Thompson v. Carnival Corporation et al
Filing
48
ORDER granting in part and denying in part 19 Motion to Dismiss for Failure to State a Claim; granting 24 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge K. Michael Moore on 3/30/2016. (mgn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. 1:15-cv-24115-KMM
TIMOTHY THOMPSON,
Plaintiff,
v.
CARNIVAL CORPORATION d/b/a
CARNIVAL CRUISE LINES, et al.,
Defendants.
/
ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
This cause came before the Court upon Defendant Carnival Corporation’s (“Carnival”)
Motion to Dismiss Plaintiff’s Complaint (ECF No. 19); and Defendants Delisle Walwyn & Co.
Ltd. (“Delisle Walwyn”) and Vacation and Tour Consultants (St. Kitts) Ltd. d/b/a Kantours a/k/a
Kantours Destination Services (“Kantours”) (collectively the “Excursion Entities”) Motion to
Dismiss Plaintiff’s Complaint (ECF No. 24) and related responses and replies. 1 The Motions are
now ripe for review. For the reasons set forth below, the Excursion Entities’ Motion to Dismiss
(ECF No. 24) is GRANTED and Carnival’s Motion to Dismiss (ECF No. 19) is GRANTED IN
PART.
I.
BACKGROUND
This is a maritime personal injury action brought by Plaintiff Timothy Thompson
(“Thompson”) against Carnival and the Excursion Entities seeking recovery for damages
1
Thompson filed a Response to the Carnival Motion (ECF No. 28) and Carnival replied (ECF
No. 35). Thompson also filed a Response to the Excursion Entities’ Motion (ECF No. 31) and
those defendants replied (ECF No. 34). The Excursion Entities also filed a notice of
supplemental authority (ECF No. 45) for the Court’s consideration.
allegedly sustained by Thompson while participating in a shore excursion during a cruise aboard
the Carnival Valor. See generally Compl. (ECF No. 1).
The Complaint alleges that Thompson was a paying passenger aboard the Carnival Valor
in early December, 2014. Id. ¶ 13. During the cruise, Carnival offered passengers aboard the
ship the opportunity to go on various shore excursions, including one called the “ATV
Adventure.”
Id. ¶ 15.
Carnival advertised the excursions on its website, its promotional
material, and at an excursion desk aboard the Carnival Valor. Id. ¶¶ 14, 16. Additionally,
Carnival sold tickets for the shore excursions to its passengers, including Thompson, during the
course of the subject cruise. Id. ¶ 17.
On December 12, 2014, Thompson participated in the “ATV Adventure” in St. Kitts,
which is alleged to be marketed and promoted by Carnival, and owned and operated by the
Excursion Entities, two foreign corporations. 2 Id. ¶¶ 19, 29. While he was participating in the
shore excursion, Thompson alleges that he suffered severe injuries when the brakes on the allterrain vehicle (“ATV”) that he was riding failed and/or malfunctioned. Id. ¶ 21.
As a result, Thompson filed a five-count Complaint (the “Complaint”) against
Defendants on November 3, 2015, asserting the following claims against Carnival: Negligence
(Count I), Negligence for Apparent Agency or Agency by Estoppel (Count III), Joint Venture
(Count IV) and a Third-Party Beneficiary claim (Count V). Thompson also brings a claim of
negligence against the Excursion Entities (Count II). Carnival now moves to dismiss Counts I,
III, IV, and V of the Complaint for failure to state a claim, while the Excursion Entities argue
that the Court lacks personal jurisdiction over the foreign corporations.
2
Defendant Kantours, a St. Kitts corporation, is the wholly-owned subsidiary of Defendant
Delisle Walwyn & Co. Ltd., a private limited liability corporation registered in and existing
under the laws of St. Kitts. See Compl. ¶¶ 3, 4; see also Def.’s Mot. to Dismiss, Ex. A (ECF No.
24–1).
2
II.
ANALYSIS
A.
Excursion Entities’ Motion to Dismiss for Lack of Personal Jurisdiction
In support of their motion to dismiss, the Excursion Entities argue that Thompson has
failed to plead the minimum criteria necessary for the Court to exercise personal jurisdiction over
them. The Excursion Entities’ main contention is that their limited contacts with this forum are
constitutionally inadequate for purposes of establishing personal jurisdiction.
Thompson
responds by arguing that: (1) the Excursion Entities expressly consented to jurisdiction in the
Southern District of Florida in its agreement with Carnival 3; (2) the Complaint alleges a
sufficient basis for the Court to exercise general jurisdiction over the Excursion Entities; and (3)
“[f]urther inquiry into the veracity of the statements made in the Excursion Entities’ affidavit . . .
requires jurisdictional discovery on the Excursion Entities’ contacts with Florida.” See Pl.’s
Resp. (ECF No. 31) at 2. For the reasons that follow, the Court finds that it lacks personal
jurisdiction over the Excursion Entities.
1.
Applicable Law Governing Personal Jurisdiction
“Because federal courts ordinarily follow state law in determining the bounds of their
jurisdiction over persons . . . a federal court sitting in Florida must conduct a two-step inquiry to
3
This argument is a nonstarter. Thompson is not a party to the shore excursion contract
between Kantours and Carnival and thus cannot enforce the conferral of jurisdiction clause. See
Meyer v. Carnival Corp., 938 F. Supp. 2d 1251, 1256–57 (S.D. Fla. 2013) (finding that a
“conferral of jurisdiction clause” contained within a “Standard Excursion Contract” was “not
dispositive of the issue of personal jurisdiction” where plaintiff was “not a party to said
contract”). Moreover, “a clause conferring personal jurisdiction may not be enforced unless
independent grounds for personal jurisdiction exist under Florida’s long-arm statute.” Aronson
v. Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1390 n.3 (S.D. Fla. 2014) (citing Alexander
Proudfoot Co. World Headquarters v. Thayer, 877 F.2d 912, 918 (11th Cir. 1989)). As
discussed more fully in the remainder of this Order, the Court has no independent basis to assert
jurisdiction over the Excursion Entities.
3
determine whether it has personal jurisdiction over a non-resident defendant.” Atmos Nation
LLC v. Alibaba Grp. Holding Ltd., No. 0:15-CV-62104-KMM, 2016 WL 1028332, at *2 (S.D.
Fla. Mar. 15, 2016) (citing Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014)). The first
inquiry for a federal court, whether sitting in diversity or admiralty, is to look to the long-arm
statue of the state—here Florida—and the cases interpreting that statute. Tarasewicz v. Royal
Caribbean Cruises Ltd., No. 14-CIV-60885, 2015 WL 3970546, at *18 (S.D. Fla. June 30,
2015). Second, the court must determine whether the exercise of personal jurisdiction “would
violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.” Louis
Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013).
Although
“determining whether jurisdiction is appropriate under Florida’s Long–Arm Statute is a separate
inquiry from determining whether exercising personal jurisdiction comports with the Due
Process Clause” it is clear that the constitutional requirements are “more restrictive.” Melgarejo
v. Pycsa Panama, S.A., 537 F. App’x 852, 859 (11th Cir. 2013) (quoting Internet Sols. Corp. v.
Marshall, 39 So. 3d 1201, 1207 (Fla. 2010)).
Pursuant to Florida’s long-arm statute a non-resident defendant can be subject to personal
jurisdiction in two ways. First, a Florida court can exercise general personal jurisdiction—that
is, jurisdiction over any claims against a defendant, whether they involve the defendant’s
activities in Florida—if the defendant engages in “substantial and not isolated activity” in
Florida. Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir. 2015) (quoting
Fla. Stat. § 48.193(2)). Second, a Florida court can exercise specific personal jurisdiction—that
is, jurisdiction over suits that arise out of or relate to a defendant’s contacts with Florida––if the
claim asserted against the defendant arises from the defendant’s contacts with Florida, and those
4
contacts fall within one of the enumerated categories set forth in section 48.193(1)(a). Schulman
v. Inst. for Shipboard Educ., 624 F. App’x 1002, 1004–05 (11th Cir. 2015).
Thompson only alleges that the Court has general jurisdiction over the Excursion
Entities. With respect to general jurisdiction, Florida’s long-arm statute is coextensive with the
“limits on personal jurisdiction imposed by the Due Process Clause.” Fraser v. Smith, 594 F.3d
842, 846 (11th Cir. 2010) (citing Woods v. Nova Companies Belize Ltd., 739 So. 2d 617, 620
(Fla. 4th DCA 1999)). Due process “requires that the defendant have minimum contacts with the
forum state and that the exercise of jurisdiction over the defendant does not offend ‘traditional
notions of fair play and substantial justice.’” Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d
1312, 1319 (11th Cir. 2004) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
An exercise of general jurisdiction comports with due process when a defendant’s contacts with
Florida are “so ‘continuous and systematic’ as to render [the defendant] essentially at home in
the forum state.” Daimler, 134 S. Ct. at 754 (quoting Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2851 (2011)).
The burden lies with the plaintiff to establish a prima facie case of personal jurisdiction
over a non-resident defendant. Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447
F.3d 1357, 1360 (11th Cir. 2006). When a defendant submits affidavits contesting jurisdiction,
the burden then shifts back to the plaintiff to produce evidence to support jurisdiction, unless
“the defendant’s affidavits contain only conclusory assertions that the defendant is not subject to
jurisdiction.” Louis Vuitton, 736 F.3d at 1350. A court must construe all reasonable inferences
in favor of the plaintiff when the parties have submitted conflicting evidence of jurisdiction.
Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). But, when the plaintiff offers no
competent evidence to the contrary, “a district court may find that the defendant’s unrebutted
5
denials [are] sufficient to negate plaintiff’s jurisdictional allegations.”
Zapata v. Royal
Caribbean Cruises, Ltd., No. 12-21897-CIV, 2013 WL 1100028, at *2 (S.D. Fla. Mar. 15, 2013)
(citing United Techs. Corp. v. Mazer, 556 F.3d 1260, 1280 (11th Cir. 2009)).
2.
The Court Lacks General Jurisdiction over the Excursion Entities
Because Thompson does not allege specific jurisdiction, the Court need only determine
whether general jurisdiction exists over the Excursion Entities. Given recent decisions by the
Supreme Court and the Eleventh Circuit the analysis of this issue practically ends before it
begins.
Regarding general jurisdiction, the Supreme Court recently made a sweeping declaration
“that only a limited set of affiliations with a forum will render a defendant amenable to allpurpose jurisdiction there.” Daimler, 134 S. Ct. at 760 (citing Goodyear, 131 S. Ct. at 2851). In
Daimler, the Court reinforced that there are two “paradigm bases” for asserting general
jurisdiction over a corporation: its place of incorporation and its principal place of business. Id.
at 759–60. The Court further determined that “a corporation’s operations in a forum other than
its formal place of incorporation or principal place of business” will be “so substantial and of
such a nature as to render the corporation at home in that State” only in “exceptional” cases. 4 Id.
at 761 n.19. Building off its decision in Goodyear, the Court rebuked the notion that a foreign
4
The Court offered up its decision in Perkins v. Benguet Consolidated Mining Co., 342 U.S.
437 (1952) as the “textbook case of general jurisdiction” that fit this rare exception. Daimler,
134 S. Ct. at 755 (quoting Goodyear, 131 S. Ct. at 2856). In Perkins, the defendant was a
Philippine mining corporation, sued in Ohio, whose operations were disrupted by the Japanese
occupation of the islands during World War II. Perkins, 342 U.S. at 447. As a result, the
president and general manager of the mining company relocated to his home in Ohio to continue
operating the business. Id. at 447–48. The Court found that it would not violate due process for
Ohio to adjudicate the controversy based on the president’s “continuous and systematic
supervision of the necessarily limited wartime activities of the company” in Ohio. Id. at 448.
6
corporation could be subject to general jurisdiction in every state where it “engages in a
substantial, continuous, and systematic course of business.” Daimler, 134 S. Ct. 760–61.
There is no dispute that the Excursion Entities’ place of incorporation and principal place
of business lie in St. Kitts. The question then is whether the Excursion Entities’ contacts with
Florida present the “exceptional” circumstance outlined in Daimler where the Excursion Entities
could be deemed “at home” in Florida. Id. at 761 n.19. One need look no further than the
Eleventh Circuit’s recent opinion in Carmouche to answer this question in the negative.
Carmouche involved a claim brought by a cruise ship passenger who was injured during
a shore excursion operated in Belize by a Panamanian-based corporation, Tamborlee. Id. at
1202–03. Accepting Plaintiff’s allegations as true, the Carmouche panel determined that:
Tamborlee’s connections with Florida are limited to having a Florida bank
account and two Florida addresses, one of which is a post-office box, purchasing
insurance from Florida companies, filing a financing statement with the Florida
Secretary of State, joining a non-profit trade organization based in Florida, and
consenting to the jurisdiction of the Southern District of Florida for all lawsuits
arising out of its agreements with Carnival.
Id. at 1204. Relying on Daimler, the Eleventh Circuit held that “[t]hese connections are not ‘so
substantial’ as to make this one those ‘exceptional’ cases in which a foreign corporation is ‘at
home’ in a forum other than its place of incorporation or principal place of business.” Id.
(quoting Daimler, 134 S. Ct. at 761 n.19). The Eleventh Circuit further opined that “[a] foreign
corporation cannot be subject to general jurisdiction in a forum unless the corporation’s activities
in the forum closely approximate the activities that ordinarily characterize a corporation’s place
of incorporation or principal place of business.” Id. at 1205.
Here, the Excursion Entities’ connections to Florida are fewer than those found
insufficient in Carmouche. Accepting as true Thompson’s allegations, the Excursion Entities’
jurisdictional ties to Florida are: (1) contractual relationships with Carnival and other cruise
7
lines; (2) Florida bank accounts; (3) a relationship with the Florida Caribbean Cruise
Association; (4) agreements to indemnify Carnival; and (5) a consent to jurisdiction in the
Southern District of Florida for any lawsuit that Carnival is a party to concerning the shore
excursion. In light of Carmouche, the Court would be hard-pressed to find that the Excursion
Entities are “at home” in Florida based on these contacts. 5 Daimler, 134 S. Ct. at 761.
Even in the pre-Daimler and Goodyear era, the Eleventh Circuit found similar
jurisdictional allegations insufficient to justify the exercise of general jurisdiction over a foreign
tour operator.
See Fraser, 594 F.3d at 847.
The Fraser defendant, a Turks and Caicos
commercial tour boat operator, possessed jurisdictional ties to Florida that consisted of: (1)
specifically targeting the United States for advertising, including the Florida market; (2)
numerous business relationships with companies based in the United States; (3) liability
insurance purchased through a Florida insurance agent; (4) sending an employee to train on boat
maintenance in Florida; and (5) the purchase of “about half its boats in Florida.” Id. at 845.
After considering the tour operator’s Florida contacts in the aggregate, the Eleventh Circuit held
that “the exercise of general personal jurisdiction over [the tour operator] under Florida’s longarm statute” was precluded by due process concerns. 6 Id. at 847.
5
Even if this Court were to apply the logic in Meyer, 938 F. Supp. 2d at 1262, and impute
Carnival’s Florida activities to the Excursion Entities under an agency theory, the Excursion
Entities’ cumulative contacts as alleged still fall well below the threshold necessary to assert
general jurisdiction. See e.g. Aronson, 30 F. Supp. 3d at 1390 n.4. Moreover, as discussed
further, this Circuit’s view of general jurisdiction through an agency lens is in doubt postDaimler. Id. at 1390; see also Daimler, 134 S. Ct. at 759 n.13 (reasoning that although agency
relationships are relevant to specific jurisdiction, “[i]t does not inevitably follow, however, that
similar reasoning applies to general jurisdiction”) (emphasis in original).
6
Other courts have found more substantial contacts than the ones alleged here insufficient for
jurisdictional purposes. See Aronson, 30 F. Supp. 3d at 1389; Zapata, 2013 WL 1100028, at *4.
8
The fact that Thompson’s counsel devotes six pages of its response brief to the personal
jurisdiction analysis—yet fails to cite to either Daimler or Carmouche—is inexplicable and
borderline malpractice.
The cases on which Thompson relies to suggest a more flexible
approach to general jurisdiction are each more than a decade old, easily distinguishable, and do
not comport with the cabined conception of general jurisdiction that now exists post-Daimler.
Specifically, Thompson relies on the Eleventh Circuit’s decision in Stubbs to argue that
Carnival’s extensive Florida contacts can be imputed to the Excursion Entities by virtue of their
agency relationship. Stubbs, 447 F.3d at 1361. This is a tendentious gloss on precedent that has
been previously rejected by another court in this District. In Lapidus, Judge Seitz held that
plaintiff’s argument for specific jurisdiction was unfounded because,
Plaintiff’s assertion that the Excursion Entities’ role as NCL’s subsidiary
establishes jurisdiction over the Excursion Entities misinterprets Stubbs v.
Wyndham Nassau Resort and Crystal Palace Casino, 447 F.3d 1357 (11th Cir.
2006) and Mei[e]r v. Sun Int’l Hotels, Ltd., 288 F.3d 1264 (11th Cir. 2002). In
those cases, the Eleventh Circuit held that a Florida subsidiary acting merely as an
agent of a non-resident parent company can subject the non-resident parent
company to the Court’s jurisdiction based on the subsidiary’s contacts with
Florida. By contrast here, Plaintiff seeks to subject the non-resident subsidiary
[Excursion Entities] to jurisdiction based on the parent company’s [NCL] contacts
with Florida.
Lapidus v. NCL Am. LLC, No. 12-21183-CIV, 2013 WL 646185, at *5 (S.D. Fla. Feb. 14, 2013).
Moreover, reliance on this line of cases to establish general jurisdiction on an agency theory is
dubious given the decisions in Daimler and Goodyear. Daimler, 134 S. Ct. at 760 (rejecting
Ninth Circuit’s agency theory, finding that it “appears to subject foreign corporations to general
jurisdiction whenever they have an in-state subsidiary or affiliate, an outcome that would sweep
beyond even the ‘sprawling view of general jurisdiction’ . . . rejected in Goodyear”) (quoting
Goodyear, 131 S. Ct. at 2856); see also Daimler, 134 S. Ct. at 773 (Sotomayor, J., concurring in
judgment) (questioning the vitality of Meier in wake of majority decision); Twinstar Partners,
9
LLC v. Diamond Aircraft Indus., Inc., No. 11-61684-CIV, 2014 WL 4102260, at *5 (S.D. Fla.
Aug. 18, 2014) (reasoning that the relationship between a Florida-based corporation and a
foreign corporation for which the Florida entity allegedly served as a “sales conduit” was not
“sufficient in light of Daimler and Goodyear to establish general jurisdiction on an agency
theory”).
This dramatic change 7 in the personal jurisdiction landscape was not lost on another court
in this District when faced with similar jurisdictional issues involving a foreign tour operator.
See Aronson, 30 F. Supp. 3d at 1390 (“With Meier and its progeny in doubt, this Court is not
inclined to confer general jurisdiction over [excursion operator] particularly where, as here,
[excursion operator’s] contacts with Florida are more attenuated than the contacts deemed
inadequate in Daimler.”). This Court is equally unconvinced that it could exercise general
jurisdiction over the Excursion Entities given this constricted framework. Post-Daimler, the
arguments proffered by Thompson’s counsel are simply “runnin’ against the wind.” 8
3.
The Court Cannot Exercise Jurisdiction Pursuant to Federal Rule of Civil
Procedure 4(k)(2).
In a last-ditch effort, Thompson alternatively asserts that the Court possesses jurisdiction
over the Excursion Entities pursuant to Federal Rule of Civil Procedure 4(k)(2). Rule 4(k)(2)—
the so-called federal long-arm statute—permits a federal court to aggregate a foreign defendant’s
7
See Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429, 432 (5th Cir. 2014) (recognizing that
under Daimler “[i]t is . . . incredibly difficult to establish general jurisdiction in a forum other
than the place of incorporation or principal place of business”); see also Alan M. Trammell, A
Tale of Two Jurisdictions, 68 Vand. L. Rev. 501, 521 (2015) (“The Court has left open only the
slimmest possibility that general jurisdiction might be permissible in a state that is the functional
equivalent of one of th[e] paradigm examples. While such an exception is theoretically possible,
the Court suggests that it will be the rarest of rarities.”).
8
Bob Seger & The Silver Bullet Band, Against the Wind, on Against the Wind (Capitol Records
1980).
10
nationwide contacts to allow for personal jurisdiction provided that two essential conditions are
met: “(1) plaintiff’s claims must arise under federal law; and (2) the exercise of jurisdiction must
be consistent with the Constitution and laws of the United States.” Fraser, 594 F.3d at 848–49
(internal quotation marks omitted). “The exercise of personal jurisdiction comports with due
process if the non-resident defendant has established ‘certain minimum contacts with the forum
such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.’” Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1220 (11th Cir.
2009) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).
For purposes of Rule 4(k)(2), the applicable forum for the minimum contacts analysis is the
United States as a whole. Id.
Since Thompson’s maritime tort claims arise under federal law, see Fraser, 594 F.3d at
849, the Court must determine whether the exercise of federal jurisdiction over the Excursion
Entities would comport with the Fifth Amendment’s Due Process Clause.
Because “the
language and policy considerations of the Due Process Clauses of the Fifth and Fourteenth
Amendments are virtually identical, decisions interpreting the Fourteenth Amendment’s Due
Process Clause guide us in determining what due process requires in the Fifth Amendment
jurisdictional context.” Oldfield, 558 F.3d at 1219 n.25; see also Fraser, 594 F.3d at 849.
Rule 4(k)(2) was implemented to fill a lacuna in “the enforcement of federal law in
international cases.” Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008) (citing
Fed. R. Civ. P. 4(k) advisory committee’s notes to 1993 amendments).
Yet, it is a rare
occurrence when a court invokes jurisdiction under the rule. The Ninth Circuit aptly elucidated
the infrequent employment of Rule 4(k)(2) as a basis for jurisdiction in 2007. See Holland Am.
Line Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 462 (9th Cir. 2007) (“Indeed, in the fourteen
11
years since Rule 4(k)(2) was enacted, none of our cases has countenanced jurisdiction under the
rule.”). In affirming the district court’s dismissal for lack of personal jurisdiction, the Ninth
Circuit noted that “[t]he few cases in which our sister circuits have concluded that Rule 4(k)(2)
conferred jurisdiction have involved defendants with much more extensive contacts to this
country.” Id. (citing Mwani v. bin Laden, 417 F.3d 1, 13 (D.C. Cir. 2005)).
For example, in Mwani, the D.C. Circuit held that Osama bin Laden and al Qaeda fell
within the jurisdictional confines of Rule 4(k)(2) because they “engaged in unabashedly
malignant actions directed at [and] felt in this forum.” Mwani, 417 F.3d at 13. The defendants’
nationwide contacts included ongoing conspiracies to attack the United States and efforts to
“bomb the United Nations, Federal Plaza, and the Lincoln and Holland Tunnels in New York.”
Id. Similarly, the Fifth Circuit affirmed the application of Rule 4(k)(2) when it found the
aggregate national contacts of an insurer “extensive.”
Adams v. Unione Mediterranea Di
Sicurta, 364 F.3d 646, 651 (5th Cir. 2004). There, the record indicated that the defendant insurer
had (1) “paid claims to numerous U.S. companies;” (2) “insured hundreds of shipments to the
United States;” and (3) “paid a number of individuals in the United States as claims adjusters,
surveyors, investigators and other representatives to enable it to conduct business in this
country.” Id.
This is not one of those uncommon cases. The Excursion Entities’ contacts with the
United States as a whole are simply too attenuated to support jurisdiction under Rule 4(k)(2).
Turning back to Fraser, the Eleventh Circuit determined that the tour boat operator’s nationwide
contacts “were no more continuous and systematic than the company’s activities in Florida.”
Fraser, 594 F.3d at 849. As a result, the Court held that exercising general jurisdiction over the
foreign-based corporation under Rule 4(k)(2) would offend due process. Id. at 850 (reasoning
12
that if the tour boat operator was “subject to general personal jurisdiction under Rule 4(k)(2)” it
would necessarily “imply that the company is amenable to suit everywhere in the United States
on any claim arising under federal law”).
Selling excursion tickets in the United States through Carnival’s website can be readily
identified as an “ordinary business activit[y]” that the Eleventh Circuit has determined is “far
from atypical for foreign corporations” and insufficient to warrant exercising general jurisdiction
under Rule 4(k)(2). Schulman, 624 F. App’x at 1006; see also Fraser, 594 F.3d at 850; Consol.
Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1294 (11th Cir. 2000).
It is certainly not a
connection to the United States that is “so substantial and of such a nature” as to make this one
of those “exceptional” cases in which a foreign corporation is “at home” in a forum other than its
place of incorporation or principal place of business. 9 Daimler, 134 S. Ct. at 761 n.19.
4.
Plaintiff is Not Entitled to Jurisdictional Discovery
Despite not submitting any evidence or affidavits supporting his jurisdictional
allegations, Thompson contends he is entitled to jurisdictional discovery to test “the veracity of
the statements made in the Excursion Entities’ affidavit.” Pl.’s Resp. (ECF No. 31) at 10.
However, Thompson’s request is procedurally improper. See United Techs., 556 F.3d at 1280–
81 (denying jurisdictional discovery where “plaintiff never formally moved the district court for
jurisdictional discovery, but, instead, buried such requests in its briefs as a proposed alternative
9
In the wake of the Supreme Court’s decision in Daimler, it appears unlikely that general
jurisdiction over a foreign defendant could ever be available under 4(k)(2). In Daimler, the
Supreme Court rejected as “unacceptably grasping” the notion that foreign corporations are
subject to general jurisdiction even if they engage in a “substantial, continuous, and systematic
course of business” in a given forum. Id. at 761–63. Applying this rationale to cases involving
maritime defendants, like the Excursion Entities and other foreign-based tour operators, these
recent legal developments undoubtedly “raise some large looming questions about the efficacy of
general jurisdiction under Rule 4(k)(2).” Laura Beck Knoll, Personal Jurisdiction over Maritime
Defendants: Daimler, Walden, and Rule 4(k)(2), 40 Tul. Mar. L.J. 103, 133 (2015).
13
to dismissing defendant on the state of the current record”). Even if he had properly requested
jurisdictional discovery, there exists “no genuine dispute on a material jurisdictional fact to
warrant jurisdictional discovery.” Peruyero v. Airbus S.A.S., 83 F. Supp. 3d 1283, 1290 (S.D.
Fla. 2014); see also Yepez v. Regent Seven Seas Cruises, No. 10-23920-CIV, 2011 WL 3439943,
at *1 (S.D. Fla. Aug. 5, 2011) (“[T]he failure of a plaintiff to investigate jurisdictional issues
prior to filing suit does not give rise to a genuine jurisdictional dispute.”).
Accordingly,
Thompson is foreclosed from pursuing jurisdictional discovery in an attempt to marshal facts
that he “should have had—but did not—before coming through the courthouse doors.” Lowery
v. Alabama Power Co., 483 F.3d 1184, 1216 (11th Cir. 2007).
B.
Carnival’s Motion to Dismiss for Failure to State a Claim
Carnival has also filed a motion to dismiss pursuant to Rule 12(b)(6). In response,
Thompson asserts that each of the four counts against Carnival have been sufficiently pleaded.
The Court will address each count in turn.
1.
Legal Standard
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
purpose of this requirement is “to give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Twombly, 550 U.S. at 555. When considering a motion to
dismiss, the court must accept all of the plaintiff’s allegations as true, construing them in the
light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008).
14
A complaint must also contain enough facts to indicate the presence of the required
elements. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). However, “[a]
pleading that offers ‘a formulaic recitation of elements of a cause of action will not do.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “[C]onclusory allegations, unwarranted
deductions of fact or legal conclusions masquerading as facts will not prevent dismissal.”
Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
2.
Plaintiff’s Negligence Claim Against Carnival
To state a negligence claim, “a plaintiff must allege that (1) the defendant had a duty to
protect the plaintiff from a particular injury; (2) the defendant breached that duty; (3) the breach
actually and proximately caused the plaintiff’s injury; and (4) the plaintiff suffered actual harm.”
Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012). “In a claim based on an
alleged tort occurring at an offshore location during the course of a cruise, federal maritime law
applies, just as it would for torts occurring on ships sailing in navigable waters.” Aronson, 30 F.
Supp. 3d at 1392.
It is well established that a cruise ship operator owes its passengers “the duty of
exercising reasonable care under the circumstances of each case.” Lugo v. Carnival Corp., No.
1:15-CV-21319-KMM, 2015 WL 9583280, at *3 (S.D. Fla. Dec. 31, 2015); see also Torres v.
Carnival Corp., No. 14-13721, 2015 WL 7351676, at *5 (11th Cir. Nov. 20, 2015) (citing
Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959)). This standard of
care “requires, as a prerequisite to imposing liability, that the carrier have had actual or
constructive notice of the risk-creating condition, at least where . . . the menace is one commonly
encountered on land and not clearly linked to nautical adventure.” Keefe v. Bahama Cruise Line,
Inc., 867 F.2d 1318, 1322 (11th Cir. 1989).
15
Once the passenger leaves the ship, a cruise ship operator “only owes its passengers a
duty to warn of known dangers in places where passengers are invited or reasonably expected to
visit.” Moseley v. Carnival Corp., No. 13-20416-CIV, 2013 WL 5913833, at *3 (S.D. Fla. Oct.
31, 2013) (citing Carlisle v. Ulysses Line Ltd., S.A., 475 So. 2d 248, 251 (Fla. 3d DCA 1985));
see also Chaparro, 693 F.3d at 1336 (recognizing that the rule from Carlisle is “consonant with
the federal maritime standard of ‘ordinary reasonable care under the circumstances’”); Aronson,
30 F. Supp. 3d at 1395 (“Thus, where cruise ship passengers are invitees or expected visitors at
offshore locations, a ship operator’s duty of care is limited to the duty to warn.”).
Carnival argues that the vast majority of Thompson’s negligence claims—some twentyfive alleged breaches of duty—are premised on duties not recognized under general maritime
law. See Compl. ¶ 32(a)–(y). For example, Thompson alleges that Carnival failed to: (1)
“provide a safe excursion,” id. ¶ 32(a); (2) adequately inspect and/or monitor the excursion, id.
¶¶ 32(b), (e), (h); (3) “regularly and adequately inspect and/or maintain the ATVs used for the
subject shore excursion,” id. ¶ 32(d); and (4) adequately instruct passengers on how to operate
ATVs and require the Excursion Entities to do so, id. ¶¶ 32(o), (p). Thompson, on the other
hand, contends that the aforementioned allegations—and others of a similar nature—merely
illustrate “the specific ways in which Carnival breached the duty of reasonable care owed to”
him. Pl.’s Resp. (ECF No. 28) at 7.
Carnival also argues that Thompson’s negligence claim is defective in two other respects.
First, Carnival argues that Thompson has failed to allege a sufficient factual basis for a failure to
warn claim. Second, Carnival asserts that Thompson has failed to plead a prima facie case for
negligent selection and retention. Thompson responds to these contentions by arguing that he
has pleaded sufficient factual allegations to support his failure to warn claim and the allegations
16
concerning the claim against Carnival for negligent selection and/or retention give Carnival fair
notice of what the claim is.
After reviewing the Complaint and the arguments offered by both parties, it is evident
that Thompson’s Complaint rests on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in
original)). In fact, a close analysis of the Complaint reveals it to be the embodiment of a “form
complaint that could be used by any passenger who was injured during any excursion, while on a
cruise” that another court has found glaringly deficient. 10 Zapata, 2013 WL 1296298, at *2. To
be clear, the Complaint does provide factual allegations of Thompson’s injury. Compl. ¶ 21.
However, the remainder of the Complaint is bereft of supporting facts and resembles the sort of
“unadorned, the-defendant-unlawfully-harmed-me accusation[s]” that Rule 8 seeks to prevent.
Iqbal, 556 U.S. at 678; see also Harding v. NCL (Bahamas) Ltd., 90 F. Supp. 3d 1305, 1308
(S.D. Fla. 2015).
For example, the allegations that Carnival failed to warn of the dangers present in the
shore excursion are conclusory and lack any factual support. To premise a negligence claim on a
breach of the duty to warn, Thompson must set forth factual allegations “showing that the cruise
line knew or should have known of any dangerous condition relating to the . . . excursion that
would give rise to a duty to warn.” Gayou v. Celebrity Cruises, Inc., No. 11-23359-CIV, 2012
WL 2049431, at *5 (S.D. Fla. June 5, 2012); see also Koens v. Royal Caribbean Cruises, Ltd.,
774 F. Supp. 2d 1215, 1220 (S.D. Fla. 2011). Thompson has not done so here.
10
The Court is concerned that advocacy in maritime tort cases has come to resemble an
automotive assembly line. Like automotive manufacturers mass producing one vehicle after
another, attorneys are churning out seemingly identical complaints. A complaint of this nature is
more jalopy than Jaguar.
17
Instead, Thompson broadly alleges that “Carnival knew of the foregoing conditions
causing the subject incident and did not correct them, or the conditions existed for a sufficient
length of time so that Carnival, in the exercise of reasonable care under the circumstances,
should have learned of them and corrected them.” Compl. ¶ 34. This mere “recitation of the
elements of a cause of action” will not suffice under Rule 8’s pleading standards. Twombly, 550
U.S. at 555; see also Rojas v. Carnival Corp., 93 F. Supp. 3d 1305, 1309 (S.D. Fla. 2015)
(dismissing failure to warn claim “[b]ecause Plaintiffs fail to allege sufficient factual matter to
state a negligence claim based on Defendant’s duty to warn”); Richards v. Carnival Corp., No.
14-23212-CIV, 2015 WL 1810622, at *3 (S.D. Fla. Apr. 21, 2015) (dismissing negligence claim
against Carnival where plaintiff “failed to provide a sufficient factual basis that demonstrates that
Carnival knew or should have known that the ATV excursion was not safe. Plaintiff alleges a
myriad of breaches; however, [plaintiff] has not pleaded facts that have adequately triggered
Carnival’s duty to warn”).
Equally deficient is Thompson’s speculative allegation that he “anticipates that discovery
will reveal that, prior to the Plaintiff’s incident, other cruise ship passengers were also injured
participating in the same shore excursion.” Compl. ¶ 34. Without factual support, this allegation
is insufficient to survive dismissal. Iqbal, 556 U.S. at 678-79 (“Rule 8 . . . does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.”); Belik v. Carlson
Travel Grp., Inc., 864 F. Supp. 2d 1302, 1314 (S.D. Fla. 2011) (“Plaintiff’s attempt to reverse the
logical sequence in litigation—claim first, discovery later—is unavailing.”); see also Lazarre v.
JPMorgan Chase Bank, N.A., 780 F. Supp. 2d 1320, 1329 n.16 (S.D. Fla. 2011) (noting that
discovery under the Federal Rules of Civil Procedure “is intended to narrow the scope of the
issues and prevent surprise at trial; it is not intended to allow a plaintiff to go on a fishing
18
expedition to see if the speculative complaint that he filed has any basis in fact”) (internal
quotation omitted).
To the extent that the Complaint asserts a claim for negligent hiring and retention of an
independent contractor, that claim also lacks the requisite factual allegations necessary to survive
dismissal. To adequately plead such a claim, Thompson must allege that the excursion operator
“was incompetent or unfit to perform the work, that [Carnival] knew or reasonably should have
known of the particular incompetence or unfitness, and that such incompetence or unfitness
proximately caused his injuries.” Gayou, 2012 WL 2049431, at *5. Thompson’s Complaint is
materially wanting in relevant facts to sustain this claim. Id. (holding that plaintiff had “not
sufficiently alleged a negligent hiring or retention claim” when the operative complaint was not
“supported by any relevant facts”); see also Zapata, 2013 WL 1296298, at *4 (dismissing
negligent hiring or retention claim where complaint did “not provide any facts to support the
allegation that [cruise line] knew or should have known that the . . . excursion was unsafe”).
The Court now turns to the issue of whether Thompson is attempting to impose
heightened duties of care on Carnival that are inconsistent with general maritime law. This issue
has been bandied about the Southern District of Florida over the past several years. Some courts
have opted not to dismiss claims beyond the duty to warn in “line-item fashion.” Pucci v.
Carnival Corp., No. 15-22241-CIV, 2015 WL 7272764, at *3 (S.D. Fla. Nov. 18, 2015); Gayou,
2012 WL 2049431, at *6 (citing Holguin v. Celebrity Cruises, Inc., No. 10-20215-CIV, 2010
WL 1837808, at *1 (S.D. Fla. May 4, 2010)); McLaren v. Celebrity Cruises, Inc., 2012 WL
1792632, at *5 (S.D. Fla. May 16, 2012). Others have struck attempts to impose heightened
duties beyond the duty to warn of known dangers in known settings. Moseley v. Carnival Corp.,
No. 13-20416-CIV, 2013 WL 5913833, at *3 (S.D. Fla. Oct. 31, 2013); Joseph v. Carnival
19
Corp., No. 11-20221-CIV, 2011 WL 3022555, at *3 (S.D. Fla. July 22, 2011); Koens, 774 F.
Supp. 2d at 1220. The Court finds the latter the more prudent approach to take here. Otherwise,
the imposition of heightened duties would effectively render cruise line operators like Carnival
the all-purpose insurers of their passengers’ safety. Kornberg v. Carnival Cruise Lines, Inc., 741
F.2d 1332, 1334 (11th Cir. 1984); Weiner v. Carnival Cruise Lines, No. 11-CV-22516, 2012 WL
5199604, at *2 (S.D. Fla. Oct. 22, 2012); Joseph, 2011 WL 3022555, at *2 (“A cruise ship
owner or operator . . . is not an insurer of its passengers’ safety.”). Thompson’s negligence count
is therefore dismissed without prejudice.
3.
Plaintiff’s Apparent Agency/Agency by Estoppel Claim Against Carnival
Count III of the Complaint alleges that Carnival is liable for the negligence of the
Excursion Entities under a theory of apparent agency or agency by estoppel. As an initial matter,
apparent agency and agency by estoppel are not independent causes of action, but instead
different theories of negligence liability. See Barabe v. Apax Partners Europe Managers, Ltd.,
359 F. App’x 82, 84 (11th Cir. 2009); see also Franza v. Royal Caribbean Cruises, Ltd., 772
F.3d 1225, 1249 (11th Cir. 2014) (“Plainly, actual agency and apparent agency are distinct
theories of liability.”). “Thus, to hold a principal liable for the negligence of an apparent agent, a
plaintiff must sufficiently allege the elements of apparent agency in addition to the elements of
the underlying negligent act of the agent for which the plaintiff seeks to hold the principal
liable.” Rojas, 93 F. Supp. 3d at 1311.
In order to state a claim of apparent agency11, a plaintiff must allege that: “1) the alleged
principal makes some sort of manifestation causing a third party to believe that the alleged agent
11
“In Florida, agency by estoppel is nearly the same as apparent agency.” Belik, 864 F. Supp.
2d at 1312. Accordingly, courts of the Eleventh Circuit do not consider the two theories
20
had authority to act for the benefit of the principal; 2) that such belief was reasonable; and 3) that
the claimant reasonably acted on such belief to his or her detriment.” Aronson, 30 F. Supp. 3d at
1396 (citing Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1371 (S.D. Fla. 2005)).
Carnival argues that Thompson’s claim that Carnival is liable for negligence based on the
Excursion Entities’ alleged role as Carnival’s apparent agent must fail for two independent
reasons. First, Carnival asserts that Thompson’s lack of factual allegations of negligence warrant
dismissal of the claim. Second, Carnival insists that the Passenger Ticket Contract (“Ticket
Contract”) forecloses Thompson from pleading that he reasonably believed that Carnival and the
Excursion Entities were engaged in an agency relationship. Thompson counters by arguing that
the Ticket Contract is beyond the four corners of the Complaint and that the reasonableness of
his belief that the Excursion Entities were Carnival’s agents is a question of fact.
The Court need not turn to the Ticket Contract to see that Thompson has failed to state a
claim for apparent agency. As was the case with Thompson’s negligence claim against Carnival,
there is a dearth of facts to support the underlying negligence claim against the Excursion
Entities.
While Thompson lists numerous ways that the Excursion Entities violated the
reasonable standard of care, there are no factual allegations linking those alleged failures to his
injury, and thus this apparent agency claim cannot stand. See Flaherty v. Royal Caribbean
Cruises, Ltd., No. 15-22295, 2015 WL 8227674, at *6 (S.D. Fla. Dec. 7, 2015) (dismissing
apparent agency claim because “[t]here are no facts” in operative complaint “which demonstrate
what proximately caused Plaintiff’s injuries”); Rojas, 93 F. Supp. 3d at 1311; Zapata, 2013 WL
1296298, at *5 (dismissing apparent agency claim where plaintiff failed to sufficiently allege
facts of an underlying negligence claim). Accordingly, Count III is dismissed without prejudice.
separately. Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d 1067, 1078 n.15 (11th Cir.
2003).
21
4.
Plaintiff’s Joint Venture Claim
Although there is no cause of action for joint venture, Ash, 2014 WL 6682514, at *8, it is
clear from a review of the Complaint that Thompson is once again advancing an alternative
theory for negligence liability in Count IV. Carnival argues that Thompson’s joint venture
theory of liability must be dismissed because the Tour Operator Agreement (“Agreement”) (ECF
No. 19–4) between Carnival and the Excursion Entities expressly states that the parties are not
joint venturers. As a result, Carnival asserts that Thompson has no factual basis on which to
plead intent. Thompson again responds that the Agreement is beyond the four corners of the
Complaint and thus should not be considered by the Court at this stage of the litigation.
Alternatively, Thompson argues that the contractual provisions of the Agreement “create a
question of fact for the jury to determine whether or not the parties intended to form a joint
venture.” See Pl.’s. Resp. (ECF No. 28) at 23.
A joint venture theory of negligence liability requires a plaintiff to plead the following
five elements: “(1) a community of interest in the performance of a common purpose; (2) joint
control or right of control; (3) a joint proprietary interest in the subject matter; (4) a right to share
in the profits; and (5) a duty to share in any losses which may be sustained.” Fojtasek v. NCL
(Bahamas) Ltd., 613 F. Supp. 2d 1351, 1357 (S.D. Fla. 2009).
Putting aside the Agreement, a review of the Complaint highlights that Thompson has not
sufficiently alleged that Carnival and the Excursion Entities were engaged in a joint venture. On
the element of intent, the Complaint alleges that Carnival and the Excursion Entities entered into
an agreement where Carnival would sell the excursion to its passengers and the Excursion
Entities would operate it. Compl. ¶ 52. At this stage, this allegation of intent is adequately pled.
See Aronson, 30 F. Supp. 3d at 1398. However, Plaintiff has alleged in a conclusory manner
22
that Carnival and the Excursion Entities shared profits and losses. Compl. ¶ 58. The remaining
elements of joint venture are sufficient to state a claim for relief if Thompson can cure the
deficiencies in this Count in addition to adequately re-pleading the negligence claim (Count I).
See Lapidus v. NCL Am. LLC, No. 12-21183-CIV, 2012 WL 2193055, at *6 (S.D. Fla. June 14,
2012). Accordingly, Count IV is dismissed without prejudice.
5.
Plaintiff’s Third Party Beneficiary Claim (Count V)
Count V alleges that Thompson was a third-party beneficiary of an agreement between
Carnival and the Excursion Entities. Carnival argues that Thompson has failed to sufficiently
plead the required elements of the claim—namely intent—and thus the claim fails as a matter of
law.
The elements of claim for breach of a third-party beneficiary contract are as follows:
(1) the existence of a contract to which Plaintiff is not a party; (2) an intent, either
expressed by the parties, or in the provisions of the contract, that the contract
primarily and directly benefit Plaintiff; (3) breach of that contract by one of the
parties; and (4) damages to Plaintiff resulting from the breach.
Aronson, 30 F. Supp. 3d at 1398 (citation omitted). In order for a third-party to have a legally
enforceable right under the contract, the benefit to the third-party must be the “direct and primary
object of the contracting parties.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir.
2005); see also Wolf v. Celebrity Cruises, Inc., 101 F. Supp. 3d 1298, 1311 (S.D. Fla. 2015). Put
another way, “[t]he contracting parties’ intent to benefit the third party must be mutual, specific,
and clearly expressed in order to endow a third-party beneficiary with a legally enforceable
right.” Hawaiian Airlines, Inc. v. AAR Aircraft Servs., Inc., No. 1:14-CV-20560-KMM, 2016
WL 867116, at *5 (S.D. Fla. Mar. 7, 2016); see also Aronson, 30 F. Supp. 3d at 1398 (noting that
an “‘incidental or consequential benefit’ to a third party is insufficient to state a claim”).
23
Thompson alleges that Carnival and the Excursion Entities entered into a contract that
“primarily and directly benefit[s]” him “by requiring the Excursion Entities to maintain
insurance and/or exercise reasonable care in the operation of the subject shore excursion.”
Compl. ¶ 21. These exact or similar allegations have been asserted by Thompson’s counsel on
several previous occasions and all have been soundly rejected. See Finkelstein v. Carnival
Corporation, 1:14-cv-24005-UU (S.D. Fla. Jan. 20, 2015); Ash, 2014 WL 6682514, at *10;
Aronson, 30 F. Supp. 3d at 1398. Undeterred by these previous failures—and perhaps embracing
the spirit of Shakespeare—Thompson’s counsel charges “[o]nce more unto the breach, dear
friends, once more.” William Shakespeare, King Henry the Fifth, Act III, Sc. 1, 1.1 (1600). Like
those previous outcomes, Thompson’s third-party beneficiary claim fails here as the allegations
in the Complaint fail to nudge the claim “across the line from conceivable to plausible.”
Twombly, 550 U.S. at 547.
Accordingly, Count V is dismissed without prejudice because it fails to plead factual
allegations that “raise a right to relief above the speculative level.” Id. at 555.
III.
CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that
1.
Defendants Delisle Walwyn & Co. Ltd. (“Delisle Walwyn”) and Vacation and
Tour Consultants (St. Kitts) Ltd. d/b/a Kantours a/k/a Kantours Destination Services
(“Kantours”) (collectively, the “Excursion Entities”) Motion to Dismiss (ECF No. 24) is
GRANTED.
2.
Plaintiff’s Complaint (ECF No. 1) as against the Excursion Entities is
DISMISSED WITH PREJUDICE. The Clerk of Court shall terminate those defendants from
this case.
24
3.
Defendant Carnival’s Motion to Dismiss (ECF No. 19) is GRANTED IN PART.
Counts I, III, IV, and V are DISMISSED WITHOUT PREJUDICE with leave to re-plead.
4.
Plaintiff shall file an Amended Complaint within ten days of the date of this
Order.
30th
DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of March, 2016.
Kevin Michael Moore
2016.03.30 11:02:26 -04'00'
________________________________
K. MICHAEL MOORE
CHIEF UNITED STATES DISTRICT JUDGE
c:
All counsel of record
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