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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

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. ____________________________________/

DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

Defendant, ROYAL CARIBBEAN CRUISES LTD., (“RCL”), by and through

undersigned counsel, and pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, hereby

moves to dismiss Plaintiffs’ Complaint [DE 1], and in support thereof, states as follows:

INTRODUCTION

Plaintiffs, 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, filed this Complaint for Damages

and Wrongful Death as a result of an incident that allegedly occurred during their voyage on the

Defendant’s vessel, the Adventure of the Seas, on February 20, 2019, while participating in the

“Golden Eagle Sail Away” shore excursion in St. Maarten. [DE 1, ¶72, 85]. Plaintiffs’ Complaint

contains the following claims against RCL: Negligence (Count I); Negligent Selection and

Retention (Count II); Negligent Misrepresentation (Count III); Actual Agency (Count IV);

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Apparent Agency (Count V); Joint Venture (Count VI); Negligent Infliction of Emotional Distress

(Counts X, XI); and Breach of Contract (Count XII). For the reasons set forth below, Plaintiffs’

Complaint fails to state a claim against RCL upon which relief may be granted under any of these

theories, and as such, RCL respectfully requests that the Complaint be dismissed.

MEMORANDUM OF LAW

I. Standard for a Motion to Dismiss

“A pleading that states a claim for relief must contain . . . a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to

dismiss, a plaintiff must articulate “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662 (2000). The

allegations must include “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. When a plaintiff “[has] not nudged their claims across the line from conceivable

to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570.

II. Federal Maritime Law Governs Plaintiffs’ Claims

This matter is subject to the general maritime law of the United States. Incidents occurring

on navigable waters and bearing a significant relationship to traditional maritime activities are

governed by maritime law, thus it is well settled that the law governing passenger suits against

cruise lines is the general maritime law. See Kermarec v. Compagnie Generale Transatlantique,

358 U.S. 625 (1959); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir. 1989).

This principle extends to torts occurring at offshore locations or ports-of-call during the course of

a cruise. See Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901 (11th Cir. 2004); Isbell v. Carnival

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Corp., 462 F. Supp. 2d 1232, 1236 (S.D. Fla. 2006). “[S]tate law may supplement maritime law

as long as there is no conflict with maritime law,” however, “maritime law controls.” Morhardt v.

Carnival Corp., 304 F. Supp. 3d 1290, 1294 (S.D. Fla. 2017). Here, according to the allegations

of Plaintiffs’ Complaint, BARBARA SIBBLIS, (“Decedent”), was allegedly injured while

participating in a shore excursion during the course of Plaintiffs’ cruise on the Adventure of the

Seas. [DE 1, ¶72 – 101]. Additionally, Plaintiff agrees that “[t]he within maritime personal injury

actions brought by Plaintiffs … arise under: The General Maritime Law of the United States …”

[DE 1, ¶117]. Accordingly, federal maritime law applies to the instant action.

III. Plaintiffs’ Complaint is a Shotgun Pleading and Should be Dismissed in its Entirety

As a threshold matter, Plaintiffs’ Complaint is an impermissible shotgun pleading and

should be dismissed in its entirety. The Eleventh Circuit “has been roundly, repeatedly, and

consistently condemning [shotgun pleadings] for years.” Vibe Micro, Inc. v. Shabanets, 878 F.3d

1291, 1294 (11th Cir. 2018); Bartes v. Sch. Bd. Of Alachua Cnty., 2005 U.S. App. LEXIS 23386

(11th Cir. 2005) (“We have condemned these “shot gun” pleadings on numerous occasions

because they make it ‘virtually impossible to know which allegations of fact are intended to

support with claim(s) for relief’ and ‘impede the orderly, efficient, and economic disposition of

disputes.’”) As such, the Eleventh Circuit has advised against allowing a case to proceed when

pled as a shotgun pleading. See Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001).

Here, Plaintiffs’ Complaint is a classic shotgun pleading as it begins each count with a

preamble, re-alleging and incorporating by reference one-hundred and thirty-six (136) paragraphs

of factual allegations, including numerous additional sub-sections, all of which span twenty-eight

(28) pages. “A shotgun-style complaint is one that incorporates all of the general factual allegations

by reference into each subsequent claim for relief.” Great Fla. Bank v. Countrywide Home Loans,

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Inc., 2011 WL 382588, at *2 (S.D. Fla. Feb. 3. 2011) (internal quotations omitted); see also

Kennedy v. Bell South Telecomms., Inc., 546 Fed. Appx. 817, 819-20 (11th Cir. 2013); BMC

Industries, Inc. v. Barth Industries, Inc., 160 F.3d 1313, 1322-23 n.6 (11th Cir. 1998). Complaints

such as Plaintiffs are improper and warrant dismissal as they “[fill] each count with allegations

that are not relevant to that particular count.” Buckner v. Whitley, No. 3:18-CV-610-WKW, 2019

WL 1117914, at *1 (M.D. Ala. Mar. 11, 2019); see also Nichols v. Carnival Corp., No. 1:19-CV-

20836-UU, 2019 WL 7882648, at *3 (S.D. Fla. Sept. 17, 2019) (discussing the plaintiff’s “problem

of re-alleging and incorporating by reference the other 44 paragraphs, without explaining which

of those paragraphs support each cause of action and how.”) For example, Plaintiffs’ factual

allegations regarding their Negligent Infliction of Emotion Distress claims have nothing to do with

their Apparent Agency claim, and vice versa. Additionally, the Complaint includes several pages

of jurisdictional allegations which seemingly only apply to Plaintiffs’ claims against Defendant

Out Island Charters, not RCL, yet they are incorporated by reference into every count of the

Complaint. Accordingly, Plaintiffs’ Complaint must be dismissed in its entirety as it is an

impermissible shotgun pleading.

IV. Plaintiffs’ Negligence Claim (Count I) Should be Dismissed

A. Plaintiffs improperly seek to impose heightened duties of care on RCL

Count I of Plaintiffs’ Complaint improperly imposes numerous heightened duties of care

on RCL that are non-existent under general maritime law. It is well settled that the standard of care

owed to passengers by a cruise ship operator is reasonable care under the circumstances. See

Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). In Thompson v. Carnival

Corp., this Honorable Court held that “Once the passenger leaves the ship, a cruise ship operator

‘only owes its passengers a duty to warn of known dangers in places where passengers are invited

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or reasonably expected to visit.’” 174 F. Supp. 3d 1327, 1340 (S.D. Fla. 2016) (quoting Moseley

v. Carnival Corp., No. 13–20416–CIV, 2013 WL 5913833, at *3 (S.D. Fla. Oct. 31, 2013)).

Here, Plaintiffs’ negligence claim fails because it alleges improper duties over and above

the duty to warn. For example, Plaintiffs allege RCL was negligent for, inter alia, “Failing to

provide an excursion with proper equipment and personnel,” “Failing to adopt and implement

proper and adequate policies, protocols, and procedures…,” “Failing to implement a method of

operation which was reasonable and safe…,” and “Failing to promulgate and enforce appropriate

safety rules…” [DE 1, ¶143]. Ultimately, only one of Plaintiffs’ twenty-seven (27) alleged

breaches is premised on a duty to warn. Thus, the overwhelming majority of Plaintiffs’ allegations

fail, where, as here, the only duty owed by RCL was to warn of dangers in places where passengers

are reasonably expected to visit. Thompson, 174 F. Supp. 3d at 1340. Accordingly, Plaintiffs’

negligence claim must be dismissed, because, as this Court held in Thompson, “Otherwise, the

imposition of heightened duties would effectively render cruise line operators like Carnival the

all-purpose insurers of their passengers’ safety.” Id. at 1342.

B. Plaintiffs fail to sufficiently allege RCL was on notice of a dangerous condition

Notwithstanding that Count I seeks to impose heightened duties, Plaintiffs fail to

sufficiently allege RCL was on notice of a dangerous condition. A shipowner only has a duty to

protect passengers from dangers “of which the carrier knows, or reasonably should have known.”

Wolf v. Celebrity Cruises, Inc., 683 Fed. Appx. 786, 794 (11th Cir. 2017). “Accordingly, as a

prerequisite to imposing liability, a carrier must have had ‘actual or constructive notice of the risk-

creating condition.” Id. (citing Keefe, 867 F.2d at 1322); see also Thompson, 174 F. Supp. 3d at

1341 (“To premise a negligence claim on a breach of the duty to warn, [Plaintiff] must set forth

factual allegations ‘showing that the cruise line knew or should have known of any dangerous

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condition relating to the . . . excursion that would give rise to a duty to warn.’”) (citing Gayou v.

Celebrity Cruises, Inc., No. 11–23359–CIV, 2012 WL 2049431, at *5 (S.D.Fla. June 5, 2012)).

The allegations in Plaintiffs’ Complaint amount to nothing more than threadbare

allegations that recite no facts suggesting how RCL knew or should have known of any specific

dangerous condition regarding the subject excursion. Plaintiffs allege that RCL “knew or should

have reasonably learned that incidents involving other participants were being caused on the shore

excursion,” and that “said dangers and risks existed for a sufficient length of time so as to provide

notice to Defendant.” [DE 1, ¶ 112, 139]. However, Plaintiffs do not allege even a single fact about

any alleged prior incident or how they put RCL on notice of a dangerous condition.

The cases of Polanco v. Carnival Corp. and Zhang v. Royal Caribbean Cruises, Ltd. are

instructive. In Polanco, the plaintiff also alleged that the defendant cruise line knew of a dangerous

condition on the subject excursion for a “sufficient period of time,” and because of “similar

incidents in the past.” No. 10-21716-CIV, 2010 WL 11575228, at *1-2 (S.D. Fla. Aug. 11, 2010).

As with Plaintiffs’ Complaint, the complaint in Polanco failed to provide any factual details and

thus the Court found the allegations insufficient to establish notice.

The problem for the plaintiffs is that these meager allegations are wholly conclusory. There are no details about how long Carnival knew of the negligent operation of the motor vehicle on the excursion, or how it was that Carnival knew or should have known about such negligent operation. There are also no details about the similar past incidents that Carnival allegedly failed to investigate. What were the incidents, and how were they similar? When did they occur? Who was the excursion operator? Who were the drivers of the motor vehicles in the other incidents? How did Carnival learn of the incidents? The complaint is bereft of information on these material issues. It therefore fails to state a claim for negligence….”

Id. at *2.

Likewise, in Zhang v. Royal Caribbean Cruises, Ltd, a recent cruise-line shore excursion

case from this district, Judge Scola discussed that the plaintiff must plead facts that establish how

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the cruise line became aware of alleged prior incident incidents and such incidents must have some

connection to the plaintiff’s case. See Omnibus Order Granting Motions to Dismiss, No. 19-cv-

20773, D.E. 40 (S.D.Fla. Nov. 15, 2019), attached herein as Exhibit A at 10. There, the plaintiff

alleged ten accidents in his complaint to support allegations that the cruise line was on notice of

the alleged dangerous condition. Id. However, the Court found that the incidents did not actually

provide any information that would show how the incident put the cruise line on notice. Id. Thus,

the Court held that the plaintiff’s negligence claim was insufficient. Id. Here, Plaintiffs’ prior

incident allegations are even more insufficient than in Zhang as Plaintiffs have failed to allege any

factual information about any alleged prior incident on the subject excursion.

Plaintiffs also allege RCL had notice from “other passengers’ reviews of [the] shore

excursion.” [DE 1, ¶115]. However, Plaintiffs’ Complaint does not include a single detail about

any such review, or how RCL would have been aware of them (if, for example, they were posted

on a third-party website such as Trip Advisor). For instance, Plaintiff does not allege that any of

the alleged reviewers were RCL passengers. But even if they were, Plaintiff has also failed to

allege that any prior incident was ever reported to RCL. Thus, Plaintiffs have failed to plead how

RCL knew of a dangerous condition regarding the subject excursion.

C. Plaintiffs’ allegation that other acts and/or omissions will be proven at trial is speculative and conclusory and should be dismissed.

Count I includes an allegation that RCL breached its duty through “Other acts and/or

omissions of negligence that will be proven at trial.” [DE 1, ¶143(z)]. As this Court held in

Thompson, a speculative allegation such as this is deficient and cannot survive dismissal.

Thompson 174 F. Supp. 3d at 1341 (“Equally deficient is Thompson’s speculative allegation that

he ‘anticipates that discovery will reveal that, prior to the Plaintiff's incident, other cruise ship

passengers were also injured participating in the same shore excursion.’ Compl. ¶ 34. Without

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factual support, this allegation is insufficient to survive dismissal.”) Therefore, should the Court

allow Plaintiffs’ negligence claim to proceed, RCL respectfully requests this allegation be stricken

from the Complaint.

V. Plaintiffs’ Negligent Selection and Retention Claim (Count II) Should be Dismissed

In Count II, Plaintiffs allege that Celebrity negligently selected and retained the subject

tour operator. The elements of a negligent selection claim are; 1) that the excursion company was

incompetent or unfit to perform the work, 2) that the cruise operator knew or reasonably should

have known of the particular incompetence or unfitness prior to retaining the operator, and 3) that

such incompetence or unfitness proximately caused the plaintiff’s injuries. See Gayou, 2012 WL

2049431, at *5 (citing Smolnokar v. Royal Caribbean Cruises Ltd., 787 F.Supp.2d 1308, 1318

(S.D.Fla.2011)). Negligent retention is established by a showing that the cruise line knew of tour

operator’s unfitness after they were hired and failed to act. See Franza v. Royal Caribbean Cruises,

Ltd., 948 F. Supp. 2d 1327, 1334 (S.D. Fla. 2013).

Plaintiffs allege that RCL knew that the tour operator “was unfit to operate a shore

excursion in a reasonably safe manner,” and “presented foreseeable risks to passengers,” [DE 1,

¶156-57], but fail to allege any fact to establish how RCL would have had such knowledge prior

to or after selecting them. As with Plaintiffs’ general negligence allegations, these allegations are

conclusory and speculative, not fact. Thompson, 174 F. Supp. 3d at 1340 (“it is evident that

Thompson’s Complaint rests on ‘naked assertion[s]’ devoid of ‘further factual enhancement’”)

(citing, Iqbal, 556 U.S. at 678); Polanco, 2010 WL 11575228, at *2; Zhang, Exhibit A at 10. Thus,

Plaintiffs have not sufficiently pled that RCL knew or should have known of any unfitness of the

tour operator either prior to after retaining them to operate shore excursions for their passengers to

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support a claim for negligent selection and/or retention. Accordingly, Count II should be

dismissed.

VI. Plaintiffs’ Claim for Negligent Misrepresentation (Count III) Should be Dismissed A. Plaintiffs failed to satisfy the pleading requirements of Fed. R. Civ. P. 9(b).

Plaintiffs have failed to comply with the heightened pleading standards of Fed. R. Civ. P.

9(b) for allegations of fraud, which states, in pertinent part, “[i]n alleging fraud or mistake, a party

must state with particularity the circumstances constituting fraud or mistake.” To meet this

standard, a plaintiff must set forth:

“(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 statement and the person responsible for making (or in the case of omissions, not making) same, and (3) the content of such statement and the manner in which they misled plaintiff, and (4) what the defendants obtained as a consequence of the fraud.”

Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001). Courts regularly dismiss

misleading advertising claims for failing to satisfy Rule 9’s standards. Id.; see also Doria v. Royal

Caribbean Cruises, Ltd., Order on Defendant’s Motion to Dismiss, 19-cv-20179-KMW, [D.E. 5

at 13], (S.D.Fla. June 20, 2019), attached herein as Exhibit B; Ceithaml v. Celebrity Cruises, Inc.,

207 F.Supp.3d 1345, 1353 (S.D.Fla 2016) (“to pass Rule 9(b) muster, the Complaint must set forth

particular allegations about the who, what, when, where, and how of the fraud”) (internal citations

omitted).

Plaintiffs allege that RCL misrepresented that it “selected only the most reputable

companies available to provide your excursions …,” “Safety: Your security and comfort are of

paramount importance …,” and “We select local shore excursion operators who provide quality

and safe shore excursions.” [DE 1, ¶168]. However, Plaintiffs additionally allege that RCL made

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“numerous misrepresentations of material fact,” “including, but not limited to,” the representations

above. Plaintiffs, therefore, failed to identify “precisely” what alleged misrepresentations were

made as they included no facts as to any other alleged misrepresentation. Ziemba, 256 F.3d at

1202. Moreover, Plaintiffs have not pled a single fact as to who made each alleged

misrepresentation, or if they were made in a document, RCL’s website, or elsewhere, or the time

or place of each statement. Thus, Plaintiffs have wholly failed to plead “the who, what, when,

where, and how,” of their negligent misrepresentation claim. Ceithaml, 207 F.Supp.3d at 1353.

Accordingly, the claim fails to comply with the requisite heightened pleading standard and should

be dismissed.

B. Plaintiffs fail to satisfy the elements of negligent misrepresentation

Notwithstanding, Plaintiffs fail to sufficiently state a claim of action. To successfully plead

negligent misrepresentation, a plaintiff must allege the following:

“(1) misrepresentation of a material fact; (2) that the representor made the misrepresentation without knowledge as to its truth or falsity or under circumstances in which he ought to have known of its falsity; (3) that the representor intended that the misrepresentation induce another to act on it; and (4) that injury resulted to the party acting in justifiable reliance on the misrepresentation.”

Holguin v. Celebrity Cruises, Inc., Nos. 10–20215–CIV, 10–20545–CIV, 10–20546–CIV, 2010

WL 1837808, at *1 (S.D. Fla. May 4, 2010) (citing Fojtasek v. NCL (Bahamas) Ltd., 613

F.Supp.2d 1351, 1355 (S.D. Fla. 2009)).

Plaintiffs fail to sufficiently plead that RCL made any misrepresentation of material fact,

as the Complaint does not include any facts that the alleged statements were false. In Zhang, the

Court dismissed the plaintiff’s negligent misrepresentation claim because the complaint did “not

set forth any facts showing that any of [the alleged] statements are actually false.” Exhibit A at 9.

The Court held that, therefore, it “agrees with Royal Caribbean that Zhang’s pleading does not get

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him past even the first element of his claim.” Id. Moreover, the Court found that “many of the

misrepresentations that Zhang points to are not actionable” on a negligent misrepresentation claim.

Id. For example, a “general promise of a ‘safe, reliable, licensed, excursion’ is not actionable.” Id.

(citing, Gibson v. NCL (Bahamas) Ltd., 11-24343-CIV, 2012 WL 1952667, at *6 (S.D. Fla. May

30, 2012)); see also Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-21196-CIV, 2009 WL

8659594, at *9 (S.D. Fla. Sept. 14, 2009) (a representation that an excursion is “safe,” “cannot

form the foundation of a negligent-misrepresentation claim”) (citing, Isbell v. Carnival Corp., 462

F. Supp. 2d 1232, 1237 (S.D. Fla. 2006)). Additionally, “statements that an operator was

‘handpicked,’ ‘insured, reliable, and reputable’” are also not actionable. Id. (citing, Hoard v.

Carnival Corp., 14-23660-CIV, 2015 WL 1954055, at *3 (S.D. Fla. Apr. 17, 2015)). Accordingly,

Plaintiffs’ claim that RCL misrepresented that they select “reputable” tour operators and that their

shore excursions are safe, are not cognizable. As such, Plaintiffs’ negligent misrepresentation

claim should be dismissed.

VII. Plaintiffs’ Claim for Actual Agency (Count IV) Should be Dismissed

In Count IV, Plaintiffs claim that RCL is vicariously liable for the alleged negligent

conduct of the tour operator under a theory of actual agency. As an initial matter, as Plaintiffs’

underlying negligence claim is insufficiently pled, discussed supra, Plaintiffs’ actual agency claim

cannot survive. See Thompson, 174 F. Supp. 3d at 134. Notwithstanding, Plaintiffs’ actual agency

claim fails to state a claim upon which relief can be granted. An actual agency relationship

requires: 1) acknowledgement by the principal (here, RCL), that the agent (the Excursion

Defendants) will act for it; 2) the agent’s acceptance of the undertaking; and 3) control over the

agent’s actions by the principal. See Gayou, 2012 WL 2049431, at *10 (citing Fojtasek, 613 F.

Supp. 2d. at 1357).

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Plaintiffs’ allegation that RCL acted as principal to the subject tour operator is without

merit as the Tour Operator Agreement, (“Agreement”) between RCL and Out Island Charters

expressly dispels such a claim. Specifically, the Agreement states:

Operator’s relationship with Cruise Line during the Term of this Agreement shall be that of an independent contractor …. Nothing related in this Agreement shall be construed as constituting Operator and Cruise Line as partners, or as treating the relationships of employer and employee, franchisor and franchisee, master and servant or principal and agent or joint venture between the Parties hereto.

See Tour Operator Agreement, attached hereto as Exhibit C, at Section 9, “Relationship of the

Parties” (emphasis added).1

In Gayou, the Court addressed a nearly identical tour operator agreement and ultimately

dismissed the plaintiff’s actual agency claim, finding, “the contract between Celebrity and the

excursion company shows, as a matter of law, that no actual agency relationship was formed or

intended by the parties.” Gayou, 2012 WL 2049431, at *8. In fact, the specific language that the

Gayou Court found decisive was the same exact language as the Agreement in this case. (Compare

Gayou, 2012 WL 2049431, at *10 (“Operator’s relationship with Cruise Line during the term of

this agreement shall be that of an Independent Contractor,”) citing the subject agreement in that

case, with Exhibit C at Section 9 (“Operator’s relationship with Cruise Line during the Term of

1 The Court can consider the Agreement at this stage because it was specifically referenced in Plaintiffs’ Complaint and incorporated into Count IV. [DE 1, ¶48, 57-60, 111, 178] (Additionally, Plaintiffs’ Third-party Beneficiary claim is entirely premised on the subject Agreement.) See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (“[W]here the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff’s claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal”); see also Gayou, 2012 WL 2049431, at *9 (“Because the contract, and the control it allegedly allowed Celebrity to exercise over the excursion company, is central to Gayou’s claim of actual agency, the Court may consider its terms in deciding this Motion to Dismiss.”)

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this Agreement shall be that of an independent contractor.”)) The Gayou Court further noted that

the contract did not provide for “the kind of control by [the cruise line] over the excursion

company…that would be required for an actual agency relationship.” Id. Like the contract in

Gayou, the subject Agreement in this matter expressly disclaims that Out Island was the actual

agent of RCL. Accordingly, Plaintiffs’ actual agency claim should be dismissed.

VIII. Plaintiffs’ Claim for Apparent Agency (Count V) Should be Dismissed

In Count V, Plaintiffs claim that RCL is vicariously liable under a theory of apparent

agency. As an initial matter, as with Plaintiffs’ actual agency claim, as Plaintiffs’ underlying

negligence claim is insufficiently pled, discussed supra, Plaintiffs’ apparent agency claim cannot

survive. See Thompson, 174 F. Supp. 3d at 134. Notwithstanding, Plaintiffs cannot state a claim

for apparent agency as a matter of law. The elements of apparent agency are; 1) the alleged

principal makes some sort of manifestation causing a third party to believe that the alleged agent

had authority to act for the benefit of the principal, 2) that such belief was reasonable and 3) that

the claimant reasonably acted on such belief to his detriment. Thompson, 174 F. Supp. 3d at 1343

(citing, Doonan v. Carnival Corp., 404 F. Supp. 2d 1367, 1371 (S.D. Fla. 2005)).

Where a plaintiff has received disclaimers that expressly categorize an entity as an

independent contractor, the plaintiff is “unable to satisfy the second apparent agency prong, which

requires that Plaintiff’s belief of alleged agency be reasonable [as] Plaintiff’s belief is unreasonable

as a matter of law.” Hajtman v. NCL (Bahamas) Ltd., 526 F. Supp. 2d 1324, 1328 (S.D. Fla. 2017);

see also Wolf v. Celebrity Cruises, Inc., 683 Fed.Appx. 786, 798 (11th Cir. 2017) (“Mr. Wolf's

purported belief that OCT was an agent of Celebrity, however, is not reasonable in light of the two

separate disclaimers he received—the Cruise Ticket Contract and the Shore Excursion Ticket—

which expressly stated that excursion operators were independent contractors and not agents or

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representatives of Celebrity, as well as the OCT Liability Waiver, which reiterated that the zip-

line excursion was owned and operated by OCT.”)

Here, Plaintiffs and Decedent received such disclaimers that expressly categorized the tour

operator as an independent contractor and are thus precluded from alleging a belief that the tour

operator was the apparent agent of RCL. First, RCL’s shore excursion brochure, which is available

on RCL’s website, expressly disclaims:

[RCL] offers shore excursions for guest convenience and peace of mind. Although we have carefully selected the finest excursions at each port, services are provided by independent tour operators. [RCL] will not be responsible or liable for any loss, damage, injury, costs, or delays resulting from or in conjunction with your use of these services.

See Excerpt from RCL’s Shore Excursion Guide, attached hereto as Exhibit D (emphasis added).

Additionally, Plaintiffs and Decedent received a ticket for the subject excursion which stated:

The providers of such services are independent contractors and are not acting agents or representatives of [RCL]. In no event shall RCL be liable for any accident or harm to tickets holders, which occurs as a result of any acts, omissions, or negligence of any independent contractors … IMPORTANT … Shore Excursions are operated by independent contractors and tickets are sold by [RCL] as a convenience to guests inly. [RCL], its employees and agents are in no way responsible for the performance of the excursion and guests participate in any activities offered by the shore excursion at their own risk.

See Shore Excursion Ticket, attached hereto as Exhibit E (emphasis added).2 Plaintiffs allege they

reviewed RCL’s website, and the brochure specifically, throughout the Complaint. [DE 1, ¶73,

131, 134(b), 194(a)]. Plaintiffs also allege that they received a physical copy of the Shore

2 The Court can consider the Shore Excursion Guide because it was referenced throughout the Complaint [DE 1, ¶73, 131, 134(b), 194(a)]. Further, it is central to Plaintiffs’ claim as Plaintiffs allege representations made on RCL’s website, and the brochure specifically, led to their [unreasonable] belief that the tour operator was RCL’s agent. [DE 1, ¶194]. The Court can also consider the Shore Excursion ticket, which was also expressly referenced in the Complaint. [DE 1, ¶194(d)]. Additionally, the ticket is central to Plaintiffs’ claim as this action was brought pursuant to its terms. See n.1, supra.

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Excursion Ticket. [DE 1, ¶194(d)]. Accordingly, Plaintiffs have not sufficiently pled that their

and/or Decedent’s belief that the tour operator was the agent of RCL was reasonable as they were

provided disclaimers in multiple documents which they allege they reviewed. Therefore, Plaintiffs’

apparent agency claim should be dismissed.

IX. Plaintiffs’ Joint Venture Claim (Count VI) Should be Dismissed

In Count VI, Plaintiffs claim that RCL is vicariously liable under a theory of joint venture.

In order to successfully bring a claim for joint venture, a plaintiff must properly plead the

following: “(1) a community of interest in the performance of a common purposes; (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.” Fojtasek, 613 F. Supp. 2d

at 1357.

Plaintiffs have no factual basis on which to plead the existence of a joint venture between

RCL and the tour operator as the Tour Operator Agreement expressly denies such a relationship.

Specifically, the Agreement says:

Exhibit C at Section 9 (emphasis added).

In Doria, Judge Williams considered an identical tour operator agreement provision and

found that it expressly belied the plaintiff’s joint venture claim, warranting dismissal with

prejudice. Exhibit B at 13 (“because the terms of the TOA unambiguously foreclose any argument

that Royal Caribbean intended to enter into a joint venture with Renta, Count VI of the Complaint

is dismissed with prejudice”); see also Zapata v. Royal Caribbean Cruises, Ltd., No. 12–21897–

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Civ., 2013 WL 1296298, at *6 (S.D. Fla. Mar. 27, 2013) (dismissal of plaintiff’s joint venture

claim which was based on same contract as in instant matter because, “The unambiguous language

of the Tour Operator Agreement directly contradicts Plaintiff’s allegations and warrants the

dismissal of Plaintiff’s joint venture claim against RCCL.”)

Moreover, in Thompson, this Court dismissed the plaintiff’s joint venture claim because

the plaintiff “alleged in a conclusory manner that Carnival and the Excursion Entities shared profits

and losses.” 174 F. Supp.3d at 1344. Here as well, 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.

[DE 1, ¶136(j)]. Accordingly, Plaintiffs’ joint venture claim should be dismissed.

X. Plaintiffs’ Negligent Infliction of Emotional Distress (“NIED”) Claims (Counts X and XII) Should be Dismissed

Plaintiffs claim that RCL is liable for NIED on behalf of Decedent’s daughter and

grandchildren, Nicole Woodley, K.W., M.W., and C.W., Jr., in Count X, and on behalf of Clarice

Lee, in Count XI. As a threshold matter, Plaintiffs’ claims should be dismissed because they are

grounded on Plaintiffs’ insufficient negligence claims, as discussed supra. See Chaparro v.

Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (“[NIED] … requires an adequately pled

underlying claim of negligence.”) Notwithstanding, Plaintiffs have failed to sufficiently plead

NIED under maritime law.

A. Plaintiffs were not in the “Zone of Danger”

“Federal maritime law has adopted [the] application of the ‘zone of danger’ test which

allows recovery if a plaintiff is placed in immediate risk of physical harm by [defendant’s

negligent] conduct.” Chaparro, 693 F.3d at 1338 (internal citations omitted). It is not sufficient

for the plaintiff to have been a bystander to someone else’s injury. See Martins v. Royal Caribbean

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Cruises Ltd., 174 F.Supp.3d 1345, 1354-55 (S.D. Fla. 2016) (“plaintiffs must allege more than

merely being a witness to a traumatic event to sufficiently plead NIED”) (internal citations

omitted). In other words, recovery is warranted because “a near miss may be as frightening as a

direct hit.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547 (1994). In Norfolk & Western

Ry. Co. v. Ayers, 538 U.S. 135, 147 (2003), the Supreme Court held NIED recovery “is sharply

circumscribed by the zone-of-danger test.” Accordingly, Courts have held that the default recovery

for NIED is no recovery. See Randolph v. Consolidated Rail Corp., No. 10–560, 2012 WL 113554,

(D. NJ. Jan. 12, 2012) (“the default common law rule for [NIED]: no recovery”) (emphasis in

original).

Plaintiffs allege that they suffered emotional injury because they “witnessed [Decedent’s]

non-responsive body being brought from the ocean onto the beach,” [DE 1, ¶ 104], “watched the

multiple attempts to revive her fail and the pronouncement of her death,” Id., and “in witnessing

the unsuccessful attempts to revive [Decedent],” [DE 1, ¶ 105], “and in witnessing her dead body.”

Id. These are solely by-stander allegations and therefore fail to meet the zone of danger test.

Moreover, Plaintiffs’ allegation that they were in the zone of danger because “[t]hey [sic]

lives were also at risk trying to get to the beach,” is still insufficient. [DE 1, ¶105]. To recover for

NIED, a plaintiff must allege there was an actual or near accident that placed them at immediate

risk. See Gaynor v. State Farm Mut. Auto. Ins. Co., 727 So.2d 1279 (La. App. 4th Cir.1999) (“The

zone of danger theory of recovery is employed in situations where the plaintiff has an impending

fear of death or injury due to his proximity to an actual or near accident. We are reticent to expand

this definition.”) Here, however, Plaintiffs allege they were separated from Decedent who was

later found unresponsive. [DE 1, ¶100, 101]. Thus, Plaintiffs have not alleged Decedent’s death

was caused by an actual or near accident which also placed them at risk of harm. Plaintiffs have

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not alleged, for example, that they and Decedent were struck or almost struck by a boat, a jet ski,

a large wave, other swimmers, or anything else for that matter. In fact, Plaintiffs have not pled

what actually befell Decedent in the water. As such, Plaintiffs have not sufficiently pled that they

were in the zone of danger.

B. Plaintiffs have not sufficiently pled that they suffered a physical manifestation of their alleged emotional distress

Courts in this district have held that plaintiffs who allege NIED must prove they have

suffered a physical manifestation as a result of their emotional distress. See Terry v. Carnival

Corp., 3 F.Supp.3d 1363, 1369 (S.D. Fla. 2014); Tassinari v. Key West Water Tours, L.C., 480 F.

Supp. 2d 1318, 1324-25 (S.D. Fla. 2007) (plaintiff’s NIED claim, “required a physical

manifestation of emotional injury.”) Plaintiffs allege their emotional injuries “include repetitive,

ongoing, and/or continuous physical symptoms and manifestations,” and that they “were caused

to sustain bodily injury.” [DE 1, ¶270-71, 276-77]. These allegations are wholly conclusory and

fail to establish the requisite showing of physical injury. See Bell Atl. Corp., 550 U.S. 544 at 555

“labels and conclusions” or “a formulaic recitation of the elements of the cause of action” will not

do. Moreover, Plaintiffs allege their manifestations “include depression, post-traumatic stress,

insomnia, and/or nightmares,” all of which are emotional in nature, not physical. Thus, Plaintiffs

have not sufficiently pled NIED in Count X or XI, and these claims should be dismissed.

XI. Plaintiffs’ Breach of Contract Claim (Count XII) Should be Dismissed

In Count XIII, Plaintiffs allege that they are intended third-party beneficiaries of the Tour

Operator Agreement. However, Plaintiffs’ claim should be dismissed because the Agreement does

not express an intent to benefit Plaintiffs, and, moreover, Plaintiffs fail to allege any provision of

the contract that RCL breached. The elements of third-party beneficiary are: (1) the existence of a

contract in which plaintiff is not a party, (2) an intent, either expressed by the parties, or in the

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provisions of the contract, that the contract primarily and directly benefit the plaintiff, (3) breach

of that contract by one of the parties and (4) damages to plaintiff resulting from the breach.

Thompson, 174 F. Supp.3d at 1344; Rinker v. Carnival Corp., 753 F. Supp. 2d 1237, 1243-44 (S.D.

Fla. 2010).

A. Plaintiffs are not intended third-party beneficiaries of the Tour Operator Agreement

“In order for a third-party to have a legally enforceable right under [a] contract, the benefit

to the third-party must be the direct and primary object of the contracting parties.” Thompson, 174

F. Supp.3d at 1344 (internal citations omitted). Plaintiffs allege that “[p]ursuant to the plain

language of the contract [the parties] expressed the intent to direct and primarily benefit

Plaintiff….” [DE 1, ¶283]. However, Plaintiffs’ allegations are expressly contradicted by the

Agreement. Specifically, the agreement says:

Each party warrants and represents that: … (e) It has no commitment, express or implied, with any other person, firm or corporation that is in conflict with the terms, conditions and understandings contained in this Agreement ….

Exhibit C at Section 10. Therefore, despite Plaintiffs’ claim that the “plain language” of the

Agreement conveys an intent to benefit them, the Agreement actually states the exact opposite.

In Doria, the Court dismissed the plaintiff’s third-party beneficiary claim, with prejudice,

because the tour operator agreement “expressly disclaim[ed] any intent to benefit Plaintiff.”

Exhibit B, at 15 (citing, Zapata, 2013 WL 1296298, *5; Gayou, 2012 W L 2034931, at *11).

Likewise, in Zhang, the Court held that the tour operator agreement did not support “a plausible

inference that the contract is intended to primarily and directly benefit Royal Caribbean’s

passengers generally, never mind Zhang himself specifically.” Exhibit A, at 10. Plaintiffs’ claim

fails for the same reasons as the plaintiffs’ claims in Doria, Zapata, Gayou, and Zhang.

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Accordingly, Plaintiffs have not sufficiently pled that they are intended beneficiaries entitled to

relief for any breach.

B. Plaintiffs have not alleged RCL breached any provision of the Agreement

Notwithstanding, even if Plaintiffs were intended third-party beneficiaries of the

Agreement, Plaintiffs have sufficiently pled that RCL breached any provision. Plaintiffs allege

RCL breached several express terms of the Agreement including, inter alia, “Failing to operate

the subject excursion and catamaran in a safe and reasonable manner,” “Failing to take reasonable

precautions to avoid passengers drowning and/or risk drowning,” and “Failing to warn passengers

of the strong ocean currents and/or other dangers in the ocean.” [DE 1, ¶286]. However, none of

these are obligations that RCL owes under the Agreement. Exhibit C.

In Steffan v. Carnival Corp., Judge Altonaga dismissed the plaintiff’s third-party

beneficiary claim for this very reason, holding that dismissal was warranted because no alleged

breaches pled by the plaintiff existed in the subject contract. 2017 WL 7796726, *6 (S.D. Fla. May

22, 2017). Additionally, Plaintiffs’ claim that RCL breached implied terms is equally without merit

as the Agreement clearly states, “Each party warrants and represents that: … (e) It has no

commitment, express or implied, with any other person ….” Exhibit C at Section 10. Accordingly,

Plaintiffs’ breach of contract claim should be dismissed.

WHEREFORE, Defendant, ROYAL CARIBBEAN CRUISES LTD., respectfully requests

this Honorable Court to enter an Order dismissing Plaintiffs’ Complaint in its entirety, and for any

and all further relief this Court deems just and proper under the circumstances.

Dated: March 13, 2020 Miami, Florida

Respectfully submitted, FOREMAN FRIEDMAN, PA

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 20 of 22

BY: /s/ Noah Silverman, Esq. Jeffrey E. Foreman, Esq. (FBN 0240310) [email protected] Noah Silverman, Esq. (FBN 401277) [email protected] Lauren Rose, Esq. (FBN 115743) [email protected] Foreman Friedman, P.A. One Biscayne Tower, Suite 2300 2 South Biscayne Boulevard Miami, Florida 33131 Tel: (305) 358-6555 Fax: (305) 374-9077 Attorneys for the Defendant

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on March 13, 2020, we electronically filed the foregoing

document with the Clerk of the Court using CM/ECF. We also certify that the foregoing document

is being served this day on all counsel of record or pro se parties identified on the attached 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 electronic Notices of Electronic Filing.

By: Noah D. Silverman Noah D. Silverman, Esq.

SERVICE LIST

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

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

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 21 of 22

mailto:[email protected]

One Biscayne Tower, Suite 2300 2 South Biscayne Boulevard Miami, FL 33131 Phone: 305-358-6555 Fax: 305-374-9077 Attorneys for Defendant

Case 1:20-cv-20692-KMM Document 11 Entered on FLSD Docket 03/13/2020 Page 22 of 22