Mock trial decision
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RCCLReplytoPlaintiffsResponsetoRCCLMotion.pdf
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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 REPLY IN SUPPORT OF ITS MOTION TO DISMISS
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
files this Reply in Support of its Motion to Dismiss Plaintiffs’ Complaint [DE 1], and in support
thereof, states as follows:
MEMORANDUM OF LAW
I. Plaintiffs’ Complaint is a Shotgun Pleading
Plaintiffs’ Complaint is an improper shotgun pleading that should be dismissed in its
entirety. Plaintiffs argue their Complaint is not a shotgun pleading because it does not
reincorporate the allegations of each cause of action, but merely re-alleges the Complaint’s general
factual allegations. [DE 21 at 2-3]. However, in Great Fla. Bank v. Countrywide Home Loans,
Inc., the Court held that a complaint that “incorporates all of the general factual allegations by
reference into each subsequent claim for relief” is an improper shotgun pleading. 2011 WL
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382588, at *2 (S.D. Fla. Feb. 3. 2011) (emphasis added). The Court specifically noted that
“Between the start of the Third Amended Complaint and the First Cause of Action … lie 142
paragraphs containing allegations related—or at least somewhat related—to Plaintiff's claims.” Id.
Plaintiffs’ Complaint begins with 136 paragraphs of factual allegations that are not
specifically tied to any particular count. Nor does Plaintiffs’ Complaint explain which factual
allegations are applicable to which defendant. Even more troubling, Plaintiff’s factual allegations
include eighteen (18) paragraphs with twenty-seven (27) sub-sections of “Additional Allegations,”
without any explanation as to their applicability to each cause of action, or why they are separate
from Plaintiffs’ other general factual allegations. [DE 1, ¶119-136]. “Neither this Court nor the
district court is required to parse the complaint searching for allegations … that could conceivably
form the basis of each of Appellants’ claims. Appellants were required to clearly connect each
factual allegation to the appropriate count in the complaint in order to satisfy Rule 9(b).” Ferrell
v. Durbin, 311 F. App’x 253, 259 (11th Cir. 2009); see also, Nichols v. Carnival Corp., No. 1:19-
CV-20836-UU, 2019 WL 7882648, at *3 (S.D. Fla. Sept. 17, 2019). Accordingly, Carnival
respectfully submits that Plaintiffs’ Complaint is a shotgun pleading and should be dismissed in
its entirety. Id.
II. Plaintiffs’ Negligence Claims (Counts I & II) Should be Dismissed
A. Plaintiffs improperly impose heightened duties of care in Count I.
As an initial matter, RCL has not conceded Plaintiff adequately pled any claim for
negligence, as Plaintiffs suggest in their Response. [DE 21, ¶4]. RCL moved to dismiss Count I as
it alleges negligence duties above and beyond the “duty to warn of known dangers in places where
passengers are invited or reasonably expected to visit,” as this Honorable Court held was the
correct duty of care for cases involving incidents on shore excursions. Thompson v. Carnival
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Corp., 174 F. Supp. 3d 1327, 1340 (S.D. Fla. 2016). Plaintiffs’ failure to warn allegation is
defective in its own right, as discussed in RCL’s motion and below. See sub-section (B), infra.
Plaintiffs request this Court reject RCL’s argument that they have pled heightened duties,
however RCL respectfully requests this Honorable Court find consistently with its holding in
Thompson and with the several other courts in this district who have held a cruise line’s duty of
care to its passengers, while they are off the vessel, is in fact limited to a duty to warn of known
dangers. Id.; see also, Moseley v. Carnival Corp., 2013 WL 5913833, *3 (S.D. Fla. Oct. 31, 2013));
Finkelstein v. Carnival Corp., 2015 WL 12765434, *3 (S.D. Fla. Jan. 20, 2015); Munday v.
Carnival Corp., 2017 WL 5591640, *2 (S.D. Fla. July 18, 2017); Aronson v. Celebrity Cruises,
Inc., 30 F. Supp. 3d 1379, 1395 (S.D. Fla. 2014). As briefed in RCL’s motion, the majority of the
breaches of duty alleged by Plaintiffs seek to impose duties on RCL that go far beyond the duty to
warn. [DE 1, ¶143]. Accordingly, RCL respectfully requests that this Court dismiss Count I of
Plaintiffs’ Complaint, as it is premised on heightened duties not owed to Plaintiffs by RCL.
B. Plaintiffs fail to sufficiently plead notice of the alleged dangerous condition(s).
It is undisputed by Plaintiffs that in order to adequately failure to warn under maritime law,
a plaintiff must plead sufficient facts that RCL knew or should have known of the specific
dangerous condition alleged. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir.
1989). Likewise, to plead negligent section and/or retention, Plaintiffs must plead facts that RCL
knew or should have known of the particular incompetence or unfitness of the tour operator. Gayou
v. Celebrity Cruises, Inc., 2012 WL 2049431, *5 (S.D. Fla. June 5, 2012).
Plaintiffs’ allegations are conclusory and therefore fail to sufficiently plead notice. Gayou,
2012 WL 2049431, at *5 (Plaintiffs are required to plead “facts showing that the cruise line knew
or should have known of any dangerous condition relating to the… excursion that would give rise
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to a duty to warn” (emphasis in original). For example, Plaintiffs argue that “as a result of the
incident suffered by other participants … [RCL] new or reasonably should have learned that
incidents … were being caused … because Out Island Charters failed to provide adequate flotation
devices ….” [DE 1, ¶113]. This allegation is entirely conclusory as it fails to provide any
information that shows RCL would have known that a prior incident was caused by the tour
operator’s failure to provide flotation devices. What was the incident, who was the guest (did they
have any underlying condition making them more susceptible to injury), where did it occur, and
most importantly how would a flotation device have prevented the incident? These are all the
material facts that a plaintiff is required to plead. Thompson, 174 F. Supp. 3d at 1340 (allegations
insufficient as “it is evident that Thompson’s Complaint rests on ‘naked assertion[s]’ devoid of
‘further factual enhancement.”)
Contrary to Plaintiff’s arguments that Polanco v. Carnival Corp., No. 10-21716-CIV, 2010
WL 11575228, at *1-2 (S.D. Fla. Aug. 11, 2010) and Zhang v. Royal Caribbean Cruises, Ltd., No.
19-cv-20773, D.E. 40 (S.D.Fla. Nov. 15, 2019)1, are distinguishable, both cases are applicable as
they involve injuries which occurred off the ship and in both of cases the Court held that without
actual facts of how the cruise line knew or should have known of the alleged dangerous condition,
the plaintiffs’ complaints were insufficient. Moreover, Polanco and Zhang are just two examples.
There are numerous cases from within in this district which likewise held that a complaint is not
sufficient when its notice allegations are conclusory. See for e.g., Nichols v. Carnival Corp., No.
1:19-CV-20836-UU, 2019 WL 7882648, at *3 (S.D. Fla. Sept. 17, 2019) (“Plaintiff failed to
articulate what facts gave Carnival actual or constructive notice about any dangerous condition by
failing to allege what prior incidents may have occurred, and on what excursions, nor how these
1 The Zhang Order was attached as Exhibit A to RCL’s Motion. See, DE 11-1.
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incidents put Carnival on notice”); Gayou, 2012 WL 2049431; Harding v. NCL (Bahamas) Ltd.,
90 F.Supp.3d 1305 (2015). On the contrary, Twyman v. Carnival Corp., 410 F. Supp. 3d 1311
(S.D. Fla. 2019), is distinguishable as in that case, the plaintiffs had alleged that Carnival owned
and operated the location where the incident occurred. The Court held that particular allegation
“adequately ‘nudge[ ] [Plaintiffs’] claims across the line from conceivable to plausible.’”) Id. at
1322 (quoting, Twombly, 550 U.S. at 570). Accordingly, RCL submits that Plaintiffs have failed
to establish RCL was on notice of any dangerous condition with respect to their Negligence claim
in Count I and their Negligent Selection and Retention claim in Count II and respectfully requests
this Court dismiss both claims.
III. Plaintiffs’ Claim for Negligent Misrepresentation (Count III) Should be Dismissed
A. Plaintiffs fail to satisfy the pleading requirements of Fed. R. Civ. P. 9(b).
As briefed in RCL’s motion, the only allegations of misrepresentation alleged in Count III
fail to identify who made the representations (was it a person, a document, the website, etc.,) or
when or where those statements were made, and are therefore insufficient. 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). The alleged misrepresentations Plaintiffs point to in their Response are
found within Plaintiffs’ factual allegations, not within Count III. [DE 1, ¶76, 79, 81-84]. Nor does
Count III even reference those paragraphs as examples of alleged misrepresentations.2 Moreover,
Plaintiffs’ allege that RCL made other misrepresentations not identified in their Complaint. [DE
1, ¶168] (“Defendant ROYAL CARIBBEAN made numerous misrepresentations of material fact
2 This is also a further indication that Plaintiffs’ Complaint is an impermissible shotgun pleading.
See, section I, supra.
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… including, but not limited to…”) (emphasis added). Thus, Plaintiff’s have not identified
“precisely what statements were made in what documents or oral representations or what
omissions were made,” as Plaintiffs failed to clearly identify what representations or omissions
they are alleging were false. Ziemba v. Cascade Intern., Inc., 256 F.3d 1194, 1202 (11th Cir. 2001).
Further, Plaintiffs’ argument that the shore excursion ticket proves what time the alleged
misrepresentations were made, thus satisfying the pleading standard, makes little sense as
Plaintiffs failed to allege this information in their Complaint. Rather, it was RCL who attached the
ticket to its motion (in regard to Plaintiff’s apparent agency claim). Accordingly, RCL respectfully
submits that Plaintiffs’ Complaint fails to meet the heightened pleading standard for fraud claims.
B. Plaintiffs fail to satisfy the elements of negligent misrepresentation.
Notwithstanding, Plaintiffs’ claims that RCL made material misrepresentations should be
dismissed as they have not sufficiently pled that any such representation made by RCL was false.
For example, Plaintiffs’ allege “RCL misrepresented that it ‘selected only the most reputable
companies available to provide [] excursions ….” [DE 1, ¶168]. There are no allegations in the
Complaint, however, that RCL did not select the most reputable companies. Moreover, Plaintiffs’
alleged misrepresentations are not actionable as negligent misrepresentation claims. See, Zhang,
[DE 11-1 at 9]. First, a representation that an excursion will be “safe,” “cannot form the foundation
of a negligent-misrepresentation claim.” Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-
21196-CIV, 2009 WL 8659594, at *9 (S.D. Fla. Sept. 14, 2009) (citing, Isbell v. Carnival Corp.,
462 F. Supp. 2d 1232, 1234 (S.D. Fla. 2006) (a representation by a cruise line that “ ‘any 90–year
old woman’ ” could safely enjoy the excursion,” was not actionable). Likewise, representations
that shore excursion operators are “insured, reliable, and reputable” are also not actionable. Hoard
v. Carnival Corp., 14-23660-CIV, 2015 WL 1954055, at *3 (S.D. Fla. Apr. 17, 2015). Plaintiffs
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have not attempted to distinguish Balaschak, Isbell, or Hoard in their Response, in fact they ignore
them altogether. [DE 21 at 11]. However, these cases are applicable as they all held that allegations
such as Plaintiffs are not actionable. Accordingly, RCL respectfully submits that Plaintiffs’
negligent misrepresentation claim be dismissed. “Merely because an accident occurs, a carrier does
not become liable to a passenger.” Isbell, 462 F. Supp. 2d at 1238.
IV. Plaintiffs’ Apparent Agency Claim Should be Dismissed
As a threshold matter, Plaintiffs failed to respond to RCL’s argument that because
Plaintiffs’ underlying negligence claim is insufficiently pled, Plaintiffs’ apparent agency claim
must be dismissed. See Thompson, 174 F. Supp. 3d at 134. Notwithstanding, Plaintiffs’ apparent
agency claim should be dismissed as RCL’s Shore Excursion Guide expressly states, “shore
excursions … are provided by independent tour operators.” [DE 11-4. Additionally, Plaintiffs
and Decedent’s ticket for the subject excursion stated, “The providers of such services are
independent contractors and are not acting agents or representatives of [RCL].” [DE 11-5].3
Plaintiffs argue that RCL’s reliance on Hajtman v. NCL (Bahamas) Ltd., 526 F. Supp. 2d
1324, 1328 (S.D. Fla. 2017), does not support dismissal as it was abrogated by Franza v. Royal
Caribbean Cruises, Ltd., 772 F.3d 1225, 1253 (11th Cir. 2014). [DE 21 at 12]. However, Franza’s
abrogation of Hajtman was regarding whether a cruise line could be vicariously liable for the
alleged negligence of their medical staff, reversing a century old precedence that a cruise line could
not be held liable for the negligence of its shipboard doctor. Franza, 772 F.3d 1228. Hajtman
separately held that the contractual language of RCL’s passenger ticket contract dispelled any
3 Plaintiffs have not contested that the Court may consider the attachments to RCL’s motion, thus
have waived the issue and the Court may consider the exhibits. See S.D. Fla. L.R. 7.1(c); Hudson
v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party fails to respond
to an argument or otherwise address a claim, the Court deems such argument or claim abandoned”)
(citing, Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995)).
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reasonable belief that the medical staff were their agents. “Irrespective of the fact that Defendant
is prohibited from limiting liability where it is against public policy, this contractual language
serves as further notice to Plaintiff that no agency relationship exists between Defendant and [the
medical staff].” Hajtman, 526 F. Supp. 2d 1329. Additionally, although RCL acknowledges Wolf
v. Celebrity Cruises, Inc., 683 Fed. Appx. 786 (11th Cir. 2017) was decided at summary judgment,
the Court’s decision was based on Peterson v. Celebrity Cruises, Inc., 753 F. Supp. 2d 1245, 1248
(S.D. Fla. 2010), which dismissed an apparent agency claim at the motion to dismiss stage. Id. at
1309. Accordingly, RCL respectfully requests the Court dismiss Plaintiffs’ Apparent Agency
claim, as they have not sufficiently pled a reasonable belief that the tour operator was RCL’s agent.
V. Plaintiffs’ Joint Venture Claim Should be Dismissed
Plaintiffs’ Joint Venture claim should be dismissed as the subject Tour Operator
Agreement (“TOA”) expressly states, “Nothing related in this Agreement shall be construed
as constituting Operator and Cruise Line as partners … or joint venture ….” [DE 11-3 at
Section 9]. Though Plaintiffs’ Response cites cases where courts have declined to dismiss a joint
venture claim at the motion to dismiss stage, Plaintiffs entirely ignore Doria v. Royal Caribbean
Cruises, Ltd., [DE 11-2 at 13], and Zapata v. Royal Caribbean Cruises, Ltd., No. 12–21897– Civ.,
2013 WL 1296298, at *6 (S.D. Fla. Mar. 27, 2013). Both cases dismissed joint venture claims
based on the exact same, or near identical, TOA as in this case. In fact, in Doria, Judge Williams
dismissed the plaintiff’s claim with prejudice. [DE 11-2 at 13]. Additionally, as briefed in RCL’s
motion, Plaintiffs’ allegation that RCL and the tour operator shared profits and losses is
conclusory, which this Court held in Thompson is insufficient to state a claim for joint venture.
174 F. Supp.3d at 1344. Accordingly, RCL respectfully requests the Court dismiss Plaintiffs’ joint
venture claim.
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VI. Plaintiffs’ Negligent Infliction of Emotional Distress (“NIED”) Claims Should be Dismissed
As a threshold matter, Plaintiffs failed to respond to RCL’s argument that Plaintiffs’ NIED
claims should be dismissed as they are based on insufficient negligence claims. See, Chaparro v.
Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012). Notwithstanding, Plaintiffs have not
sufficiently pled what the zone of danger for Decedent was. In their Response, Plaintiffs argue that
paragraphs 98-100 of their Complaint “make clear that Plaintiffs … struggled to reach the beach
with [Decedent] until the moment she was unable to keep up and became separated from the other
Plaintiffs.” [DE 21 at 16] (emphasis added). Plaintiffs’ Complaint, however, simply says Decedent
“had been separated from” Plaintiffs. [DE 1, ¶100]. Plaintiffs cannot include additional facts in
their Response that were not pled in their Complaint. See, Brandywine Communications Tech.,
LLC v. T-Mobile USA, Inc., 904 F.Supp.2d 1260, 1272 n.13 (M.D.Fla. 2012) (“Plaintiff cannot
add facts bolstering its allegations within its response to a motion to dismiss ...”).
Regardless, even with this additional fact, Plaintiffs’ allegations are insufficient. In a
footnote, Plaintiffs claim RCL’s argument that they have not pled what actually befell Decedent
in the water is “specious,” because they allege, she “drowned while attempting to get to the beach.”
[DE 21 at 17 n.8, citing, DE 1, ¶6]. However, just because Decedent ultimately drowned, does not
mean that Plaintiffs were at risk of the same condition. For example, if Decedent suffered a medical
condition while swimming, such as a heart attack or stroke, that would be the cause of her
drowning. Plaintiffs have not pled what risk-creating condition caused the Decedent’s demise;
therefore, they have not and cannot assert that they were in the zone of danger of the same risk-
creating condition. Accordingly, their NIED claim must be dismissed. Chaparro, 693 F.3d at 1337.
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VII. Plaintiffs’ Actual Agency Claim Should be Dismissed
In their Response, Plaintiffs concede that “the weight of authority in this District is against
them,” in regard to their Actual Agency claim. As such, as briefed in RCL’s motion, RCL
respectfully requests this Court dismiss Plaintiffs’ Actual Agency claim as subject Tour Operator
Agreement expressly states, “Nothing related in this Agreement shall be construed as
constituting Operator and Cruise Line as partners … or principal and agent ….” [DE 11-3
at Section 9]. See, Gayou, 2012 WL 2049431, at *8.
VIII. Plaintiffs’ Breach of Contract Claim Should be Dismissed
Here as well, Plaintiffs concede that “the weight of authority in this District is against
them.” Accordingly, RCL likewise respectfully requests this Court dismiss Plaintiffs’ Breach of
Contract claim as the subject Tour Operator Agreement expressly denies an intent to benefit any
third parties, such as Plaintiffs, [DE 11-3 at Section 10], and, moreover, Plaintiffs did not allege
any provision of the contract that RCL breached. See, Doria, [DE 11-2 at 15]; Gayou, 2012 W L
2034931, at *11; Zapata, 2013 WL 1296298, *5; Steffan v. Carnival Corp., 2017 WL 7796726,
*6 (S.D. Fla. May 22, 2017).
WHEREFORE, RCL respectfully requests this Honorable Court enter an Order dismissing
Plaintiffs’ Complaint, and for any and all relief this Court deems just and proper.
Dated: April 23, 2020
Miami, Florida
Respectfully submitted,
FOREMAN FRIEDMAN, PA
BY: /s/ Noah Silverman, Esq.
Jeffrey E. Foreman, Esq. (FBN 0240310)
Noah Silverman, Esq. (FBN 401277)
Lauren Rose, Esq. (FBN 115743)
Case 1:20-cv-20692-KMM Document 26 Entered on FLSD Docket 04/23/2020 Page 10 of 11
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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 April 23, 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]
Elizabeth K. Russo, Esq.
Paolo R. Lima, Esq.
RUSSO APPELLATE FIRM, P.A.
7300 North Kendall Drive, Suite 600
Miami, Florida 33156
Telephone: (305) 666-4660
Facsimile: (305) 666-4470
Attorneys for Plaintiff
Jeffrey E. Foreman, Esq.
Noah D. Silverman, Esq.
Lauren Rose, Esq.
Foreman Friedman, PA
One Biscayne Tower, Suite 2300
2 South Biscayne Boulevard
Miami, FL 33131
Phone: 305-358-6555
Fax: 305-374-9077
Attorneys for Defendant
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