Giuliani v. NCL (BAHAMAS), LTD. et al

Filing 105

ORDER granting 43 Defendant Alaska X's Motion to Dismiss the Plaintiff's Amended Complaint for Lack of Personal Jurisdiction. Plaintiff Esterina Giuliani's claims against Defendant Alaska X in her 26 First Amended Complaint are DISMISSED without prejudice for lack of jurisdiction. Signed by Judge Darrin P. Gayles See attached document for full details. (jsi)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1:20-cv-22006-GAYLES/OTAZO-REYES
ESTERINA GIULIANI,
Plaintiff,
v.
NCL (BAHAMAS) LTD., a Bermuda
Company doing business as Norwegian
Cruise Line, ALASKA X, and XYZ
CORPORATION(S),
Defendants.
______________________________________/
ORDER
THIS CAUSE comes before the Court on Defendant Alaska X’s Motion to Dismiss the
Plaintiff’s Amended Complaint for Lack of Personal Jurisdiction (the “Motion”) [ECF No. 43].
The Court has considered the Motion and the record and is otherwise fully advised. For the reasons
that follow, the Motion is granted.
BACKGROUND 1
I.

Factual Background
This case arises from injuries Plaintiff Esterina Giuliani suffered during a horseback riding

excursion (the “shore excursion”) operated by Alaska X while Plaintiff was a passenger on the
NCL Bliss, a cruise ship operated by Defendant NCL (Bahamas) Ltd. (“NCL”). Plaintiff is a citizen

As the Court proceeds on a motion to dismiss, it accepts the allegations in Plaintiff’s First Amended Complaint as
true. See Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam).
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of the state of New York. NCL is a foreign entity with its principal place of business in Florida. 2
Alaska X is a corporation that exists under the laws of Alaska and maintains its principal place of
business in Alaska. See [ECF No. 43-1 at 1 ¶¶ 5, 7]. NCL and Alaska X entered into a Standard
Shore Excursion Agreement (the “Agreement”) for NCL to market and sell to its passengers shore
excursions provided by Alaska X in Skagway, Alaska. See [ECF No. 43-1]. Among the
Agreement’s provisions is a choice-of-law clause designating Florida law as the governing law
and subjecting the parties to the exclusive jurisdiction of the courts of Florida.
On July 6, 2019, Plaintiff booked and paid for Alaska X’s shore excursion through NCL’s
app that she would partake in during her trip on the NCL Bliss. See [ECF No. 26-1]. On August
28, 2019, while Plaintiff participated in the shore excursion, another participant’s horse provoked
Plaintiff’s horse and the horses began to fight. Plaintiff was thrown off her horse and landed on
the ground, resulting in severe injuries including multiple nondisplaced fractures of her hips and
pelvis, debilitating back pain, bursitis, hematoma, and labral tears. Plaintiff’s injuries were
worsened by the lack of appropriate medical care from the ship doctor on board the NCL Bliss.
II.

Procedural History
On May 13, 2020, Plaintiff filed her original Complaint against NCL and Alaska X. [ECF

No. 1]. On August 6, 2020, NCL filed a Motion to Dismiss the original Complaint. [ECF No. 23].
On August 20, 2020, Plaintiff filed her eleven-count First Amended Complaint against NCL and
Alaska X. [ECF No. 26]. On September 14, 2020, Alaska X filed the instant Motion, arguing that
the Court lacks specific personal jurisdiction, general personal jurisdiction, or jurisdiction under
Federal Rule of Civil Procedure 4(k)(2) over Alaska X. [ECF No. 43].

The Court notes that “NCL is a Bermuda company with its principal place of business in Florida.” Caron v. NCL
(Bahamas), Ltd., 910 F.3d 1359, 1365 (11th Cir. 2018).

2

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LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(2) provides that a defendant may move to dismiss a
claim against it for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). “A plaintiff seeking to
establish personal jurisdiction over a nonresident defendant ‘bears the initial burden of alleging in
the complaint sufficient facts to make out a prima facie case of jurisdiction.’” Louis Vuitton
Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (quoting United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). When the defendant submits evidence in support
of its challenge to personal jurisdiction, “the burden traditionally shifts back to the plaintiff to
produce evidence supporting jurisdiction.” Id. (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th
Cir. 1990)). “Where the plaintiff’s complaint and supporting evidence conflict with the defendant’s
affidavits, the court must construe all reasonable inferences in favor of the plaintiff,” Diamond
Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010) (citation
omitted), and still must “accept the facts alleged in the complaint as true, to the extent they are
uncontroverted by the defendant’s affidavits,” Madara, 916 F.2d at 1514.
A federal court sitting in diversity undertakes a two-step inquiry in determining whether
personal jurisdiction over a nonresident defendant exists. First, the court must determine whether
the exercise of jurisdiction is appropriate under the state long-arm statute. Second, the court must
determine whether exercising personal jurisdiction over the nonresident defendant violates the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. Mut. Serv. Ins.
Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). See also Associated Transp. Line,
Inc. v. Productos Fitosanitarios Proficol El Carmen, S.A., 197 F.3d 1070, 1072–74 (11th Cir.
1999) (applying the same analytical framework in a case brought under admiralty jurisdiction).
That is, the court must determine whether the nonresident defendant has such minimum contacts

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with the forum such that exercising personal jurisdiction does not offend traditional notions of fair
play and substantial justice. Mut. Serv. Ins. Co., 358 F.3d at 1319.
DISCUSSION
In its Motion, Alaska X argues that the Court cannot exercise personal jurisdiction over it,
relying on the Declaration of Erin Redington (the “Declaration”), Alaska X’s General Manager.
See [ECF No. 43-1]. First, Alaska X argues that specific personal jurisdiction does not exist
because it has not engaged in any activity in the state of Florida and because Plaintiff fails to allege
facts that establish a nexus between her causes of action and Alaska X’s alleged activities in
Florida. [ECF No. 43 at 2]. Second, Alaska X argues that general personal jurisdiction does not
exist because Alaska X does not have the necessary minimum contacts with the state of Florida.
Id. Third, Alaska X argues that personal jurisdiction cannot be established pursuant to Federal
Rule of Civil Procedure 4(k)(2). Id. at 3. The Court addresses each argument in turn.
I.

Florida’s Long-Arm Statute
Florida’s long-arm statute provides in pertinent part:
(1)(a) A person, whether or not a citizen or resident of this state, who personally or
through an agent does any of the acts enumerated in this subsection thereby submits
himself or herself . . . to the jurisdiction of the courts of this state . . . .
....
(2) A defendant who is engaged in substantial and not isolated activity within this
state, whether such activity is wholly interstate, intrastate, or otherwise, is subject
to the jurisdiction of the courts of this state, whether or not the claim arises from
that activity.

Fla. Stat. § 48.193(1)(a), (2). Under Florida’s long-arm statute, a defendant can thus be subject to
either: (1) specific personal jurisdiction—jurisdiction in suits arising out of or relating to the
defendant’s contact with Florida; or (2) general personal jurisdiction—jurisdiction over any claims
against a defendant, notwithstanding any connection vel non with Florida, if the defendant engages
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in “substantial and not isolated activity” in Florida. McCullough v. Royal Caribbean Cruises, Ltd.,
268 F. Supp. 3d 1336, 1343 (S.D. Fla. 2017) (quoting Fla. Stat. § 48.193(1)(a), (2)). “Irrespective
of the method, ‘Florida’s long-arm statute is to be strictly construed . . . [and] federal courts are
required to construe it as would the Florida Supreme Court.’” Serra-Cruz v. Carnival Corp., 400
F. Supp. 3d 1354, 1358 (S.D. Fla. 2019) (quoting Carmouche v. Carnival Corp., 36 F. Supp. 3d
1335, 1340 (S.D. Fla. 2014), aff’d sub nom. Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201
(11th Cir. 2015)). Alaska X argues that this Court has neither specific nor general personal
jurisdiction.
A.

Specific Personal Jurisdiction Pursuant to Florida Statute § 48.193(1)(a)

Specific personal jurisdiction “authorizes jurisdiction over causes of action arising from or
related to the defendant’s actions within Florida and concerns a nonresident defendant’s contacts
with Florida only as those contacts relate[] to the plaintiff’s cause of action.” Louis Vuitton
Malletier, S.A., 736 F.3d at 1352 (citing Oldfield v. Pueblo de Bahia Lora, S.A., 558 F.3d 1210,
1220 n.27 (11th Cir. 2009)). Alaska X argues that this Court cannot exercise specific personal
jurisdiction over it because Alaska X has not engaged in any activity within the state of Florida
and because Plaintiff fails to establish the requisite nexus between her causes of action and Alaska
X’s activities in Florida. [ECF No. 43 at 2]. Plaintiff does not—and cannot—allege that Alaska X
committed the tortious acts in Florida; rather, Plaintiff argues that specific personal jurisdiction
exists over Alaska X pursuant to Florida Statute § 48.193(1)(a)(4) and (9). [ECF No. 51 at 3]. The
Court finds that it cannot exercise specific personal jurisdiction over Alaska X.
1.

Florida Statute § 48.193(1)(a)(9)

In Florida, personal jurisdiction may be exercised over a defendant who enters “into a
contract that complies with [Florida Statute §] 685.102.” Fla. Stat. § 48.193(1)(a)(9). In order to

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determine whether jurisdiction is conferred under § 48.193(1)(a)(9), the Court must consider two
addition statutes—Florida Statute § 685.101 and § 685.102. First, Florida Statute § 685.102
provides in pertinent part:
Notwithstanding any law that limits the right of a person to maintain an action or
proceeding, any person may, to the extent permitted under the United States
Constitution, maintain in this state an action or proceeding against any person or
other entity residing or located outside this state, if the action or proceeding arises
out of or relates to any contract, agreement, or undertaking for which a choice of
the law of this state, in whole or in part, has been made pursuant to [Florida Statute
§] 685.101 and which contains a provision by which such person or other entity
residing or located outside this state agrees to submit to the jurisdiction of the courts
of this state.
Fla. Stat. § 685.102(1). Second, Florida Statute § 685.101 provides in pertinent part that:
The parties to any contract, agreement, or undertaking, . . . in consideration of or
relating to any obligation arising out of a transaction involving in the aggregate not
less than $250,000 . . . may, to the extent permitted under the United States
Constitution, agree that the law of this state will govern such contract, agreement,
or undertaking, . . . whether or not such contract, agreement, or undertaking bears
any relation to this state.
Fla. Stat. § 685.101(1). However, § 685.101 “does not apply to any contract, agreement, or
undertaking[:]”
[W]hich does not bear a substantial or reasonable relation to this state in which
every party is either or a combination of:
1. A resident and citizen of the United States, but not of this state; or
2. Incorporated or organized under the laws of another state and does not maintain
a place of business in this state.
Id. at (2)(a). Thus, personal jurisdiction may be established in Florida through a contract that: (1)
“include[s] a choice of law provision designating Florida Law as the governing law;” (2)
“include[s] a provision whereby the non-resident agrees to submit to the jurisdiction of the courts
of Florida;” (3) “involve[s] consideration of not less than $250,000;” (4) does “not violate the
United States Constitution;” and (5) “either bear[s] a substantial or reasonable relation to Florida
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or [has] at least one of the parties be a resident of Florida or incorporated under its laws.”
Jetbroadband WV, LLC v. MasTec N. Am., Inc., 13 So. 3d 159, 162 (Fla. 3d DCA 2009).
Plaintiff’s First Amended Complaint states that specific personal jurisdiction may be
exercised over Alaska X because “the contract between NCL and [Alaska X] meets all
requirements to satisfy a finding of specific jurisdiction under Florida Statute § 48.193(1)(a)(9).”
[ECF No. 26 at 2–3 ¶ 7]. Specifically, Plaintiff alleges that the Agreement:
(a) contains a choice-of-law clause designating Florida law as the governing law;
(b) contains a provision whereby [Alaska X] agree[s] to submit to the exclusive
jurisdiction of the courts of Florida; (c) involves consideration of not less than
$250,000 or relate[s] to an obligation arising out of a transaction involving in the
aggregate not less than $250,000; (d) does not violate the U.S. Constitution; and (e)
has at least one party of the contract that is a resident of Florida or incorporated
under the laws of Florida.
Id. 3 Such allegations would be sufficient for NCL—as a party to the Agreement—to establish
personal jurisdiction over Alaska X. See §§ 685.101 and 685.102, Florida Statutes. But Plaintiff is
not a signatory to the Agreement; rather, Plaintiff seeks to assert her claims under the Agreement
as a third-party beneficiary. [ECF No. 51 at 6].
To establish that she is a third-party beneficiary to the Agreement, Plaintiff must allege:
(1) “the existence of a contract to which Plaintiff is not a party;” (2) “an intent, either expressed
by the parties or in the provision 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

In her Response to the Motion, Plaintiff argues that the fifth requirement is met because “NCL maintains its principal
place of business in Florida . . . .” [ECF No. 51 at 4]. Plaintiff, however, misquotes Jetbroadband WV, LLC v. MasTec
N. Am., Inc., to suggest that the fifth requirement may be satisfied where a party is either incorporated under the laws
of Florida or maintains its principal place of business in Florida. See [ECF No. 51 at 4]. This is incorrect. “[A]s long
as one of the parties is a resident of Florida or incorporated under its laws, and the other statutory requirements are
met, sections 685.101–.102 operate irrespective of whether the underlying contract bears any relation to Florida and
notwithstanding any law to the contrary.” Jetbroadband WV, LLC, 13 So. 3d at 162 (emphasis added) (citations
omitted). Here, neither NCL nor Alaska X are incorporated in the state of Florida. [ECF No. 26 at 1 ¶¶ 2–3]; [ECF
No. 43-1 at 1 ¶ 6]. However, because NCL “bear[s] a substantial or reasonable relation to Florida,” the fifth
requirement is met. Jetbroadband WV, LLC, 13 So. 3d 162.

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from the breach.” Aronson v. Celebrity Cruises, Inc., 30 F. Supp. 3d 1279, 1398 (S.D. Fla. 2014)
(citing Lapidus v. NCL Am. LLC, 924 F. Supp. 2d 1352, 1360–61 (S.D. Fla. 2013)). When
determining whether a party is a third-party beneficiary to an agreement, “[t]he intent of the parties
is the key to determining whether a third party is an intended . . . or only an incidental beneficiary.”
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005) (citation omitted). See also id.
(noting that incidental beneficiaries “have no enforceable rights under a contract.” (citation and
internal quotation marks omitted)).
“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.’” Aronson, 30 F. Supp.
3d at 1398 (quoting Bochese, 405 F.3d at 982). Moreover, “the parties’ intent to benefit the third
party ‘must be specific and must be clearly expressed in the contract in order to endow the third
party beneficiary with a legally enforceable right,’ and ‘incidental or consequential benefit’ to a
third party is insufficient to sustain a claim.” Id. (quoting Bochese, 405 F.3d at 982); Serra-Cruz,
400 F. Supp. 3d at 1362 (“For a contract to intend to benefit a third party, such intent must be
specific and must be clearly expressed in the contract.” (quoting Heller v. Carnival Corp., 191 F.
Supp. 3d 1352, 1365 (S.D. Fla. 2016))). “Where the contract is designed solely for the benefit of
the formal parties thereto, a third person cannot maintain an action thereon, even though such third
person might derive some incidental or consequential benefit from its enforcement.” Synder v.
Royal Caribbean Cruises Ltd., --- F. Supp. 3d ---, No. 20-CIV-21429, 2021 WL 1920297, at *3
(S.D. Fla. May 13, 2021) (quoting Blu-J, Inc. v. Kemper C.P.A. Grp., 916 F.2d 637, 640 (11th Cir.
1990)).
The Court finds that Plaintiff fails to establish that she is a third-party beneficiary to the
Agreement such that personal jurisdiction can be exercised here over Alaska X pursuant to Florida

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Statute § 48.193(1)(a)(9). First, the language of the Agreement is clear that “[o]ther than as
expressly set forth herein, this Agreement shall not be deemed to provide third parties with any
remedy, claim, or right of action.” [ECF No. 43-1 at 13 ¶ 27]. See also Wolf v. Celebrity Cruises,
Inc., 683 F. App’x 786, 798 (11th Cir. 2017) (per curiam) (finding agreement with similar language
to expressly not benefit any third party); Synder, 2021 WL 1920297, at *3 (finding similar
language to not confer third-party beneficiary status on passenger). As has been said repeatedly in
this Circuit, “a plaintiff may not use the Agreement’s consent to jurisdiction clause via a meritless
third-party beneficiary claim to find jurisdiction over a foreign defendant in a personal injury
case[,] especially where, as here, the Agreement includes an express disclaimer of the existence of
third-party beneficiaries.” Johnson v. Royal Caribbean Cruises Ltd., 474 F. Supp. 3d 1260, 1267
(S.D. Fla. 2020) (quoting Serra-Cruz, 400 F. Supp. 3d at 1363).
Second, the Declaration makes clear that Alaska X “never entered into any contracts with
[NCL] (including the . . . Agreement) with the intent to primarily or directly benefit third parties,
including but not limited to, cruise ship passengers such as Plaintiff . . . .” [ECF No. 43-1 at
4 ¶ 40]. Plaintiff fails to offer evidence to rebut this declaration. See Storm v. Carnival Corp., No.
20-CIV-22227, 2020 WL 7415835, at *8 (S.D. Fla. Dec. 18, 2020) (noting the plaintiff’s failure
to rebut excursion company’s declaration). Additionally, contrary to what Plaintiff suggests,
“third-party beneficiary status is not created by the absence of an express disclaimer [in the
Agreement] to the contrary.” Serra-Cruz, 400 F. Supp. 3d at 1362.
Plaintiff describes the various provisions of the Agreement to argue that “Alaska X and
NCL expressly set forth in their contract that their contract is for the benefit of NCL’s passengers
. . . .” [ECF No. 51 at 8]. However, “[n]one of these purported provisions . . . supports a plausible
inference that the contract is intended to primarily and directly benefit [NCL’s] passengers

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generally, never mind [Plaintiff] . . . specifically. At most, any benefit conferred on [Plaintiff] is
merely incidental.” Zhang v. Royal Caribbean Cruises, Ltd., No. 19-CIV-20773, 2019 WL
8895223, at *6 (S.D. Fla. Nov. 15, 2019). See also Synder, 2021 WL 1920297, at *3 (finding that
“general duties and obligations do not support a plausible inference that the Agreement was
intended to primarily benefit [cruise operator’s] passengers; rather, they demonstrate [the
excursion company’s] intent to abide by adequate business standards in its relationship with [the
cruise operator]”); Serra-Cruz, 400 F. Supp. 3d at 1372–73 (finding that provisions of cruise
operator and excursion company’s agreement did not “sufficiently plead that the contract was
intended to primarily and directly benefit Plaintiff”). “Indeed, allegations that a contract requires
excursion operators to maintain insurance and exercise reasonable care, fail to satisfy the pleading
requirements because they do not clearly and specifically express a [d]efendant[’s] intent to
primarily and directly benefit a [p]laintiff[].” Zhang, 2019 WL 8895223, at *7 (alteration in
original) (citations and internal quotation marks omitted). Therefore, Alaska X cannot be subject
to the Court’s specific personal jurisdiction pursuant to Florida Statute § 48.193(1)(a)(9).
2.

Florida Statute § 48.193(1)(a)(4)

In Florida, personal jurisdiction may be exercised over a defendant who “[c]ontract[s] to
insure a person, property, or risk located within this state at the time of contracting.” Fla. Stat.
§ 48.193(1)(a)(4). Plaintiff’s First Amended Complaint states that specific personal jurisdiction
may be exercised over Alaska X because it “agreed to indemnify NCL for the claims made in this
Complaint,” [ECF No. 26 at 4 ¶ 8(f)], and “contract[ed] to insure a person or risk located within
the State of Florida at the time of contracting” with NCL, [ECF No. 26 at 5 ¶ 8(m)]. See also [ECF
No. 51 at 18] (“ALASKA X subjected itself to the jurisdiction of this Court by contracting to
insure NCL in the Agreement.” (citations omitted)).

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The Court finds that Plaintiff’s arguments based on Florida Statute § 48.193(1)(a)(4) are
also unavailing to establish specific personal jurisdiction over Alaska X. First, Plaintiff fails to
offer evidence that rebuts the Declaration, which states that Alaska X “has never entered into a
contract to insure any individual and/or entity within the State of Florida.” [ECF No. 43-1 at
2 ¶ 24]. See also Storm, 2020 WL 7415835, at *9 (finding claim brought under Florida Statute
§ 48.193(1)(a)(4) failed where Plaintiff failed to rebut defendant’s declaration). Second, Plaintiff’s
claims do not arise from the Agreement, a breach thereof, or any other contract. See Synder, 2021
WL 1920297, at *4; Storm, 2020 WL 7415835, at *9. Rather, Plaintiff’s claims arise from injuries
she suffered during a shore excursion in Skagway, Alaska. Therefore, Alaska X cannot be subject
to the Court’s specific personal jurisdiction pursuant to Florida Statute § 48.193(1)(a)(4).
3.

The Agreement’s Conferral-of-Jurisdiction Clause

The Court briefly notes that Plaintiff’s attempt to establish jurisdiction over Alaska X via
the “conferral-of-jurisdiction” clause in the Agreement is also unavailing. [ECF No. 51 at 1–2].
The Agreement states in relevant part that:
The Parties hereby irrevocably submit, in any suit, action or proceeding arising out
of or relating to this Agreement or any transaction contemplated hereby . . . , to the
exclusive jurisdiction of the United States District Court for the Southern District
of Florida or, if jurisdiction is not available therein, the jurisdiction of any court
located in Miami-Dade County, Florida, and waive any and all objections to such
jurisdiction or venue that they may have under the laws of any state or country,
including without limitation, any argument that jurisdiction, situs and/or venue are
inconvenient or otherwise improper.
[ECF No. 43-1 at 13 ¶ 23]. As previously noted, the Agreement also provides that “[o]ther than as
expressly set forth herein, this Agreement shall not be deemed to provide third parties with any
remedy, claim, or right of action.” Id. at 13 ¶ 27.
Plaintiff argues that Alaska X “has subjected itself to the jurisdiction of this Honorable
Court, both through application of Florida law, and by voluntarily waiving the right to raise
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personal jurisdiction as a defense in this case . . . .” [ECF No. 51 at 1]. The Court disagrees. As
noted earlier, “a plaintiff may not ‘use the Agreement’s consent to jurisdiction clause via a
meritless third-party beneficiary claim to find jurisdiction over a foreign defendant in a personal
injury case . . . .’” Johnson, 474 F. Supp. 3d at 1267 (quoting Serra-Cruz, 400 F. Supp. 3d at 1363).
Here, the Agreement’s consent-to-jurisdiction clause expressly limits its application to “any suit,
action or proceeding arising out of or relating to this Agreement or any transaction contemplated
hereby . . . .” [ECF No. 43-1 at 13 ¶ 23] (emphasis added). The clause does not expressly provide
for third-party claims. See Synder, 2021 WL 1920297, at *4. As Plaintiff is neither a party nor a
third-party beneficiary to the Agreement, she cannot avail herself to the Agreement’s consent-tojurisdiction provision. Id. See also Carmouche, 36 F. Supp. 3d at 1341 (“Plaintiff is not a party to
the shore excursion contract, and, therefore, may not be able to enforce the conferral of jurisdiction
clause.”). Moreover, Plaintiff’s claims “arise from an incident that occurred during a shore
excursion in [Skagway, Alaska]—not from the contractual relationship between” NCL and Alaska
X. Synder, 2021 WL 1920297, at *4. Therefore, the consent-to-jurisdiction does not confer specific
personal jurisdiction over Alaska X.
Because Plaintiff has not alleged that any tortious acts occurred in Florida and all her
arguments must fail, the Court finds that it cannot exercise specific personal jurisdiction over
Alaska X.
B.

General Personal Jurisdiction Pursuant to Florida Statute § 48.193(2)

Alaska X argues that general personal jurisdiction cannot be exercised over it because it
does not have any contacts with the state of Florida such that it would be “at home” in Florida.
[ECF No. 43 at 2]. In the First Amended Complaint, Plaintiff provides an extensive list of general
activities she alleges reflects Alaska X’s “general course of business activity in the State [of

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Florida] for pecuniary benefit.” [ECF No. 26 at 7 ¶ 16] (quoting Stubbs v. Wyndham Nassau Resort
& Crystal Palace Casino, 447 F.3d 1357, 1361 (11th Cir. 2006)). Plaintiff alleges that these
activities include: (1) maintaining at least one office in Florida; (2) reaching out to cruise lines in
Florida and establishing long term business partnerships with them; (3) contracting with cruise
lines in Florida to provide excursions to cruise line passengers; (4) entering into partnerships
and/or joint ventures with cruise lines in Florida to provide excursions to cruise line passengers;
(5) agreeing to insure and/or indemnify cruise lines in Florida; (6) deriving substantial revenues
from business with cruise lines in Florida; and (7) having a registered agent in Florida. Id. at
5–6 ¶ 10. Plaintiff argues that these activities are “the type of continuous and systematic general
business contact[s] with Florida that satisf[y] the requirements” of general personal jurisdiction
pursuant to Florida Statute § 48.193(2). Id. at 7 ¶ 16. The Court finds that it cannot exercise general
personal jurisdiction over Alaska X.
Because the reach of the general personal jurisdiction provisions of the Florida long-arm
statute is coextensive with the limits of the Due Process Clause, the Court need only determine
whether its exercise of general personal jurisdiction over Alaska X “would exceed constitutional
bounds.” Carmouche, 789 F.3d at 1204 (quoting Fraser v. Smith, 594 F.3d 842, 846 (11th Cir.
2010)); McCullough, 268 F. Supp. 3d at 1343. “The Due Process Clause permits personal
jurisdiction so long as the nonresident defendant has certain minimum contacts with the forum
such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial
justice.’” McCullough, 268 F. Supp. 3d at 1343 (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)). General personal jurisdiction may be exercised over a corporate defendant based
on its: (1) place of incorporation; or (2) principal place of business. Daimler AG v. Bauman, 571
U.S. 117, 137 (2014). To subject a corporate defendant to general personal jurisdiction in any other

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forum, the corporation’s affiliations with that forum must be “so ‘continuous and systematic’ as to
render [it] essentially at home” there. Id. at 138 (quoting Goodyear Dunlop Tires Operations, S.A.
v. Brown, 564 U.S. 915, 919 (2011)). See also McCullough, 268 F. Supp. 3d at 1344 (“In other
words, if the corporation does not act in the forum in such a way that the forum is regarded as
essentially equivalent to its place of incorporation or principal place of business, general [personal]
jurisdiction over a corporation would violate due process.”). This only occurs in “exceptional cases
. . . .” Daimler AG, 571 U.S. at 139 n.19.
“To establish whether a foreign defendant was engaged in ‘substantial and not isolated
activities’ in Florida, the defendant’s activities must be ‘considered collectively and show a general
course of business activity in the state for pecuniary benefit.’” Aronson, 30 F. Supp. 3d at 1386
(quoting Stubbs, 447 F.3d at 1361). See also Carmouche, 36 F. Supp. 3d at 1341 (“Florida courts
have interpreted ‘substantial and not isolated activity’ to mean ‘continuous and systematic general
business contact.’” (citation omitted)). This is a much higher threshold for a plaintiff than is
necessary to support specific personal jurisdiction. See Aronson, 30 F. Supp. 3d at 1386
(“[B]ecause general personal jurisdiction is based on contacts unrelated to the cause of action being
litigated, the due process requirements for general jurisdiction must be assessed under a stricter
standard than those for specific jurisdiction.” (citation and internal quotation marks omitted));
Storm, 2020 WL 7415835, at *9 (finding that conferral of general personal jurisdiction “presents
a much higher threshold than the contacts necessary to support specific jurisdiction”). Thus, a
foreign corporation’s contacts with the forum state:
[M]ust be so extensive to be tantamount to [a defendant] being constructively
present in the state to such a degree that it would be fundamentally fair to require it
to answer in [the forum state’s courts] in any litigation arising out of any transaction
or occurrence taking place anywhere in the world.

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Exhibit Icons, LLC v. XP Cos., LLC, 609 F. Supp. 2d 1282, 1295 (S.D. Fla. 2009) (alterations in
original) (quoting Baker v. Carnival Corp., No. 06-CIV-21527, 2006 WL 3360418, at *2 (S.D Fla.
Nov. 20, 2006)).
The Court finds that Alaska X’s activities do not “closely approximate the activities that
ordinarily characterize a corporation’s place of incorporation or principal place of business.”
Carmouche, 789 F.3d at 1205. Although Plaintiff alleges that Alaska X has direct contacts with
Florida, see [ECF No. 26 at 5–6 ¶ 10] (alleging that Alaska X maintains an office and registered
agent in Florida), the Declaration makes clear that Alaska X has never maintained an office,
registered agent, or any other direct connection to Florida, see, e.g., [ECF No. 43-1 at 2 ¶¶ 8, 13,
15–17, 20–21, & 23]. Yet again, Plaintiff fails to bring forth any evidence to rebut these statements.
See Zapata v. Royal Caribbean Cruises, Ltd., No. 12-CIV-21897, 2013 WL 1100028, at *2 (S.D.
Fla. Mar. 15, 2013) (“When a plaintiff proffers no competent evidence to establish jurisdiction in
opposition to the denials of the jurisdictional allegations contained in the defendant’s affidavit, a
district court may find that the defendant’s unrebutted denials [are] sufficient to negate the
plaintiff’s jurisdictional allegations.”).
Plaintiff also relies heavily on Alaska X’s indirect contacts with the state of Florida through
its relationship with NCL and other cruise operators. See [ECF No. 26 at 5–7 ¶¶ 11–17]. However,
district courts in this Circuit have repeatedly found similar indirect contacts to be insufficient to
confer general personal jurisdiction over an excursion company. See, e.g., Synder, 2021 WL
1920297, at *5; Moreno v. Carnival Corp., 488 F. Supp. 3d 1233, 1239 (S.D. Fla. 2020); Zhang,
2019 WL 8895223, at *9 (finding that plaintiff’s “allegations do not come anywhere close to being
the type of ‘exceptional case’ where a foreign corporation would be deemed to have met the
stringent ‘at home’ test for personal jurisdiction” (citation omitted)); Aronson, 30 F. Supp. 3d at

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1389–90 (finding excursion company’s indirect contacts to Florida through cruise operator
insufficient to establish general personal jurisdiction). Collectively considering Alaska X’s direct
and indirect contacts with Florida, Alaska X’s activities do not rise to the level of “substantial and
not isolated activities” that would confer general personal jurisdiction over it within the meaning
of Florida’s long-arm statute. See Aronson, 30 F. Supp. 3d at 1390. Therefore, the Court cannot
exercise general personal jurisdiction over Alaska X.
II.

Federal Rule of Civil Procedure 4(k)(2)
Alaska X also argues that it cannot be subjected to the Court’s jurisdiction pursuant to

Federal Rule of Civil Procedure 4(k)(2)—the so-called “national long-arm statute.” [ECF No. 43
at 19]. Although Plaintiff alleges in her First Amended Complaint that Alaska X is subject to the
Court’s jurisdiction pursuant to Rule 4(k)(2), see [ECF No. 26 at 5 ¶ 9], she fails to respond to
Alaska X’s arguments in its Motion. “When a party fails to respond to an argument or address a
claim in a responsive brief, such argument or claim can be deemed abandoned.” GolTV, Inc. v.
Fox Sports Latin Am. Ltd., 277 F. Supp. 3d 1301, 1311 n.7 (S.D. Fla. Sept. 19, 2017) (concluding
that plaintiff “conceded the point or else failed to carry [her] burden of substantiating the initial
jurisdictional allegations” when failing to respond to arguments). The Court briefly notes that
Plaintiff’s claim of personal jurisdiction over Alaska X pursuant to Rule 4(k)(2) would fail.
Rule 4(k)(2) provides that “serving a summons or filing a waiver of service establishes
personal jurisdiction over a defendant” for a claim that arises under federal law if: (1) “the
defendant is not subject to jurisdiction in any state’s courts of general jurisdiction;” and (2)
“exercising jurisdiction is consistent with the United States Constitution and laws.” Fed. R. Civ.
P. 4(k)(2). The Eleventh Circuit notes that:
Where . . . a defendant is not subject to the jurisdiction of the courts of general
jurisdiction of any one state, Rule 4(k)(2) permits a court to aggregate a foreign
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defendant’s nationwide contacts to allow for service of process provided that two
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.”
Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000) (quoting Fed. R. Civ. P.
4(k)(2)). However, “[i]n the wake of . . . Daimler, it appears unlikely that general jurisdiction over
a foreign defendant could ever be available under [Rule] 4(k)(2).” Thompson v. Carnival Corp.,
174 F. Supp. 3d 1327, 1338 n.9 (S.D. Fla. 2016) (discussing Daimler, 571 U.S. at 138–42).
As a threshold matter, Rule 4(k)(2) “is neither applicable nor relevant until a court finds
that a defendant is not subject to personal jurisdiction in the courts of any state.” Storm, 2020 WL
7415835, at *11. There is no indication that such a determination has been—or could be—made
as to Alaska X. Nonetheless, assuming arguendo that Plaintiff’s claims against Alaska X arise
under federal maritime law—a determination the Court has not yet made—“and looking, as the
Court must, at the United States as a whole as the applicable forum for the minimum contacts
analysis,” the Court finds that exercising jurisdiction over Alaska X would still offend due process.
McCullough, 268 F. Supp. 3d at 1351 (quoting Oldfield, 558 F. Supp. 3d at 1220). Plaintiff asserts
that Alaska X’s minimum contacts that establish personal jurisdiction pursuant to Rule 4(k)(2)
include “marketing, promoting, and selling tickets for its excursions in the United States directly
and/or through cruise lines as their agents located all over the United States.” [ECF No. 26 at
5 ¶ 9]. The Eleventh Circuit has already determined that selling excursion tickets in the United
States is the type of activity that is “‘far from atypical for foreign corporations’ and insufficient to
warrant exercising general jurisdiction under Rule 4(k)(2).” Storm, 2020 WL 7415835, at *12
(quoting Schulman v. Inst. for Shipboard Educ., 624 F. App’x 1002, 1006 (11th Cir. 2015) (per
curiam)). Moreover, Alaska X’s Agreement with NCL is simply insufficient to establish minimum
contacts with the state of Florida and “does not transform this case into one of the ‘exceptional’
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cases in which a foreign company could be considered ‘essentially at home’ in the United States.”
McCullough, 268 F. Supp. 3d at 1352 (quoting Daimler, 571 U.S. at 139 n.19). Therefore, the
Court cannot confer general personal jurisdiction over Alaska X pursuant to Federal Rule of Civil
Procedure 4(k)(2).
III.

Due Process and Minimum Contacts
Because there is no basis for exercising personal jurisdiction over Alaska X here, “the

Court need not address the second inquiry: whether the exercise of jurisdiction comports with due
process.” Moreno, 488 F. Supp. 3d at 1239 (citing Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209,
1214 (11th Cir. 1999) (per curiam)). This is because “the Due Process Clause ‘imposes a more
restrictive requirement than does Florida’s Long-Arm Statute.’” Carmouche, 36 F. Supp. 3d at
1344 (quoting Melgarejo v. Pycsa Panama, S.A., 537 F. App’x 852, 859 (11th Cir. 2013) (per
curiam)). Therefore, “finding a defendant is not subject to jurisdiction under Florida law means
that jurisdiction is also inappropriate under the Due Process Clause.” Serra-Cruz, 400 F. Supp. 3d
at 1363 (citation omitted).
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendant Alaska X’s Motion to Dismiss the Plaintiff’s Amended Complaint for
Lack of Personal Jurisdiction, [ECF No. 43], is GRANTED.

2.

Plaintiff Esterina Giuliani’s claims against Defendant Alaska X in her First
Amended Complaint, [ECF No. 26], are DISMISSED without prejudice for lack
of jurisdiction.

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3.

Defendant Alaska X is DISMISSED as a party to this action.

DONE AND ORDERED in Chambers at Miami, Florida, this 8th day of September, 2021.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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