Toruno Pineda v. Oceania Cruises Inc. et al

Filing 14

Order Remanding Case to State Court. Closing Case. The Clerk is directed to close this case and take all necessary steps to ensure the prompt remand of this matter and the transfer of this file back to the Circuit Court for the 11th Judicial Circu it in and for Miami-Dade County. All pending motions are denied as moot. Signed by Judge Robert N. Scola, Jr on 9/27/2017. (pes) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Julia Damaris Toruno Pineda,
Plaintiff,
v.
Oceania Cruises, Inc. and Nautica
Acquisition, LLC, Defendants.

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)
)
) Civil Action No. 17-20544-Civ-Scola
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)

Order Remanding Case
Plaintiff Julia Damaris Toruno Pineda, while a cabin stewardess aboard
the cruise-ship Nautica and in international waters, claims to have been
seriously injured when she slipped from an allegedly defective ladder,
descending from her bunk. (Compl., ECF No. 4-1, 3, ¶¶ 15, 27.) Toruno Pineda
initially filed suit, in state court under the savings to suitors clause of 28
U.S.C. § 1333(1), against Defendants Nautica Acquisition, LLC, the owner of
the Nautica, and Oceania Cruises, Inc., whom she alleges was her “borrowing
employer.” (Id. at ¶¶ 7, 10.) The Defendants, in turn, filed a notice of removal in
this Court, submitting that removal is proper because Toruno Pineda’s claims
are subject to an arbitration clause that falls under the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
(Def.’s Not. of Removal, ECF No. 1.) Since removing the case, the Defendants
have filed a motion asking the Court to, on the one hand, dismiss the case on
substantive grounds, and to compel the parties to arbitration, on the other.
(Defs.’ Mot., ECF No. 4.) Toruno Pineda responded, arguing that dismissal
would be improper and that her case should be remanded to state court
because her claims are not subject to arbitration. (Pl.’s Resp. and Mot., ECF
No. 10.) Because the Court finds the arbitration clause relied upon by the
Defendants inapplicable to Toruno Pineda’s claims, it concludes that subjectmatter jurisdiction is lacking and therefore remands this case back to state
court.
1. Factual Background and Procedural Framework
Following her fall in August 2013, Toruno Pineda was first treated
onboard and soon thereafter taken ashore for surgery. (Compl. at ¶ 28.) She
later received follow-up medical care upon her return to her home country of

Honduras. (Id. at ¶ 29.) However, the doctors there ended up removing the
wrong screws from her leg, ultimately leaving behind “a protruding and painful
screw which continues to require surgical removal.” (Id.) Due to her injuries,
Toruno Pineda continues to suffer not only leg pain from the screws, but also
ankle and lower-back pain as well. (Id. at ¶ 31.) In her complaint, which she
originally filed in state court in August 2016, Toruno Pineda asserts general
maritime claims for inadequate medical care; failure to provide maintenance
and cure; and unseaworthiness, against both Nautica and against Oceania. (Id.
at ¶¶ 7, 10, 35–70.)
The parties do not dispute that Toruno Pineda entered into an
employment agreement, the “Crew Agreement,” with staffing company and nonparty International Cruise Services, Inc. (Ex. B-1, ECF No. 4-3.) Toruno Pineda,
however, contends that, after being hired by ICS, and once she was on board
the Nautica, she was under the exclusive direction and control of Oceania and
became Oceania’s borrowed employee. (Compl. at ¶¶ 6, 13.) Nonetheless, the
Crew Agreement entered into by Toruno Pineda and ICS incorporates by
reference a collective bargaining agreement (“Collective Agreement,” Ex. B-2,
ECF No. 4-4) between ICS and the Union representing personnel like Toruno
Pineda. (Defs.’ Not. at ¶ 6.) The Collective Agreement includes a broad
arbitration agreement:
Grievances and disputes arising on the [relevant] vessel[] or
in connection with this Agreement which cannot be resolved
onboard or between the parties shall be referred to arbitration . . . .
....
Where a seafarer raises a grievance after leaving the vessel,
the grievance shall be referred to the Unions at Rome and the
Company at Miami, Florida and representatives of the parties shall
promptly confer to resolve the grievance or refer it to arbitration.
(Coll. Agmt. at Art. 26.) According to the Defendants, attached to the Collective
Agreement is a “Special Agreement for Cruise Vessels.” (Ex. B-2, ECF No. 4-4,
27–28.) By its terms, this Special Agreement is between ICS “in respect of the
MARSHALL ISLANDS flag ship NAUTICA” and the Union. (Id. at 4-4, 27.) ICS is
referred to in the Special Agreement as the “Company.” The agreement
represents that “the Company is the owner/agent/operator of the owner of the
[Nautica].” (Id.) Under this agreement, ICS, and ICS alone, agrees “to employ
each Seafarer in accordance with the [Collective Agreement].” The language
near the signature line for ICS reads as follows: “Signed by: [illegible signature]
the Company / on behalf of the Company who is duly authorised [sic] by the

owner of the Ship to sign on its behalf.” (Id. at 28.) Below the signature line,
Defendant Nautica Acquisition, LLC is listed as the owner of the vessel Nautica.
Based on these three agreements and the arbitration clause therein,
Nautica and Oceania removed this case, five months after its filing, submitting
that Toruno Pineda’s case falls under United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards. The Convention is a
“multi-lateral treaty that requires courts of a nation state to give effect to
private agreements to arbitrate and to enforce arbitration awards made in other
contracting states.” Thomas v. Carnival Corp., 573 F.3d 1113, 1116 (11th
Cir.2009). The Convention is enforced through the Federal Arbitration Act. 9
U.S.C. § 201, et seq. In accordance with the Convention, “[w]here the subject
matter of an action or proceeding pending in a State court relates to an
arbitration agreement or award falling under the Convention, . . . the
defendants may, at any time before the trial thereof, remove such action or
proceeding to the district court of the United States.” 9 U.S.C. § 205.
The Eleventh Circuit has described the following as the “four
jurisdictional prerequisites” that must be met under the Convention: (1) there
is an agreement in writing to arbitrate the dispute within the meaning of the
Convention; (2) the agreement provides for arbitration in the territory of a
Convention signatory; (3) the agreement arises out of a commercial legal
relationship; and (4) a party to the agreement is not an American citizen, or
that the commercial relationship has some reasonable relation with one or
more foreign states. Bautista v. Star Cruises, 396 F.3d 1289, 1294, 1295 n. 7
(11th Cir. 2005). Where these jurisdictional requirements are not met, removal
is improper. See Wexler v. Solemates Marine, Ltd., No. 16-CV-62704, 2017 WL
979212, at *3 (S.D. Fla. Mar. 14, 2017) (Bloom, J.) (“If . . . the arbitration
clause . . . is not applicable to some or all of the claims at issue, then the Court
does not have subject matter jurisdiction of those claims and those claims
must be remanded.”) Conversely, where these requirements are met, a “court
must enforce [the] agreement to arbitrate under the Convention.” See Ruiz v.
Carnival Corp., 754 F. Supp. 2d 1328, 1330 (S.D. Fla. 2010) (Cooke, J.).
Because the Court ultimately finds, as set forth below, that Toruno
Pineda’s claims against Nautica and Oceania, as set forth in her complaint, do
not “relate to an arbitration agreement . . . falling under the Convention,” it
finds subject-matter jurisdiction lacking and removal, therefore, to have been
improper.

2. Discussion
The parties’ dispute about whether Toruno Pineda’s claims relate to an
arbitration falling under the Convention, at its core, centers on whether Toruno
Pineda’s claims against Nautica and Oceania are subject to the arbitration
clause set forth in the Collective Agreement. The parties’ disagreement about
whether there is in fact an agreement to arbitrate the dispute hinges on
whether either Nautica or Oceania, as nonsignatories of any of the agreements
here at issue, can force Toruno Pineda to arbitrate her claims. The Defendants
argue that under principles of equitable estoppel, as well as the agency
relationship between ICS and Nautica, in addition to the parent-subsidiary
relationship between Nautica and Oceania, they may invoke the arbitration
clause despite being nonsignatories to the contract. The Court, however, finds
these principles inapplicable in this case and therefore finds that there is
indeed no agreement to arbitrate between Toruno Pineda and either Nautica or
Oceania.
A. Equitable Estoppel
As set forth by the Eleventh Circuit, equitable estoppel is available to
allow a nonsignatory to compel arbitration in two circumstances: (1) “when the
signatory to a written agreement containing an arbitration clause must rely on
the terms of the written agreement in asserting its claims against the
nonsignatory”; and (2) “when the signatory to the contract containing the
arbitration clause raises allegations of substantially interdependent and
concerted misconduct by both the nonsignatory and one or more of the
signatories to the contract.” MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942,
947 (11th Cir. 1999) (quotations and alterations omitted). Neither condition is
satisfied here.
To begin with, none of Toruno Pineda’s claims either directly or even
indirectly invokes the terms of any of the relevant agreements. The Defendants
fail to support their supposition that Toruno Pineda’s claims against Nautica
and Oceania “are intertwined with [her] Employment Contract with ICS and
inherently inseparable.” (Def.’s Mot. at 15.) While Toruno Pineda certainly
acknowledges in her complaint that ICS initially hired her to work on board the
Nautica, she maintains that once she was actually on board she became
exclusively Oceania’s borrowed employee. (Compl. at ¶¶ 6, 7, 16.) Her
complaint pointedly alleges that she “was never directly supervised by any
employee of International Cruise Services.” (Id. at ¶ 13.) Three of her counts are
lodged against Oceania, as Toruno Pineda’s borrowed employer and the other

three are directed against Nautica, as the owner of the ship. Ultimately, Toruno
Pineda has set forth her claims against the nonsignatory Defendants in such a
way that none of them rely on the written agreements at issue in this case. See
Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., 526 F.3d 38, 48 (1st Cir. 2008)
(compelling arbitration where plaintiff signatory’s claims against nonsignatory
defendants all derived from benefits the plaintiff alleged were due under its
agreement with signatory). Although claims of this type are addressed in the
Collective Agreement, which by it terms, the Defendants point out, requires the
signatory employer to provide medical care, it does not necessarily follow, as
the Defendants insist, that Toruno Pineda’s claims must therefore exclusively
spring from the agreement. Toruno Pineda’s complaint is clear: she bases her
claim of Defendants’ liability on: Oceania’s status as her borrowing employer
(e.g., Compl. at ¶¶ 7, 8, 23, 24, 32, 33, 36, 41); and Nautica’s status as the
vessel owner (e.g., id. at ¶¶ 10, 25, 26, 32, 33, 34, 54, 59, 68). Toruno Pineda
repeatedly emphasizes: her claims arise under general maritime law. Nothing
in her complaint “makes reference to” or “presumes the existence of” the
Collective Agreement. Gunson v. BMO Harris Bank, N.A., 43 F. Supp. 3d 1396,
1401 (S.D. Fla. 2014) (Scola, J.) (noting that “arbitration is appropriate when
the signatory’s claim against a non-signatory ‘makes reference to’ or ‘presumes
the existence of’ the agreement”) (quoting MS Dealer, 177 F.3d at 947).
Next, none of Toruno Pineda’s allegations implicates “substantially
interdependent and concerted misconduct” by both nonsignatories as well as
signatories. Unquestionably, Toruno Pineda does not allege any misconduct
against ICS, the signatory, at all. Instead, Toruno Pineda’s claims all assert
liability that is detached from and independent of any relationship or
connection either Defendant has with ICS. While the Defendants complain that
Toruno Pineda should be “estopped from avoiding arbitration” by selectively
filing suit only against nonsignatories, they have provided no support to
buttress their position. In fact, in each of the cases relied upon by the
Defendants, the plaintiffs all either included a signatory, in addition to
nonsignatories, as defendants or, at a minimum, alleged that the signatories
were co-conspirators in the alleged wrongdoing. E.g., MS Dealer, 177 F.3d at
945 (plaintiff filed suit against signatory car seller as well as nonsignatory cardealership operator and credit corporation, alleging all three colluded to
defraud her regarding her car’s service contract); Escobal v. Celebration Cruise
Operator, Inc., 482 F. App’x 475, 476 (11th Cir. 2012) (seaman sued both
cruise-operator signatory as well as cruise-line nonsignatory for claims related
to the same injury); Gunson, 43 F. Supp. 3d at 1403 (finding that, although

signatories were not named as defendants, the allegations of the complaint
“establish[ed] concerted misconduct” among the nonsignatory defendants and
non-party signatories); Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 374 (4th
Cir. 2012) (seaman’s claims against signatory ship employer and nonsignatory
charterer and ship owner/operator all arose out of the same occurrence and
incident); Khan v. Parsons Glob. Servs., Ltd., 480 F. Supp. 2d 327, 341 (D.D.C.
2007), rev’d on other grounds, 521 F.3d 421 (D.C. Cir. 2008) (signatory
employee and nonsignatory employee’s wife’s claims against signatory employer
and nonsignatory defendants all arose out of employment agreement).
In short, this is not a case where the Plaintiff is “trying to have her cake
and eat it too” by “using certain provisions of the contract to [her] benefit to
help establish [her] claim while also attempting to avoid the burdens of the
other provisions.” Gunson, 43 F. Supp. 3d at 1401. None of the Defendants’
proffered principles of equitable estoppel allow the Court to find an agreement
between Toruno Pineda and the nonsignatory Defendants to arbitrate Toruno
Pineda’s claims against either Oceania or Nautica.
B. Agency
The Defendants also argue that Nautica should be considered a signatory
to the agreement based on ICS’s status as agent for Nautica. (Defs.’ Mot. at 9.)
While it is certainly true that an agent has the authority to bind a principal
where the principal has granted the agent the power to do so, the Court does
not find that ICS actually did so in this case. See United States v.
Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991) (“An agent has ‘actual’
authority to bind the principal where the principal has specifically granted the
agent the power to do so.”)
Toruno Pineda entered into the Crew Agreement with ICS. That
agreement incorporates by reference the Collective Agreement which contains
the arbitration clause at issue in this case. The Collective Agreement itself was
entered into by ICS and the Union. Attached to the Collective Agreement is the
Special Agreement, in which Defendant Nautica is mentioned for the first time.
Defendant Nautica is identified in the Special Agreement as the owner of the
ship Nautica. One of the “whereas” clauses in the Special Agreement identifies
ICS as “the owner/agent/operator of the owner of the Ship.” (ECF No. 4-4, 27.)
While this clause could arguably establish an agency relationship between ICS
and Defendant Nautica, it doesn’t necessarily follow, simply from this
provision, that ICS in fact signed the Special Agreement on Nautica’s behalf.

Likewise, the language set forth in the area of the contract where ICS’s
representative signed the Special Agreement is similarly unhelpful in
establishing that ICS actually signed the agreement on Nautica’s behalf. The
signature line for ICS reads as follows: “Signed by: [illegible signature] the
Company / on behalf of the Company who is duly authorised [sic] by the owner
of the Ship to sign on its behalf.” (Id. at 28.) The “Company” is, earlier in the
agreement, defined only as ICS. The signature then, by the plain terms of the
agreement, is provided only on ICS’s behalf. While it is mentioned that ICS is
authorized to sign on behalf of Nautica, nowhere in the document is there an
indication that ICS is actually signing on Nautica’s behalf. Further, all of the
binding terms reference obligations that either the Union or ICS, not Nautica,
is specifically taking on, including ICS’s agreement to “employ each Seafarer in
accordance with the . . . terms of the . . . Collective Bargaining Agreement.” (Id.
at 27.) The Defendants are correct: an agent may indeed bind its principal. But
just because an agent can do such a thing does not mean that it did do such a
thing. Nowhere does the Special Agreement actually obligate Nautica to any of
the contract’s terms. In short, the Defendants’ declaration that “ICS executed
the contract as an agent of NAUTICA which owns the M/S Nautica” (Defs.’
Reply, ECF No. 12, 6) is unsupported.
Another exception to the general rule requiring a written arbitration
agreement between the parties “exists when, ‘under agency or related
principles, the relationship between the signatory and nonsignatory defendants
is sufficiently close that only by permitting the nonsignatory to invoke
arbitration may evisceration of the underlying arbitration agreement between
the signatories be avoided.’” MS Dealer, 177 F.3d at 947 (quoting Boyd v.
Homes of Legend, Inc., 981 F. Supp. 1423, 1432 (M.D. Ala.1997)). Even if the
Court assumes that this concept is applicable when the plaintiff sues only
nonsignatory defendants, and no signatory defendants, the Defendants have
failed to set forth any support to sustain a finding that the relationship
between ICS and either Nautica or Oceania is “sufficiently close” in this case.
Lastly, Oceania claims the right to compel arbitration based on its status
as Nautica’s parent company. Because the Court finds the arbitration clause is
inapplicable to Toruno Pineda’s claims against Nautica, Oceania’s attempt to
invoke arbitration, premised on Nautica’s ability to do so, fails as well.
3. Conclusion
Because the arbitration clause at issue in this case is inapplicable to
Toruno Pineda’s claims against the Defendants, the Court lacks subject matter

over this case under the Convention. The Court thus grants Toruno Pineda’s
motion to remand this case back to state court (ECF No. 10). Additionally,
because the court lacks subject-matter jurisdiction over this case, it declines to
consider the Defendants’ motion to dismiss and to compel arbitration. See
Wexler, No. 16-CV-62704, 2017 WL 979212, at *5 (“Without subject matter
jurisdiction over Plaintiff's claims against [the nonsignatory defendant] under
the Convention, the Court is precluded from considering the . . . Motion to
Dismiss.”).
This case is accordingly remanded to state court. The Clerk is directed to
close this case and take all necessary steps to ensure the prompt remand of
this matter and the transfer of this file back to the Circuit Court for the 11th
Judicial Circuit in and for Miami-Dade County. All pending motions are denied
as moot.
Done and ordered, at Miami, Florida, on September 27, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge