and belief, the defendant cannot be

found within the district.” See Fed. R. Civ. P., Supp. R. B(1)(a)–(b). “Rule B attachments are

known as ‘quasi-in-rem’ proceedings, because they are not actions directly against the res as a

fictitious person, as is the case in in rem actions, but are actions against a party who is not

personally present in the district but whose property is present.” World Wide Supply, 802 F.3d at

1259–60. “[A] good-faith allegation in the complaint that the res is present within the geographical

jurisdiction of the court is the jurisdictional fact which gives the court in personam jurisdiction

over the defendant purported to own the res.” Id. (quoting Great Prize, S.A. v. Mariner Shipping

Party, Ltd., 967 F.2d 157, 159 (5th Cir. 1992)).

If the prerequisites to obtain a writ of marine attachment are met, Rule B allows a plaintiff

to attach the defendant’s property found in the district, prosecute his in personam admiralty claims,

and, if successful, gain a judgment up to the value of the property attached. See Limonium Mar.,

S.A. v. Mizushima Marinera, S.A., 961 F. Supp. 600, 605 (S.D.N.Y. 1997) (citing Robinson v. O.F.

Shearer & Sons, Inc., 429 F.2d 83, 86 (3d Cir. 1970)). In Rule B proceedings, “the district court

has plenary jurisdiction over [the res], the plaintiff, . . . the defendant . . . , and has authority to

dispose of the case in any manner allowed by controlling law.” See Great Prize, 967 F.2d at 160.

B. Personal Jurisdiction

CTF’s argument that the Court lacks personal jurisdiction is inapposite to maritime

attachment. The fact that CTF is not found in this District is what enables the Rule B proceeding.

See, e.g., World Wide Supply, 802 F.3d at 1262 (“Rule B . . . requires, as a precondition to its

application, that the defendant not be present in the district . . . .”).

C. Request for Rule E(4)(f) Hearing and the “Motion to Vacate”

In its Motion to Dismiss, CTF requests “an immediate hearing on the Garnishment Order”

pursuant to Rule E(4)(f). (ECF No. 59 at 6). The Garnishees have denominated their Motion as a

“Motion to Vacate Rule B Attachment and Garnishment.” (ECF No. 58). They also cite to Rule

E(4)(f) and assert: “Through this motion, Garnishees invoke this rule.” (Id. at 5). However, despite

its title, the Motion to Vacate travels entirely on the argument that the Court lacks subject matter

jurisdiction.

Supplemental Admiralty Rule E(4)(f) provides that “[w]henever property is . . . attached,

any person claiming an interest in it shall be entitled to a prompt hearing at which the plaintiff

shall be required to show why the . . . attachment should not be vacated.” Fed. R. Civ. P., Supp. R.

E(4)(f) (emphasis added).16 “Rule E(4)(f) is designed to satisfy the constitutional requirement of

due process by guaranteeing to the [defendant] a prompt post-seizure hearing at which he can

attack the complaint . . . and any other alleged deficiency in the proceedings.” Advisory Comm.

Note, 105 F.R.D. 179, 235; accord S&S Diesel Marine Servs., Inc. v. M/V F-TROOP, No. 11-

60020-CIV, 2011 WL 1899402, at *8 (S.D. Fla. May 18, 2011); Int’l Ship Repair & Mar. Servs.,

Inc. v. Barge B. 215, 418 F. Supp. 3d 1051, 1054–55 (M.D. Fla. 2019). Due process does not

require pre-seizure notice and a hearing. See Calero-Toledo v. Pearson Yacht Leasing Co., 416

U.S. 663, 679 (1974).

In this case, the Court has issued Processes of Maritime Attachment and Garnishment to

the Garnishees, but no Garnishee has answered the Process stating that they have property

belonging or owing to CTF in this District. More importantly, no such property has been attached.

Thus, a post-attachment hearing is premature. For this reason, I recommend that the Garnishees’

Motion to Vacate be DENIED, without prejudice to renew should Plaintiff attach CTF’s property.

16 At such hearing, the plaintiff has the burden to show that: (1) he has a prima facie in personam admiralty claim

against the defendant; (2) the defendant cannot be found within the district; (3) the defendant’s property may be found

in the district; and (4) there is no statutory or maritime bar to attachment. See Zambrano v. Vivir Seguros, C.A., No.

16-cv-22707, 2017 WL 347078, at *3 (S.D. Fla. Jan. 24, 2017). The plaintiff must specifically establish an admiralty

claim against the Rule B quasi in rem defendant; a claim within the court’s supplemental jurisdiction will not do. See

Ash, 2014 WL 2480612, at *3.

VI. FORUM NON CONVENIENS

CTF next contends that the Court should dismiss the case under the doctrine of forum non

conveniens because the Bahamas is the preferred forum for this suit.

A court in admiralty may, in appropriate circumstances, dismiss a case based on the

doctrine of forum non conveniens. See, e.g., Giglio Sub s.n.c. v. Carnival Corp., No. 12-21680-

CIV, 2012 WL 4477504, at *7 (S.D. Fla. Sept. 26, 2012) (Rosenbaum, J.). Courts have dismissed

maritime attachment actions on forum non conveniens grounds. See Great Prize, 967 F.2d at 160–

61; Golden Horn Shipping Co. v. Volans Shipping Co., No. 14-CV-2168, 2017 WL 3535002

(S.D.N.Y. Aug. 16, 2017).17

A. Legal Standard

A plaintiff’s choice of forum should rarely be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S.

501, 508 (1947). But a court may properly dismiss a case based on the doctrine of forum non

conveniens “where trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant

or the court, and where the plaintiff is unable to offer any specific reasons of convenience

supporting his choice.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981). The moving

defendant must establish “that (1) an adequate alternative forum is available, (2) the public and

private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the

alternative forum without undue inconvenience or prejudice.” Leon v. Million Air, Inc., 251 F.3d

1305, 1311 (11th Cir. 2001). “[I]n considering the private interests of the litigants, some important

considerations are: relative ease of access to sources of proof; ability to obtain witnesses;

possibility of view of premises, if relevant; and all other practical problems that make trial of a

17 Plaintiff cites Linea Navira De Cabotaje, C.A. v. Mar Caribe De Navegacion, C.A., 169 F. Supp. 2d 1341 (M.D.

Fla. 2001), for the proposition that forum non conveniens is inapplicable in maritime attachment proceedings. Despite

the language Plaintiff quotes in his brief, the Linea court performed the multifactor forum non conveniens analysis

and denied the request “after weighing the foregoing public and private concerns.” Id. at 1353.

case easy, expeditious and inexpensive.” La Seguridad v. Transytur Line, 707 F.2d 1304, 1307

(11th Cir. 1983) (internal quotations omitted). The public interest factors include “court congestion

and jury duty generated by controversies having no relation to the forum; the desirability of having

localized controversies decided at home; and the difficulties [of] resolving conflict-of-laws

problems and applying foreign law.” Id.

B. Analysis

CTF’s reply brief did not address the forum non conveniens arguments made in Plaintiff’s

response, which, if not a full concession on the strength of Plaintiff’s venue choice, leaves

Plaintiff’s arguments on forum uncontested. There is no dispute that CTF is amenable to service

in the Bahamas and the Bahamas provides a forum for tort litigation. But the private interest factors

weigh strongly in Plaintiff’s favor, and there are public interest factors supporting both forums.

Plaintiff is a Florida resident. The “presumption in favor of the plaintiffs’ initial forum

choice . . . is at its strongest when the plaintiffs are citizens, residents, or corporations of” the

United States. SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1101

(11th Cir. 2004). Although dismissal is not “automatically barred when a domestic plaintiff has

filed suit in his home forum,” the defendant must provide “positive evidence of unusually extreme

circumstances,” and the court “should be thoroughly convinced that material injustice is manifest

before . . . deny[ing] a United States citizen access to the courts of this country.” Id. (citation

modified).

CTF has not met that burden. Without identifying any particular evidence or witnesses,

CTF argues that because Plaintiff’s injury occurred in the Bahamas, no “witness, document, or

exhibit—other than the Plaintiff and his medical treaters—is available or can be authenticated in

this forum,” and all waterpark employees, who are “[r]elevant willing witnesses,” are Bahamian

residents who are not subject to process in Florida. (ECF No. 59 at 15–16).

In assessing the litigants’ access to sources of evidence, a court must “consider the elements

of the plaintiffs’ causes of action, consider the evidence necessary to prove or disprove each

element, and make a reasoned assessment as to the likely location of such proof.” Giglio, 2012

WL 4477504, at *15 (citing Ford v. Brown, 319 F.3d 1302, 1308 (11th Cir. 2003)). Counts I and II

broadly allege that Plaintiff reviewed Defendants’ promotional material and relied on

misrepresentations therein when he purchased a ticket for the excursion and decided to go on the

Thunderball ride. None of the alleged misrepresentations were made at the waterpark. Thus, CTF

has not demonstrated that any evidence relevant to Counts I and II resides in the Bahamas.

Regarding Plaintiff’s Failure to Warn and General Negligence claims (if Plaintiff is given

leave to replead General Negligence), I recognize that a small number of witnesses may reside in

the Bahamas and these witnesses may be important to the issues of whether Defendants breached

a duty owed to Plaintiff and the extent of Plaintiff’s injuries. However, Plaintiff and his treaters are

in Florida. CTF’s limited proffer does not enable the Court to assess the relative importance of

witnesses in each forum or compare the potential costs of having the trial in one forum versus

another. Cf. Giglio, 2012 WL 4477504, at *17–18; St. Aubin v. Island Hotel Co. Ltd., No. 16-cv-

22023, 2017 WL 998298, at *4.

The Court cannot disregard evidence that non-parties are unwilling to testify in a forum far

from their home. See Fresh Results, LLC v. ASF Holland, B.V., 921 F.3d 1043, 1052 (11th Cir.

2019). CTF has provided no such evidence.

Analysis of the private factors also includes “all other practical problems that make trial of

a case easy, expeditious and inexpensive.” La Seguridad, 707 F.2d at 1307. It is reasonable to infer

that the costs Plaintiff would bear if he was required to bring suit in the Bahamas far outstrip those

costs CTF will incur to make some evidence residing in the Bahamas available for trial in the

United States. Further, Plaintiff proffers that his contract with Defendant NCL designates Florida

as the exclusive forum for any disputes between them. No party has refuted this. If that is the case,

Plaintiff’s costs would be further exacerbated by being forced to litigate claims against NCL in

one forum and claims against CTF in another.

I conclude that the private interest factors weigh against dismissal.

The Court must also consider the public interest factors. See Fresh Results, 921 F.3d at

1051–52. The incident occurred in the Bahamas, and in most circumstances, this factor would

weigh in favor of dismissal. See, e.g., Leon, 251 F.3d at 1315 (“Ecuador has an interest in

determining the extent of damages payable when planes crash in Ecuador on Ecuadorian

citizens.”). However, Plaintiff’s incident is not completely local to the Bahamas either, because

CTF has chosen to do business with NCL for the express purpose of bringing foreign cruise ship

passengers to its waterpark.

Without explanation, CTF asserts, “[i]f this case is tried in Florida, this Court will likely

need to apply Bahamian law in this case.” (ECF No. 59 at 17). Plaintiff disagrees and states,

“United States law is applicable to this matter.” (ECF No. 67 at 25). The parties have not briefed

a choice-of-law dispute and it would be premature to make a determination. CTF has not met its

burden of showing that the difficulty of applying foreign law weighs in favor of dismissal.

On balance, the public interest factors do not weigh strongly in favor of one forum over

another.

Finally, as discussed above, Plaintiff would be greatly inconvenienced and would likely

incur significantly more litigation costs if his claims against CTF were dismissed. Thus, he cannot

“reinstate his suit in the alternative forum without undue inconvenience or prejudice.” Leon, 251

F.3d at 1311. Because the private interest factors weigh in Plaintiff’s favor, the public interest

factors favor neither forum, and dismissal would cause undue inconvenience to Plaintiff,

I recommend that CTF’s motion to dismiss on grounds of forum non conveniens be DENIED.

VII. RULE 12(b)(6)

The only claim CTF has moved to dismiss for failure to state a claim that Plaintiff has not

withdrawn is Negligence Based on Apparent Agency (Count VII). For the reasons discussed above,

I recommend that the Court dismiss Count VII for lack of subject matter jurisdiction.

However, I note that CTF’s de minimis argument states only that a claim of apparent agency

requires a representation by a principal that caused Plaintiff to believe that the agent is authorized,

and CTF’s attached exhibits prove that CTF is an independent contractor of NCL. See (ECF No.

59 at 18). On a motion to dismiss under Rule 12(b)(6), the Court assumes all factual allegations in

the complaint are true. The Amended Complaint patently alleges that NCL made representations

to Plaintiff which may have caused him to believe that CTF was NCL’s agent. See (ECF No. 37 at

¶ 79).

VIII. RECOMMENDATIONS

For the foregoing reasons, I respectfully RECOMMEND that:

1. CTF’s Motion to Dismiss (ECF No. 59) be GRANTED IN PART and DENIED IN

PART.

2. Counts III, V, VII, and X of the Amended Complaint be DISMISSED for lack of subject

matter jurisdiction.

3. CTF’s motion to dismiss the claims against CTF on the grounds of forum non conveniens

be DENIED.

4. The Joint Motion to Vacate Rule B Attachment and Garnishment (ECF No. 58) be

DENIED without prejudice.

A party shall serve and file written objections, if any, to this Report and Recommendation

with the Honorable Darrin P. Gayles, United States District Judge, within FOURTEEN (14)

DAYS of being served with a copy of this Report and Recommendation. Failure to timely file

objections will bar a de novo determination by the District Judge of anything in this

recommendation and shall constitute a waiver of a party’s “right to challenge on appeal the district

court’s order based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1 (2016);

28 U.S.C. § 636(b)(1)(C); see also Harrigan v. Metro-Dade Police Dept Station #4, 977 F.3d

1185, 1191-92 (11th Cir. 2020).

RESPECTFULLY SUBMITTED in Chambers at Miayni, Florida, this 10th day of July,

2025.

UNITED STATES MAGISTRATE JUDGE

29