BCG v NCL (Bahamas) Ltd.

Lipcon, Margulies, Alsina & Winkleman, P.A

January 23, 2015

BCG v NCL (Bahamas) Ltd.

Response

This is our firm’s response in opposition to a motion to dismiss filed by the cruise line in a case dealing with a cruise ship passenger’s severe injuries sustained as a result of a slip-and-fall.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 14-24746-CIV-LENARD/GOODMAN
B.C.G.,
Plaintiff,

v.

NCL (BAHAMAS) LTD.,
Defendant.
                                                            /

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO STRIKE CERTAIN ALLEGATIONS [D.E. 5]

The Plaintiff, B.C.G., by and through undersigned counsel, hereby responds in opposition to Defendant, NCL (BAHAMAS) LTD.’S (“NCL[’s]”) Motion to Dismiss or, in the alternative, Motion to Strike Certain Allegations [D.E. 5] and, in furtherance thereof, states as follows:

  1. Introduction

The instant matter arises out of the personal injuries sustained by the Plaintiff while she was a passenger aboard an NCL cruise. Specifically, the Plaintiff alleges that she was severely injured when she slipped and fell on a wet and slippery flooring surface in a public restroom aboard the cruise ship. [D.E. 1, ¶11]. The Plaintiff filed her Complaint alleging NCL’s negligence on December 16, 2014. [D.E. 1].

At issue herein is NCL’s Motion to Dismiss or, in the alternative, Motion to Strike Certain Allegations, which was filed on January 8, 2015. [D.E. 5]. In its motion, NCL argues that the Plaintiff’s Complaint should be dismissed in its entirety due to the Plaintiff’s reference to the International Safety Management (ISM) Code. Alternatively, NCL moves to strike such reference.

As set forth in detail below, NCL’s Motion to Dismiss and its alternative Motion to Strike should both be denied because the Plaintiff references the ISM Code, not as a separate duty or to expand the duties imposed by law, but rather, to further explain how NCL breached the duty of reasonable care owed to the Plaintiff, which is proper.

  1. NCL’s Motion to Dismiss should be denied because the Plaintiff negligence claim against NCL is pled with sufficient facts to provide NCL notice of what the claim is and the grounds upon which it is based.

It is well settled that a motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). Thus, when considering such a motion, a court must accept the allegations in the plaintiff’s complaint as true and construe them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 887 (11th Cir. 2013).

In order to state a claim, Federal Rule of Civil Procedure 8 requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In sum, “[t]he threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low.” Bluegreen Corp. v. PC Consulting, Inc., 0780385CIV-RYSKAMP, 2007 WL 2225983 (S.D. Fla. July 31, 2007) (citing In re Southeast Banking Corp., 69 F.3d 1539, 1551 (11th Cir. 1995)) (emphasis added). As such, this Court has routinely stated that such motions are “viewed with disfavor and rarely granted.” Jackson v. BellSouth Telecommunications, Inc., 181 F. Supp. 2d 1345 (S.D. Fla. 2001), aff’d sub nom. Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir. 2004) (citation omitted).

In applying the aforementioned standards to the case at bar, it is clear that NCL’s Motion to Dismiss for failure to state a claim should be denied. First and foremost, as stated above, its motion is based entirely on the Plaintiff’s reference to the ISM Code in a single allegation raised in paragraph 15. Further, NCL mischaracterizes Plaintiff’s reference to the ISM Code.

The ISM Code, drafted by the International Maritime Organization (a United Nations body), provides an international standard for the safe management and operation of ships to ensure safety at sea and prevent human injury or loss of life. See ISM Code, §1.2. The Code mandates written documentation of a comprehensive safety and environmental program (Safety Management Plan), including training and internal auditing, and extends the traceable chain of responsibility for safety straight to the top of management.[1] As a signatory to the 1974 SOLAS Convention and the amendatory 1978 protocol, the United States is bound to enforce the ISM Code for vessels flying the United States flag as well as foreign vessels calling at U.S. ports. Id. In fact, Congress enacted legislation to incorporate the Code into the laws of the United States. See 46 U.S.C. §§ 3201-3205 (2010).[2]

It is therefore undisputed that the ISM Code applies to the subject vessel which calls at U.S. ports. Considering that NCL was required to follow these regulations, Plaintiff maintains that any evidence that NCL failed to follow them is evidence that they failed to act reasonably under the circumstances. Accordingly, Plaintiff refers to the ISM Code within the negligence count to further explain how NCL breached the duty of reasonable care owed to the Plaintiff (i.e., by “violat[ing] the International Safety Management Code and fail[ing] to have a proper, adequate and safe Safety Management System Manual (SQM) and/or fail[ing] to follow[] their SQM manual.” [D.E. 1, ¶15]). This allegation is not being made as a separate duty nor is it the only basis of Plaintiff’s negligence claim – it is merely included as further support of such claim.

The case cited by NCL, Calderon v. Offen, 07-61022-CIV-COHN, 2009 WL 3429771 (S.D. Fla. Oct. 20, 2009), is therefore inapposite. While Calderon prohibits a seafarer from bringing a separate and independent cause of action under the ISM Code, it does not prohibit the use of the ISM Code in allegations supporting a defendant’s negligence. In fact, this Court has previously rejected a cruise line’s identical challenge. See Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011) (emphasis added) (“the fact that [plaintiff] alleged an additional basis for Carnival’s duty predicated on the ISM is not relevant for deciding this motion to dismiss”).

Accordingly, NCL’s Motion to Dismiss Count I of Plaintiff’s Complaint should be denied. The Plaintiff correctly pleads NCL’s duty to exercise reasonable care without expanding the duties imposed by law, and she properly refers to the ISM Code as support that NCL breached such duty (along with other alleged negligent acts and/or omissions).

  1. NCL’s alternative Motion to Strike should equally be denied because the reference to the ISM Code in the Complaint is neither redundant, immaterial, impertinent nor scandalous, but rather, has a sufficient bearing on the Plaintiff’s negligence claim.

As stated above, NCL alternatively moves to strike the Plaintiff’s reference to the ISM Code in paragraph 15.

Federal Rule of Civil Procedure 12(f) provides that a court may strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” However, “a court will not exercise its discretion under the rule to strike a pleading unless the matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.” Principal Life Ins. Co. v. Alvarez, No. 11-21956-CIV, 2011 WL 4102327, at *2 (S.D. Fla. Sept. 14, 2011) (citations omitted). In fact, motions to strike are considered “time wasters” and generally “disfavored,” and they “‘will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.’” Id.; see also Poston v. Am. President Lines, Ltd., 452 F. Supp. 568, 570 (S.D. Fla. 1978).[3]

Herein, it is certainly possible that the ISM Code could have evidentiary relevance to the Plaintiff’s negligence claim. For instance, if NCL failed to have a proper, adequate and/or safe Safety Management System Manual (SQM) or failed to follow that manual as it relates to safety procedures concerning slip-and-fall incidents and/or maintenance of the floors and/or bathrooms, then it may be a violation of the ISM Code and relevant to the Plaintiff’s claim. Ultimately, whether it is admissible in this case is an evidentiary question that should be determined later in the case. See Cormack v. N. Broward Hosp. Dist., No. 08-61367-CIV-COHN, 2009 WL 247848, at *1 (S.D. Fla. Feb. 2, 2009).

Furthermore, this Court has repeatedly stated that it “will not strike the alleged breaches in line-item fashion” when the plaintiff has “already alleged a facially plausible negligence claim”. Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219, 1224 (S.D. Fla. 2013) (citations omitted). Herein, NCL essentially concedes that the Plaintiff alleges a facially plausible negligence claim because the only basis that it sets forth to dismiss the Complaint is the single reference to the ISM Code in paragraph 15.

For the foregoing reasons, Plaintiff respectfully requests that this Honorable Court enter an Order denying both NCL’s Motion to Dismiss and its Motion to Strike [D.E. 5], as well as any further relief this Court deems just and proper.

Respectfully submitted,
LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By:   /s/ Jason R. Margulies                        
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358

 

[1] This documentation creates a paper trail of a company’s compliance (or non-compliance), and gives rise to share responsibility for all those in the company’s chain of command. See The International Safety Management (ISM) Code: A New Level of Uniformity, 37 Tul. L. Rev. 1585 (1999).

[2] For instance, § 3204(a) provides that each responsible [ship-owner] must establish and submit to [the Coast Guard] for approval a safety management plan describing how that entity and vessels of the entity comply with the regulations under the ISM Code. Section 3205(c), further provides that the Coast Guard will “periodically review whether a responsible [ship-owner] is complying with the safety management plan.” Finally, the ISM Code requires each ship to “establish and implement against all identified risk,” 33 C.F.R. § 96.230(b), and to have a detailed “written manual that outlines a Safety Management System.”

[3] Notably, NCL does not even argue that the reference to the ISM Code may confuse the issues or otherwise prejudice NCL.