Martin v. Scenic Tours USA Inc.
ORDER: IT IS HEREBY ORDERED that Defendant's 10 Rule 12(b)(6) Motion to Dismiss is DENIED. Signed by Judge Nannette Jolivette Brown on 7/26/2017. (mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CASE NO. 16-15809
SCENIC TOURS (USA) INC.
This litigation arises out of Plaintiff Sharen Martin’s (“Plaintiff”) complaint against Scenic
Tours (USA) Inc. (“Defendant”), for injuries Plaintiff allegedly sustained while a passenger aboard
a vessel named the EMERALD STAR (“the vessel”).1 Pending before the Court is Defendant’s
“Rule 12(b)(6) Motion to Dismiss.”2 Having considered the motion, the memoranda in support
and in opposition, and the applicable law, the Court will deny the pending motion.
In this litigation, Plaintiff alleges that Defendant “owned and operated the ‘Emerald
Waterways’ brand and further provided European Riverboat cruises on its fleet of riverboats,
included the vessel.”3 Plaintiff further alleges that on October 27, 2015, while she was a passenger
aboard the vessel, she “was walking down a hallway onboard . . . when she was caused to trip and
fall by a stainless steel strip in the hallway flooring.”4 According to Plaintiff, “the area of steel
Rec. Doc. 1 at 1–2.
Rec. Doc. 10.
Rec. Doc. 1 at 1.
Id. at 2.
which caused the Plaintiff to fall was not clearly marked, nor did the Defendant provide any
warning or signage to alert passengers to this hazardous condition.”5As a result of this incident,
Plaintiff alleges that she “sustained injuries to her face, facial structure, nose, and right shoulder,
which have required plastic surgery and orthopedic surgical intervention(s) and continued medical
treatment.”6 Plaintiff further alleges that Defendant “through its agents, servants, employees, and
vessel operators negligently and/or carelessly failed to exercise reasonable care thereby causing
and/or contributing to the aforementioned accident.”7
On October 24, 2016, Plaintiff filed the complaint in this matter.8 On December 13, 2016,
Defendant filed the instant motion.9 Plaintiff filed an opposition to the motion on January 24,
2017.10 With leave of Court, Defendant filed a reply in further support of the motion on January
II. Parties’ Arguments
Defendant’s Arguments in Support of the Motion
In its motion, Defendant argues that this lawsuit was filed against the wrong defendant.12
Rec. Doc. 10.
Rec. Doc. 20.
Rec. Doc. 24.
Rec. Doc. 10-1 at 1.
Defendant asserts that the vessel is owned by MS Emerald Star AG.13 Defendant contends that
Plaintiff has no relationship with Defendant, contractual or otherwise, because Plaintiff booked
the cruise through Couples Cruise, LLC, (“Couples Cruise”) who chartered the vessel through a
contract (“charter contract”) with Scenic Tours Europe AG (“Scenic-Europe”). 14 Defendant
contends that all bookings of the cruise were made through Couples Cruise, and “Scenic Europe’s
only contact with the Cruise’s passengers was the receipt of a passenger list on or around the time
of embarkation.”15 In support of these assertions Defendant has filed a copy of the charter contract
and a declaration of Lucas Sandmeier, the General Manager of Operations and Administration for
Defendant notes that Plaintiff alleges that Defendant “negligently and/or carelessly failed
to exercise reasonable care” through its “agents, servants, employees, and vessel operators. . . .”17
However, Defendant contends that it did not have any “agents, servants, employees [or] vessel
operators” controlling the vessel because: (1) Defendant did not own or operate the vessel; and (2)
Plaintiff did not book the cruise through Defendant. 18 Moreover, Defendant contends that
Couples Cruise chartered the vessel from Scenic-Europe, and Defendant did not have a
Id. at 2 (citing Rec. Doc. 10-6). With leave of Court, Defendant filed the charter contract into the record
under seal. Rec. Doc. 19.
Id. (citing Rec. Doc. 10-3).
Id. (citing Rec. Docs. 10-3, 10-6). With leave of Court, Defendant filed the charter contract into the record
under seal. Rec. Doc. 19.
Rec. Doc. 10-1 at 4.
Id. (citing Rec. Doc. 10-3).
relationship with Couples Cruise.19 Accordingly, Defendant asserts that it should be dismissed
from this case because it is not the proper defendant in this action.20
Plaintiff’s Arguments in Opposition to the Motion
In opposition, Plaintiff asserts that “Emerald Waterways, the brand owned and operated by
[Defendant] according to Emerald Waterways Terms and Conditions, is the company whom
Plaintiff has submitted her medical bills, medical records, and documentation of injury.” 21
Moreover, Plaintiff argues that she has specifically alleged and pled acts of negligence against
Defendant, its agents, servants, employees, and vessel operators.22 Taking these allegations as
true, Plaintiff contends that she has stated a claim upon which relief may be granted.23 Therefore,
Plaintiff requests that Defendant’s motion be denied and discovery be allowed to commence to
determine the precise relationship between the entities that Defendant “argues are the true
defendants in this matter.”24
Plaintiff contends that a motion to dismiss should be denied if more details are obtainable
through discovery.25 According to Plaintiff, “[f]urther discovery will shed even more light on
Plaintiff’s claims and the interwoven relationship between Scenic, acting as Emerald Waterways,
and [Scenic-Europe], the company who allegedly entered into a charter contract with Couples
Id. at 5 (citing Rec. Doc. 10-3).
Rec. Doc. 20 at 1.
Id. at 1–2.
Id. at 2.
Id. at 5 (citing Ameresco Solar, L.L.C. v. Jon Sader, et al., 2015 WL 3952771, *2–3. (E.D. La. 2015)).
Cruise.”26 Plaintiff asserts that questions regarding the nature of the relationship between these
companies “need to be answered to determine if Plaintiff has filed against the wrong defendant as
alleged by [Defendant].”27 Plaintiff contends that “the only pieces to the puzzle that she holds are
the communications with Emerald Waterways through Couples Cruise and the internet accessible
Emerald Waterways Terms and Conditions clearly labeling Emerald Waterways as the brand
owned and operated by [Defendant].”28 Plaintiff argues that she should be allowed to discover
whether Defendant is the sole defendant responsible for her injuries aboard the vessel “or if other
entities knew or should have known of the hazardous condition which existed at the time of [her]
accident.”29 Plaintiff contends that she “should be afforded the opportunity to conduct limited
discovery into the contracts between the entities noted by [Defendant] to be the true defendants in
Defendant’s Reply in Further Support of the Motion
In reply, Defendant argues that it offered the charter contract “so that Plaintiff could amend
her complaint and name the proper party as a defendant,” but “[d]espite this, Plaintiff continues to
allege that Defendant . . . operated the vessel.”31 Defendant notes that Plaintiff has admitted that
she booked the cruise through Couples Cruise and not through Defendant or an affiliated
Id. at 5–6.
Rec. Doc. 24 at 1–2.
company.32 Defendant avers that Plaintiff “badly asserts that ‘Emerald Waterways’ operated [the]
cruise.”33 Defendant further argues that “the only connection to Emerald Waterways (which is a
brand name and not a legal entity) is the fact that the vessel’s name is Emerald Star and that
companies that use the brand name Emerald Waterways charter the Emerald Star from time to
Defendant contends that Plaintiff printed the “Terms and Conditions” that she relies on in
opposition to the motion to dismiss from Emerald Waterways’ website “with no indication of when
Plaintiff received Terms No. 1 or if she ever had contact with Defendant or any other company
that is associated with the brand name Emerald Waterways.”35 Moreover, assuming that these
Terms and Conditions bind Plaintiff, Defendant contends that Plaintiff has filed suit in the wrong
jurisdiction because those terms bind Plaintiff to arbitration conducted by the American
Arbitration Association in Las Vegas, Nevada.36 Therefore, Defendant contends that Plaintiff’s
position would be grounds for dismissal based on the arbitration clause.37
Id. at 2.
Id. at 3.
III. Law and Analysis
Legal Standard for Rule 12(b)(6) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for
failure to state a claim upon which relief can be granted.”38 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”39 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’”40 “Factual allegations must be enough to raise a right to relief above the
speculative level.”41 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”42
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.43 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.44 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” 45
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
Fed. R. Civ. P. 12(b)(6).
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).
Twombly, 550 U.S. at 556.
Id. at 570.
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
Iqbal, 556 U.S. at 677–78.
Id. at 679.
statements” will not suffice.46 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action.47 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.” 48 From the face of the complaint, there must be enough
factual matter to raise a reasonable expectation that discovery will reveal evidence as to each
element of the asserted claims.49 If factual allegations are insufficient to raise a right to relief above
the speculative level, or if it is apparent from the face of the complaint that there is an “insuperable”
bar to relief, the claim must be dismissed.50
Here, Plaintiff brings a negligence claim against Defendant, asserting that Defendant
“through its agents, servants, employees, and vessel operators negligently and/or carelessly failed
to exercise reasonable care thereby causing and/or contributing to” the accident that Plaintiff
alleges occurred on October 27, 2015.51 In this motion, Defendant does not argue that Plaintiff has
failed to plead the elements necessary to state a negligence claim.52 Instead, Defendant asserts that
it is not the proper party against whom this claim should be brought because: (1) Defendant did
Id. at 678.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
Moore v. Metro. Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010)
(Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)); Carbe v. Lappin, 492 F.3d 325, 328 n. 9 (5th Cir.
Rec. Doc. 1 at 2.
The Court notes that neither party briefs the Court on the issue of what negligence law applies to the instant
not own or operate the vessel; and (2) Plaintiff did not book the cruise through Defendant.53
In support of these assertions, Defendant relies on a copy of the charter contract and a
declaration of Lucas Sandmeier, the General Manager of Operations and Administration for
Scenic-Europe. 54 However, it is well established that, in deciding whether to grant or deny a
motion to dismiss pursuant to Rule 12(b)(6), a district court may not “go outside the complaint.”55
Generally, when considering a motion to dismiss, the Court may only consider the contents of the
pleadings and its attachments.56 The Fifth Circuit permits a limited incorporation exception, which
allows documents attached to a motion to dismiss to be considered part of the pleadings if they are
referred to in the plaintiff’s complaint and are central to the plaintiff’s claim. 57 Here, neither the
declaration of Lucas Sandmeier nor the charter contract are referenced in Plaintiff’s complaint.
Accordingly, the Court cannot consider these documents on a motion to dismiss. Therefore, these
arguments are best left for summary judgment after the parties have had sufficient time to conduct
Plaintiff alleges that Defendant “owned and operated the ‘Emerald Waterways’ brand and
further provided European Riverboat cruises on its fleet of riverboats, included the vessel.” 58
Rec. Doc. 10-1 at 4 (citing Rec. Doc. 10-3).
Rec. Docs. 10-3, 10-6.
Carter v. Target Corp., 541 F. App’x. 413, 416–17 (5th Cir. 2013); Rodriguez v. Rutter, 310 F. App’x
623, 626 (5th Cir. 2009); Mabile v. BP, p.l.c., No. 11-1783, 2016 WL 5231839, at *16 (E.D. La. Sept. 22, 2016)
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)
See Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir. 2003). See also In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (holding that it was appropriate for the district court to consider contracts
attached to the defendants’ motion to dismiss because the contracts were referred to in the complaints and are central
to the plaintiffs’ claims).
Rec. Doc. 1 at 1.
Plaintiff further alleges that on October 27, 2015, while she was a passenger aboard the vessel, she
“was walking down a hallway onboard . . . when she was caused to trip and fall by a stainless steel
strip in the hallway flooring.”59 Moreover, Plaintiff alleges that Defendant “through its agents,
servants, employees, and vessel operators negligently and/or carelessly failed to exercise
reasonable care thereby causing and/or contributing to” Plaintiff’s alleged injuries.60 Therefore,
taking all well-pleaded facts as true, the Court finds that Plaintiff has alleged sufficient facts to
state a negligence claim against Defendant.
The Court finds that Plaintiff has alleged sufficient facts to state a negligence claim against
IT IS HEREBY ORDERED that Defendant’s “Rule 12(b)(6) Motion to Dismiss”61 is
NEW ORLEANS, LOUISIANA, this _____ day of July, 2017.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
Id. at 2.
Rec. Doc. 10.
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