Sarmiento Lopez v. CMI Leisure Management, Inc., et al

Filing 28

ORDER ON MOTION TO DISMISS. ORDER denying 11 Motion to Dismiss; denying 11 Motion to Dismiss for Failure to State a Claim; denying as moot 20 Motion to Stay. Signed by Judge Beth Bloom on 10/4/2021. See attached document for full details. (amb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-22001-BLOOM/Otazo-Reyes
MIGUEL ALFONSO SARMIENTO
LOPEZ, as Personal Representative of the
Estate of MIGUEL ANGEL
SARMIENTO BENEGAS,
Plaintiff,
v.
CMI LEISURE MANAGEMENT, INC.
and CRUISE MANAGEMENT
INTERNATIONAL, INC.,
Defendants.
__________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon CMI Leisure Management, Inc., and Cruise
Management International, Inc.’s (collectively, “Defendants”) Motion to Dismiss for Improper
Venue or in the Alternative Failure to State a Claim, ECF No. [11] (“Motion”). Plaintiff Miguel
Alfonso Sarmiento Lopez (“Plaintiff”) filed a Response in Opposition, ECF No. [16]
(“Response”), to which Defendants filed a Reply, ECF No. [17] (“Reply”). The Court has carefully
reviewed the Motion, the record in this case, the applicable law, and is otherwise fully advised.
For the reasons set forth below, the Motion is denied.
I.

BACKGROUND
On June 22, 2021, Plaintiff filed an Amended Complaint (“Complaint”). ECF No. [7]. The

Complaint asserts four counts: Defendant CMI Leisure Management, Inc.’s (“CMI Management”)
negligent failure to provide prompt, adequate, and appropriate medical care under the Jones Act,
46 U.S.C. § 30104 (“Count I”); CMI Management’s failure to provide prompt, adequate, and

Case No. 21-cv-22001-BLOOM/Otazo-Reyes
proper medical care under general maritime law and the Death on the High Seas Act (DOHSA),
46 U.S.C. § 30301 et seq. (“Count II”); Cruise Management International, Inc.’s (“CMI Inc.”)
vicarious liability under general maritime law for negligence in the treatment of the decedent
(“Count III”); and CMI Inc.’s direct negligence (“Count IV”). ECF No. [7].
According to the Complaint, the decedent Miguel Angel Sarmiento Banegas (“Sarmiento”)
was a Honduran citizen working aboard the MV World Odyssey (the “Vessel”). Id. ¶ 2. Defendant
CMI Management is a Florida corporation with its principal place of business in Miami-Dade
County. Id. ¶ 3. CMI Management was Sarmiento’s employer for Jones Act purposes. Id. ¶ 10.
CMI Management controlled all aspects of Sarmiento’s employment, including hiring him,
training him, assigning him tasks, supervising him, directing and monitoring his performance,
maintaining the right to transfer, discipline, and fire him, managing his medical needs aboard the
Vessel and shoreside, and handling all claims arising from his employment. Id. Defendant CMI
Inc. is a Florida corporation with its principal place of business in Miami-Dade County. Id. ¶ 4.
CMI Inc. managed the Vessel’s deck and engine departments, oversaw the total management of
the Vessel’s operational and financial services, employed the Vessel’s medical staff for the crew’s
medical care, provided medicines necessary for treatment of the crew, and maintained the Vessel’s
medicines. Id. ¶ 12.
In November 2019, Sarmiento began suffering from symptoms of malaria or a similar
disease while working on the Vessel. Id. ¶ 15. CMI Management, as Sarmiento’s employer, failed
to provide him with timely and proper medical care. Id. ¶ 17. CMI Inc., as the entity responsible
for managing the operation of the Vessel including medical care aboard the Vessel, failed to
properly provide for Sarmiento’s medical care. Id. ¶ 57. On or about November 19, 2019,
Sarmiento died of toxic shock resulting from his illness. Id. ¶ 17.

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On June 22, 2021, Plaintiff filed the Complaint. ECF No. [7]. On July 19, 2021, Defendants
filed the instant Motion and contend that, pursuant to a valid forum-selection clause in an
employment agreement (the “Agreement”) between Sarmiento and CMI Leisure, Ltd., a non-party
to the lawsuit, this action should be dismissed for improper venue. See id. at 1; ECF No. [11-1].
Specifically, Defendants argue that the forum-selection clause in the Agreement requires the
Bahamas to be the venue for all litigation related to Sarmiento’s employment. ECF No. [11] at 2.
Defendants also contend, in the alternative, that Plaintiff fails to state a claim upon which relief
can be granted because the choice-of-law clause in the Agreement mandates that Bahamian law,
not U.S. law, be applied to this case. Id. at 12. Because the Court finds that the Agreement may
not be considered at this stage in the proceedings, it concludes that Defendants’ Motion must be
denied.
II.

LEGAL STANDARD
1. Rule 12(b)(3) Motion for Improper Venue
Generally, venue in federal civil actions is governed by 28 U.S.C. § 1391. “Pursuant to

§ 1391(b), venue is proper in: (1) a judicial district in which any defendant resides, if all defendants
are residents of the state in which the district is located; (2) a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated; or (3) if there is no district in which an action may
otherwise be brought as provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.” TMJ Practice Mgmt.
Assocs., Inc. v. Curran, No. 16-81903-CIV, 2017 WL 3130421, at *3 (S.D. Fla. July 24, 2017). If
venue is improper, the district court “shall dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a).

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When a defendant moves to dismiss for improper venue under Rule 12(b)(3), the plaintiff
bears the burden of showing that the venue selected is proper. See Delong Equip. Co. v.
Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988) (explaining that the plaintiff
must make “only a prima facie showing of venue”); see also BP Prods. N. Am., Inc. v. Super Stop
79, Inc., 464 F. Supp. 2d 1253, 1256 (S.D. Fla. 2006). The court may consider facts outside the
complaint to determine whether venue is proper. See Wai v. Rainbow Holdings, 315 F. Supp. 2d
1261, 1268 (S.D. Fla. 2004). However, the United States Court of Appeals for the Eleventh Circuit
has established that, when considering facts outside the complaint, the court may only examine
documents that are: (1) referred to in the complaint; (2) central to the plaintiff’s claim; and (3) of
undisputed authenticity. See Roberts v. Carnival Corporation, 824 F. App’x 825, 826 (11th Cir.
2020); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (“A court may
consider only the complaint itself and any documents referred to in the complaint which are central
to the claims.”); Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A]
document outside the four corners of the complaint may still be considered if it is central to the
plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d
1125, 1135 (11th Cir. 2002)). In examining the record, the court must also draw all reasonable
inferences and resolve all factual conflicts in favor of the plaintiff. See Wai, 315 F. Supp. at 1268.
2. Rule 12(b)(6) Motion for Failure to State a Claim
A pleading in a civil action must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need
detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s

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pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). Nor can a complaint rest 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)).
“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.’” Id. (quoting Twombly, 550 U.S. at
570). When a defendant moves to dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6), the court must accept the plaintiff’s allegations as true and evaluate
all possible inferences derived from those facts in favor of the plaintiff. See American Marine
Tech, Inc. v. World Group Yachting, Inc., 418 F. Supp. 3d 1075, 1079 (S.D. Fla. 2019).
III.

DISCUSSION
Defendants argue that the Court should dismiss Plaintiff’s Complaint for improper venue

because of a forum-selection clause in the Agreement. ECF No. [11] at 2. Defendants contend, in
the alternative, that the Court should dismiss Plaintiff’s Complaint for failure to state a claim under
Bahamian law, which Defendants argue must be applied to this case due to a choice-of-law clause
in the Agreement. Id. at 12. Plaintiff responds that the Court cannot consider the Agreement
because Plaintiff did not reference the Agreement and because the Agreement is not central to
Plaintiff’s claims. ECF No. [16] at 3-7.
1. References in the Complaint
The Court must first determine whether the Agreement may be considered when deciding
a motion to dismiss. Because the Agreement is not within the “four corners of the complaint,”
Maxcess, Inc., 433 F.3d at 1340, the Court must apply the Eleventh Circuit’s test that limits courts
to examine only the documents that are: (1) referred to in the complaint; (2) central to the plaintiff’s
claim; and (3) of undisputed authenticity. See Roberts, 824 F. App’x at 826; Wilchombe, 555 F.3d

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at 959; Maxcess, Inc. 433 F.3d at 1340. In this case, it is apparent that the Agreement is not
referenced in the Complaint. ECF No. [7]. Defendants do not contend otherwise in their Motion
or Reply. ECF Nos. [11]; [17]. As such, Defendants’ contention that the Court should consider the
Agreement necessarily fails.
2. Centrality to Plaintiff’s Complaint
Even if the Agreement was referenced in the Complaint, the Court must then determine
whether the Agreement is central to Plaintiff’s claims. The Court finds that the Agreement is not
central to Plaintiff’s claims. See Roberts, 824 F. App’x at 826; Wilchombe, 555 F.3d at 959;
Maxcess, Inc. 433 F.3d at 1340. In this case, Plaintiff alleges two counts against CMI Management.
Plaintiff alleges CMI Management failed to provide Sarmiento prompt, adequate, and appropriate
medical care under the Jones Act (Count I) and under general maritime law and DOHSA
(Count II). ECF No. [7] ¶¶ 18-43. Plaintiff’s first claim against CMI Management requires CMI
Management to have been Sarmiento’s employer by assuming control over Sarmiento’s
employment, but the existence of a formal contract is not necessary. See Guidry v. South Lou.
Contr., Inc., 614 F.2d 447, 454 (5th Cir. 1980) (finding that for Jones Act purposes, as long as an
employer assumes control over the employee’s employment, the employee may bring a claim
against the employer under the Jones Act).1 The Complaint states that CMI Management controlled
all aspects of Sarmiento’s employment, including hiring him, training him, assigning him tasks,
supervising him, directing and monitoring his performance, maintaining the right to transfer,
discipline, and fire him, managing his medical needs aboard the Vessel and shoreside, and handling
all claims arising from his employment. ECF No. [7] ¶ 10. As such, the Court finds that CMI

1

Pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), opinions of the Fifth
Circuit issued prior to October 1, 1981, are binding precedent in the Eleventh Circuit.

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Management was Sarmiento’s employer for Jones Act purposes and that a formal employment
contract is not necessary or central to Plaintiff’s claims.
Furthermore, it is important to note that the Agreement was between Sarmiento and CMI
Leisure, Ltd., not Defendant CMI Management. It is not clear from the Complaint what type of
relationship, if any, CMI Leisure, Ltd. has with Defendant CMI Management. When considering
only the limited facts with which this Court must make a determination at this stage of the
proceedings, the Agreement between Plaintiff and a non-party to the lawsuit cannot be deemed to
be central to Plaintiff’s claims.
Plaintiff’s second claim based on general maritime law and DOHSA does not require an
employment relationship at all. DOHSA states, “[w]hen the death of an individual is caused by
wrongful act, neglect, or default occurring on the high seas beyond 3 nautical miles from the shore
of the United States, the personal representative of the decedent may bring a civil action in
admiralty against the person or vessel responsible.” 46 U.S.C. § 30302; see also Moyer v. Rederi,
645 F. Supp. 620, 626 (S.D. Fla. 1986) (finding that DOHSA applied to a passenger on a vessel).
An employment relationship is not a requisite element for the cause of action under DOHSA. See
id. As such, an employment agreement between Sarmiento and a non-party to the lawsuit is not
central to Plaintiff’s claims against CMI Management.
Plaintiff’s remaining two counts are against CMI Inc. for vicarious liability under general
maritime law for negligence in the treatment of the decedent (Count III) and direct negligence
(Count IV). ECF No. [7] ¶¶ 44-62. Plaintiff’s claims against CMI Inc. do not depend on an
employment relationship, but they are instead tort claims based on CMI Inc’s failure to meet its
general maritime duty of exercising reasonable care in the operation of the Vessel, particularly in
regard to the Vessel’s medical staff and pharmacy. See id. Sarmiento’s employment status is

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irrelevant to Plaintiff’s claims against CMI Inc. who is evidently not Sarmiento’s employer. See
ECF No. [7] ¶ 12; ECF No. [16] at 6-7. As such, the Agreement between Plaintiff and CMI Leisure,
Ltd., not Defendant CMI Inc., regarding Sarmiento’s employment is once again not central to
Plaintiff’s latter two claims against CMI Inc.
Defendants argue that the Agreement is central to Plaintiff’s claims because “but for” the
Agreement Sarmiento would not have been employed on the Vessel and his employment on the
Vessel led to the claims. ECF No. [17] at 1-2. While factually correct, this fact alone does not
make the Agreement central to Plaintiff’s Complaint. See Roberts, 824 Fed. App’x at 827 (finding
that but-for causation was not enough to make a contract central to the plaintiff’s claims). In
Roberts, the defendant argued, in a motion to dismiss for improper venue, that the court should
consider a ticket that was not included in the plaintiff’s complaint. Id. The defendant argued that
but-for the ticket, the plaintiff would not have been aboard the vessel where the plaintiff incurred
her injuries. Id. Thus, according to the defendant, the ticket was central to the plaintiff’s claims,
the ticket could be considered in a motion to dismiss, and the ticket’s forum-selection clause meant
that the venue was improper. Id. The Eleventh Circuit, however, rejected the defendant’s argument
and made clear that but-for causation was insufficient in making the ticket central to the plaintiff’s
claim. See id.
In the Reply, Defendants attempt to distinguish Roberts from the present case by simply
asserting that, because this case involves an employment contract and Roberts involved a
passenger ticket, the Court should not consider Roberts. ECF No. [17] at 1-2. However, Defendants
fail to elaborate on why a particular type of contract — a passenger ticket — should be treated
differently than another type of contract — an employment contract — when evaluating the
centrality of the contract to the claims at issue. See id. Given that the proposition underlying the

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defendant’s argument in Roberts and Defendants’ argument in this case is that but-for causation is
sufficient to establish centrality and given that the Eleventh Circuit has already found that but-for
causation is insufficient to establish centrality, Defendants’ argument fails. See Roberts, 824 Fed.
App’x at 827. As such, the Court cannot consider the Agreement in deciding Defendants’ Motion.
3. Merits of 12(b)(6) Motion without the Agreement
The Court must now evaluate Defendants’ improper venue argument without considering
the Agreement. Venue in federal civil actions is governed by 28 U.S.C. § 1391. “Pursuant to
§ 1391(b), venue is proper in: (1) a judicial district in which any defendant resides, if all defendants
are residents of the state in which the district is located; (2) a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated; or (3) if there is no district in which an action may
otherwise be brought as provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.” TMJ Practice Mgmt.
Assocs., 2017 WL 3130421, at *3. According to the Complaint, CMI Management and CMI Inc.
are both Florida corporations with principal places of business in Miami-Dade County. ECF No.
[7] ¶ 3-4. Because the United States District Court for the Southern District of Florida is the judicial
district in which Defendants reside, this Court finds that the venue is proper.
4. Merits of 12(b)(3) Motion without the Agreement
Defendants plead, in the alternative, that the choice-of-law clause in the Agreement
requires that Bahamian law be applied to this case. ECF No. [11] at 12. Defendants argue that
Plaintiff has failed to plead a cause of action under Bahamian law because Plaintiff relies on the
Jones Act and general maritime law in the United States. Id. at 12-13. However, as noted above,

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given that the Court cannot consider the Agreement, the Court chooses to apply U.S. law in this
case.
Accepting Plaintiff’s allegations as true and evaluating all possible inferences derived from
those facts in favor of Plaintiff, see American Marine Tech, Inc., 418 F. Supp. 3d at 1079, the
Court finds that the Complaint contains sufficient factual allegations to state a claim for relief
under U.S. law. See ECF No. [7]. As such, the Court finds that Plaintiff has properly stated claims
upon which relief can be granted.
Given this Court’s conclusion that the venue is proper and Plaintiff has stated claims upon
which relief can be granted, the Court finds that Defendants’ Motion must be denied.
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion to Dismiss with Prejudice, ECF No. [11], is DENIED.
2. Defendants’ Motion to Stay Discovery Pending Resolution of Motion to Dismiss,
ECF No. [20], is DENIED AS MOOT.
3. Defendant shall file an answer to the First Amended Complaint, ECF No. [7], no
later than October 18, 2021.
DONE AND ORDERED in Chambers at Miami, Florida, on October 4, 2021.

________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:

Counsel of Record
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