Mock trial decision

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.: 20-CV-20692-KMM

NICOLE WOODLEY, individually and as mother and guardian of minors K. W., M. W., and C.W., JR.; CLARICE LEE, individually; and BARRINGTON L. SIBBLIS, as personal representative of the Estate of BARBARA SIBBLIS Plaintiffs

vs.

ROYAL CARIBBEAN CRUISES LTD. a Liberian Corporation, and OUT ISLAND CHARTERS NV Defendants.

____________________________________/

OUT ISLAND CHARTERS, NV’S MOTION TO QUASH SERVICE OF PROCESS, TO DISMISS PLAINTIFFS’ COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND TO ENFORCE FORUM

SELECTION AGREEMENT BETWEEN OUT ISLAND AND PLAINTIFFS Defendant, OUT ISLAND CHARTERS, NV (hereinafter “Out Island”), by and through

undersigned counsel and pursuant to the applicable Federal Rules of Civil Procedure, files this

Motion to Quash Service of Process, to Dismiss Plaintiffs’ Complaint [ECF No. 1] for Lack of

Personal Jurisdiction, and to Enforce Forum Selection Agreement, and in support states as

follows:

I. Preliminary Statement This matter arises from the death of RCL passenger, Barbara Sibblis, who passed away

while swimming in the ocean during an excursion that Out Island owned and operated in Sint

Maarten. Out Island, which has at all times maintained its only place of incorporation and

principal place of business in Sint Maarten, should be dismissed with prejudice because, as this

Court has twice found, it is not subject to personal jurisdiction in Florida, and the service of

process Plaintiffs attempted does not comport with Sint Maarten law. See e.g. Hickey v. Celebrity

Cruises, Inc. & Out Island Charters, No. 13-20587-Civ-Scola/Reyes, U.S. Dist. LEXIS 195809,

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at *7 (S.D. Fla. Feb. 2, 2015) and Ree v. Out Island Charters, et.al. No. 15-21842-Civ-

Cooke/Torres, ECF No. 57, (S.D. Fla. February 11, 2016) (both dismissing Out Island for lack of

personal jurisdiction and quashing service of process because service did not comport with Sint

Maarten law, which requires service through a bailiff).

The issue of whether personal jurisdiction can be exercised over foreign shore excursion

operators in contractual relationships with Florida-based cruise lines has been litigated in this

district ad nauseum. Following the seminal, 2014 Supreme Court decision in Daimler AG v.

Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014), every decision from this Court (with the

exception of two decisions that nonetheless support dismissal here)1, has found personal

jurisdiction lacking. Among the many decisions are Hickey and Ree (supra) and Chief Judge

Moore’s decision in Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1336 n.7, (S.D. Fla.

2016) (citation omitted) (“The Court [in Daimler] has left open only the slimmest possibility that

general jurisdiction might be permissible in a state that is the functional equivalent of one of

th[e] paradigm examples. While such an exception is theoretically possible, the Court suggests

that it will be the rarest of rarities.”)

Moreover, the Eleventh Circuit affirmed both post-Daimler decisions that cruise

passengers appealed after the district court found personal jurisdiction lacking over the foreign

shore excursion operators. See Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th

Cir. Jun. 15, 2015), citing Daimler AG v. Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014) (“[a]

foreign corporation cannot be subject to general jurisdiction in a forum unless the corporation’s

activities in the forum closely approximate the activities that ordinarily characterize a

1 See Lienemann v. Cruise Ship Excursions, Inc., 2018 U.S. Dist. LEXIS 197781, at *13 (S.D. Fla. Nov. 9, 2018) (Lenard, J.) and Steffan v. Carnival Corp., 2017 U.S. Dist. LEXIS 161790, at *18 (S.D. Fla. Aug. 1, 2017) (Altonaga, J.) (finding personal jurisdiction based on the plaintiffs’ status as third party beneficiaries to the agreement between the foreign tour operator and Carnival Corp and the forum selection clause in said agreement.) As addressed in further detail below, however, although other decisions from this Court establish that these decisions overlooked applicable law, both the Steffan and Lienemann courts noted that personal jurisdiction would have been lacking had the agreement at issue been Royal Caribbean’s standard shore excursion agreement, which is the agreement at issue here. These court founds that unlike the Carnival agreement, RCL’s agreement expressly disclaimed third-party beneficiaries and did not contain the requirement that the shore excursion operator consent to personal jurisdiction in Florida in the event that the cruise passenger added Carnival as a party to the lawsuit.

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corporation’s place of incorporation or principal place of business.”) See also Wolf v. Celebrity

Cruises, Inc., 683 F. App'x 786, 791 (11th Cir. 2017) (citation and internal quotations omitted)

(“[o]nly in the exceptional case may “a corporation's operations in a forum other than its formal

place of incorporation or principal place of business ... be so substantial and of such a nature as

to render the corporation at home in that State.”)

As Out Island establishes here and has established in prior cases, it has had only one “home,”

Sint Maarten. The very limited contacts Plaintiff alleges (i.e. contracts with Florida-based cruise

lines, contractual forum selection clause with cruise lines, etc.), have been consistently rejected

by this Honorable Court and the Eleventh Circuit as insufficient for purposes of establishing

personal jurisdiction.

The same applies to the theories of specific jurisdiction Plaintiff proffers. Moreover, although

moot in light of the above, dismissal is also warranted because Plaintiffs entered into a binding

contract with Out Island where they agreed to bring any claims against it in Sint Maarten. Thus,

for all the reasons noted above, even if Plaintiffs were given another opportunity to serve Out

Island through the proper channels, their attempt would be futile. For these reasons, the Court

should dismiss Out Island with prejudice.

II. Factual Analysis 1. Plaintiffs attempted to serve their Complaint and Summons on Out Island in

Phillipsburg, Sint Maarten, through a letter that their attorney mailed via DHL. See Pls’ letter to

Out Islands dated May 18, 2020 at ECF No. 30, p. 8.

2. Plaintiffs also attempted substituted service on Florida’s Secretary of State. Id. at pp.

3 – 6.

3. Sint Maarten law (Article 1, §1 of the Codes of Civil Procedure) mandates that

service of process of initial pleadings in an action for damages, such as Plaintiffs’ action, must be

made by a writ of summons served by a duly appointed process server, i.e. bailiff. See

Declaration of Sint Maarten attorney, Charles Rutte, attached as Exhibit “A,” at ¶4-5.

4. Sending the Complaint and Summons to Out Island by postal channels does not meet

the service requirements of Sint Maarten law. Id. at ¶4-6.

5. At all times, Out Island has been a private corporation registered in and existing

under the laws of Sint Maarten and has maintained its only place of business there. It operations

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have always been limited to Sint Maarten. See Declaration of Out Island shareholder, Judy

Reeve, attached as Exhibit “B,” at ¶ 4.

6. Out Island has never, among other things: been incorporated, licensed or qualified to do

business in the State of Florida or elsewhere in the United States; maintained any place of business

within the State of Florida or elsewhere in the United States; owned any assets in the State of

Florida or elsewhere in the United States; had a registered agent in the State of Florida or elsewhere

in the United States; been subject to service of process in the State of Florida or elsewhere United

States; or operated, conducted, engaged in or carried on a business venture, or had an office or

agency in Florida or elsewhere in the United States. Id at ¶¶9, 12, 15 17, & 21.

7. The incident alleged in the Complaint does not have a connection with the State of

Florida, and did not cause injury to a person or property located in Florida. Id at ¶40.

8. On the date of the incident alleged in Plaintiffs’ Complaint, February 20, 2019, Out

Island offered the subject excursion to RCL passengers through an Independent Contractor Tour

Operator Agreement (“TOA”) between RCL and Out Island. Out Island executed the TOA in Sint

Maarten. Out Island performed all services under the TOA in Sint Maarten and nowhere else. Id.

at ¶ 6.

9. The TOA does not require that Out Island consent to the jurisdiction of any court in

the United States for disputes involving cruise passengers or any other third parties. Out Island

has never entered into an agreement where it consented to litigate disputes in the United States for

matters involving lawsuits by cruise passengers. Out Island did not consent to submit to this

Court’s jurisdiction in this case. Id. at ¶ 7.

10. The only forum selection agreement that Out Island has entered into with any

applicability to the present dispute is contained in the “Contractual Assumption

Acknowledgement of Risks and Liability Waiver and Release Agreement” (“Liability Waiver”)

that Barbara Sibblis and Nicole Woodley executed on February 19, 2019 before their participation

in the subject shore excursion. By executing the Liability Waiver, Plaintiffs agreed to commence

any legal action against Out Island in St. Maarten. The Liability Waiver states, in part:

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Id. at ¶8, attached Liability waiver as Exhibit “2” to the Declaration.

11. The TOA in effect on the date of the incident alleged in the Complaint, which was

between RCL and Out Island, imposed no obligation intended to benefit third parties, including

but not limited to RCL passengers. The TOA contains no express or implied provision

establishing an intent to primarily or directly benefit third parties, including but not limited to

passengers such as the Plaintiffs. The TOA contains no express provision guaranteeing safe

passage. Conversely, the TOA contains an express provision that explicitly disclaims the

existence of third party beneficiaries. The provision is in paragraph 12.10 of the TOA under the

heading “Third Party Beneficiary.” Paragraph 12.10 establishes that “this Agreement shall not be

deemed to provide third parties with any remedy, claim, right or action or other right.” The

purpose of the TOA was to confer a benefit for Out Island and RCL and no one else. Out Island

did not enter into the TOA to benefit anyone other than Out Island. Id. at ¶36

III. Memorandum of Law A. Plaintiffs’ Complaint should be dismissed for insufficient service of process2 on Out

Island, a Sint Maarten corporation with no Florida presence, for failure to comply with Rule 4.

Under Fed. R. Civ. P. 4(f)(2)(A), “service on a corporation in a foreign country must be

accomplished as prescribed by the foreign country's law for service in that country in an action in

its courts of general jurisdiction.” Hickey, 2015 U.S. Dist. LEXIS 195809, at *7 (internal

quotations omitted) (quashing service of process attempted on Out Island for failure to comply

with Rule 4). “Article 1, Section 1, of the Sint Maarten Code of Civil Procedure expressly

2 As a threshold matter, courts cannot exercise personal jurisdiction over a foreign defendant that was improperly served. See Prewitt Enters. v. OPEC, 353 F.3d 916 (11th Cir. 2003) (citing Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“before a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant . . . there also must be a basis for the defendant's amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant.”); see also Bodyup Fitness, LLC v. 2080039 Ontario, Inc., 2008 U.S. Dist. LEXIS 13494, 14-15, (S.D. Fla. 2008); Polskie Linie Oceaniczne, 795 F.2d 968, 972 (11th Cir. 1986) (“A plaintiff has the burden of sustaining validity of service to invoke long-arm jurisdiction in the Florida courts.”). Where service is insufficient, it should be quashed.

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requires that service of process be effectuated by a duly appointed and authorized process server

(bailiff).” Id., see also Ex. A, Declaration of Sint Maarten attorney, Charles Rutte, at ¶4-6 (citing

Sint Maarten’s Code of Civil Procedures, Article 1, § 1). More recently, in Ree v. Out Island

Charters, et.al. No. 15-21842-Civ-Cooke/Torres, ECF No. 57, (S.D. Fla. February 11, 2016),

Judge Cooke granted Out Island’s motion to quash service of process for failure to comply with

Sint Maarten law.3

Other decisions from this district similarly support Out Island’s Motion. See Forth v.

Carnival Corp., No. 12-23770-CIV-SEITZ/SIMONTON, 2013 U.S. Dist. LEXIS 62263, at *3

(S.D. Fla. Apr. 30, 2013) (finding the following methods of service insufficient because they did

not comply with Mexican law: serving the Florida Secretary of State as the purported agent

pursuant to 48.181; sending the defendant a copy of the Complaint and Summons via registered

mail; and having the Clerk of Court for the Southern District of Florida issue and send a Notice

of International Service, along with a copy of the Complaint and Summons, to the defendant via

Federal Express); Easy Fly S.A.L. v. Aventura Aviation, Inc., 2010 WL 4683885, *3 (S.D. Fla.

2010) (Lenard, J) (quashing service on nonresident defendant for failure to comply with Rule 4,

notwithstanding purported service under 48.181). 4

Moreover, as the above decisions also show, Plaintiffs cannot meet their burden to plead

any basis for substituted service on Florida’s Secretary of State under § 48.181.5 “In order to

3 Although Judge Cooke’s Order of dismissal does not state the grounds, see Out Island’s Motion to Quash, No. 15-21842, ECF No. 38 at pp. 5 – 8, showing that the plaintiffs attempts consisted of, inter alia, Fed Ex letter from Clerk of the Southern District of Florida and substituted service through Florida’s Secretary of State. 4 Actual notice of the Complaint is insufficient. See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (“A defendant’s actual notice is not sufficient to cure defectively executed service”); Prewitt Enterprises, Inc. v. Org. of Petroleum Exporting Countries, 353 F.3d 916, 925 (11th Cir. 2003) (“[t]hus, we agree with the district court that even though [defendant] had actual notice of the filing of the suit, service of process was ineffective because it was clearly not in substantial compliance with the requirements of Fed.R.Civ.P. 4(f)(2)(C)(ii).”). 5 A “defendant[ ] ha[s] no obligation to waive [its] due process right to proper service.” Adams v. AlliedSignal Gen. Aviation Avionics, 74 F.3d 882, 886 (8th Cir.1996). Plaintiffs’ burden is to plead facts authorizing substituted service, meeting the strict and narrow constraints of the substituted service statute, in order to protect due process. See City of Jacksonville v. Arrigato, Inc., 2010 U.S. Dist. LEXIS 89406 (M.D. Fla. 2010) (“Valid substituted service of process on

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serve a nonresident pursuant to section 48.181, the complaint must allege specific facts which

show that the defendant is conducting business in Florida and that the cause of action arose from

business activities within this state.” Newberry v. Rife, 675 So. 2d 684, 685 (Fla. 2d DCA 1996)

(emphasis added). “Section 48.181, like subsection 48.193(1), requires that “connexity” exist

between the cause of action and the defendant's activities in Florida.” Farrell v. Royal Caribbean

Cruises, Ltd., 917 F. Supp. 2d 1248, 1254 (S.D. Fla. 2013)); see also Groome v. Feyh, 651 F.

Supp. 249, 253 (S.D. Fla. 1986) (“The operative language of section 48.181(1) has been found to

be identical to the language of section 48.193(1)(a), the statute at issue here. Cases interpreting

section 48.181(1) have been deemed to be applicable to section 48.193(1)(a).”). Conclusory

allegations do not suffice. See Hartman Agency, Inc. v. Indiana Farmers Mut. Ins. Co., 353 So.

2d 665, 666 (Fla. 2d DCA 1978). As shown below, neither of these two elements can be met, as

there is no basis for specific jurisdiction, and Plaintiffs fail to plead any specific facts showing

that Out Island conducted business in Florida, and that the action arises from Out Island’

business activities in Florida. Even if Plaintiffs’ did, Out Island’s declaration establishes the

contrary.

B. Even if Plaintiff had properly served Out Island, dismissal for lack of personal jurisdiction is required. 1. Legal standard for conferring jurisdiction over a nonresident defendant

“A federal court sitting in diversity undertakes a two-step inquiry in determining whether

personal jurisdiction exists: the exercise of jurisdiction must (1) be appropriate under the state

long-arm statute and (2) not violate the Due Process Clause of the Fourteenth Amendment to the

United States Constitution.” Carmouche v. Tamborlee Mgmt., 789 F.3d 1201, 1203 (11th Cir.

2015) citing United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.2009). “A defendant

can be subject to personal jurisdiction under Florida's long-arm statute in two ways: first, section

48.193(1)(a) lists acts that subject a defendant to specific personal jurisdiction—that is,

jurisdiction over suits that arise out of or relate to a defendant's contacts with Florida, Fla. Stat. §

the Secretary of State requires strict compliance with the statutory provisions for substituted service.”); Cantley v. Ducharme, 2010 U.S. Dist. LEXIS 65745 (S.D. Fla. 2010) (§ 48.181 “must be strictly construed to protect due process guarantees.”); Mecca Multimedia, Inc. v. Kurzbard, 954 So.2d 1179 (Fla. 3d DCA 2007) (“The burden of pleading facts that support, as a matter of law, the applicability of substituted service falls on the party seeking to invoke the provisions of the long-arm statute.”) (citing Labbee v. Harrington, 913 So.2d 679, 682 (Fla. 3d DCA 2005)).

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48.193(1)(a); and second, section 48.193(2) provides that Florida courts may exercise general

personal jurisdiction—that is, jurisdiction over any claims against a defendant, whether or not

they involve the defendant's activities in Florida—if the defendant engages in “substantial and

not isolated activity” in Florida, id. § 48.193(2).” Id at 1203-1204.

However, "[t]he reach of section 48.193(2) extends to the limits on personal jurisdiction

imposed by the Due Process Clause of the Fourteenth Amendment." Carmouche, 789 F.3d at

1204 (citing Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010)). “So, to determine whether the

district court had general jurisdiction over [Out Island] under section 48.193(2), [the Court] need

only determine whether the [] exercise of jurisdiction over [Out Island] would exceed

constitutional bounds." Id. (internal quotations omitted). “A court may assert general jurisdiction

over foreign (sister-state or foreign-country) corporations, without offending due process when

their affiliations with the State are so continuous and systematic' as to render them essentially at

home in the forum State. Id. (quotations and citations omitted).

However, even before the Court engages in the first step of the above noted analysis, it

should first determine whether the Complaint contains sufficient material facts to support the

exercise of jurisdiction. As the Eleventh Circuit recently reiterated, “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).

“When a defendant challenges personal jurisdiction by submitting affidavit evidence in

support of its position, the burden traditionally shifts back to the plaintiff to produce evidence

supporting jurisdiction.” Id. “If defendants sufficiently challenge plaintiff's assertions, then

plaintiff must affirmatively support his or her jurisdictional allegations, and may not merely rely

upon the factual allegations set forth in the complaint.” Roblor Mktg. Grp., Inc. v. GPS Indus.,

Inc., 645 F. Supp. 2d 1130, 1137 (S.D. Fla. 2009); see also Yepez v. Regent Seven Seas Cruises,

10-23920-CIV, 2011 WL 3439943, *1 (S.D. Fla. 2011) (King, J) (“[T]he party who invokes the

jurisdiction of the court has the burden of establishing jurisdiction. Rule 8(a) requires the

plaintiff to set forth in the complaint the factual support for jurisdiction.”).

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2. Specific jurisdiction cannot be exercised over Out Island.

a. Fla. Stat. § 48.193(1)(a)(1) does not confer jurisdiction over Out Island

“Subsection (1)(a)(1) confers jurisdiction over an out-of-state defendant for claims arising

against a defendant who is "operating, conducting, engaging in, or carrying on a business venture

in this state or having an office or agency in this state.” Serra-Cruz, 400 F. Supp. 3d at 1358.

“[S]pecific 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 related to the plaintiff's cause of action.” Wolf, 683 F. App'x

at 793. In the present case, Plaintiffs do not allege that Out Island committed a tortious act in

Florida and cannot assert specific jurisdiction based on any tort claims related to the incident that

occurred in Sint Maarten. In Wolf, the Eleventh Circuit found that specific jurisdiction cannot be

exercised for this exact reason. See Id. (“Mr. Wolf does not allege that OCT committed a tortious

act in Florida and cannot assert specific jurisdiction based on any tort claims related to the

incident that occurred in Costa Rica.”); see also Serra-Cruz, 400 F. Supp. 3d at 1358 (citing

Bloom v. A.H. Pond Co., Inc., 519 F. Supp. 1162, 1168 (S.D. Fla. 1981) (“It is clear that doing

business in this state is not a sufficient basis, standing along, upon which to predicate long-arm

jurisdiction. There must also be some nexus or connection between the business that is

conducted in Florida and the cause of action alleged.”)). Florida’s Third District Court of

Appeals has even recognized “that recent constitutional jurisprudence suggests that, to comply

with the Fourteenth Amendment's due process requirement, a state court may exercise specific

jurisdiction over a non-resident defendant only when the complained-of injury actually occurs in

the forum state.” Banco de los Trabajadores, 237 So. 3d at 1136 n.10 (citing Bristol-Myers

Squibb Co. v. Superior Ct. of Cal., San Francisco Cty., 137 S.Ct. 1773, 198 L. Ed. 2d 395

(2017)).

b. Fla. Stat. § 48.193(1)(a)(4) does not confer jurisdiction over Out Island.

Plaintiffs argue that this section applies because Out Island agreed to indemnify RCL for

claims made in their Complaint. See Compl., ECF. No 1 at ¶36. This Court, however, has

consistently rejected this argument in the content of similarly situated foreign shore excursion

operators. See, e.g., Brown v. Carnival Corp., et al., 2016 WL 4613385, at *7 (S.D. Fla. Aug. 15,

2016) (Ungaro, J) (citing Lapidus v. NCL Am. LLC, 2013 WL 646185 (S.D. Fla. Feb. 14, 2013)

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(Seitz, J) (“[h]ere, Plaintiff's contention that the Excursion Entities agreed to indemnify [cruise

line] for his claims is insufficient because Plaintiffs negligence claims do not arise from an

indemnity agreement. Plaintiffs’ claims arise from [cruise line’s] allegedly negligent actions

onboard the ship and in Hawaii. Put another way, Plaintiffs negligence claims could be asserted

regardless of whether an indemnity agreement exists between NCL and the Excursion

Entities”)). See also E & H Cruises, Ltd. v. Baker, 88 So. 3d 291, 296 (Fla. 3rd DCA 2012)

(rejecting same argument and noting, inter alia, “[b]ecause the plaintiff is neither suing, nor

could sue, under the Tour Operator Agreement, she cannot use same as a basis for jurisdiction.”)

c. Fla. Stat. § 48.193(1)(a)(9) does not confer jurisdiction over Out Island

Plaintiffs allege that Out Island is subject to personal jurisdiction under Fla. Stat. §

48.193(1)(a)(9) (which incorporates Fla. Stat. §§ 685.101 and 685.102), because it entered a

contract with RCL containing a Florida forum clause. See Compl., ECF No. 1 at ¶37. Like other

cruise passengers, Plaintiffs may argue that they are able to enforce the forum selection provision

between RCL and Out Islands because they were third party beneficiaries to the TOA. This

argument fails as a matter of law. As the Honorable Judges Cooke, Ungaro and Williams have

recognized, personal jurisdiction cannot be asserted under the above referenced statutes over

foreign operators than do not have Florida forum selection agreement with the plaintiff. See

Kenneth Evesson v. Carnival Corp. et. al., Case No. 17-23474, D.E. 41 (S.D. Fla. June 20, 2018)

and Transcript of June 7, 2018 oral arguments, attached as Exhibit “C,” at p. 32 - 33; Mabs, et.

al. v. Kantours, et. al. No. 1:19-cv-20144, D.E. 72 (S.D. Fla. July 31, 2019) (Cooke J.) and

Transcript of July 31, 2019 oral arguments, attached as Exhibit “D,” at page 29; Serra-Cruz v.

Carnival Corp., 400 F. Supp. 3d 1354, 1361 (S.D. Fla. 2019) (Ungaro, J.) (“The Court agrees

with Judge Cooke in Evesson v. Carnival Corp. et al., No. 17-cv-23474-MGC, D.E. 41, 45 (S.D.

Fla. June 20, 2018) . . . Plaintiff's use of subsection (1)(a)(9) through a third-party beneficiary

claim is an attempted ‘back door way through the contract’ to establish jurisdiction over a

foreign defendant in a personal injury case.”); Kreyer v. Carnival Corp., 2019 U.S. Dist. LEXIS

223736, at *5 (S.D. Fla. Dec. 18, 2019) (Williams, J. ) (citing Evesson and Serra Cruz for the

proposition “that several other Courts in this District have thoroughly addressed the issues raised

in [the tour operator’s] motion to dismiss and have found that dismissal is warranted.”)

The only two courts to have applied Fla. Stat. §§ 685.101-.102 against a foreign shore

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excursion operator, which they did under the third-party beneficiary theory, recognized that they

would apply to Carnival’s TOA but not RCL’s (i.e. the TOA as issue here). See Lienemann v.

Cruise Ship Excursions, Inc., 2018 U.S. Dist. LEXIS 197781, at *13 (S.D. Fla. Nov. 9, 2018)

(Lenard, J.); Steffan v. Carnival Corp., 2017 U.S. Dist. LEXIS 161790, at *18 (S.D. Fla. Aug. 1,

2017) (Altonaga, J.) In both cases, the courts noted that RCL passengers would not be able to

enforce the same TOA at issue here, because the TOA explicitly disclaims third party

beneficiaries. In fact, even in the context of 12(b)(6) motions, courts in this district routinely

dismiss similar third party beneficiary claims with prejudice, when considering the same TOA at

issue here. See e.g., Sanlu Zhang v. Royal Caribbean Cruises, Ltd., 2019 U.S. Dist. LEXIS

199362, at *29-30 (S.D. Fla. Nov. 14, 2019; Doria v. Royal Caribbean Cruises, Ltd., 2019 U.S.

Dist. LEXIS 104354, at *18 (S.D. Fla. June 19, 2019)(Williams, J.); Gayou v. Celebrity Cruises,

Inc., 2012 U.S. Dist. LEXIS 77536, at *33-34 (S.D. Fla. June 5, 2012) (Scola, J.); Zapata v.

Royal Caribbean Cruises, Ltd., 2013 U.S. Dist. LEXIS 43487, at *17-19 (S.D. Fla. Mar. 27,

2013) (Cooke, J).

Although ultimately without difference to Out Island, the Courts in Kreyer, Evesson and

Serra-Cruz disagreed with portions of Steffan and Lienemann, and found that Fla. Stat. §§

685.101-.102 would not apply to Carnival’s TOA either. As Judge Ungaro recognized, Steffan

presumably ruled as it did “because the court [] did not have the benefit of the defendant's

briefing and relied wholly on the plaintiff's arguments, which were brought to the court's

attention in a notice of supplemental authority filing . . .” Id at *12-13. And concerning,

Lienemann, Judge Ungaro found it “relied almost entirely on Steffan in finding that jurisdiction

existed due to the excursion contractor agreement” and noted that the arguments supported by

the decision’s reasoning were “meritless.” Id. The Serra-Cruz court also recognized that even if

third party beneficiary status permitted enforcement of forum selection agreements, the lack of

an express disclaimer against such status, which Carnival’s TOA did not have (but RCL’s does),

would not create third party beneficiary status. Id at *16.

3. General jurisdiction cannot be personal jurisdiction over Out Island, which is “at home” only in Sint Maarten.

Plaintiffs’ Complaint acknowledges that Out Island is a foreign entity operating in Sint

Maarten [ECF No. 1 at ¶ 13]. Moreover, they do not allege that Out Island is “at home” in

Florida. Although this alone forecloses a finding of general jurisdiction, out of an abundance of

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caution Out Island notes as follows:

A corporation’s place of incorporation and its principal place of business are paradigm all-purpose forums. And a corporation's operations in a forum other than its formal place of incorporation or principal place of business will be so substantial and of such a nature as to render the corporation at home in that State only in exceptional cases.

Carmouche, 789 F.3d at 1204, citing Daimler, 134 S.Ct. at 761 (internal quotes omitted); see

also Thompson v. Carnival Corp., 174 F. Supp. 3d 1327 (S.D. Fla. 2016) (holding that the court

could not exercise jurisdiction over excursion entities when contacts were even more attenuated

that those required in Carmouche and Daimler). Applying this standard, this Court determined

that general jurisdiction cannot be asserted against Out Island. See, e.g., Hickey, 2015 U.S. Dist.

LEXIS 195809, at *18-19 (“Applying this [Daimler] analysis, it is clear that Out Island, a

corporation that operates exclusively in the Caribbean Island of Saint Martin, is not ‘at home’ in

Florida. Therefore, even if [the plaintiff] could prove her ‘sham independent contractor/agency

relationship’ theory through additional discovery, the exercise of general personal jurisdiction

over Out Island would not satisfy the minimum contacts requirement of the Due Process Clause

of the Fourteenth Amendment.”).

Having established that Out Island’s principal place of business or place of incorporation

is not in Florida, the Court need not examine much more. The Complaint comes nowhere close

to showing this is an “exceptional case” as contemplated by the Supreme Court. Plaintiffs cannot

meritoriously rebut that the Complaint fails to establish a basis for jurisdiction.

Contacts such as those alleged in the Complaint have been consistently rejected as

insufficient by this Honorable Court and the Eleventh Circuit, particularly in cases involving

foreign tour operators doing business with cruise lines. In Carmouche v. Tamborlee, for

example, the Eleventh Circuit rejected the following contacts as insufficient: (1) contractual

relationship with numerous Florida-based cruise lines; (2) a Florida bank account administered in

Miami; (3) two Florida addresses; (4) purchase of insurance from Florida companies; (5) filing a

financing statement with the Florida Secretary of State; (6) membership in the Florida Caribbean

Cruise Association; (7) consenting to the jurisdiction of the Southern District of Florida for all

lawsuits arising out of its agreements with Carnival Corporation. See Carmouche, 789 F.3d at

1204. The Carmouche court concluded “[t]hese connections are not so substantial as to make this

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one those exceptional cases in which a foreign corporation is at home in a forum other than its

place of incorporation or principal place of business. Id (internal quotes omitted) (citing Daimler,

134 S.Ct. at 761 n. 19).

In Thompson v. Carnival Corp., this Court cited Daimler’s “sweeping declaration ‘that

only a limited set of affiliations with a forum will render a defendant amenable to all-purpose

jurisdiction . . .” and found that jurisdiction over the foreign tour operator was improper. See

Thompson, 174 F. Supp. 3d at 1334. The court noted that Daimler signaled a “dramatic change,”

and made it “incredibly difficult to establish general jurisdiction in a forum other than the place

of incorporation or principal place of business.” Id at *6 (citing Monkton Ins. Servs., Ltd. v.

Ritter, 768 F.3d 429, 432 (5th Cir. 2014)).

Lastly, to the extent that Plaintiff argues that the Florida contacts of other entities should

be imputed onto Out Island, the argument fails as a matter of law. See Atmos Nation Ltd. Liab.

Co. v. Alibaba Grp. Holding Ltd., 2016 U.S. Dist. LEXIS 33228, at *17 (S.D. Fla. Mar. 15,

2016)(Moore, J.) (“The fact that Defendants may have involvement, even extensive involvement,

with corporations that do business in Florida is not sufficient, in and of itself, to establish that

Defendants themselves are subject to the personal jurisdiction of a Florida court.”).

In McCullough v. Royal Caribbean Cruises, Ltd., the court also rejected the plaintiffs’

attempt to impute the contacts of Florida-based affiliates onto the foreign defendant challenging

personal jurisdiction. The court noted as follows:

Notwithstanding the factual distinction, the McCulloughs face a broader problem. Daimler rejected the Ninth Circuit's agency theory of jurisdiction, finding that it "appears to subject foreign corporations to general jurisdiction whenever they have an in-state subsidiary or affiliate, an out-come that would sweep beyond even the 'sprawling view of general jurisdiction' . . . rejected in Goodyear." 134 S. Ct. at 760 (quoting Goodyear, 564 U.S. at 929). Since Daimler, several courts in this District have strongly suggested that that rejection has abrogated the agency theory advanced by Meier and its progeny. See Thompson, 174 F. Supp. 3d at 1336 ("[R]eliance on [Stubbs and Meier] to establish general jurisdiction on an agency theory is dubious given the decisions in Daimler and Goodyear."); Schulman v. Global Citizens Travel, LLC, No. 13-23766, 2015 U.S. Dist. LEXIS 178872, 2015 WL 11018438, at *4 (S.D. Fla. Jan. 20, 2015) ("The approach to agency the Eleventh Circuit applied in a jurisdictional analysis in Meier and Stubbs is now in doubt in light of Daimler, in which the Supreme Court expressed skepticism of any agency test that did not require a showing that the agent in the forum state was 'so dominated by the [parent] as to be its alter ego.'" (quoting Daimler, 134 S. Ct. at

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759)); see also Aronson v. Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1391 (S.D. Fla. 2014).

McCullough, 268 F. Supp. 3d 1336, 1348 (S.D. Fla. 2017).

4. The Court Lacks Jurisdiction over Out Island under Federal Rule of Civil Procedure 4(k)(2), the National Long-Arm Statute, as Out Island’s nonexistent contacts with the United States do not subject it to general or specific jurisdiction.

In apparent recognition that Florida, or any other state for that matter, does not have

jurisdiction over Out Island, Plaintiff has also pled jurisdiction pursuant to Fed .R. Civ. P. 4.

Rule 4(k)(2), the national long-arm statute, “permits a federal court to exercise personal

jurisdiction over a defendant, providing that two essential 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.” Fraser, 594 F.3d at 849.

However, courts rarely invoke jurisdiction under Rule 4(k)(2), as observed by the Ninth

Circuit: “in the fourteen years since Rule 4(k)(2) was enacted, none of our cases has

countenanced jurisdiction under the rule.” Holland Am. Line Inc. Wärtsilä N. Am., Inc., 485 F.3d

450, 462 (9th Cir. 2007). The court in Holland further explained:

The few cases in which our sister circuits have concluded that Rule 4(k)(2) conferred jurisdiction have involved defendants with much more extensive contacts to this country. See, e.g., Mwani v. bin Laden, 417 F.3d 1, 13 (D.C. Cir. 2005) (holding that jurisdiction could be exercised where defendants had engaged in numerous conspiracies to bomb the World Trade Center, the United Nations, and the Lincoln and Holland Tunnels); Adams v. Mediterranea Di Sicurta, 364 F.3d 646, 651 (5th Cir. 2004) (upholding personal jurisdiction under Rule 4(k)(2) where the defendant insurer had directly insured hundreds of claims in the United States).

Id. It is in this light, that the Court should view Plaintiffs’ request for jurisdiction under Rule

4(k)(2).

Following Daimler, jurisdiction under Rule 4(k)(2) has become even harder to establish.

As District Courts in this District have recently recognized:

This is not one of those uncommon cases. The Excursion Entities' contacts with the United States as a whole are simply too attenuated to support jurisdiction under Rule 4(k)(2). Turning back to Fraser, the Eleventh Circuit determined that the tour boat

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operator's nationwide contacts “were no more continuous and systematic than the company's activities in Florida.” Fraser, 594 F.3d at 849. As a result, the Court held that exercising general jurisdiction over the foreign-based corporation under Rule 4(k)(2) would offend due process. Id. at 850 (reasoning that if the tour boat operator was “subject to general personal jurisdiction under Rule 4(k)(2)” it would necessarily “imply that the company is amenable to suit everywhere in the United States on any claim arising under federal law”).

Thompson, 174 F. Supp. 3d at 1327; see also Chimene v. Royal Caribbean Cruises Ltd., 2017

U.S. Dist. LEXIS 65965, at *9 (S.D. Fla. Apr. 5, 2017) (Moreno, J.), citing Wolf, 2017 U.S. App.

LEXIS 5348, 2017 WL 1149092, at *4; McCullough, 268 F. Supp. 3d at 1352 (rejecting a

similar attempt to apply Rule 4(k)(2) to a foreign shore excursion operator in a contractual

relationship with U.S. based cruise lines).

A district court in Pennsylvania also recognized:

. . . under the “at home” standard reiterated in Daimler AG, it is unlikely that a court could ever find general jurisdiction under Rule 4(k)(2). Indeed, a finding that a corporate defendant “is fairly regarded as at home” within the United States would seemingly preclude a finding that the same corporate “defendant is not subject to jurisdiction in any state's courts of general jurisdiction,” as is required under Rule 4(k)(2)(A).

Best Odds Corp., 2014 WL 2527145, at *5 (finding no national jurisdiction despite defendant’s

media kit in which it self-described its “significant U.S presence”); see also

Chimene v. Royal Caribbean Cruises Ltd., 2017 U.S. Dist. LEXIS 65965, at *10 (S.D. Fla. Apr.

5, 2017) (Moreno, J).

C. Plaintiffs’ unequivocal acceptance of binding forum selection agreement requires dismissal for improper venue Although, in light of the above, the Court need not reach this issue, Out Island addresses

it out of an abundance of caution. As noted above, prior to participating in the subject tour,

Plaintiffs executed a Liability Waiver that included a mandatory forum selection clause, which

explicitly provides in capitalized letters:

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See Ex. “B,” at ¶ 8.

Plaintiffs’ signatures confirms that they read and accepted the clear and unambiguous

terms and conditions of the Agreement. Above their signatures, the Agreement states in all

capital letters: “I HAVE READ AND UNDERSTAND THIS AGREEMENT IN I AM AWARE

THAT BY SIGNING THIS AGREEMENT I MAY BE WAIVING CERTAIN LEGAL

RIGHTS, INCLUDING THE RIGHT TO SUE.” Id6.

Plaintiffs’ acceptance of this binding, mandatory forum selection clause, requiring his

claims in this action to be brought exclusively in Sint Maarten, also warrants dismissal. See e.g.

Krenkel v. Kerzner Intern. Hotels, Ltd., 579 F.3d 1279 (11th Cir. 2009) (enforcing forum

selection clause within terms of contract signed by hotel guests upon check-in). Controlling

Eleventh Circuit law holds that “forum-selection clauses in international agreements ‘are prima

facie valid and should be enforced unless enforcement is shown by the resisting party to be

‘unreasonable’ under the circumstances.’” Lipcon v. Underwriters at Lloyd's, London, 148 F.3d

1285, 1291 (11th Cir. 1998).

Such forum selection clauses are strictly enforced, even when unequal bargaining power

is alleged, unless the plaintiff can meet a “heavy burden of proof” to show that enforcement is

fundamentally unfair. See Carnival Cruises, Inc. v. Shute, 499 U.S. 585 (1991) (enforcing forum

selection clause against cruise line passenger). To overcome the forum selection clause, Plaintiff

must meet a heightened “strong showing” of unreasonableness standard, which occurs “only

when: (1) their formation was induced by fraud or overreaching7; (2) the plaintiff effectively

6 Of course, “[a] passenger’s failure to actually read the contractual provision at issue does not preclude his being bound.” See Racca v. Celebrity Cruises, Inc., 376 Fed. Appx. 929, 931 (11th Cir. 2010) (citing Carpenter v. Klosters Rederi A/S, 604 F.2d 11, 13 (5th Cir. 1979)). 7 “In determining whether there was fraud or overreaching in a non-negotiated forum-selection clause, we look to whether the clause was reasonably communicated to the consumer. A useful two-part test of ‘reasonable communicativeness’ takes into account the clause's physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the

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would be deprived of his day in court because of the inconvenience or unfairness of the chosen

forum; (3) the fundamental unfairness of the chosen law would deprive the plaintiff of a remedy;

or (4) enforcement of the provisions would contravene a strong public policy.” Id. at 1292.

Plaintiffs, whose Complaint does not even acknowledge the liability waiver they signed, have

not and cannot accurately allege any facts supporting any of the above elements

As none of the above noted circumstances are present here, the subject forum selection

clause warrants dismissal for improper venue under Rule 12(b)(3).

IV. Conclusion As shown above, dismissal is warranted for several independent reasons. First, Plaintiffs’

method of service is prohibited under Sint Maarten law and is thus noncompliant with Rule 4.

Second, the Court lacks personal jurisdiction over Out Island, which is not “at home” in Florida

and did not commit any tortious act here. Lastly, Plaintiffs executed a valid and enforceable

agreement that mandates that any claims against Out Island can only proceed in Sint Maarten.

For all these reasons, Out Island respectfully requests the Court dismiss it from this action with

prejudice and grant any other relief it deems just and proper.

Dated: June 19, 2020

Respectfully submitted,

/s/ Carlos J. Chardon Jerry D. Hamilton Florida Bar No.: 970700 [email protected] Carlos J. Chardon Florida Bar No. 517631 [email protected] Spencer B. Price Florida Bar No. 1001044 [email protected] HAMILTON, MILLER & BIRTHISEL, LLP

clause and to reject its terms.” Krenkel v. Kerzner Intern. Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (finding terms of hotel waiver reasonably communicated forum selection clause). Here, the physical characteristics of the waiver confirm it was reasonably communicated and Plaintiff’s signature, acknowledging he read and understood it, confirms he was meaningfully informed.

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150 Southeast Second Avenue, Suite 1200 Miami, Florida 33131 Telephone: (305) 379-3686 Attorneys for Defendant, Out Island

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 19, 2020, I electronically filed the foregoing

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing is being

served this day on all counsel of record or pro se parties identified on the following Service List

in the manner specified, either via transmission of Notices of Electronic Filing generated by

CM/ECF or in some other authorized manner for those counsel or parties who are not authorized

to receive electronically notices of Electronic Filing.

/s/ Carlos J. Chardon Carlos J. Chardon, Esq.

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SERVICE LIST

Tonya J. Meister, Esq. MEISTER LAW LLC Courthouse Tower, Suite 750 44 West Flagler Street Miami, Florida 33130 E-mail: [email protected]

Elizabeth K. Russo, Esq. Paolo R. Lima, Esq. RUSSO APPELLATE FIRM, P.A. [email protected] 7300 North Kendall Drive, Suite 600 Miami, Florida 33156 Telephone: (305) 666-4660 Facsimile: (305) 666-4470 Attorneys for Plaintiff

Jerry D. Hamilton, Esq. Florida Bar No. 970700 [email protected] Carlos J. Chardon, Esq. Florida Bar No. 517631 [email protected] Spencer B. Price, Esq. Florida Bar No. 1001044 [email protected] Hamilton, Miller & Birthisel, LLP 150 Southeast Second Avenue Suite 1200 Miami, Florida 33131 Telephone: 305-379-3686 Facsimile: 305-379-3690 Attorneys for Out Island Charters NV

Jeffrey E. Foreman, Esq. [email protected] [email protected] Noah D. Silverman, Esq. [email protected] [email protected] Lauren Rose, Esq. [email protected] [email protected] FOREMAN FRIEDMAN, PA One Biscayne Tower, Suite 2300 2 South Biscayne Boulevard Miami, FL 33131 Phone: 305-358-6555 Fax: 305-374-9077 Attorneys for Defendant, Royal Caribbean

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