January 03, 2011

Alcalde v. Carnival Corporation

Motion to Conduct Limited Discovery into Defendant’s Arbitration Provision

In this motion the Plaintiff has challenged a provision in his contract that requires he arbitrate any disputes with Carnival outside of court. In order to challenge this provision the Plaintiff asked for limited discovery regarding the making and purpose of the arbitration provision.






COMES NOW, the Plaintiff Juan Alcalde, and files his Motion to Conduct Limited Discovery regarding Defendant’s Motion to Compel Arbitration, and for good cause relies on the following memorandum of law.


This Motion to Conduct Limited Discovery in regards to Defendant’s Motion to Compel Arbitration [D.E. 6] is filed contemporaneously with Plaintiff’s Preliminary Response without the benefit of discovery in opposition to Defendant’s Motion to Compel Arbitration and Motion to Defer Ruling until the completion of such limited discovery.

To briefly recapitulate, this matter involves a Jones Act seafarer’s claims against a Defendant shipowner for Negligence, Unseaworthiness, failure to pay maintenance and cure and failure to treat. Defendant removed this action and filed its Motion to Compel Arbitration. In response, among other things, Plaintiff has argued that the Motion to Compel should be denied because under binding Eleventh Circuit precedent in Thomas v. Carnival, the subject arbitral provision is null and void as against public policy because: 1) the choice of law provision mandating Panamanian law as the exclusive law of the arbitration, deprives Plaintiff of bringing causes of action under his U.S. law, barring him from relying on his U.S. statutory rights; and 2) deprives Plaintiff of his statutory right to a jury trial.

As the following memorandum makes clear, Plaintiff requires limited discovery in regards to Defendant’s Motion to Compel Arbitration in order to show this Honorable Court that this arbitration is nothing more than a means to deprive Jones Act seafarers of access to U.S. courts. Further, Plaintiff requires limited discovery to show that the costs of arbitration are prohibitive and therefore, pursuant to Article II, §3 of the New York Convention, the arbitral agreement is incapable of being performed.

First, it is well within this Honorable Court’s discretion to allow such discovery. The discovery provisions of the Federal Rules of Civil Procedure apply to actions under the Federal Arbitration Act [“FAA”], including actions to compel. Fed. R. Civ. P. 26 allows discovery of matters relevant to the controversy, and in a Title 9 Arbitration action (including under the Convention Title 9 USC §2 et. seq.), the issue of arbitrability is a relevant and proper matter for discovery. Moore’s Federal Practice (2d ed.) §81.05[7]; see also Moore’s Federal Practice (3d ed.) §81.08[1] ( The federal rules apply only to judicial proceedings under the FAA, such as actions brought in district court to compel arbitration.”) Furthermore, Fed. R. Civ. P. 81(a)(6)(b) authorizes a district court, in analyzing a motion to compel arbitration, to order discovery pursuant to Fed. R. Civ. P. 26 on matters relevant to the existence of an arbitration agreement. See Deiulemar Compagnia di Navigazione S.P.A. v. M/V Allegra, 198 F.3d 473, 481-2 (4th Cir. 1999), cert. denied, 529 U.S. 1109 (2000).

Second, in effect, Defendant is asking the Court for a de facto summary judgment ruling. This is because an order granting Defendant’s Motion to Compel Arbitration implicitly must find that it is an undisputed material fact that a valid arbitration agreement was entered into and thus as a matter of law, Defendant is entitled to have arbitration compelled. Plaintiff has raised numerous defenses to enforcement of this arbitration provision, yet Plaintiff has had no opportunity to conduct any discovery into such defenses. To this point, the Eleventh Circuit makes clear, “summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery.” Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 859 F. 2d 865, 870 (11th Cir. 1988). As the Eleventh Circuit further stated, “[i]f the documents or other discovery sought would be relevant to the issue presented by the motion for summary judgment, the opposing party should be allowed the opportunity to utilize the discovery process to gain access to the requested materials.” Id. at 870.

Herein, the discovery sought by the Plaintiff is entirely relevant to the issues before this Honorable Court. Plaintiff seeks to propound written discovery and take a Corporate Representative deposition in regards to, including, but not limited to the following areas: (1) other arbitrations conducted and completed pursuant to Carnival’s employment contract (if any); (2) the costs and fees associated with arbitration as required by Carnival’s employment contract; (3) the circumstances surrounding the formation of the subject contract and the conveyance to the crewmember of the actual terms and conditions; (4) the intent behind the relevant arbitration clause / contract language; (5) the decision to choose Bahamian or Panamanian law and/or any other foreign law; (6) the decision to designate venues such as Monaco as the forum for poor destitute seafarers from developing nations (i.e. Peru) to arbitrate. See Proposed Interrogatories and Requests for Production, attached hereto as Exhibits “A” and “B” respectively.

Each of these areas is relevant to the issue(s) before this Honorable Court regarding Defendant’s Motion to Compel Arbitration. However, Plaintiff has had no opportunity to conduct discovery in order to answer these questions and thereby properly defend against Carnival’s Motion to Compel Arbitration. Accordingly, Plaintiff respectfully requests this Honorable Court enter an Order allowing limited discovery; establishing a timeframe within which to conduct such discovery (Plaintiff suggests 90 days), allowing for supplemental briefing at the conclusion of limited discovery. Once this limited discovery has completed, then this Honorable Court will be able to analyze the issues in their entirety.

Finally, in accord with Local Rule 7.1, counsel for Plaintiff has made reasonable efforts to confer with all parties who may be affected by the relief sought in this Motion, but has been unable to do so.

WHEREFORE, Plaintiff respectfully requests that this Court enter an Order granting the relief requested herein and any other relief this Honorable Court deems necessary and proper.