Hova v. Royal Caribbean Cruises LTD. et al
Filing
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ORDER denying 18 Motion to Dismiss. For the reasons set forth in the ATTACHED MEMORANDUM AND ORDER, defendants' motion is DENIED in its entirety. This action is respectfully referred to Magistrate Judge Boyle for purposes of establishing an expedited discovery schedule limited to the issue of enforceability. Subsequent to such discovery, defendants may seek leave to file a motion for summary judgment on this issue. Ordered by Judge Denis R. Hurley on 4/30/2013. (Spatola, Richard)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MORTY HOVA,
Plaintiff,
MEMORANDUM AND ORDER
CV 12-1358 (DRH) (ETB)
- against ROYAL CARIBBEAN CRUISES LTD and
ROYAL CARIBBEAN INTERNATIONAL,
Defendants.
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APPEARANCES:
KUJAWSKI & KUJAWSKI
Attorneys for Plaintiff
1637 Deer Park Avenue
Deer Park, NY 11729
By:
Shaun M. Malone, Esq.
HILL, BETTS & NASH, LLP
Attorneys for Defendants
One World Financial Center
200 Liberty Street, 26th Fl.
New York, NY 10281
By:
Gregory W. O’Neill, Esq.
Thomas M. Rittweger, Esq.
Boriana Farrar, Esq.
HURLEY, Senior District Judge:
Plaintiff Morty Hova (“plaintiff” or “Hova”) brings this negligence action for damages
arising out of injuries allegedly sustained while on a cruise ship owned and operated by
defendants Royal Caribbean Cruises Ltd. and Royal Caribbean International (collectively,
“defendants” or “RCCL”). Presently before the Court is defendants’ motion which seeks to
dismiss plaintiff’s Complaint as untimely under Federal Rule of Civil Procedure (“Rule”)
12(b)(6) or, alternatively, to transfer this action to the United States District Court for the
Southern District of Florida pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, the
defendants’ motion is DENIED.
BACKGROUND
The following facts are drawn from the allegations contained in the Complaint and are
presumed true for purposes of the instant motion.
Defendants owned and operated a passenger cruise ship known as Grandeur of the Seas.
(Compl. ¶¶ 4-7.) On May 22, 2010, while Hova was a passenger on Grandeur of the Seas, he
tripped and fell over a small platform on the deck of the ship that was intended by defendants to
be utilized as a stage. (Id. ¶ 8.) According to plaintiff, the “platform was negligently placed,
designed, and colored so as to obscure its presence to passengers traversing the ship’s deck.”
(Id. ¶ 9.) As a result, Hova states that he sustained “severe and serious personal injuries.” (Id.
¶ 13.) Based on the above incident, Hova filed a Complaint on March 20, 2012 which asserts
claims of negligence under federal maritime law as well as New York state common law. (Id.
¶ 14.)
DISCUSSION
I.
Motion to Dismiss
A.
Rule 12(b)(6)1
It is well-settled that “[a] motion to dismiss on statute of limitations grounds is properly
viewed as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be
granted.” Jowers v. Lakeside Family & Children’s Servs., 435 F. Supp. 2d 280, 283 (S.D.N.Y.
2006) (internal quotation marks and citation omitted); accord Ghartey v. St John’s Queens
Hosp., 869 F.2d 160, 162 (2d Cir. 1989). “An action should be dismissed pursuant to Rule
12(b)(6) where documents properly considered on a motion to dismiss reveal that the action is
1
Because defendants filed an Answer prior to moving to dismiss, they should have moved
under Rule 12(c), not Rule 12(b)(6). Nevertheless, “[t]he standard for granting a Rule 12(c)
motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to
state a claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.
2001).
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time barred.” Noboa v. MSC Crociere S.P.A., 2009 WL 1227451, at *2 (S.D.N.Y. May 5, 2009).
While a court generally may only consider facts stated in the complaint in deciding a motion to
dismiss under Rule 12(b)(6), “[d]ocuments that are attached to the complaint or incorporated in
it by reference are deemed part of the pleading and may be considered.” Roth v. Jennings, 489
F.3d 499, 509 (2d Cir. 2007). Even if a document is not attached or incorporated by reference, it
may be considered if the plaintiff “either possessed or knew about and upon which [he or she]
relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
Defendants argue that because plaintiff’s cruise ticket contract contains a one year
limitation clause for personal injury claims, the Complaint, which was filed more than one year
after Hova’s injury, should be dismissed as time-barred. The entire set of facts relied on by
defendants, however, stem from assertions and documents outside the four corners of the
Complaint. These materials include the Affidavit of David Banciella (“Banciella Aff.”) and two
exhibits attached thereto, a “Cruise/CruiseTour Ticket Contract” (hereafter, “Ticket Contract”),
and a “Charge Account & Cruise Ticket” (hereafter, “Cruise Ticket”). Defendants proffer three
arguments as to why the Court may properly consider such evidence in deciding the instant
motion to dismiss without treating the motion as one for summary judgment. None of the
arguments advanced by defendants is persuasive.
First, defendants maintain that “[i]t is well established that when evaluating a motion to
dismiss a complaint based on the existence of a forum selection clause, the court may consider
materials outside the pleadings like affidavits and/or declarations.” (Defs.’ Mem. at 5.) While
this contention is for the most part accurate,2 what defendants overlook is that their motion does
2
The Second Circuit has considered motions to dismiss in connection with a forum
selection clause for lack of subject matter jurisdiction under Rule 12(b)(1), improper venue
under to Rule 12(b)(3), and failure to state a claim under Rule 12(b)(6). See CfirstClass Corp. v.
Silverjet PLC, 560 F. Supp. 2d 324, 327 (S.D.N.Y. 2008) (collecting cases). In the context of a
motion to dismiss under Rule 12(b)(1) or (b)(3), a court may consider evidentiary matters
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not request dismissal pursuant to the existence of a forum selection clause. Therefore, this
contention and the cases relied on by defendants have no bearing on what the Court may
consider in deciding the instant motion, made pursuant to Rule 12(b)(6).
Second, defendants claim that Noboa supports the proposition that the Cruise Ticket may
be considered at the motion to dismiss stage. (Defs.’ Mem. at 5.) Such a blanket statement,
however, is out-of-sync with the specific findings of that case. In Noboa, the court concluded
that it could consider, inter alia, the “Passenger Ticket/Contract” in deciding the defendants’
Rule 12(b)(6) motion because the ticket was “specifically referred to in the complaint” and was
“within plaintiffs’ possession when the complaint was filed.” Noboa, 2009 WL 1227451, at *3.
In this action, the Ticket Contract was not mentioned in the Complaint. Nor is there any reason
to believe that it was relied upon by Hova in drafting his Complaint. Thus, the case-specific
finding in Noboa is not applicable under the present circumstances.3
Finally, defendants allege that the Ticket Contract may be considered since they have
incorporated it into their Answer. This contention misapplies the applicable standard.
Documents which are incorporated by reference in the complaint may be considered under a
Rule 12(b)(6) motion, not documents incorporated by reference in an answer. Therefore, the fact
that defendants reference the Ticket Contract in its Answer has no significance on what
documents the Court may properly consider.
outside of the pleadings. See, e.g., TradeComet.com LLC v. Google, Inc., 693 F. Supp. 2d 370,
375 n.3 (S.D.N.Y. 2010).
3
It is noteworthy that, with the exception of Noboa, all of the cases relied on by
defendants to support the proposition that a one year limitation provision in a ticket contract is
enforceable involved a motion for summary judgment, not a motion to dismiss. (See Defs.’
Mem. at 6.)
4
Because the entirety of defendants’ Rule 12(b)(6) motion to dismiss is predicated on
factual assertions and documents that the Court may not consider, defendants’ motion to dismiss
must fail.
B.
Rule 12(d)
Another possibility is that the Court, presented with extraneous materials as part of
defendants’ Rule 12(b)(6) motion, could convert the motion into a motion for summary
judgment pursuant to Rule 12(d). A district court, however, “is not obliged to convert a 12(b)(6)
motion to one for summary judgment in every case in which a defendant seeks to rely on matters
outside the complaint in support of a 12(b)(6) motion.” United States v. Int'l Longshoremen's
Ass'n, 518 F. Supp. 2d 422, 450 (E.D.N.Y. 2007); see also Abbey v. 3F Therapeutics Inc., 2009
WL 4333819, at *5 (S.D.N.Y. Dec. 2, 2009) (noting that a district court enjoys “complete
discretion” over the decision to convert a Rule 12(b)(6) motion into a motion for summary
judgment). The Court, in exercising its discretion, declines to convert defendants’ motion into
one for summary judgment.
Defendants’ theory of dismissal hinges on establishing that the limitations clause in their
passenger ticket contract was enforceable which, in turn, requires a showing that the contract
provision was reasonably communicated to Hova. See Ward v. Cross Sound Ferry, 273 F.3d
520, 523 (2d Cir. 2001). In examining whether a clause was reasonably communicated, courts
look to “(1) whether the physical characteristics of the ticket itself reasonably communicated to
the passenger the existence therein of important terms and conditions that affected the
passenger’s legal rights, and (2) whether the circumstances surrounding the passenger’s purchase
and subsequent retention of the ticket/contract permitted the passenger to become meaningfully
informed of the contractual terms at stake.” Id. (internal quotation marks, citation, and brackets
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omitted).
While the question of whether defendants reasonably communicated the contractual
limitation to Hova is a question of law for the Court to decide, and thus appropriate to consider
on summary judgment, see Palmer v. Norweigan Cruise Line & Norweigan Spirit, 741 F. Supp.
2d 405, 412 (E.D.N.Y. 2010), the present record is confusing and underdeveloped, especially on
the issue of whether Hova was meaningfully informed of the contractual terms at issue. For one,
it is unclear whether defendants provided plaintiff, his travel companion, or his travel agent with
a copy of the Ticket Contract submitted to the Court prior to the cruise.4 Moreover, there is a
lack of clarity regarding whether plaintiff or his companion received or even saw a copy of the
Ticket Contract at the time of embarkation, or at any point thereafter. Because these and other
facts which are relevant to the ultimate determination of whether Hova was meaningfully
informed of the limitations clause in the Ticket Contract are lacking and/or unclear at this
juncture, some reasonable expedited discovery limited to the issue of enforceability is
warranted.5
4
By way of example, defendants claim that “[s]ince Hova’s travel agent received Hova’s
travel documents including the Ticket Contract, Hova had constructive knowledge of the one
year limitation clause . . . almost two months before his cruise.” (Defs.’ Mem. at 10-11.)
Notwithstanding this contention, the evidence submitted by defendants merely states the
following: “RCCL’s records indicate that on March 24, 2010 RCCL sent a notification to Morty
Hova’s travel agent Y PAY MORE TRAVEL (the ‘Travel Agent’) that Morty Hova’s travel
documents were ready.” (Banciella Aff. ¶ 5.) There is no evidence from the travel agent
regarding what was communicated to him or her nor is there any evidence explaining what
documents were contained in the “travel documents.”
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The Court acknowledges that the record contains some evidence that plaintiff’s travel
companion received a booking confirmation which states, at the very end of the document, that
the booking was governed by the “Cruise/Cruisetour Ticket Contract” and that a copy was
available at Royal Caribbean’s website. Neither party, however, adequately briefs whether this
fact, standing alone, is enough to find that the clause was reasonably communicated to plaintiff.
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II.
Motion to Transfer
To the extent that dismissal is not granted, defendants alternatively move pursuant to 28
U.S.C. § 1404(a) to have this case transferred to the Southern District of Florida. Section
1404(a) states that “[f]or the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it might have
been brought.” “District courts have broad discretion in making determinations of convenience
under Section 1404(a) and notions of convenience and fairness are considered on a case-by-case
basis.” D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006). “Some of the
factors a district court is to consider are, inter alia: ‘(1) the plaintiff’s choice of forum, (2) the
convenience of witnesses, (3) the location of relevant documents and relative ease of access to
sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the
availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative
means of the parties.’” Id. at 106-07 (quoting Albert Fadem Trust v. Duke Energy Corp., 214 F.
Supp. 2d 341, 343 (S.D.N.Y. 2002)). The moving party bears the burden of showing that
transfer is warranted. See, e.g., Easyweb Innovations, LLC v. Facebook, Inc., 888 F. Supp. 2d
342, 348 (E.D.N.Y. 2012).
The gravamen of defendants’ motion is that the forum selection clause in plaintiff’s
Ticket Contract requires any suit to be brought exclusively before the District Court for the
Southern District of Florida. Similar to the limitations clause, a forum selection clause must
have been reasonably communicated to be enforceable. See Phillips v. Audio Active Ltd., 494
F.3d 378, 383 (2d Cir. 2007). Having failed to present any other argument based on the above
factors in support of transferring this action, and because the enforceability of both clauses hinge
on whether they were reasonably communicated to Hova – an issue that will be fleshed out in the
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short term – the Court denies defendants’ motion to transfer at this time.
CONCLUSION
For the reasons set forth above, defendants’ motion is DENIED in its entirety. This
action is respectfully referred to Magistrate Judge Boyle for purposes of establishing an
expedited discovery schedule limited to the issue of enforceability. Subsequent to such
discovery, defendants may seek leave to file a motion for summary judgment on this issue.
SO ORDERED.
Dated: Central Islip, New York
April 30, 2013
/s/
Denis R. Hurley
Unites States District Judge
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