For ROYAL CARIBBEAN CRUISES, LTD., a Liberian Corporation, Defendant: Noah Daniel Silverman, LEAD ATTORNEY, Jeffrey Eric Foreman, Foreman Friedman, PA, Miami, FL.

For OUT ISLAND CHARTERS NV, Defendant: Carlos Javier Chardon, LEAD ATTORNEY, Hamilton, Miller & Birthisel, LLP., Miami, FL.

Judges: K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE.

Opinion by: K. MICHAEL MOORE

Opinion

OMNIBUS ORDER

THIS CAUSE came before the Court upon Defendant Out Island Charters, NV's ("OIC") Motion to Dismiss Plaintiffs' Amended Complaint for Lack of Personal Jurisdiction and to Enforce Forum Selection Agreement Between OIC and Plaintiffs. ("Mot.") (ECF No. 55). Plaintiffs filed a response. ("Resp.") (ECF No. 69). OIC did not file a reply and the time to do so has passed. The Motion is now ripe for review. The Parties also filed an Agreed Motion to Strike Portions [*2] of the Amended Complaint (ECF No. 58), which the Court addresses here.

I. BACKGROUND[footnoteRef:1]1 [1: 1 The following background facts are taken from the Amended Complaint for Maritime Wrongful Death and Personal Injury Damages with Demand for Jury Trial ("Am. Compl.") (ECF No. 51) and are accepted as true for purposes of ruling on this Motion to Dismiss. Fernandez v. Tricam Indus., Inc., No. 09-22089-CIV-MOORE/SIMONTON, 2009 U.S. Dist. LEXIS 138067, 2009 WL 10668267, at *1 (S.D. Fla. Oct. 21, 2009).]

This is a wrongful death action arising under 28 U.S.C. § 1333 brought by Nicole Woodley ("Woodley"), Clarice Lee ("Lee"), minors K.W., M.W., and C.W., Jr. (the "Minors"), and Barrington L. Sibblis, as personal representative of the Estate of Barbara Sibblis (the "Decedent") (collectively, "Plaintiffs") against Royal Caribbean Cruises LTD ("RCCL") and OIC (collectively with RCCL, "Defendants"). See generally Am. Compl. (ECF No. 51). Woodley, Lee, the Minors, and the Decedent (collectively, "Passenger Plaintiffs") were passengers on RCCL's cruise ship, the Adventure of the Seas (the "Vessel") during a Caribbean cruise between February 16, 2019 and February 24, 2019. Id. ¶¶ 1, 72.

On February 20, 2019, while on the Vessel, Passenger Plaintiffs purchased from RCCL admission to the Golden Eagle Shore Excursion ("Excursion") operated by OIC. Id. ¶¶ 1-3. Passenger Plaintiffs disembarked the Vessel and boarded a catamaran as part of the Excursion. Id. ¶ 88. After sailing around the island, the catamaran anchored in deep water offshore from the beach. Id. ¶¶ 89-90. Passenger Plaintiffs were provided [*3] "foam noodles" to help them swim from the catamaran to the beach. Id. ¶ 90. While attempting to swim from the catamaran to the beach, Decedent was found floating face down, non-responsive, in the ocean. Id. ¶ 101. After unsuccessful attempts to revive the Decedent, she was pronounced dead on the beach. Id. ¶¶ 102-03.

The Excursion is the subject of a contract between RCCL and OIC. Id. ¶ 37. Cruise passengers can book and pay for OIC excursions online prior to their cruise and during the cruise at designated OIC outposts on RCCL's ships. Id. ¶¶ 42-43. RCCL "maintains a department" at its headquarters to promote and manage the OIC charters it sells to cruise passengers. Id. ¶ 44. OIC and RCCL are parties to a written contract entitled Tour Operator Manual and Agreement and/or a business enterprise and/or course of dealing (the "Agreement") "to co-venture the marketing, selling and provision of recreational shore excursions, for the benefit of [RCCL's] cruise passengers." Id. ¶ 48.

On August 3, 2020, Plaintiffs filed an Amended Complaint alleging claims against RCCL and OIC; as to OIC, the claims include (1) Negligence (Count V); (2) Negligent Selection and Retention (Count VI); (3) Vicarious [*4] Liability (Count VII); and (4) Negligent Infliction of Emotional Distress (Counts VIII and IX). See generally id. OIC now moves to dismiss Plaintiffs' claims against OIC for lack of personal jurisdiction. See generally Mot.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(2) provides that a court may dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2) . "A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction." United Techs. Corp. v. Mazer , 556 F.3d 1260, 1274 (11th Cir. 2009) . In assessing whether a nonresident is subject to exercise of personal jurisdiction, federal courts must determine "whether the exercise of jurisdiction (1) comports with the long-arm statute of the forum state; and (2) does not violate the Due Process Clause of the Fourteenth Amendment ." Virgin Health Corp. v. Virgin Enters. Ltd., 393 F. App'x 623, 626 (11th Cir. 2010).

Federal courts engage in a three-part burden-shifting analysis when a defendant asserts lack of personal jurisdiction. See Diulus v. Am. Express Travel Related Servs. Co., Inc. , 823 F. App'x 843, 848 (11th Cir. 2020) . "First, the plaintiff 'bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction.'" Id. (quoting Mazer , 556 F.3d at 1274 ). "Second, if the complaint alleged sufficient facts, and 'the defendant challenges jurisdiction by submitting affidavit evidence in support [*5] of its position, the burden traditionally shifts back to the plaintiff to produce evidence supporting its jurisdiction.'" Id. (quoting Mazer , 556 F.3d at 1274 ). "Third, 'where the plaintiff's complaint and supporting evidence conflict with the defendant's affidavits, the court must construe all reasonable inferences in favor of the plaintiff.'" Id. (quoting Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc. , 593 F.3d 1249, 1257 (11th Cir. 2010)) .

III. DISCUSSION

OIC moves to dismiss Plaintiffs' claims against it, arguing that (1) OIC is not subject to personal jurisdiction in Florida, (2) OIC is not subject to jurisdiction before this Court under the national long-arm statute, and (3) Plaintiffs accepted a binding forum selection agreement requiring any claims to be brought exclusively in Saint Martin. See generally Mot. Plaintiffs filed a brief response, wherein Plaintiffs state that they will not be filing a substantive response "[i]n light of the Magistrate Judge's Order denying Plaintiffs' Motion for Leave to Propound Jurisdictional Discovery." Resp. at 1; see also (ECF No. 64). For the reasons set forth below, the Court finds that dismissal of the claims against OIC is warranted because OIC is not subject to personal jurisdiction in Florida or jurisdiction before this Court under the national [*6] long-arm statute. Accordingly, the Court does not reach the merits of the binding forum selection agreement.

A. OIC is Not Subject to Personal Jurisdiction in Florida

OIC argues that it is not subject to general or personal jurisdiction in Florida. See Mot. at 6-13. Specifically, OIC argues that it is not "at home" in Florida, which "forecloses a finding of general jurisdiction." Id. at 10. OIC further argues that it is not subject to specific jurisdiction under Florida's long-arm statute because (1) Plaintiffs do not allege that OIC committed a tortious act in Florida; (2) OIC's indemnity agreement with RCCL is an insufficient basis upon which to confer jurisdiction as Plaintiffs' claims do not arise out of that indemnity agreement; and (3) OIC's contract with RCCL, which contains a Florida forum selection provision, is an insufficient basis upon which to confer jurisdiction under a third-party beneficiary theory. Id. at 6-9.

"Florida's long-arm statute provides for both general and specific personal jurisdiction." Louis Vuitton Malletier, S.A. v. Mosseri , 736 F.3d 1339, 1352 (11th Cir. 2013) (citing § 48.193(1)-(2) ). "General personal jurisdiction exists when a defendant 'is engaged in substantial and not isolated activity within this state . . . whether or not the claim arises from that activity.'" [*7] Id. (quoting § 48.193(2) ). "General personal jurisdiction is based on a defendant's substantial activity in Florida without regard to where the cause of action arose." Id. (citation omitted). "[S]pecific personal jurisdiction authorizes jurisdiction over causes of action arising from or related to the defendant's actions within Florida and concerns a nonresident defendant's contacts with Florida only as those contacts related to plaintiff's cause of action." Id. (citation omitted).

This Court has previously dismissed with prejudice claims against excursion operators for lack of personal jurisdiction, finding both general and specific jurisdiction lacking under similar circumstances. See, e.g., Hickey v. Celebrity Cruises, Inc. , No. 13-20587-CIV-SCOLA/OTAZO-REYES, 2015 U.S. Dist. LEXIS 195809, 2015 WL 13776760, at *5-6 (S.D. Fla. Feb. 2, 2015) (finding that (1) an indemnity agreement between OIC and Celebrity Cruises, Inc. did not provide a basis for the exercise of specific personal jurisdiction over OIC; and (2) because OIC, "a corporation that operates exclusively in the Caribbean Island of Saint Martin, is not 'at home' in Florida[,] . . . the exercise of personal jurisdiction over [OIC] would not satisfy the minimum contacts requirement of the Due Process Clause of the Fourteenth Amendment "); Serra-Cruz v. Carnival Corp. , 400 F. Supp. 3d 1354, 1363 (S.D. Fla. 2019) ("[T]his Court will not allow Plaintiff to [*8] enter through the 'back door' and use the [consent to jurisdiction clause in an agreement between a cruise line and an excursion operator] via a meritless third-party beneficiary claim to find jurisdiction over a foreign defendant in a personal injury case."

As in Hickey and Serra-Cruz , the indemnity agreement between OIC and Carnival does not provide a basis for the exercise of personal jurisdiction over OIC because Plaintiffs' claims do not arise out of it, and OIC operates exclusively in Saint Martin, and is thus not "at-home" in Florida. See Hickey , 2015 U.S. Dist. LEXIS 195809, 2015 WL 13776760, at *5-6 ; Serra-Cruz , 400 F. Supp. 3d at 1363 . Plaintiffs did not file a substantive response citing to any authority or setting forth any factual circumstances to differentiate the circumstances here from those present in Hickey and Serra-Cruz that warrants a different result. Accordingly, the Court finds that OIC is not subject to personal jurisdiction in Florida.

B. OIC is Not Subject to Jurisdiction Before This Court Under the National Long-Arm Statute

OIC argues that "courts rarely invoke jurisdiction under Rule 4(k)(2) " and "[f]ollowing Daimler [AG v. Bauman], jurisdiction under Rule 4(k)(2) has become even harder to establish." Mot. at 13-14 (citing Daimler AG v. Bauman , 571 U.S. 117, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014)) .

Rule 4(k)(2) of the Federal Rules of Civil Procedure "permits a federal court to aggregate a foreign defendant's [*9] nationwide contacts to allow for personal jurisdiction provided that two essential conditions are met: (1) plaintiff's claims must arise under federal law; and (2) the exercise of jurisdiction must be consistent with the Constitution and laws of the United States." Thompson v. Carnival Corp. , 174 F. Supp. 3d 1327, 1337 (S.D. Fla. 2016) (quoting Fraser v. Smith, 594 F.3d 842, 848-49 (11th Cir. 2010)) (internal quotation marks omitted). "[I]t is a rare occurrence when a court invokes jurisdiction under the rule." Id. The rule was invoked, for example, as to Osama bin Laden and al-Qaeda, where the court found that they "engaged in unabashedly malignant actions directed at and felt in this forum." Mwani v. bin Laden , 417 F.3d 1, 13, 368 U.S. App. D.C. 1 (D.C. Cir. 2005) .

Similar to this Court's previous findings in cases involving excursion operators, the Court finds that OIC's contacts with the United States are too tenuous to support jurisdiction under the national long-arm statute. See, e.g., Thompson , 174 F. Supp. 3d at 1338 . Accordingly, the Court finds that OIC is not subject to this Court's jurisdiction under the national long-arm statute.

C. The Parties' Agreed Motion to Strike Portions of the Amended Complaint

In a separate Motion, Plaintiffs and Defendant RCCL jointly move the Court to strike allegations that inadvertently remained in Plaintiffs' Amended Complaint after the Court dismissed certain [*10] counts from the original Complaint. See generally (ECF No. 58). The Parties specifically request that the Court strike "(1) the term 'joint venturer' from paragraph 134; (2) paragraph 136 in its entirety, including all sub-sections; and (3) sub-sections (a)-(c) and (f)-(aa) from paragraph 163." Id. at 3.

Federal Rule of Civil Procedure 12(f) provides that a "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f) . "The purpose of a motion to strike is to clean up the pleadings, remove irrelevant or otherwise confusing materials, and avoid unnecessary forays into immaterial materials." Blake Batmasian , 318 F.R.D. 698, 700 (S.D. Fla. 2017) . Motions to strike are usually only granted when "the matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party." Id. at 700-01 (citation omitted).

Here, Plaintiffs and Defendant RCCL request that the Court strike the terms "joint venture/joint venturer" from paragraph 134 and paragraph 163 in its entirety because those allegations implicate joint venture and are immaterial since the Amended Complaint does not bring a cause of action for joint venture. (ECF No. 58) at 3. Plaintiffs and Defendant RCCL further argue that [*11] sub-sections (a)-(c) and (f)-(aa) should be stricken from paragraph 163 because they are immaterial to Plaintiffs' claim for Negligent Selection and/or Retention. Id.

The Court finds good cause to strike the aforementioned portions of Plaintiffs' Amended Complaint.

IV. CONCLUSION

UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that OIC's Motion to Dismiss Plaintiffs' Amended Complaint for Lack of Personal Jurisdiction (ECF No. 55) is GRANTED, and Plaintiffs claims against OIC are hereby DISMISSED WITH PREJUDICE. The Clerk of Court is INSTRUCTED to terminate OIC as a party to this case.

It is FURTHER ORDERED that Plaintiffs shall file an Amended Complaint on or before February 5, 2021 omitting claims against OIC and the portions that Plaintiffs and Defendant RCCL have agreed to strike, which shall serve as the final operative complaint in this matter. Accordingly, the Parties' Agreed Motion to Strike Portions of the Amended Complaint (ECF No. 58) is DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this 23rd day of January, 2021.

/s/ K. Michael Moore

K. MICHAEL MOORE

CHIEF [*12] UNITED STATES DISTRICT JUDGE

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