Mock trial decision

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 1:19-cv-20179-KMW

ENID PORRATA DORIA,

Plaintiff,

VS.

ROYAL CARIBBEAN CRUISES, LTD., et aI.

Defendant.

/

ORDER

THIS MATTER is before the Coud on Defendant Royal Caribbean Cruises Ltd.'s

('lRoyal Caribbean'') Motion to Dismiss (DE 9). Plaintiff Enid Porrata Doria ($dDoria'') filed

a response in opposition (DE 10), and Royal Caribbean filed a reply (DE 11). For the

reasons set fodh below, Defendant's Motion to Dismiss (DE 9) is GRANTED.

1. BACKGROUND

On April 5, 2018 Doria was a passenger aboard Royal Caribbean's Harmony of

the Seaswhen he purchased an ATV excursion experience in Cozumel, Mexico, operated

by Renta Safari Sa De CV (''Renta'') from Royal Caribbean. (DE 1 at 8). That day, while

padicipating in the ATV excursion, he suffered injuries when he crashed his ATV into a

tree. (DE 1 at 9). Doria submits that while on the excursion, Renta staff failed to provide

adequate direction to padicipants, and that Royal Caribbean m isrepresented that the

excursion would occur on ''did roads'' when it actually took place over ''rough terrain.'' (DE

1 at 9).

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Doria alleges that, in purchasing the excursion, he relied on Royal Caribbean's

representations that the excursion would be safe.(DE 1 at 7). Such representations

included promotional materials made available by Royal Caribbean through their website,

brochures, presentations, and staff at the cruse ship's shore excursion desk, indicating

the shore excursions were dloperated by Royal Caribbean and/or safe.'' (DE 1 at 6-7).

Accordingly, Doria filed this Iawsuit alleging the following eight causes of action

arising from his injuries: (1) misleading advedising in violation of Florida Statute Section

817.41 against both defendants', (2) negligent misrepresentation against Royal

Caribbean', (3) negligence against Royal Caribbean', (4) negligence against Renta', (5)

negligence against defendants based on apparent agency or agency by estoppel', (6)

negligence against defendants based on joint venture between Royal Caribbean and

Renta; (7) third-party beneficiary against both defendants', and (8) breach of fiduciary duty

against both defendants.

Royal Caribbean moved to dismiss Counts I through 111, and Counts V through VIII

for failure to state a claim. (DE 9).

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts

to state a claim that is dlplausible on its face.'' Ashcroft e. /qba/, 556 U.S. 662, 678 (2009)

LEGAL STANDARD

(quoting Bell Atlantic Corp. ?.Twombly, 550 U.S. 544, 570 (2007)).The purpose of this

requirement is tlto give the defendant fair notice of what the claim is and the grounds upon

which it rests.'' Twombly, 550 U.S. at 555. The Court's consideration is Iimited to the

allegations presented. See GSA Inc. v. Long Cty., 999 F.2d 1508, 1510 (1 1th Cir. 1993).

AII factual allegations are accepted as true and aII reasonable inferences are drawn in the

plaintiff's favor. See Speaker B. U.&. Dep'f of HeaIth & Human Selvs. Ctrs. for Disease

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Control & Prevention, 623 F.3d 1371 , 1379 (1 1th Cir.2010),. see also Roberts ?. Fla.

Power & Light Co., 146 F.3d 1305, 1307 (1 1th Cir. 1998). Nevedheless, while a plaintis

need not provide ''detailed factual allegations,'' the allegations must consist of more than

1$a formulaic recitation of the elements of a cause of action.'' Twombly, 55O U.S. at 555

(internal citations and quotations omitted). tlAdditionally, 'conclusory allegations,

unwarranted factualdeductions or Iegal conclusions masquerading as facts will not

prevent dismissal.'''U.S. ex rel. Keeler B. Eisai, Inc., 568 F. App'x 783, 792-93 (1 1th Cir.

2014) (quoting Davila v. Delta Air Lines, lnc., 326 F.3d 1 183, 1 185 (1 1th Cir. 2003)). The

i'llactual allegations must be enough to raise a right of relief above the speculative Ievel.''

Yaffg v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (1 1th Cir. 2007) (quoting Twombly, 550 U.S.

at 545).

In addition to the

Procedure 8(a) and

requirements of Twombly, Iqbal, and Federal Rules of Civil

12(b)(6), claims sounding in fraud are subject to the pleading

standards of Federal Rule of Civil Procedure 9(b). See U.S. ex. re/. Clausen v. Lab. Corp.

of Am., Inc., 290 F.3d 1301 , 1309-10 (1 1th Cir. 2002)', Gayou v. Celebrity Cruises, Inc. ,

No. 1 1-23359-C1V, 2012 W L 2049431, at *3 (S.D. Fla. June 5, 2012). Rule 9(b)(6)

provides that ''Iiln allegations of fraud or mistake, a pady must state with padicularity the

circumstances constituting fraud or mistake'' but that d'Emlalice, intent, knowledge, and

other conditions of a person's mind shall be averred generally.'' Fed. R. Civ. P. 9(b). Rule

9(b) is satisfied if the plaintiff pleads .t(1) precisely what statements were made in what

documents or oral representations or what omissions were made, and (2) the time and

place of each such statement and the person responsible for making (or, in the case of

omissions, not making) same, and (3) the content of such statements and the manner in

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which they misled the plaintiff, and (4) what the defendants obtained as a consequence

of the fraud.'' Ziemba B. Cascade Intj Inc. , 256 F.3d 1 194, 1202 (1 1th Cir. 2001) (quoting

Brooks v, Blue Cross & Blue Shield of FIa., Inc. , 1 1 6 F.3d 1 364, 1371 (1 1th Cir. 1997)).

Fudher, when an injury is alleged to have occurred ''upon a ship in navigable

waters,'' federal maritime Iaw applies. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d

1332, 1 334 (1 1th Cir. 1984) (citing Kermarec B. Compagnie Generale Transatlantique,

358 U.S. 625, 628 (1959)). Passenger suits against a cruise Iine alleging tods are subject

to general maritime Iaw. Keefe tt Bahama Cruise Line, lnc., 867 F.2d 1318, 1320 (1 1th

Cir. 1989). Maritime Iaw also applies to alleged incidents that occur during the course of

the cruise at offshore excursions or other pods-of-call since the itnecessary precursors . .

. occurred while the ship was on navigable waters.'' Doe v. Celebrity Cruises, Inc., 394

F.3d 891 , 901 (1 1th Cir. 2004).

111. ANALYSIS

A. Count I - Misleading Advertising in Violation of Florida Statute Section

817.41 and Count 11 - Negligent Misrepresentation

Doria alleges that Royal Caribbean made and disseminated false or misleading

materials regarding the safety of the ATV excursion. (DE 1). Claims arising under Florida

Statute Section 817.41 and Florida common Iaw negligent misrepresentation must allege:

(1) misrepresentation of a material fact; (2) that the representor made the m isrepresentation without knowledge as to its truth or falsity or under circum stances in w hich he

ought to have known its falsity', (3) that the representor intended that the misrepresentation induce another to act on

it; and (4) that injury resulted to the party acting in justifiable reliance on the m isrepresentation.

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Ceithaml v. Celebrity Cruises: Inc., 207 F. Supp. 3d 1345, 1352-3 (S.D. Fla. 2016) (citing

Holguin v. Celebrity Cruises, Inc., No. 10-20212-CIV, 2010 W L 1837808, at *1 (S.D. Fla.

May 4, 2010))., see also Smith B. Mellon Bank, 957 F. 2d 856, 858 (1 1th Cir. 1992) (1dIn

order to prove a violation of Section 817.41, Florida Iaw requires the plaintiff to prove

reliance on the alleged misleading advertising, as well as each of the other elements of

the common Iaw tod of fraud in the inducement.'').

As an allegation of fraud, negligent misrepresentation is subject to the heightened

pleading standard of Rule 9(W which requires a plaintiff to establish ''the fwho, what,

when, where, and how' of the fraud.'' Ceithaml, 207 F. Supp. 3d at 1353 (citing Gameld

v. NDC Hea/lh Corp., 466 F. 3d 1255, 1262 (1 1th Cir. 2006))., see Ziemba, 256 F. 3d at

1202 (i$RuIe 9(b)'s heightened pleading standard requires that the complaint set fodh . . .

precisely what statements were made in what documents or oral representations.Dl; see

also Gayou, No. 1 1-23359-Civ-SCOLA, 2012 W L 2049431, at *7 (dismissing an allegation

of misleading advertisement and negligent misrepresentation because the complaint was

not temporally precise).

In its Motion, Royal Caribbean argues that Doria has failed to meet the Rule 9(b)

standard. (DE 9 at 2). In suppod of this contention, Royal Caribbean cites Judge Ungaro's

recent decision in Serra-cruz v. Carnival Corp. No. 1:18-cv-23033-UU, (DE 30 at 7) (S.D.

Fla. Feb. 12, 2019).There, Judge Ungaro applied the Rule 9(b) standard to claims of

negligent misrepresentation under Florida common Iaw and Florida Statute Section

817.41 w here the facts were substantially sim ilar to those in this case. Id. The plaintiff in

Serra-cruz alleged Carnival made misleading statements as to the safety of an AW

excursion sold on its cruise ship. Id. at 1 1. ln her complaint the plaintiff provided quotes

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from dlcarnival's promotional material, brochures and/or website'' describing the

excursion. Id. at 8. Because the plaintiff referred to the sources of the materials 'Iin the

collective as 'Carnival's promotional material''' rather than naming the sources with

padicularity, Judge Ungaro ruled that the allegations in the complaint were insufficient to

satisfy the Rule 9(b) standard ld. at 9.

Doria concedes that the heightened pleading standard of Rule 9(b) is applicable

to Counts I and ll, but argues that he has pleaded his factual allegations with sufficient

padicularity to satisfy the heightened standard. (DE 10 at 2). However, like the plaintiff in

Serra-crtpz, Doria's pleading fails to provide the sources of the allegedly m isleading

materials. ln response to Royal Caribbean's Motion, Doria points to paragraphs eighteen

through twenty-three of the Complaint. (DE 10 at 2). There, Doria- like the plaintiff in

Serra-cruz- lists the sources of the allegedly misleading materials in the collective: ''the

information and/or material (Royal Caribbean) made available and/or distributed to the

Plaintiff . . . .'' (DE 1 at 6). Doria also contends that the particularity standard is satisfied

by the allegations in paragraph twenty-eight of the Complaint where he states merely that

Royal Caribbean represented its excursions as ''guided'' and on ''dirt roads.'' (DE 10 at 2',

DE 1 at 8-9). These allegations fail to provide the Coud- and the Defendants- with the

respective sources of these representations or facts suppoding his claim that these

representations were actually made to Doria.

Therefore, Doria has not met the heightened pleading standard of Rule 9(b). See

Ceithaml, 207 F. Supp. 3d at 1353. And because Counts I and 11 are pleaded with identical

factual allegations, Count 11 similarly does not meet the heightened pleading standard for

the reasons stated above. See Serra-cruz, No. 1:18-cv-23033-UU, at 7 (dismissing

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counts of misleading advisement and negligent misrepresentation for failure to meet the

Ruel 9(b) standard where both counts were identically pleaded). Because neither Count

I nor Count 11 are sufficiently pleaded under the Rule 9(b) standard, the Coud need not

address the merits of these claims at this stage. Accordingly, Counts I and 11 are

dismissed without prejudice with Ieave to amend.

B. Count III - Negligence Against Royal Caribbean

Doria's third Count alleges Royal Caribbean was negligent in promoting the ATV

excursion and not warning passengers of its alleged dangers.To state a claim for

negligence against a shipowner, a plaintiff llmust show: (1) that defendant owed plaintiff

a duty; (2) that defendant breached that duty; (3) that this breach was the proximate cause

of plaintiff's injury', and (4) that plaintiff suffered damages.'' Isbell 1. Carnival Corp., 462 F.

Supp. 2d 1232, 1236 (S.D. Fla. 2006) (citing Hasenfus B. Secord, 962 F.2d 1556, 1559-

60 (1 1th Cir. 1992))., see also Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (1 1th Cir.

2012) (1tIn analyzing a maritime tort case, we rely on general principles of negligence

Iaw.'') (quoting Daigle ?. Point Landing, Inc., 616 F.2d 825, 827 (5th Cir. 1980)).

Pursuant to federal maritime Iaw, the duty of care that cruise operators owe

passengers is ordinary reasonable care under the circumstances, ''which requires, as a

prerequisite to im posing Iiability, that the carrier have actual or constructive notice of the

risk-creating condition.'' See Keefe ?. Baham a Cruise Line, Inc., 867 F.2d 1318, 1322

(1 1th Cir. 1989). A facet of the duty of reasonable care is the cruise ship operator's ''duty

to warn of known dangers beyond the point of debarkation in places where passengers

are invited or reasonably expected to visit.'' Serra-crtpz,No. 1 :18-cv-23033-UU, at 14

(quoting Chaparro, 694 F.3d at 1336). The duty to warn only extends to dangers ''which

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the carrier knows, or reasonably should have known'' to exist. See id. (quoting Wolf v.

Celebrity Cruises lnc., 683 F. App'x 786, 794 (1 1th Cir. 2017)).

Doria alleges Royal Caribbean's duty to warn was triggered when it received notice

of the excursion's allegedly unsafe conditions through its ''initial approval process and/or

its yearly inspections of the subject excursion'' and 'dother cruise ship passengers being

injured on ATV excursions.'' (DE 1 at 9). Royal Caribbean argues that Doria has failed to

allege facts showing Royal Caribbean knew of the dangers of the ATV excursion. (DE 9

at 8).

The reasoning and analysis in Serra-cruz is again applicable here. There, the

plaintiff also alleged that Carnival breached its duty by not warning of the ATV excursion's

allegedly dangerous conditions. See No. 1:18-cv-23033-UU, at 15. To show Carnival had

notice of the dangerous conditions, the plaintiff in Serra-cruz pointed to 'dcarnival's initial

approval process . . . Carnival's yearly inspections (and) prior incidents involving

Carnival passengers injured on ATV excursionsz'' See id. The coud dismissed plaintiff's

negligence claim , finding that the plaintiff failed to sufficiently plead notice by not

specifying which yearly inspection, prior incidents, or factors in the approval process put

Carnival on notice. Id. at 16.

Like the plaintiff in Serra-cruz, Doria does not allege which inspection put Royal

Caribbean on notice or whether the allegedly dangerous condition of the terrain was

present at the time of the initial approval process. (DE 1 at 9). Fudher, Doria does not

provide allegations regarding which ATV accident should have put Royal Caribbean on

notice; instead, Doria alleges only that ''other cruise ship passengers'' were injured. (DE

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1 at 9).1 Doria's Complaint is pled with even less specificity than that dismissed in Serra-

Cruz. W hile the Serra-cruz complaint pointed to accidents involving other Carnival

passengers, No. 1:18-cv-23033-UU, at 15, Doria refers only to I'other cruise ship

passengers''. (DE 1 at 9). Doria does not state whether these other ATV accidents

involved passengers from Royal Caribbean, occurred on the ddrough terrain'' of Cozumel,

or were operated by Renta in Cozumel. (DE 1 at 9).

This Coud agrees with Royal Caribbean that Doria has failed to plead sufficient

facts alleging that Royal Caribbean had actual or constructive notice of the dangerous

conditions of the ATV excursion. Although Doria recites a Iong Iist of conclusory

statements, the Complaint fails to adiculate a triggered duty to warn on the part of Royal

Caribbean.z (DE 1 at 19-23). Therefore, this Court need not consider the remaining

elements of Doria's negligence claim at this stage. Count Ill is dismissed without prejudice

with Ieave to amend.

C. Count V - Negligence Based on Apparent Agency or Agency by Estoppel

Next, Doria claims Royal Caribbean is Iiable for the negligence of the Excursion

Entities under a theory of apparent agency. In response, Royal Caribbean attaches

Doria's cruise ticket contract, his shore excursion ticket, and the Tour Operator

Agreement (;1TOA'') between Royal Caribbean and Renta to its Motion. Royal Caribbean

argues these documents discredit Doria's claim for negligence under an apparent agency

theory. (DE 9 at 1 1). However, consideration of these releases would be improper at the

l Doria references three other matters, but gives no citations or any factual detail. (DE 1 at 9). 2 W hile the Coud notes that many details of the ATV excursion's prior condition and Royal Caribbean's knowledge of those prior excursions may not be adduced prior to discovery, the Complaint in its current iteration nevedheless fails to meet the Keefe standard of alleging actual or constructive notice. See Keefe

867 F.2d 1318 at1322 (1 1th Cir. 1989).

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motion to dismiss stage as the release of Iiability is more properly considered an

affirmative defense.3 See Fed. R. Civ. P. 8(c)(1). Therefore, the Coud will not consider

Royal Caribbean's exhibits and will Iook only to the four corners of the Complaint for

purposes of deciding Royal Caribbean's Motion to Dismiss Count V.

Royal Caribbean argues that Count V should be dismissed because it is a theory

of Iiability which is dependent on the sufficiency of the underlying negligence claim. (DE

9 at 10). After carefully reviewing the padies' briefing and relevant caselaw, the Coud

agrees with Royal Caribbean that, because Doria's underlying negligence claim is

based On apparent agency mustdismissed without prejudice, his claim for negligence

also be dismissed without prejudice. Brown e. Carnival Corp. et aI., 202 F. Supp, 3d 1332,

1340 (S.D. Fla. 2016) (dismissing ''apparent agency'' claim where court already found that

plaintiff failed to state @ plausible negligence claiml', Zapafa, 2013 W L 1296298, at *5 (1$1

already have determ ined that the insufficiency of Plaintiff's factual allegations warranted

the dismissal without prejudice of Plaintiff's negligence claim. Accordingly, Plaintiff's

apparent agency claim must be dismissed without prejudice as weII.'').

However, the Coud finds that, were Doria's underlying negligence claim sufficiently

pleaded, his claim for apparent agency would be factually suppoded at the motion to

dismiss stage. Allegations suppoding Doria's claim include: (1) Royal Caribbean making

aII ddarrangements for the subject excursion without effectively disclosing that the subject

excursion was being run by another entityi'' (2) marketing llthe subject excursion using its

3 Generally, a court may not consider anything beyond the face of the complaint and any documents attached thereto in deciding a motion to dism iss. See Financial Sec. Assurance, Inc. v. Stephens, Inc., 500

F.3d 1276, 1284 (1 1th Cir. 2007). There is an exception to this rule, however, where the plaintiff refers to a document in its complaint, the document is central to the plaintifrs claim , its contents are not in dispute, and the defendant attaches the document to its motion to dismiss. Id. Although the Complaint references

Royal Caribbean's website (DE 1 at 27) (which contains the passenger ticket contract), the Court will not consider these documents at this stage of the litigation.

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company Iogoi'' (3) recommending that passengers ttnot engage in excursions . . . not

sold through'' Royal Caribbean', (4) maintaining a ''shore excursion desk'' where it sold

and provided information for excursions', (5) collecting Doria's fee; and (6) issuing Doria

a receipt for his fee. (DE 1 at 27-28). Several other courts in this District have found similar

factual allegations sufficient to suppod a negligence claim under an apparent agency

theory of Iiability. See, e.g. , Aronson B.Celebrity Cruises, Inc. , 30 F. Supp. 3d 1379,

1396-97 (S.D. Fla. 2014),. Gayou, 2012 W L 2049431 , at *8-9., Zapala, 2013 W L 1296298,

at *5., Lapidus v. NCL America LLC, et aI., No. 12-21 183, 2012 W L 2193055, at *5 (S.D.

Fla. Jun. 14, 2012)., Gibson e. NCL (Bahamas) Ltd. et aI., No 1 1-24343-C1V, 2012 W L

1952667, at *7 (S.D. Fla. May 30, 2012). Nevedheless, because the underlying

negligence claim is insufficiently pleaded,Count V is dismissed without prejudice with

Ieave to renew in an amended complaint.

D. Count VI - Negligence Against Defendants Based on Joint Venture

In Count VI, Doria alleges Royal Caribbean was vicariously Iiable for Renta's

negligence based on a joint venture theory. The Eleventh Circuit recognizes several

''signposts'' or ''Iikely indicia'' that suggest the existence of a joint venture such that one

defendant may be held vicariously Iiable for the negligent acts of a joint venture padner.

Fulcher's Point Pride Seafood; Inc. v. MN Theodora Maria, 935 F.2d 208, 21 1 (1 1th Cir.

1991). These include (1) the intention of the padies to create a joint venture', (2) joint

control or right of control', (3) joint proprietary interest in the subject matter of the joint

venture', (4) the right of aII venturers to share in the profits', and (5) the duty of b0th to

share in the losses. See Hung Kang Huang v. Carnival Corp., 909 F. Supp. 2d 1356,

1361 (S.D. Fla. 2012) (citing Skeen B. Carnival Corp. , No.08-22618-C1V, 2009 W L

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1 1 17432, at *3 (S.D. Fla. April 24, 2009)), abrogated on other grounds, Franza B, Royal

Caribbean Cruises, Ltd. , 772 F.3d 1225, 150 n. 1 8 (1 1th Cir. 2014). Of these factors, the

Eleventh Circuit in Fulcher noted that llltlhe padies' intentions are impodant'' in

determining whether a joint venture exists. 935 F.2d at 21 1 (quoting Sasportes v. MN

SOL DE COPACABANA, 581 F.2d 1204 (5th Cir. 1978)).

Royal Caribbean contends that its TOA4 with Renta undermines Doria's joint

venture allegation:

Operator's relationship with Cruise Line during the Term of this Agreement shall be that of an independent contractor.

Operator shall not represent that it has any power, right or authority to bind Cruise Line or to assume or create any obligation or responsibility, express or implied, on behalf of

Cruise Line or in the Cruise Line's name. Nothing related in this Agreement shall be construed as constituting Operator and Cruise Line as padners, or as treating the relationships of em ployer and em ployee, franchisor and franchisee, master

and servant or principal and agent or joint venture between the Padies hereto.

(DE 9 at 14).

4 Royal Caribbean attached its standard TOA with Renta to its Motion to Dismiss. (DE 9 at 14). This agreement was made central to Doria's Complaint by his assertion that Royal Caribbean and Renta

î'entered into an agreement.'' (DE 1 at 30). Thus, the Court may consider this undisputed document, central to and referenced in the Complaint, without conveding Royal Caribbean's M otion to Dism iss into a motion

for summary judgment. See, e.g., Zapata, 2013 WL 1296298, at *4 (reviewing a TOA for a joint venture claim where the plainti# made the agreement central to their complaintl', Day B. ray/or, 400 F.3d 1272, 1276 (1 1th Cir. 2005) ($$Our prior decisions also make clear that a document need not be physically attached to a pleading to be incorporated by reference into it; if the document's contents are alleged in a complaint and no pady questions those contents, we may consider such a document provided it m eets the centrality

requirement imposed in Hors/ey.''); Horsley v'. Feldt, 3O4 F.3d 1 125, 1 134 (1 1th Cir. 2002) (a coud may consider documents central to the plaintiffs' claim and undisputed under the incorporation by reference

doctrine without conveding the motion into summary judgmentl' Gmss v. White, 340 Fed. App'x. 527, 534 , !(1 1th Cir

. 2009) (finding no error in the district coud s consideratlon of a document referenced in the second amended complaint but attached only to the plaintiff's opposition to a motion to dismissl; Brooks v. Blue Cross & Blue Shield of FIa., Inc. , 1 16 F.3d 1364, 1369 (1 1th Cir. 1997) (ldWhere the plaintiff refers to cedain documents in the complaint and those documents are central to the plaintiff's claim, then the Coud may

consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal.n).

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This Coud previously dismissed a negligence claim based on allegations of a joint

venture in Ceithaml. 207 F. Supp. 3d at 1353. There, the TOA presented nearly identical

Ianguage, releasing Carnival from any purpoded joint venture with shore excursions

companies. Id. at 1354. This Coud held that such a contract unambiguously showed no

intention on the part of Carnival to enter into a joint venture with excursion companies.s

Id.

Although Doria maintains that his pleading satisfies each element of a joint

venture, the Court finds Doria's bare allegation- that Renta and Royal Caribbean

'd'shared a common purpose' which was to doperate the subject excursion'''- to be

factually insufficient to show the intent to enter into a joint venture. (DE 10 at 14). See

Zapata, 2013 W L 1296298, at *6', Skeen, 2009 W L 1 1 17432, at *3 (dismissing joint

venture claim where Ssplaintifffailled) to assed that the padies intended to enter into a joint

venture''). This is true especially in Iight of the express Ianguage of the TOA, which

negates any such intent on the pad of Defendants. Thus, because Doria has failed to

allege the existence of a joint venture, and because the terms of the TOA unambiguously

foreclose any argument that Royal Caribbean intended to enter into a joint venture with

Renta, Count Vl of the Complaint is dismissed with prejudice. See Zapala, 2013 W L

1296298, at *6 (dismissing a joint venture claim with prejudice where a TOA's

''unambiguous provisions'' directly contradicted the plaintiff's allegations).

E. Count VII - Third-party Beneficiary

5 In Ceitham ( this Court relied on Zapala v. Royal Caribbean Cruises, Ltd., No. 12-21 897-CIV, 2013 W L *6 (S D, Fla. Mar. 27, 2013), which held that an identical contractual provision negated an1296298, at .

allegation of intent between the cruise Iine and excursion company to enter into a joint venture.

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In Count VlI, Doria alleges Royal Caribbean breached a third-pady beneficiary

contract. To plead a breach of a third-pady beneficiary contract, Plainti# must allege (1)

the existence of a contract to which Plainti# is not a party', (2) an intent, either expressed

by the padies, or in the provisions of the contract, that the contract primarily and directly

benefit Plaintiff', (3) breach of that contract by one of the padies; and (4) damages to

Plainti: resulting from the breach.Lapidus, 924 F. Supp.zd at 1360-61 . For a third pady

to have a Iegally enforceable right under the contract, the benefit to the third pady must

be the 'ddirect and primary object of the contracting padies.'' Bochese e. Town of Ponce

Inlet, 405 F.3d 964, 982 (1 1th Cir. 2005). The third padies do not need to be specifically

named in the contract to qualify as intended beneficiaries, as ''Iong as the contract refers

to a well-defined class of readily identifiable 'persons that it intends to benefit.'' Belik v.

Carlson Travel Group, Inc., 864 F. Supp.zd 1302, 1 312 (S.D. Fla. 201 1) (internal citations

omitted). However, the padies' intent to benefit the third pady d'must be specific and must

be clearly expressed in the contract in order to endow the third-pady beneficiary with a

Iegally enforceable right,'' and an dlincidental'' benefit to a third pady is insufficient to

sustain a claim . Bochese, 405 F.3d at 982.

In his Com plaint, Doria alleges that the terms of an agreement between Royal

Caribbean and Renta demonstrate their intent to ''benefit (Royal Caribbean) passengers,

including the plaintiff. . . .'' (DE 1 at 32). On the other hand, Royal Caribbean argues that

the element of intent is disproven by the TOA. (DE 9 at 17). Royal Caribbean cites section

12.10 of the Agreement, which directly addresses the question of third-pady beneficiaries:

''this Agreement shall not be deemed to provide third padies with any remedy, claim , right

or action or other rightx'' (DE 9 at 17).

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In Zapala e. Royal Caribbean Cruises, Judge Cooke faced similar allegations and

an identical third-pady beneficiary clause. 2013 W L1296298, at *5. The coud dismissed

the third-pady beneficiary claim with prejudice,finding that the contract ''expressly

disclaims any intent to benefit Plaintiff.'' Id.,' see also Gayou, 2012 W L 2034931 , at *1 1

(dismissing a claim for third-pady beneficiary claim where the contract's terms d'expressly

disclaimed'' any intent to benefit third padies). This Coud agrees with the reasoning and

analysis in Zapala and Gayou, and finds that the TOA expressly disclaims any intent for

the contract to benefit Doria. Therefore, Doria's third-pady beneficiary claim, Count VII, is

dismissed with prejudice.

F. Count VIII - Breach of Fiduciary Duty Against Royal Caribbean

Finally, Doria brings a claim against Royal Caribbean for breach of fiduciary duty.

Royal Caribbean argues that to im pose a fiduciary duty on a ship owner would require

applying a heightened standard of care. (DE 9 at 18). Doria alleges that Royal Caribbean

had fiduciary duties such as selecting and offering safe excursions to passengers and

making arrangements with excursion providers for the benefit of passengers. (DE 1 at

37). Royal Caribbean moves to dismiss this Count on the basis that imposing such a

fiduciary duty on a cruise ship operator would go beyond the typical duty for cruise ships

of 'ùreasonable care under the circumstances.'' (DE 9 at 18) (citing Kermarec, 79 S. Ct. at

410).

d'To state a claim for breach of fiduciary duty in Florida, the plaintiff must show: (i)

the existence of a fiduciary duty;(ii) the defendant breached that duty; and (ii) the

defendant's breach proximately caused the plaintil's damages.'' Lindquist B. Linxian, No.

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1 1-23876-C1V, 2012 W L 381 1800, at *4 (S.D. Fla. Sept. 4, 2012) (citing Gracey v. Eaken

837 So. 2d 348, 353 (FIa. 2002)).

The coud in Serra-crtpz dealt with a substantially sim ilar allegation and dismissed

the claim with prejudice. See No. 1:18-cv-23033-UU, at 23. There, the court held that

''maritime Iaw does not impose a fiduciary duty upon ship-owners.'' ld. Additionally, Judge

Ungaro noted that ''no coud in this Circuit . . . has ever held a cruise Iine to owe a fiduciary

duty to its passengers.'' ld. at 24. Fudhermore, other common carriers, such as airlines,

dddo not owe a fiduciary duty to Etheir) passengers.''. Id. (citing Karkomi v. Am. Airlines, Inc.

717 F. Supp. 1340, 1343 (N.D. 111. 1989)).6 Assigning to Royal Caribbean a fiduciary duty

to its passengers would ascribe a heightened standard of care beyond the well-

established 'dreasonable care underthe circumstances.'' Id. at 23. Therefore, Doria's claim

for breach of fiduciary duty fails as a matter of Iaw. See Serra-cruz, No. 1:18-cv-23033-

UU, at 23-4. Accordingly, Count VIII is dismissed with prejudice.

IV. CONCLUSION

For the reasons set fodh above, is ORDERED AND ADJUDGED that

Defendant's Motion to Dismiss (DE 9) is GRANTED IN PART. The Coud finds Plaintiff's

allegations in Counts 1, lI, 111, and V are DISMISSED W ITHOUT PREJUDICE, and Counts

Vl, VIl, and VIII are DISMISSED W ITH PREJUDICE under Federal Rule of Civil

6 Doria contends that Royal Caribbean owes a fiduciary duty to its passengers because, by selling and booking excursions, it acted as a travel agent, thereby adopting the fiduciary duties and liabilities of a travel

agent. (DE 10 at 20). To suppod this contention, Doria cites an Illinois state case, United Airlines, Inc. v. Lerrler, 87 111. App. 801 (111. App. Ct. 1980). In Lerner, the plaintis sued the airline that sold him his ski vacation travel package, because he was not warned that avalanches at the destination may cause road closures which impeded access to his Iodging. /d. The coud found that, although the airline may be considered a travel agent, it was not Iiable for breaching a fiduciary duty by failing to warn of ''possible hindrances'' to his vacation. Id. at 802. This Coud need not decide whether Royal Caribbean was a travel agent, but notes that if it were, it would not be Iiable for breaching a fiduciary duty by not disclosing potential dangers involved with the ATV excursion. In any case, the Court finds that Lerner is neither helpful nor persuasive in ruling on Royal Caribbean's Motion to Djsm iss Count VlII.

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Procedure 12(b)(6). Plaintiffs shall file an amended complaint within 21 days of the date

of this order.

/)- i--'--'d a y o f J u n e , 2 0 1 9 .DONE AND ORDERED in Chambers in Miami, Florida, this

KATHLE M. W ILLIAMS

UNITED S ATES DISTRICT JUDGE

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