Mock trial decision

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. ___________________________________________/

PLAINTIFFS’ RESPONSE TO DEFENDANT ROYAL CARIBBEAN CRUISES, LTD.’S MOTION TO DISMISS COMPLAINT

Plaintiffs, pursuant to Fed. R. Civ. P. 12(b)(6), respectfully submit this Response in

Opposition to Defendant Royal Caribbean Cruises, Ltd.’s (“Defendant” or “Royal”) Motion to

Dismiss the Complaint (D.E. 11) and states as follows:

This case is at the motion to dismiss stage. Not directed verdict or even summary

judgment.

The Court should deny Defendant’s motion and decline Royal’s invitation to skip ahead

to summary judgment simply because Royal disagrees with well-established concepts such as

notice pleading and discovery. Simply put, Plaintiffs have alleged more than enough facts to

place Royal on notice of the claims that it is being summoned to defend in this action. The Rules

of Civil Procedure do not require more than this. Plaintiffs are not required to adduce detailed

facts that are obviously beyond Plaintiffs’ ability to uncover at this early stage of litigation.

Notwithstanding Royal’s cherry-picking favorable language from other cases, the allegations in

the Complaint on file in this case show that Plaintiffs have adequately stated claims on which

relief can be granted.

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I. Standard for motions to dismiss

To survive a motion to dismiss based on Fed. R. Civ. P. 12(b)(6), a plaintiff must plead

enough facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The purpose behind

this plausibility requirement is that a complaint must “give the defendant fair notice of what the

claim is and the ground upon which it rests.” Twombly, 550 U.S. at 555.

This pleading standard “does not require detailed factual allegations,” although it

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. See

also id. (holding pleadings must contain “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do”). A complaint satisfies the plausibility

standard if “the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Finally, it is well settled that a district court reviewing a motion to dismiss “accepts the

factual allegations in the complaint as true and construes them in the light most favorable to the

plaintiff.” Speaker v. U.S. Dep’t of Health and Human Servs. Ctrs. For Disease Control &

Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010).

II. The Complaint is not a shotgun pleading

While Plaintiffs agree that the Eleventh Circuit has repeatedly criticized so-called

“shotgun pleadings,” Royal’s argument fails because the Complaint in this action is nothing like

the type of incomprehensible morass pleading that courts have stricken under this rule.

Defendant argues that the Complaint is a “classic shotgun pleading” because “it begins

each count with a preamble re-alleging and incorporating by reference one-hundred and thirty-

six (136) paragraphs of factual allegations…” (Mot. at 3). But the fact that the Complaint

incorporates by reference the general factual allegations into each of the respective counts or

claims does not make it a “shotgun pleading.” The Eleventh Circuit recently explained:

Shotgun pleadings are characterized by: (1) multiple counts that each adopt the allegations of all preceding counts; (2) conclusory, vague, and immaterial facts that do not clearly connect to a particular cause of action; (3) failing to separate each cause of action or claim for relief into distinct counts; or (4) combining multiple claims against multiple defendants without specifying which defendant is responsible for which act.

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McDonough v. City of Homestead, 771 Fed. Appx. 952, 955 (11th Cir. 2019) (citing Weiland v.

Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015)).

Indeed, in Weiland, the Eleventh Circuit noted that the complaint re-alleged the general

factual allegations into each count, but then expressly rejected the argument that it was a shotgun

pleading, stating: “What we have here is different. The allegations of each count are not rolled

into every successive count on down the line.” 792 F.3d at 1324. In fact, the Eleventh Circuit has

repeatedly made this distinction. See Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg

Corp., 305 F.3d 1293, 1295 (11th Cir. 2002) (condemning as a shotgun pleading a complaint that

“contains several counts, each one incorporating by reference the allegations of its predecessors

[i.e., predecessor counts], leading to a situation where most of the counts (i.e., all but the first)

contain irrelevant factual allegations and legal conclusions”); Magluta v. Samples, 256 F.3d

1282, 1284 (11th Cir. 2001) (identifying as a shotgun pleading a complaint where “[e]ach count

incorporates by reference the allegations made in a section entitled ‘General Factual

Allegations’…while also incorporating the allegations of any count or counts that precede it”).

The Eleventh Circuit, in Weiland explained that a complaint that incorporates all general

factual allegations should be dismissed only “where it is virtually impossible to know which

allegations of facts are intended to support which claim(s) for relief.” 792 F.3d at 1325. See also

Harvard v. Inch, 411 F. Supp. 3d 1220, 1233 (N.D. Fla. 2019) (citing Weiland and finding

complaint that incorporated all general factual allegations was not a “shotgun pleading”). Accord

Jackson v. Bank of America, N.A., 898 F.3d 1348, 1356 (11th Cir. 2018) (finding complaint was

“an incomprehensible shotgun pleading” because it “incorporates by reference all of its factual

allegations into each claim, making it nearly impossible for Defendants and the Court to

determine with any certainty which factual allegations give rise to which claims for relief”).

Here, each of the 12 counts incorporates by reference paragraphs 1 through 136, which

are substantive factual allegations. None of the twelve counts incorporates or adopts the

allegations of preceding counts. Nor, for that matter, can Defendant credibly argue that the

complaint is so “incomprehensible” as to make it impossible for Royal to determine which facts

support which claims. Accordingly, Eleventh Circuit precedent forecloses Defendant’s argument

on this point.

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In any event, to the extent this Court agrees with Defendant on this issue, Plaintiffs

respectfully request an opportunity to re-plead their claims, as mandated by Eleventh Circuit

precedent. See Jackson, 898 F.3d at 1358 (“In dismissing a shotgun complaint for

noncompliance with Rule 8(a), a district court must give the plaintiff ‘one chance to remedy such

deficiencies.’”) (quoting Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018)).

III. Plaintiffs have sufficiently alleged a claim for negligence

A. Royal’s argument concerning alleged “heightened duties of care” do not support dismissal

Defendant’s arguments that the Complaint “imposes numerous heightened duties of care”

is, ultimately, a waste of time. To be clear, Plaintiffs agree that the relevant duty applicable to

their negligence claims is “reasonable care under the circumstances.” And Royal appears to

agree that this duty encompasses a duty to warn Plaintiffs of “dangers in places where passengers

are reasonably expected to visit.” (Mot. at 5) (citing Thompson v. Carnival Corp., 174 F. Supp.

3d 1327, 1340 (S.D. Fla. 2016)). There can be no question that Plaintiffs were “reasonably

expected to visit” the beach where Ms. Sibblis perished, since it was Royal that sold Plaintiffs

the shore excursion tickets that took them there. (See Compl. at ¶¶ 134(f)-(j)).

Undoubtedly, Plaintiffs did plead that Royal breached its duty to warn when they alleged,

for example, that Royal:

 “[f]ailed to accurately inform cruise passengers, including Plaintiffs and decedent Barbara Sibblis, of the dangers and undue risks associated with the ‘A Golden Eagle Sailaway’ shore excursion” (Compl. at ¶ 143(p));

 “[f]ailing to warn passengers, including the Plaintiffs and decedent Barbara Sibblis, that the ‘A Golden Eagle Sailaway’ shore excursion involved deep water swimming with strong ocean currents and/or other dangers without life vests or other reasonable flotation device” (Compl. at ¶ 143(y))

Accordingly, Royal seems to concede that Plaintiffs have adequately pled a negligence claim

based on the duty to warn of the dangerous condition – namely, that the excursion Royal sold to

Plaintiffs entailed dumping adult passengers (including the 75-year-old decedent, Ms. Sibblis)

off a sailboat anchored in 10-foot-deep water with nothing more than a foam pool noodle and

then directing them to swim to a beach. (Compl. at ¶¶ 78, 81-82, 90).

To the extent Royal urges this Court to dismiss the negligence claim because Plaintiffs

have alleged that Royal breached additional duties, the Court should reject that argument.

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Another court in this District declined a similar invitation in a well-reasoned opinion that

discussed the rationale behind Fed. R. Civ. P. 8(a). That court explained that where, as here, the

plaintiff “alleges the Kermarec standard of care in some paragraphs…and not in others,” then the

complaint has satisfied the purpose of Rule 8(a) because the “allegations have therefore notified

[the defendant] of her claim.” Balaschak v. Royal Caribbean Cruises, Ltd., 2009 WL 8659594,

*6 (S.D. Fla. Sept. 14, 2009). The court also offered a policy-based reason for declining to

dismiss the count, stating: “Requiring [plaintiff] to replead the paragraphs alleging standards of

care inconsistent with Kermarec would be time consuming and inefficient,” and would violate

the requirement that “pleadings must be construed so as to do justice.” Id. (quoting Fed. R. Civ.

P. 8(e)).

Other cases have, similarly, declined cruise line defendants’ requests to strike

undisputedly valid claims based on similar purported defects. See, e.g., Pucci v. Carnival Corp.,

146 F. Supp. 3d 1281, 1287 (S.D. Fla. 2015); Holguin v. Celebrity Cruises, Inc., 2010 WL

1837808, *1 (S.D. Fla. May 4, 2010). To the extent the Court digresses to address this issue at

all, it should, at most, simply strike (or decline to consider) the specific paragraphs that allegedly

do not pertain to Royal’s uncontested duty to warn. See Zapata v. Royal Caribbean Cruises, Ltd.,

2013 WL 1296298, *3 (S.D. Fla. Mar. 27, 2013) (“Plaintiff’s allegations relating to the provision

of medical care, first responders, and first aid equipment, including the allegations contained in

paragraphs 29m-29r, 29y, 29ii, and 29jj of the Amended Complaint are dismissed with

prejudice.”).1

In sum, Defendant’s “heightened duties of care” argument does not present a basis for

dismissing Count 1 of the Complaint.

B. Plaintiffs have sufficiently alleged Royal’s notice of the dangerous condition

Royal’s argument that the Complaint does not adequately plead notice also is without

merit. Royal cites two cases where district courts found those plaintiffs’ allegations to be

insufficient, then argues that those cases require dismissal of the Complaint in this case. (See

Mot. at 5-7) (citing Polanco v. Carnival Corp., 2010 WL 11575228 (S.D. Fla. Aug. 11, 2010),

1 The court in Zapata also dismissed, without prejudice, the remainder of the plaintiff’s negligence claim, but on the unrelated ground that it did not allege sufficient facts about the nature of the dangerous condition. 2013 WL 1296298, at *2. The Court did not dismiss the negligence claim based on the defendant’s “heightened duties of care” argument.

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and Zhang v. Royal Caribbean Cruises, Ltd., No. 19-cv-20773 (S.D. Fla. Nov. 15, 2019)).2

Royal’s argument is flawed because it focuses exclusively on two paragraphs in the Complaint

(in an effort to liken the allegations in this case to those asserted in Polanco and Zhang), and

then ignores the remaining allegations relevant to notice. If Plaintiffs’ notice allegations had

been limited to those stated in Royal’s motion, then perhaps dismissal might be appropriate. But

Plaintiffs have alleged much more.

Plaintiffs’ allegations regarding Royal’s notice of the dangerous condition include:

 “as a result of the incident suffered by other participants in the ‘A Golden Eagle Sailaway’ shore excursion, Royal Caribbean knew or reasonably should have learned that incidents involving other participants were being caused on the shore excursion because Out Island Charters failed to provide adequate flotation devices, such as a life vest, to passengers” (Compl. at ¶ 113)

 “as evidenced by other passengers’ reviews of shore excursion and prior incidents, Royal Caribbean knew prior to February 20, 2019, that ‘A Golden Eagle Sailaway’ shore excursion consisted of the passengers swimming in deep ocean water with strong currents with only a foam noodle for flotation…” (Compl. at ¶ 115)

Thus, in addition to the prior incidents and passenger reviews alleged in the Complaint, the very

manner in which the “A Golden Eagle Sailaway” shore excursion was routinely conducted—i.e.,

directing passengers to disembark into deep water swept by strong ocean currents with nothing

more than a foam noodle as a flotation device—placed Royal on notice of the danger that its

shore excursion posed to its passengers.3

Moreover, Plaintiffs plainly alleged sufficient facts to show that Royal knew about the

dangerous manner in which the shore excursion was regularly conducted. For example, Plaintiffs

alleged that Royal:

2 The Zhang order was not selected for publication on Westlaw, so Defendant attached a copy to its Motion to Dismiss. (D.E. 11-1). 3 Importantly, that distinguishes this case from Zhang and Polanco, where the plaintiffs did not allege that there was anything inherently dangerous about the manner in which the excursions were typically conducted. Polanco involved a standard vehicle accident where the alleged negligence was that the vehicle was “operated by a person who was not experienced in the workings of the vehicle.” 2010 WL 11575228. Zhang involved a freak accident in which the plaintiff was paralyzed from the waist down when the bus he was riding in hit a pothole. (D.E. 11-1, at 3). In neither situation would the normal operation of the excursion place put the cruise line on notice that it was a dangerous condition.

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 “maintains a department in its headquarters in Florida devoted to creating, developing, promoting, marketing, coordinating, explaining, selling, overseeing, supervising, auditing, tracking and monitoring its ports of call…including the subject ‘A Golden Eagle Sailaway’ shore excursion” (Compl. at ¶ 126)

 “maintains a specified group of employees and crew members on each of its ships, including the Adventure of the Seas, to promote, market, coordinate, explain, oversee, supervise, and sell these excursions as well as to assist the various tour operators, including Defendant Out Island Charters to carry out and perform excursions…, including the subject ‘A Golden Eagle Sailaway’ shore excursion.” (Compl. at ¶ 127)

And Plaintiffs also have alleged that this dangerous condition proximately caused Ms. Sibblis’s

death and Plaintiffs’ injuries. (Compl. at ¶ 8 (“Barbara Solis drowned while attempting to get to

the beach.”); Compl. at ¶ 6 (“Nicole Woodley, Barbara Sibblis and Clarice Lee, along with

minors K.W., M.W. and C.W. Jr. feared for their safety and struggled to get to the beach.”)).

These allegations sufficiently plead the notice requirement of Plaintiffs’ negligence

claims. In Twyman v. Carnival Corp., 410 F. Supp. 3d 1311 (S.D. Fla. 2019), the court held that

the plaintiff had sufficiently pled that the cruise line defendant had notice of the dangerous

condition in a case involving plaintiffs whose son was killed in a jet ski accident during a shore

excursion. In so holding, the court cited the plaintiffs’ allegations that the cruise line “knew or

should have known based on [the cruise line’s] inspections and its operation of the Cruise Center

of the possible dangers involved in having Wet Money Enterprise [the independent operator] rent

jet skis to passengers without adequate operational instructions.” Id. at 1320. See also Celestino

v. Royal Caribbean Cruises, Ltd., 2018 6620114, *4 (S.D. Fla. Oct. 15, 2018) (magistrate

recommended denial of motion to dismiss negligence claim where “Plaintiff has alleged that

[defendant] visited and participated in the excursion prior to offering the tour on its vessels and

that circumstances during that vetting process should have made the cruise line aware that the

Segways were defective and dangerous”).

Indeed, the defendant in Twyman, represented by the same counsel who now represent

Royal in this case, also focused selectively on a handful of more general allegations to argue that

the plaintiffs had not sufficiently pled notice. The district court, nevertheless, refused to

disregard the rest of the allegations and found that notice had been adequately pled:

Certainly, some of Plaintiffs’ allegations, standing alone, are far too general and conclusory to demonstrate Carnival was on notice

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of a dangerous condition involving Wet Money Enterprise and the Cruise Center. Yet, the Court will not ignore the other facts alleged, which, as explained, “are plausible and raise a reasonable expectation that discovery could supply additional proof of Carnival’s liability.” Chaparro [v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012)]. Plaintiffs have alleged enough facts at this stage to allow their claims to go forward.

Twyman, 410 F. Supp. 3d at 1322 (emphasis in original). This Court should do the same here and

decline Royal’s invitation to examine the Complaint through an unduly narrow lens.

IV. Plaintiffs have stated a claim that Royal negligently selected and retained Out Island Charters

Royal offers only a token argument in opposition to Plaintiffs’ negligent selection and

retention claim, and understandably so. Royal argues baldly that Plaintiffs “fail to allege any fact

to establish how [Royal] would have had such knowledge [of Out Island’s incompetence] prior

to or after selecting them.” (Mot. at 8) (emphasis in original). Notably, Royal has challenged

only the sufficiency of the allegations regarding the second, or “knowledge,” element of the

negligent selection and retention claim. (See Mot. at 8). Thus, Royal does not dispute that

Plaintiffs sufficiently pled the first and third elements of the claim, thereby acknowledging that

Plaintiffs sufficiently pled that Out Island “was incompetent or unfit to perform the work” and

that “such incompetence or unfitness proximately caused [the plaintiffs’] injuries.” Gayou v.

Celebrity Cruises, Inc., 2012 WL 2049431, *5 (S.D. Fla. June 5, 2012).

A review of the Complaint shows that Plaintiffs also have pled facts to support the

second element of their negligent selection and retention claim—namely, that Royal “knew or

reasonably should have known of the particular incompetence or unfitness.” Gayou, 2012 WL

2049431, at *5. In fact, the allegations discussed above to demonstrate Royal had notice of the

dangerous condition also establish Royal’s knowledge of Out Island’s incompetence.

Specifically, the Complaint alleges that Royal maintained employees at its headquarters in

Florida and at shore excursion desks aboard its ships charged with “overseeing, supervising,

auditing, tracking and monitoring” as well as “assist[ing] the various tour operators, including

Defendant Out Island Charters to carry out and perform excursions… including the subject ‘A

Golden Eagle Sailaway’ shore excursion.” (Compl. at ¶¶ 126-27). In the course of Royal’s heavy

involvement and oversight of the subject shore excursion, Royal either knew or should have

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known that Out Island was incompetent because Out Island “failed to provide adequate flotation

devices” even though the excursion “consisted of passengers swimming in deep ocean water

with strong currents with only a foam noodle for flotation.” (Compl. ¶¶ 113, 115).

Accordingly, Plaintiffs have pled “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678.

V. Plaintiffs have stated a claim for negligent misrepresentation

A. Plaintiffs have pled their claim with enough particularity to satisfy Rule 9(b)

To satisfy Rule 9(b) in the Eleventh Circuit, a plaintiff must allege: “(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 which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the

fraud.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). The rule, like any

other, must be viewed and applied in the proper context. The Eleventh Circuit has noted that the

purpose of the particularity requirement in Rule 9(b) is to “alert[] defendants to the precise

misconduct with which they are charged and protect[] defendants against spurious charges of

immoral and fraudulent behavior.” Durham v. Business Mgmt. Assocs., 847 F.2d 1505, 1511

(11th Cir. 1988). As the Eleventh Circuit cautioned in Durham, “[t]he application of the rule,

however, must not abrogate the concept of notice pleading.” Id. See also Holguin v. Celebrity

Cruises, Inc., 2010 WL 1837808, *2 (S.D. Fla. May 4, 2010) (“Rule 9(b) must be read in

conjunction with the liberal notice pleading standard of Fed. R. Civ. P. 8.”).

Notwithstanding Defendant’s generic arguments about Plaintiffs’ purportedly imprecise

allegations, the Complaint is sufficiently pled under Rule 9(b) and Eleventh Circuit precedent.

Plaintiffs have alleged that Royal supplied false and misleading information “relating to the

shore excursions offered by Defendant Royal” and “relating to the subject ‘A Golden Eagle

Sailaway’ shore excursion.” (Compl. at ¶¶ 170(a)-(d)). Specifically, Plaintiffs alleged that Royal

Caribbean shore excursion desk employees made several misrepresentations and omissions “[o]n

or about February 20, 2019…[when] Plaintiffs and Barbara Sibblis purchased and booked the

‘A Golden Eagle Sailaway’ at the Royal Caribbean excursion desk.” (Compl. ¶ 76). As for the

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time of the misrepresentations and omissions, it occurred in the early morning before 9:15 a.m.,

as the Shore Excursion Ticket (which Defendant attached to its motion) indicates that passengers

were required to meet at 9:15 to depart for the tour. (See D.E. 11-5).4

As for the content of the representations and omissions, Plaintiffs alleged that the shore

excursion desk employee:

 “identified the excursion as easy and perfect for the young and older ages of their group” (Compl. ¶ 79);5

 “did not inform its passengers, including the Plaintiffs or Barbara Sibblis, that the sail boat would disembark the passengers into the ocean in deep water with only foam noodles as a flotation device to get to the beach” (Compl. ¶ 81);

 “did not inform its passengers, including the Plaintiffs or Barbara Sibblis, that the adults would not be provided with life jackets or other reasonable flotation devices to get to the beach” (Compl. ¶ 82);

 “did not inform its passengers, including the Plaintiffs or Barbara Sibblis, that they may encounter strong ocean currents and/or other dangerous sea conditions after disembarking the sail boat to get to the beach” (Compl. ¶ 83);

 “did not inform its passengers, including the Plaintiffs or Barbara Sibblis, that they should be a strong swimmer in order to go to the beach on this excursion” (Compl. ¶ 84).

As for the last two elements—i.e., Plaintiffs’ reliance upon and how Royal benefitted

from the misrepresentations and omissions—Plaintiffs have pled those as well. As for reliance,

Plaintiffs alleged they “relied on the representations provided by Royal Caribbean that it was

‘easy’ and ‘appropriate for the ages in their group’ in making their decision to purchase the ‘A

Golden Eagle Sailaway’ shore excursion” (Compl. ¶ 85) and they “purchased the subject shore

excursion based on the recommendation of the Royal Caribbean employee at the shore excursion

desk onboard the cruise ship.” (Compl. ¶ 86). (See also Compl. ¶ 87 (“Had Plaintiffs and Barbara

Sibblis known that the subject shore excursion would involve strong ocean currents and/or other

dangerous sea conditions after disembarking the sail boat without appropriate flotation devices to

get to the beach, they would not have purchased the ‘A Golden Eagle Sailaway’ shore

4 As Defendant notes in its motion, with citations to authority, the Court may consider the Shore Excursion Ticket in deciding this motion. (See Mot. at 14 n.2). 5 Consistent with this allegation, Plaintiffs also alleged that they were given a Royal Caribbean marketing document that described the subject shore excursion as appropriate for passengers with a “Minimum Age: 4 years.” (See Compl. ¶ 80) (quoting the document).

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excursion.”)). Finally, Plaintiffs alleged that Royal “made the misrepresentations of material

fact…to induce cruise ship passengers to purchase the shore excursions it developed, created,

coordinated, marketed, and directly sold.” (Compl. ¶ 171).

B. Plaintiffs have pled that Royal misrepresented material facts

In light of the section directly above, the Court can easily dispose of Defendant’s

remaining argument for dismissing the negligent misrepresentation claim. As was the case with

Defendant’s notice argument, Defendant seeks to focus the Court’s attention on certain

allegations, while ignoring other allegations that plainly plead the elements of the negligent

misrepresentation claim. Thus, Royal argues that “Plaintiffs fail to sufficiently plead that RCL

made any misrepresentation of material fact” (Mot. at 10), citing cases holding that

representations that something is “safe,” or “reliable” or “reputable” are not factual and,

therefore, not actionable. (Mot. at 11). But Plaintiffs have pled much more. As discussed in the

section immediately above, Plaintiffs have alleged, with specificity, that Royal misrepresented

and omitted several material facts, concerning the activities entailed in the “A Golden Eagle

Sailaway” shore excursion. (See p. 10 supra) (citing to Compl. ¶¶ 79-84). Accordingly, Plaintiffs

have alleged sufficient facts to state a claim for negligent misrepresentation.

VI. Plaintiffs have pled sufficient facts to hold Royal vicariously liable under a theory of apparent agency

In moving to dismiss Plaintiffs’ vicarious liability claim based on apparent agency, Royal

asks this Court to ignore the well-pled facts of the Complaint and make a determination of fact

that Plaintiffs’ belief that Out Island was acting as Royal’s agent was “unreasonable.” Under

binding Eleventh Circuit precedent, this is beyond the Court’s role on a motion to dismiss.

To state a claim under an apparent agency theory, a plaintiff must show “first, a

representation by the principal to the plaintiff, which, second, causes the plaintiff reasonably to

believe that the alleged agent is authorized to act for the principal’s benefit, and which, third,

induces the plaintiff’s detrimental, justifiable reliance upon the appearance of agency.” Franza v.

Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1252 (11th Cir. 2014). Notably, in Franza, a

maritime case in which the Eleventh Circuit reversed the grant of a motion to dismiss, the Court

held: “absent any statutory mandate to the contrary, the existence of an agency relationship is a

question of fact under the general maritime law.” Id. at 1235-36. See also Celestino v. Royal

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Caribbean Cruises, Ltd., 2018 WL 6620114, *5 (S.D. Fla. Oct. 15, 2018) (“Eleventh Circuit

precedent holds that ‘the existence of an agency relationship is a question of fact under the

general maritime law.’”) (quoting Franza); Gentry v. Carnival Corp., 2011 WL 4737062, *4

(S.D. Fla. Oct. 5, 2011) (denying motion to dismiss apparent agency theory because

“reasonableness is a question of fact which cannot be decided on a motion to dismiss”).

Because Royal challenges only the second element—the requirement that Plaintiffs plead

they “reasonably” believed that Out Island was authorized to act for Royal’s benefit (Mot. at 13-

15)—Plaintiffs address only that issue. Royal cites to the Shore Excursion Guide and Shore

Excursion Ticket, which contain language stating that unidentified “providers” of shore

excursions are “independent tour operators” and “independent contractors…not acting as agents

or representatives of” Royal. (Mot. at 14). Based on this, Royal argues that Plaintiffs’ belief that

Out Island was Royal’s agent was “unreasonable as a matter of law.” (Mot. at 13).

To begin, Plaintiffs note that the alleged “disclaimer” in the Shore Excursion Guide is

buried in a boilerplate legal disclosure on page 82 of an 83-page document. (See D.E. 11-4, at 3).

Royal attached to its motion only three pages, including the disclosure page, giving the

impression that the disclosure appears in a simple 3-page document.6 As for the Shore Excursion

Ticket, the version filed by Defendant reflects that the “disclaimer” language, apparently, is

found on the back of the ticket. Here, again, Royal has filed the document in extremely large

format, creating the impression that the disclaimer language was far more prominent than it was

on the back of the physical ticket allegedly provided to Plaintiffs and Ms. Sibblis.

More importantly, the cases cited by Royal do not support dismissal based on Royal’s

“unreasonable as a matter of law” argument. Royal cites Hajtman v. NCL (Bahamas) Ltd., 526 F.

Supp. 2d 1324, 1328 (S.D. Fla. 2007), and Wolf v. Celebrity Cruises, Inc., 683 Fed. Appx. 786

(11th Cir. 2017). In Hajtman, the District Court granted the defendant’s motion to dismiss a

complaint where the plaintiff sought to hold the cruise line vicariously liable for the actions of

the ship’s medical staff based on apparent agency. This Court found the plaintiff’s “belief of

alleged agency” to be unreasonable based on well-established case law. See Hajtman, 526 F.

Supp. 2d at 1328-29 (“Given the longstanding maritime principle that carriers and shipowners

6 Only upon close inspection of the document does a reader notice the tiny page numbers in the bottom-right corner (1/83, 2/83, and 82/83), indicating that Royal filed only pages 1, 2 and 82 of an 83-page document.

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are not vicariously liable for the acts of their medical staff,…it is unreasonable for Plaintiff to

believe that Jane and Dr. Doe were Defendant’s Agents.”). Notably, the holding of Hajtman has

since been abrogated by Franza, where the Eleventh Circuit held that cruise lines can, in fact, be

held vicariously liable under agency principles for the negligence of their on-ship medical staff.

772 F.3d at 1248.

Wolf does not support Royal’s argument, either, as it was decided at the summary

judgment stage – not on a motion to dismiss. 683 Fed. Appx. at 789. Indeed, other than Hajtman,

which is discussed above, Plaintiffs are not aware of any case in this Circuit where a district

court dismissed an apparent agency theory of liability at the motion to dismiss stage. Another

District Court deciding a motion to dismiss recently rejected Royal’s identical argument, stating:

Royal claims that because the Complaint “references” the passenger cruise ticket, Royal Caribbean’s website, and the Aviomar shore excursion ticket—and that those documents, read together, include text advising passengers that shore excursions are operated by independent contractors—“any belief Aviomar was [Royal Caribbean’s agent] would be unreasonable.” Indeed, Defendant states that we have no choice but to dismiss the claim, as such a conclusion is outcome determinative “as a matter of law.”

We disagree. Eleventh Circuit precedent holds that “the existence of an agency relationship is a question of fact under the general maritime law.” Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1235-36 (11th Cir. 2014) (collecting cases; emphasis added). This should be well-known to Defendant at this point, a conclusion made all the more evident when one looks at the cases it cites in support of its argument; almost all were decided at summary judgment, after a complete development of the factual record had taken place.

Celestino, 2018 WL 6620114, at * 4-5 (alterations and emphasis in original).7

Celestino is no outlier. In fact, the great weight of authority in this District shows that

motions to dismiss claims based on apparent agency are routinely denied. See Aronson v.

Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1396 (S.D. Fla. 2014); Zapata v. Royal Caribbean

Cruises, Ltd., 2013 WL 1296298, *5 (S.D. Fla. Mar. 27, 2013); Lapidus v. NCL America LLC,

7 The District Court adopted, in full, the Magistrate Judge’s Report & Recommendation in Celestino. See Celestino v. Royal Caribbean Cruise Lines, Ltd., 2018 WL 6620873 (S.D. Fla. Nov. 2, 2018).

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2012 WL 2193055, *5 (S.D. Fla. June 14, 2012); Gayou v. Celebrity Cruises, Inc., 2012 WL

2049431, *8-9 (S.D. Fla. June 5, 2012); Gibson v. NCL (Bahamas) Ltd., 2012 WL 1952667, *7

(S.D. Fla. May 30, 2012). Indeed, in Gayou, a case cited throughout Royal’s motion to dismiss,

the district court dismissed the actual agency claim based on the ticket disclaimer, but allowed

the apparent agency claim to proceed. 2012 WL 2049431, at *9-10.

While Royal’s challenge to this count is limited to its contract-based argument discussed

above, Plaintiffs note that they have pled sufficient facts to plausibly allege that they reasonably

believed that Out Island was authorized to act as Royal’s agent. (See Compl. ¶ 194(a)-(e)

(alleging Royal intensely marketed the subject excursion on its website and in printed brochures

without mentioning Out Island as the tour operator; Royal employees aboard the ship sold the

subject excursion without identifying Out Island as tour operator; receipts for the subject

excursion indicated the transaction was exclusively with Royal; ticket stub for subject excursion

bears Royal’s logo); Compl. ¶ 134(e)-(f) (alleging Royal recommended its passengers should

“not engage in excursions…that are not sold through Royal” and “[u]ntil Plaintiffs and Barbara

Sibblis actually participated in the ‘A Golden Eagle Sailaway’ shore excursion, [their] exclusive

contact concerning the excursion was with Royal Caribbean”)).

VII. Plaintiffs have sufficiently pled Royal's vicarious liability based on a joint venture theory

Defendant’s joint venture argument, similarly, asks this Court to leap ahead and make a

factual determination, even though this case has only just reached the pleading stage. To the

extent that Defendant relies on the language in the Tour Operator Agreement to argue Plaintiffs

have not pled a joint venture theory of liability, the Court should reject that argument. Judge

Goodman addressed this very issue and denied Royal Caribbean’s motion to dismiss in a similar

shore excursion case, explaining why it was inappropriate to grant the motion based solely on the

language of the agreement:

The Tour Operator Agreement is not necessarily central to Plaintiffs’ negligence-liability-by-way-of-joint-venture theory. A joint venture, like a partnership, can be created by express or implied contract, and, as Defense counsel acknowledged at the Hearing, two parties could create a joint venture notwithstanding a prior written contract foreclosing such a possibility. So, while the Tour Operator Agreement states that it does not constitute a joint

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venture, a subsequent course of conduct may have created such a joint venture agreement.

Ash v. Royal Caribbean Cruises Ltd., 2014 WL 6682514, *8 (S.D. Fla. Nov. 25, 2014)

(emphases in original; internal citation omitted). Another district court reached that same

conclusion in Celestino, denying the defendant’s motion to dismiss and acknowledging that,

under Eleventh Circuit precedent, “[a] joint venture can be created by an implied contract, and

creation of such a venture can be inferred from the parties’ conduct.” Celestino, 2018 WL

6620114, at *6 (citing Williams v. Obstfeld, 314 F.3d 1270, 1275-76 (11th Cir. 2002), and

Pinnacle Port Community Ass’n v. Orenstein, 872 F.2d 1536, 1539 (11th Cir. 1989)).

Royal makes a cursory argument that the joint venture theory also should be dismissed

because Plaintiffs have not pled sufficient factual allegations. A joint venture theory requires a

plaintiff to plead: “(1) a community of interest in the performance of a common purpose; (2)

joint control or right of control; (3) a joint proprietary interest in the subject matter; (4) a right to

share in the profits; and (5) a duty to share in any losses which may be sustained.” Ash, 2014 WL

6682514, at *8. Royal has challenged only the sufficiency of Plaintiffs’ allegations of the last

two elements. (See Mot. at 16) (arguing “Plaintiffs’ allegations are entirely conclusory as they

simply allege that ‘Royal Caribbean shared profits and losses with Out Island Charters for the ‘A

Golden Eagle Sailaway’ Shore Excursion,’ without any factual support.”). But Plaintiffs have

alleged more. For example, they alleged:

 “Royal Caribbean determined the amount of money charged for the subject excursion” (Compl. ¶ 134(f));

 Royal Caribbean collected the fee and provided Plaintiffs with a receipt for the subject excursion (Compl. ¶ 134(g));

 “The fee was split between Royal Caribbean and Out Island Charters.” (Compl. ¶ 214);

 “Royal Caribbean and Out Island shared any losses sustained from the joint venture.” (Compl. ¶ 218)

That is enough to withstand a motion to dismiss in this District. See Ash, 2014 WL

6682514, at *8 (finding Plaintiffs sufficiently pled this element where they alleged “the fee for

the tour was split among the Defendants and that the Defendants shared any losses sustained by

the joint venture” and “that the parties intended to create a joint venture and had a right to share

in the profits”); Gentry, 2011 WL 4737062, at *7 (finding Plaintiffs sufficiently pled this element

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where plaintiff alleged cruise line “determined the amount of money that the excursion entities

would charge, paid the excursion entities a portion of the sales for excursion tickets sold, and

collected money on behalf of the excursion entities”).

VIII. Royal’s arguments concerning Plaintiffs’ negligent infliction of emotional distress claims are meritless

Royal’s arguments concerning Plaintiffs’ negligent infliction of emotional distress

(NIED) claims ignores the factual allegations in the Complaint. The law governing NIED claims

in maritime cases is well-established in the Eleventh Circuit. To plead a claim, a plaintiff must

allege (1) the plaintiff is “placed in immediate risk of physical harm by defendant’s negligent

conduct”; and (2) the plaintiff suffered “mental or emotional harm (such as fright or anxiety) that

is caused by the negligence of another and that is not directly brought about by a physical injury,

but that may manifest itself in physical symptoms.” Chaparro v. Carnival, 693 F.3d 1333, 1337-

38 (11th Cir. 2012). Plaintiffs have alleged sufficient facts to support both requirements.

A. All Plaintiffs have alleged they were within the “zone of danger”

Defendant attempts to re-cast Plaintiffs’ allegations as being limited to merely witnessing

Ms. Sibblis’s drowning (Mot. at 17), but Plaintiffs have plainly alleged much more. Here,

Plaintiffs alleged that they feared for their lives because they were actually in the same deep

waters and experiencing the same strong ocean currents as Ms. Sibblis as they all struggled to

reach the beach.

 “The wind and sea conditions made it very difficult for the passengers, including Barbara Sibblis and Plaintiffs to get from the catamaran anchored in deep water to the beach.” (Compl. ¶ 98);

 “Nicole Woodley, Barbara Sibblis and Clarice Lee, along with minors K.W., M.W., and C.W. Jr., feared for their safety and struggled to get to the beach.” (Compl. ¶ 99);

 “Nicole Woodley and Clarice Lee, along with minors K.W., M.W., and C.W. Jr., eventually made it to the beach; however, Barbara Sibblis had been separated from them as they struggled to get the young children and themselves safely to the beach.” (Compl. ¶ 100).

These allegations make clear that Plaintiffs were squarely in the zone of danger as they struggled

to reach the beach with Ms. Sibblis until the moment she was unable to keep up and became

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separated from the other Plaintiffs. Accordingly, Plaintiffs were subjected to the same dangerous

condition caused by Royal’s negligence that claimed Ms. Sibblis’s life.8

That is sufficient to satisfy the “zone of danger” test in this circuit. For example, in

Twyman v. Carnival Corp., 410 F. Supp. 3d 1311, 1325(S.D. Fla. 2019), a father and son were

jet skiing in the same waters when the son was fatally injured in a collision with another jet ski.

The district court held that the father had sufficiently pled that he was in the zone of danger,

based on his allegations that:

(1) He was in the immediate area and entered the water following the jet ski collision; (2) he “feared the immediate risk of being struck by other jet skis and/or other watercrafts traveling in the vicinity of…[Decedent’s] unresponsive body when he was attempting to rescue his son”; (3) he “feared the immediate risk of drowning as he struggled to lift his son’s unresponsive body out of the water and onto a jet ski in order to transport…[Decedent’s] body to shore for emergency medical assistance”

Id. at 1325. On the other hand, the court found the decedent’s mother was not in the zone of

danger, based on the fact that she “was on the beach when the accident occurred.” Id. at 1326.

Plaintiffs in this case are more like the father in Twyman, as they were exposed to the

same dangerous conditions that ultimately killed Ms. Sibblis and did not merely witness the

condition from afar. See also Chaparro, 693 F.3d at 1338 (holding plaintiffs were in zone of

danger where they alleged they “were trapped in the bus during the shooting [that killed the

decedent], that they feared for their lives, that they witnessed [the decedent’s] shooting and

death…”); Blair v. NCL (Bahamas) Ltd., 212 F. Supp. 3d 1264, 1271-72 (S.D. Fla. 2016)

(holding plaintiff was in zone of danger where he “not only witnessed his sister’s drowning and

the failed attempts to save her, but also was placed in immediate risk of physical harm by his

own near drowning in the pool caused by the [cruise line defendant’s] failure to have a

lifeguard”); Martins v. Royal Caribbean Cruises, Ltd., 174 F. Supp. 3d 1345, 1356 (S.D. Fla.

2016) (plaintiffs sufficiently pled zone of danger where they alleged they were exposed to same

bacteria that caused decedent’s death from food poisoning aboard cruise ship).

8 While Royal argues that “Plaintiffs have not pled what actually befell Decedent in the water” (Mot. at 18), that argument is specious. (See Compl. ¶ 8) (“Barbara Sibblis drowned while attempting to get to the beach.”).

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B. All Plaintiffs have sufficiently alleged that they suffered “physical symptoms” under the law in this Circuit

Finally, the Court should reject Royal’s cursory argument that Plaintiffs have not

sufficiently alleged that they “suffered a physical manifestation as a result of their emotional

distress.” (Mot. at 18). Plaintiffs alleged that they suffered “repetitive, ongoing, and/or

continuous physical symptoms and manifestations to include depression, post-traumatic stress,

insomnia, and/or nightmares.” (Comp. ¶¶ 270-76).

Royal baldly asserts, without citation to any authority, that these “are emotional in nature,

not physical.” (Mot. at 18). Royal is wrong, as courts have recognized similar allegations as

sufficient to plead “physical symptoms” in connection with an NIED claim. See Crusan v.

Carnival Corp., 2015 WL 13743473, *3-4 (S.D. Fla. Feb. 24, 2015) (denying motion to dismiss

and finding plaintiffs sufficiently pled NIED claim where they alleged “insomnia, depression,

rapid heartbeat, and vomiting”). Accord Gerhart v. Carnival Corp., 2015 WL 12533127, *2

(S.D. Fla. Feb. 13, 2015) (denying defendant’s motion for summary judgment on NIED claim

based on evidence that plaintiffs suffered “continuous nightmares” and “posttraumatic stress

syndrome”); Terry v. Carnival Corp., 3 F. Supp. 3d 1363, 1370 (S.D. Fla. 2014) (denying

defendant’s motion for summary judgment on NIED claim based on evidence that plaintiff

suffered “sleeplessness and nightmares [that] are continuous in nature”). Accordingly, Plaintiffs

have sufficiently alleged this element of their NIED claims.

IX. Actual Agency and Third-Party Beneficiary Claims

With regard to Plaintiffs’ claims for vicarious liability based on actual agency (Count 4)

third-party beneficiary breach of contract (Count 12), Plaintiffs recognize that the weight of

authority in this District is against them. Nevertheless, to preserve this issue for potential

appellate review, Plaintiffs respectfully submit that this case is still at the pleadings stage and

they have pled sufficient factual allegations to avoid dismissal. Accordingly, Plaintiffs submit

this Court should deny Royal’s motion to dismiss those counts, as well.

CONCLUSION

For all the reasons stated above, the Court should deny Defendant’s Motion to Dismiss in

its entirety.

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Respectfully submitted by:

MEISTER LAW, LLC. [email protected] [email protected] Courthouse Tower, Suite 750 44 West Flagler Street Miami. Florida 33130 Telephone: (305) 590-5570 Facsimile: (305) 675-3787

-and-

RUSSO APPELLATE FIRM, P.A. [email protected] 7300 North Kendall Drive, Suite 600 Miami, Florida 33156 Telephone: (305) 666-4660 Facsimile: (305) 666-4470

Counsel for Plaintiffs By: ____/s/ Paulo R. Lima PAULO R. LIMA Florida Bar No. 0064364 [email protected] ELIZABETH K. RUSSO Florida Bar No. 260657 [email protected]

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CERTIFICATE OF SERVICE I do hereby certify that on this 9th day of April, 2020, I have filed a copy of the foregoing

with the CM/ECF System, which will generate notices of Electronic Filing to all parties that have

appeared in this matter.

____/s/ Paulo R. Lima

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