A.C., Plaintiff, v. NCL (Bahamas) Ltd. (Response)

Lipcon, Margulies, Alsina & Winkleman, P.A

November 20, 2015

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

IN ADMIRALTY

 

CASE NO. 15-23414-CIV-MORENO/O’Sullivan

 

A.C., Individually and as

Personal Representative for the Estate of

W.C., Deceased,

Plaintiff,

v.

NCL (BAHAMAS) LTD., DR. CHERRYLL LeBLANC,

  1. MICHIEL ADRIAAN ETSEBETH, DR. ANABELLE ABAD,

JOHANNES DE WINNAAR, LEILANI DANAN,

DOCTOR DOE(S), and NURSE DOE(S),

Defendants.

                                                                        /

 

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT, NCL

(BAHAMAS) LTD.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

The Plaintiff, A.C., Individually and as Personal Representative for the Estate of W.C., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby responds in opposition to Defendant, NCL (BAHAMAS) LTD.’S (“NCL[’s]”) Motion to Dismiss Plaintiff’s Complaint [D.E. 8] and, in furtherance thereof, states as follows:

  1. Introduction

The instant matter arises out of the wrongful death of W.C. while he and his wife, A.C., were passengers aboard the Norwegian Getaway cruise ship.  Specifically, the Plaintiff claims that the medical treatment provided to Mr. C. aboard the vessel from November 17, 2014 to November 21, 2014 was mismanaged and/or inadequate, which ultimately led to his death on November 22, 2014. [D.E. 1, ¶¶29-34].

As a result, on September 9, 2015, the Plaintiff initiated this lawsuit against NCL and the shipboard medical personnel[1], alleging the following causes of action: general negligence against NCL (Count I); negligent hiring and/or negligent retention of the Medical Defendants against NCL (Count II); negligence against NCL for the acts of the Medical Defendants based on a theory of vicarious liability under respondeat superior (Count III); negligence against NCL for the acts of the Medical Defendants based on a theory of vicarious liability under apparent agency (Count IV); negligence against NCL for the acts of the Medical Defendants based on a theory of vicarious liability under joint venture (Count V); negligence against the ship’s doctors (Count VI); and negligence against the ship’s nurses (Count VII). [D.E. 1].

At issue herein is NCL’s Motion to Dismiss, wherein NCL argues that the Plaintiff’s Complaint should be dismissed for the following reasons: A) the Complaint asserts duties and breaches that are allegedly not supported by maritime law; B) the Complaint fails to state a claim for failure to timely evacuate; C) the Complaint fails to sufficiently allege proximate causation for negligence; D) the Complaint fails to state a claim for negligent hiring/retention; and, E) the Complaint fails to state a claim for Joint Venture. [D.E. 8].  As detailed below, however, all of these arguments fail and NCL’s Motion to Dismiss should be denied its entirety.

  1. Standard for Motions to Dismiss for Failure to State a Claim

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).  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, courts in this district have 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 in its entirety.

  1. The Complaint properly and succinctly states a claim for negligence without expanding the duties imposed by law, but rather, explaining how NCL breached the duty of reasonable care owed to the Plaintiff, which is proper.

Count I of the Plaintiff’s Complaint asserts a general negligence claim against NCL.  In order to prevail on a maritime[2] negligence claim, a plaintiff must show that: 1) the defendant owed the plaintiff a duty; 2) the defendant breached that duty; 3) the breach was the proximate cause of the plaintiff’s injury; and 4) the plaintiff suffered damages. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1336 (11th Cir. 2012) (internal citation omitted); see also Hasenfus v. Secord, 962 F.2d 1556, 1559‐60 (11th Cir. 1992) (citing Florida law).

NCL’s first point of contention with regard to Count I is that the Complaint alleges a number of “duties” that are not supported by maritime law.  [D.E. 8, pp. 4-9].  NCL, however, is incorrect, as the Complaint alleges the proper duty NCL owed to the Plaintiff.

Specifically, in the context of admiralty torts, a ship owner’s “duty” was defined in the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959), where the U.S. Supreme Court held that “the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” Id. at 632 (emphasis added).

Consistent with Kermarec, the Plaintiff’s Complaint properly alleges that “[i]t was the duty of NCL to provide the Plaintiff with reasonable care under the circumstances.” [D.E. 1, ¶35] (emphasis added).  The next paragraph of the Complaint (paragraph 36) then goes on to allege the specific ways in which NCL breached the duty of reasonable care owed to the Plaintiff, as follows:

At all times material hereto, NCL… breached its duty to provide the Plaintiff with reasonable care under the circumstances through the following acts and/or omissions:

  1. Failing to disclose to passengers that the ship’s doctors and/or nurses were not properly qualified and/or did not have the proper licenses in the jurisdiction of the flag of the ship on which they were hired to provide medical care; and/or
  2. Negligent reliance on the medical opinions and/or advice and/or instructions of ship’s doctors who were: (1) not properly qualified; and/or (2) failed to have the proper licenses in the jurisdiction of the flag of the ship on which they were hired to provide medical care; and/or
  3. Failing to use reasonable care to provide and maintain an adequate ship’s medical facility, fit with proper and adequate crew and equipment; and/or
  4. Failing to use reasonable care to provide and maintain an adequate ship’s medical facility, fit with proper and adequate medications; and/or
  5. Failing to provide adequate training, instruction and supervision to crewmembers, particularly the medical staff; and/or
  6. Failing to have an adequate number of medical employees to handle medical emergencies. Specifically, it is unrealistic to have a medical team consisting of two or three doctors and/or two or three nurses to perform all the services required on a ship carrying thousands of passengers and crew; and/or
  7. Failing to initiate and/or use “Face-to-Face Telemedicine” and/or other similar tele-medicine and/or video-medicine sources; and/or

  1. Failing to adequately assist W.C. to obtain prompt, proper and adequate shoreside medical care; and/or
  2. Failing to assist W.C. in emergent travel to the United States for medical care; and/or
  3. Failing to promulgate and/or enforce adequate policies and procedures to ensure that W.C. received prompt, proper and adequate medical treatment; and/or
  4. Failing to promulgate and/or enforce adequate medical procedures aboard the Norwegian Getaway; and/or
  5. Failing to comply with the Cruise Industry Passenger Bill of Rights.

 

[D.E. 1, ¶36] (emphasis added).

NCL takes issue with the above subsections of paragraph 36, arguing that the Plaintiff is alleging “duties” not supported by law.  Contrary to its position, however, the above subsections are not alleged as separate “duties” – they are merely included to support the Plaintiff’s negligence claim by pleading with sufficient factual information the specific ways in which NCL breached the duty of reasonable care owed to the Plaintiff.  Whether it is considered “reasonable under the circumstances” (and therefore a breach) for NCL to have taken the actions discussed in the subsections should not be determined at this pleading stage.

To that end, courts have repeatedly rejected the exact same argument NCL makes, holding that it is an issue more appropriate for summary judgment.  For instance, in Balaschak v. Royal Caribbean Cruises, Ltd., No. 09-21196-CIV, 2009 WL 8659594, (S.D. Fla. Sept. 14, 2009), the court stated as follows:

According to Celebrity, [plaintiff] alleges “various duties” that are not owed by a carrier to a passenger under maritime law… Celebrity asserts that Count VI should be dismissed because [plaintiff] alleges she was owed a duty “greater than that supported by the law.”….

 

Here, [plaintiff] has pleaded facts showing that Celebrity owed her, as a passenger, a duty of care. [Plaintiff’s] allegations have therefore notified Celebrity of her claim…. The merits of Count VI are best tested with a motion for summary judgment.

 

Id. at *5; see also Bridgewater v. Carnival Corp., No. 10-22241-CIV, 2011 WL 817936, at *2 (S.D. Fla. Mar. 2, 2011) (“Carnival disputes whether it owed a duty to Plaintiff under the facts as pleaded. However such a contention is more appropriate for summary judgment than for the consideration upon a motion to dismiss.”)

Similarly, courts in this district have consistently refused to dismiss individual alleged breaches (as NCL requests in its motion), stating that even though “certain of the alleged breaches… may not adequately state a negligence claim, the Court will not strike the alleged breaches in line-item fashion” when the plaintiff sufficiently alleges a facially plausible negligence claim. See Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219, 1224 (S.D. Fla. 2013); McLean v. Carnival Corp., No. 12-24295-CIV, 2013 WL 1024257, at *5 (S.D. Fla. Mar. 14, 2013); see also Holguin v. Celebrity Cruises, Inc., No. 10-20215-CIV, 2010 WL 1837808, at *1 (S.D. Fla. May 4, 2010).  In this case, the Plaintiff has indeed sufficiently alleged a facially plausible negligence claim, providing NCL notice of her claim and the grounds upon which it rests.

The recent Eleventh Circuit opinion in Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225 (11th Cir. 2014) undercuts NCL’s argument.  Even if this Honorable Court does not agree that the Plaintiff alleges breaches (not duties) that are more appropriate to evaluate in a motion for summary judgment, NCL’s argument still fails.  This is because all (but one) of the cases that NCL cites are cases that applied Barbetta v. S/S Bermuda Star, 848 F.2d 1364 (5th Cir. 1988).[3]  Recently, however, in Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225 (11th Cir. 2014), the Eleventh Circuit explicitly rejected Barbetta and its reasoning, holding as follows:[4]

Here, the roots of the Barbetta rule snake back into a wholly different world. Instead of nineteenth-century steamships, see, e.g., Barbetta, 848 F.2d at 1369 (citing O’Brien v. Cunard S.S. Co., 154 Mass. 272, 28 N.E. 266, 267 (1891)), we now confront state-of-the-art cruise ships that house thousands of people and operate as floating cities, complete with well-stocked modern infirmaries and urgent care centers. In place of truly independent doctors and nurses, we must now acknowledge that medical professionals routinely work for corporate masters. And whereas ships historically went “off the grid” when they set sail, modern technology enables distant ships to communicate instantaneously with the mainland in meaningful ways. In short, despite its prominence, the Barbetta rule now seems to prevail more by the strength of inertia than by the strength of its reasoning. See United States v. Reliable Transfer Co., 421 U.S. 397, 410, 95 S.Ct. 1708, 1715, 44 L.Ed.2d 251 (1975). In our view, “[t]he reasons that originally led” other courts to adopt “the rule have long since disappeared.” See id.

 

Franza, 772 F.3d at 1239 (emphasis added).

Thus, unlike NCL’s argument, Franza states that medical professionals (like the shipboard medical personnel) routinely work for corporations (like NCL), and that the corporations may affect and restrict the practice of medicine “‘through hiring criteria, training, formal practice guidelines, hierarchical supervision structures, peer review groups[,] and disciplinary measures.’” Id. at 1240-41 (alteration in original) (citation omitted).

Further, the Eleventh Circuit repeatedly referenced the technological capabilities that are now available and already used by cruise lines:

“… we see no need to adopt a one size fits all rule where advanced technology often enables effective communication between shore based principals and onboard medics…. Several cruise lines now purport to staff extensive land-based medical departments with expert personnel. By many accounts, these and other onshore practitioners meaningfully communicate with a ship’s medical employees even while the ship is at sea. These communications occur through channels that were unheard of when the Fifth Circuit decided Barbetta, long before the advent of widespread cellular and satellite communications. Because, twenty-six years after Barbetta, we now think a shipowner could plausibly supervise a ship’s medical employees in places near and far, we reject the sweep of the rule’s final rationale.

 

Franza, 772 F.3d at 1248 (internal citations omitted).

This therefore supports the Plaintiff’s allegation that NCL breached its duty to exercise reasonable care under the circumstances by “[f]ailing to initiate and/or use ‘Face-to-Face Telemedicine’ and/or other similar tele-medicine and/or video-medicine sources” [D.E. 1, ¶36(g)].

All in all, whereas Barbetta held that cruise lines merely employed a doctor aboard the ship for the passengers’ convenience, Franza now acknowledges that “cruise lines have chosen quite deliberately to enter the business of medicine, often in a large way, and they reap the tangible benefits of this business strategy.” Franza, 772 F.3d at 1247 (emphasis added).  As alleged by the Plaintiff, NCL owned the ship’s medical facility, it maintained the medical equipment, it ordered and/or supplied the medicine for the ship’s medical facility, and it employed the medical personnel with the ability to monitor and control them. [D.E. 1, ¶¶15-21]. Accepting these allegations as true, the Plaintiff should be allowed to hold NCL directly liable if it did not exercise reasonable care in executing these actions.  After all, “it seems hardly anomalous to require cruise lines to bear the burden of this choice [to enter the business of medicine].” Franza, 772 F.3d at 1247.[5]

  1. The Plaintiff’s Complaint properly and succinctly sets forth detailed, factual allegations concerning the failure to timely and adequately evacuate Mr. C. from the vessel.

Among the Plaintiff’s bases for NCL’s negligence is the failure to timely and adequately evacuate Mr. C. from the vessel. [D.E. 1, ¶36(i)].  In its motion, NCL moves to dismiss such allegation, arguing that it is “devoid of any factual information to support them…. For example, Plaintiff has not alleged that there was a delay in evacuating W.C., how long that delay was, or that any such alleged delay proximately caused Plaintiff’s alleged injuries and/or damages.” [D.E. 8, p. 9].

Contrary to NCL’s argument, however, the Complaint does in fact contain factual information supporting the claim for failure to timely evacuate Mr. C.  Specifically, as detailed in the Complaint, Mr. C. first presented to the ship’s medical facility on November 17, 2014; he called the medical facility the next day (November 18, 2014) reporting continued pain; and he returned to the medical facility the day after that (November 19, 2014) with worsening symptoms. [D.E. 1, ¶¶29-31].  It was at that November 19, 2014 visit that Mr. C. was diagnosed with pneumonia. [Id. at ¶31].  After that diagnosis, “NCL and/or the Medical Defendant(s) refused to evacuate” Mr. C. from the vessel “[d]espite repeated requests” from the Plaintiff. [Id. at ¶32] (emphasis added).  The Complaint goes on to state that Mr. C. was told by NCL and/or the Medical Defendant(s) “that he had to stay aboard the vessel until the next port of call, which they were scheduled to arrive at two days later (i.e., on November 21, 2014).” [Id.] (emphasis added).  Further, the failure to evacuate Mr. C. is specifically alleged to have “caused and/or contributed” to Mr. C.’s death. [Id. at ¶¶36(i), 37].

Accepting these allegations as true and construing them in the light most favorable to the Plaintiff, the Complaint contains sufficient facts to give NCL fair notice that the Plaintiff is making a claim for the failure to timely evacuate Mr. C. and it sufficiently gives NCL the grounds upon which such claim rests, as required under Twombly.  Therefore, NCL’s request to dismiss this claim should be denied.

 

 

  1. The Plaintiff’s Complaint sufficiently pleads proximate causation by explicitly alleging that the enumerated failures on NCL’s part “caused and/or contributed” to Mr. C.’s death and the Plaintiff’s damages.

The next argument set forth by NCL is that the Plaintiff failed to sufficiently plead proximate causation for her negligence claim in Count I. [D.E. 8, pp. 9-11].

The proximate causation element is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred. McCain v. Florida Power Corp., 593 So. 2d 500, 502 (Fla. 1992).  It is established where “prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question.” McCain, 593 So.2d at 503.  However, “it is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent.” Id. (emphasis in original).

For pleading purposes, so long as the plaintiff gives defendant notice of the claim at issue, it is sufficient to plead that the plaintiff was injured due to the fault and/or negligence of the defendant, and list the alleged failures that resulted in the plaintiff’s injuries. See Huang v. Carnival Corp., 909 F. Supp. 2d 1356, 1359-60 (S.D. Fla. 2012), abrogated on other grounds by Franza, supra.  Specifically, the Huang Court stated as follows:

The Court also finds that Plaintiff sufficiently pleaded a basis for proximate cause. Federal courts do not require that plaintiffs formulaically recite the elements of a cause of action. The Complaint states  that “Plaintiff was injured due to the fault and/or negligence of Defendant Carnival … as follows,” D.E. 1 ¶ 18, and then proceeds to list, in fourteen subparagraphs, the alleged failures on Carnival’s part that resulted in Plaintiffs injuries. These allegations point to inadequate flooring, a lack of handrails, a faulty door, and a lack of warning notices as the causes of Plaintiff’s slip-and-fall. These allegations suffice to give Defendants notice of the claim leveled against it.

 

Id. at 1359-60 (emphasis added); see also Prokopenko v. Royal Caribbean Cruises Ltd., No. 10-20068-CIV, 2010 WL 1524546, at *2 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff “was caused to fall on water on deck of the ship at or near the swimming pool, causing her serious injury” was “sufficient to draw a reasonable inference of negligence” under Iqbal).

Like Huang, the Plaintiff herein meets the pleading requirements for proximate causation.  Specifically, after summarizing the medical treatment Mr. C. received aboard the vessel in paragraphs 29-33 of the Complaint, paragraph 34 alleges that Mr. C. died “[a]s a result of the mismanaged and/or inadequate medical treatment of [Mr. C.’s] medical condition” [D.E. 1, ¶¶29-34].  Paragraph 36 then alleges the specific “acts and/or omissions” by NCL that caused and/or contributed to Mr. C.’s death and the Plaintiff’s damages, including, inter alia, NCL’s failure to: (a) use reasonable care to provide and maintain an adequate ship’s medical facility, fit with proper and adequate crew, equipment, and medications; (b) provide adequate training, instruction and supervision to crewmembers, particularly the medical staff; and, (c) have an adequate number of medical employees to handle medical emergencies. [Id. at ¶36].  Immediately thereafter, paragraph 37 alleges that “the above acts and/or omissions by NCL… caused and/or contributed to [Mr. C.’s] death and the Plaintiff’s damages.” [Id. at ¶37].  These allegations are more than sufficient to draw a reasonable inference and give NCL notice of the Plaintiff’s negligence claim.

Based on its motion, NCL’s main point of contention with the manner in which the Plaintiff pled proximate causation is that the Complaint does not specify how each alleged failure directly resulted in Mr. C.’s death and the Plaintiff’s damages.[6]  However, that is contrary to both pleading requirements and the law.  In fact, “proximate causation does not require an injury to result directly from the tort-feasor’s act, but rather proximate causation exists where the injury ‘results as a consequence so natural and ordinary as to be regarded as probable.’” Bosket v. Broward Cty. Hous. Auth., 676 So. 2d 72, 74 (Fla. 4th DCA 1996) (citing Bennett M. Lifter, Inc. v. Varnado, 480 So.2d 1336, 1339–40 (Fla. 3d DCA 1985), rev. dismissed, 484 So.2d 7 (Fla. 1986)).

Therefore, accepting the Plaintiff’s allegations as true and construing them in the light most favorable to the Plaintiff, it is possible that Mr. C.’s death resulted as a natural and ordinary consequence of any or all of the alleged failures listed in paragraph 36, including not having the proper medical equipment to treat a passenger diagnosed with pneumonia, like Mr. C. in this case. [D.E. 1, ¶31].  Pleading causation in the precise manner that NCL requests is improper at this stage, especially in a case involving allegations of inadequate medical treatment where establishing causation will likely require the opinions of medical experts. See Gittel v. Carnival Corp., No. 14-CV-23234-KING, 2015 WL 3650042, at *2 (S.D. Fla. June 11, 2015) (the court “decline[d] to take so formalistic a view” for pleading proximate causation); see also McCain, 593 So. 2d at 502 (“the element of proximate causation… is a question of fact”).

  1. The Plaintiff’s allegations supporting her claim for negligent hiring and/or retention of the Medical Defendants (Count II) are sufficient to put NCL on notice of what the claim is and the grounds upon which it rests.

Count II of the Plaintiff’s Complaint is another negligence claim against NCL, specifically for NCL’s negligent hiring and/or retention of the Medical Defendants.

Even Barbetta recognized that longstanding maritime law imposes a duty on ship owners to hire “competent and duly qualified” medical personnel. See Barbetta, 848 F.2d at 1369.  This requirement falls under a carrier’s duty to exercise “reasonable care to furnish such aid and assistance as ordinarily prudent persons would render under similar circumstances.” Id. at 1371.  Thus, “[t]o the extent that a carrier negligently hires an incompetent doctor,… the carrier has not discharged its duty to its sick and injured passengers.” Id. at 1371-72.

Herein, NCL does not dispute that cruise lines have a duty to hire competent and qualified doctors.  Instead, NCL argues that the allegations in the Complaint are insufficient to state a claim for negligent hiring and/or retention of the Medical Defendants.  NCL, however, is incorrect.

The Plaintiff’s Complaint alleges that NCL was negligent by:

  1. Hiring the Medical Defendants, who were not competent and/or duly qualified nor licensed to practice medicine in the jurisdiction of the ship, as ship’s doctors or ship’s nurses; and/or
  2. Retaining the Medical Defendants, who were not competent and/or duly qualified nor licensed to practice medicine in the jurisdiction of the ship, as ship’s doctors or ship’s nurses.

 

[D.E. 1, ¶43].

Therefore, an indication of the Medical Defendants’ lack of competence and/or qualifications is provided by the allegation that they are not licensed to practice medicine in the jurisdiction of the ship. [Id.].  Although NCL argues that this is insufficient to make a claim for negligent hiring, that same argument has previously been rejected:

Plaintiffs have also alleged that Carnival breached its duty to hire competent medical staff. Carnival also argues that this claim should be dismissed because Plaintiffs have not adequately pled a breach of this duty. Carnival asserts that Plaintiffs have merely pled a conclusion without the supporting facts, which does not comply with Iqbal. However, the Complaint does allege that Defendants Doe and Law did not have proper licensing. Thus, Plaintiffs have adequately pled a claim of negligent hiring.

 

Rinker v. Carnival Corp., No. 09-23154-CIV, 2010 WL 9530327, at *2 (S.D. Fla. June 18, 2010) (emphasis added).

 

As further indication of the Medical Defendants not being competent and/or duly qualified, the Complaint alleges that the Medical Defendants mismanaged and/or provided inadequate medical treatment to Mr. C., which caused his condition to significantly deteriorate and ultimately led to his death. [Id. at ¶¶33-34 (incorporated into Count II as a general allegation)].

Moreover, the Complaint alleges that NCL knew of the foregoing conditions (i.e., the incompetence or unfitness) and did not correct them, or the conditions existed for a sufficient length of time so that NCL, in the exercise of reasonable care under the circumstances, should have learned of them and corrected them. [Id. at ¶45].

Therefore, based on the case law NCL itself relies upon (Smolnikar v. Royal Caribbean Cruises, Ltd., 787 F.Supp.2d 1308 (S.D. Fla. 2011)), the Plaintiff has pled all of the necessary elements to state a claim for negligent hiring and/or retention – the Plaintiff pled that (a) the Medical Defendants were incompetent and/or unfit [D.E. 1, ¶43], (b) NCL knew or reasonably should have known of the incompetence or unfitness [Id. at ¶45], and (c) the incompetence or unfitness was a proximate cause of Mr. C.’s death and the Plaintiff’s damages [Id. at ¶44].

Ultimately, the Plaintiff is not required to plead evidence, nor is she required to plead every single fact upon which her claim is based. See Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. 2011) (“[plaintiff] is not required to plead evidence, nor even all the facts upon which her claim is based”).  It is only necessary that the allegations in the complaint “raise a reasonable expectation that discovery will reveal evidence” corroborating the Plaintiff’s claim. See Twombly, 550 U.S. at 556, 570; see also Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514, at *6 (S.D. Fla. Nov. 25, 2014) (“As a practical matter, a personal injury plaintiff is often unaware of specific facts demonstrating that the defendant knew or should have known of a dangerous condition at the time the lawsuit is filed, before taking discovery.  Plaintiffs sometimes obtain evidence of the defendant’s knowledge during discovery, such as by obtaining evidence that the defendant was aware of prior injuries occurring under similar circumstances.”).

Herein, the above allegations do in fact “raise a reasonable expectation that discovery will reveal evidence” corroborating the Plaintiff’s claim, particularly discovery of documents contained in NCL’s personnel files for the Medical Defendants, including, but not limited to, documents regarding the verification of qualifications by or at the direction of NCL (i.e., credentialing files) of the Medical Defendants, and complaints and/or claims alleging bad medical care against the Medical Defendants.  The Plaintiff’s allegations are also sufficient to put NCL on notice of what the claim is and the grounds upon which it rests.  Accordingly, NCL’s Motion to Dismiss Count II should be denied.

  1. The Complaint includes enough factual allegations from which it can be inferred that NCL and the Ship’s Doctors engaged in a joint venture.

Count V of the Plaintiff’s Complaint is a negligence claim against NCL for the acts the Ship’s Doctors based on a theory of vicarious liability under joint venture.  Specifically, the Plaintiff alleges that NCL and the Ship’s Doctors engaged in a joint venture to operate a ship’s medical facility for profit.  Since joint venturers are legally liable for each other’s negligence, NCL is liable for the negligence of the shipboard doctors.  As its part of the joint venture, NCL financed and equipped the ship’s medical facility and assisted in running it.  As its part of the joint venture, the shipboard doctors provided labor and/or assisted in running the ship’s medical facility so as to generate charges to passengers, which were thereby collected by NCL, and the money collected was then shared by NCL and the shipboard doctors.

To maintain a cause of action for joint venture there must be the concurrence of the following elements: 1) a community of interest in the performance of the common purpose; 2) joint control or right to control; 3) a joint proprietary interest in the subject matter; 4) a right to share in the profits; and 5) a duty to share any losses which may be sustained. See Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978).  However, these elements “cannot be applied mechanically,” and no singular aspect of the relationship is decisive. Id. (citing Hyman v. Regenstein, 258 F.2d 502, 513 (5th Cir. 1958), cert. denied 359 U.S. 913, 79 S.Ct. 589, 3 L.Ed.2d 575 (1959)).[7]

Herein, the Plaintiff’s Complaint alleges all of the necessary elements to support the theory that NCL and the Ship’s Doctors engaged in a joint venture.  As to the first element, the Complaint alleges that NCL and the Ship’s Doctors shared a common purpose to operate the ship’s medical facility for profit, as follows:

At all times material hereto, NCL and the Ship’s Doctors engaged in a joint venture to operate a ship’s medical facility for passengers aboard the Norwegian Getaway for a profit.

….

 

At all times material hereto, NCL and the Ship’s Doctors shared a common purpose, which was to operate the ship’s medical facility for profit.

 

[D.E. 1, ¶¶72, 75] (emphasis added).

The second element is also sufficiently pled with allegations pertaining to the joint control that NCL and the Ship’s Doctors possessed over the medical facility:

As its part of the joint venture, NCL financed and equipped the ship’s medical facility and assisted in running it. As their part of the joint venture, the Ship’s Doctors provided labor and/or assisted in running the ship’s medical facility so as to generate charges to passengers; the charges were thereby collected by NCL, and the money was then shared by NCL and the Ship’s Doctors.

 

At all times material hereto, NCL and the Ship’s Doctors had joint or shared control over aspects of the joint venture. The Ship’s Doctors had control over the day-to-day workings of the ship’s medical facility. NCL also had control over the day-to-day workings of the ship’s medical facility. In addition, NCL had control over the billings and collections for the ship’s medical facility. Thus, NCL and the Ship’s Doctors joint or shared control over the day-to-day operations of the medical facility in that the Ship’s Doctors performed the medical aspects of the joint venture and NCL performed the operational aspects of the joint venture.

 

[D.E. 1, ¶¶73-74] (emphasis added).

Similarly, contrary to NCL’s argument [D.E. 8, p. 14], the third element is alleged with sufficient facts supporting the conclusion that NCL and the Ship’s Doctors had a joint proprietary interest in operating the medical facility for a profit, as follows:

At all times material hereto, NCL and the Ship’s Doctors had a joint proprietary or ownership interest in the ship’s medical facility. NCL had the interest in the money it devoted to setting up the medical facility, and the Ship’s Doctors had a proprietary interest in the time and labor expended in operating the ship’s medical facility.

 

[D.E. 1, ¶76] (emphasis added).

Finally, the fourth and fifth elements are also properly pled with enough facts concerning NCL and the Ship’s Doctors’ right to share profits, as well as the duty to share fiscal losses:

… NCL and the Ship’s Doctors shared in the profits of the joint venture. Upon information and belief, contractual arrangements exist between NCL and the Ship’s Doctors that expressly lay out such a profit-sharing relationship. In Florida, a duty to share losses actually and impliedly exists as a matter of law in a situation where one party supplies the labor, experience and skill, and the other the necessary capital.

 

[D.E. 1, ¶76] (emphasis added).

Therefore, the above factual allegations sufficiently support the theory that NCL and the Ship’s Doctors engaged in a joint venture, making them liable for each other’s negligence.

In its Motion to Dismiss, NCL claims the Plaintiff fails to allege that the parties intended to create a joint venture [D.E. 8, p. 13].  In support thereof, NCL refers to Skeen v. Carnival Corp., No. 08-22618-CIV, 2009 WL 1117432 (S.D. Fla. Apr. 24, 2009), where it was held that “Plaintiff has not alleged that there is an oral agreement between the parties or asserted any facts supporting that [the parties] intended to enter into a joint venture.” Id.at *3 (emphasis added).  Herein, however, the Plaintiff has in fact asserted facts supporting the parties’ intent.  Specifically, such intention is reflected in paragraph 72, which alleges that “NCL and the Ship’s Doctors engaged in a joint venture to operate a ship’s medical facility for passengers aboard the Norwegian Getaway for a profit.”  The Complaint also references the “contractual arrangements” between the NCL and the Ship’s Doctors that lay out their profit-sharing relationship. [D.E. 1, ¶76].

Nevertheless, assuming, arguendo, that the Plaintiff did not specifically allege the “intent of the parties to the joint venture,” this hyper-technical failure does not warrant dismissal under Sasportes.  Ultimately, the existence of a joint venture may be implied or inferred from the conduct of the parties or from acts and circumstances, which in fact make it appear that they are participants in a joint venture.  In this case, as set forth earlier in detail, the Complaint includes enough information from which it can be inferred that NCL and the Ship’s Doctors intended to create a joint venture (i.e., they each had control over the venture; they made contractual arrangements to share profits and losses, etc.).

Accordingly, even if this Honorable Court finds an element is missing, it can still find that Plaintiff’s cause of action for joint venture is plausible and should survive NCL’s Motion to Dismiss.

  1. Motion for Leave to Amend 

Should this Honorable Court grant NCL’s motion or any portion thereof, the Plaintiff respectfully requests leave to amend.

WHEREFORE, for the foregoing reasons, the Plaintiff respectfully requests that this Honorable Court enter an Order denying NCL’s Motion to Dismiss Plaintiff’s Complaint [D.E. 8], and 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/ Jacqueline Garcell                        

JASON R. MARGULIES

Florida Bar No. 57916

JACQUELINE GARCELL

Florida Bar No. 104358

 

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 20, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I 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 electronically receive Notices of Electronic Filing.

By:  /s/ Jacqueline Garcell                        

JACQUELINE GARCELL

 

 

SERVICE LIST

  1. v. NCL (Bahamas) Ltd., et al.

Case No. 15-23414-CIV-Moreno/O’Sullivan

 

Jason R. Margulies, Esq.

Jacqueline Garcell, Esq.

LIPCON, MARGULIES,

ALSINA & WINKLEMAN, P.A.

One Biscayne Tower, Suite 1776

2 S. Biscayne Boulevard

Miami, Florida 33131

Telephone No.: (305) 373-3016

Facsimile No.: (305) 373-6204

Attorneys for Plaintiff

Jeffrey E. Foreman, Esq.

Noah D. Silverman, Esq.

Rachael Mitchell Fagenson, Esq.

FOREMAN FRIEDMAN, PA

One Biscayne Tower, Suite 2300

2 South Biscayne Boulevard

Miami, Florida 33131

Tel.: (305) 358-6555

Fax: (305) 374-9077

Attorneys for Defendant, NCL

 

[1] Ship’s Doctors, DR. CHERRYLL LeBLANC, DR. MICHIEL ADRIAAN ETSEBETH, and DR. ANABELLE ABAD (“Ship’s Doctors”), and Ship’s Nurses, JOHANNES DE WINNAAR, LEILANI DANAN (“Ship’s Nurses”) (at times collectively referred to as “Medical Defendants.)

[2] It is undisputed that general maritime law applies to this case. [D.E. 1, ¶14, see also D.E. 8, p. 2].

[3] The only case cited by NCL that does not pre-date or rely on Barbetta is Casorio v. Princess Cruise Lines, Ltd., No. CV148916GHKAJWX, 2015 WL 4594169 (C.D. Cal. July 30, 2015), which is from a district court in California and is easily distinguishable.  Specifically, the Casorio court declined to apply Franza and deemed it “inapposite” for the following reason: “In Franza, a cruise passenger fell and hurt himself while he was disembarked, and the cruise ship allegedly ‘required’ him to be treated aboard the ship, rather than go to the local hospital.… Unlike Franza, Plaintiff does not allege that the doctors or staff aboard Defendant’s ship caused any delay in Mr. Casorio’s treatment or that they made any mistakes in their diagnosis. The sole mistake that Plaintiff alleges is the failure to secure transportation to the right type of medical facility.” Id. at *4.  Here, unlike Casorio and like Franza, the Plaintiff does in fact allege that Mr. C. was required to stay aboard the vessel for medical treatment despite repeated requests to be evacuated from the vessel, and the Plaintiff does allege inadequate medical treatment. [D.E. 1, ¶32-34].

[4] Based on footnote 1 in NCL’s Motion to Dismiss, NCL will argue that Franza does not change its analysis because Franza is limited to whether “a shipowner could be held liable for the negligence of the shipboard medical personnel under a theory of vicarious liability (e.g., respondeat superior or agency theories of liability).” [D.E. 8, p. 9 n. 1] (emphasis in original).  Notably, however, Barbetta was also limited in the same manner. See Barbetta, 848 F.2d at 1368-69 (“we focus our attention on the question whose answer the district court assumed: Does general maritime law impose liability, under the doctrine of respondeat superior, upon a carrier or ship owner for the negligence of a ship’s doctor who treats the ship’s passengers?”).  Nevertheless, the reasoning set forth in Barbetta affected plaintiffs’ direct negligence claims against cruise lines, as evident by the very cases that NCL relies on now.  Therefore, by the same token, Franza’s reasoning also affects plaintiffs’ direct negligence claims against cruise lines.

[5] As to the allegation that NCL failed to comply with the Cruise Industry Passenger Bill of Rights [D.E. 1, ¶36(n)], NCL’s reliance on Ure v. Oceania Cruises, Inc. is misplaced because the order NCL refers to was also entered before Franza.  The plaintiff in Ure moved for reconsideration following Franza, and the court allowed the plaintiff’s negligence claim against the cruise line (Count III) to “proceed as pled,” including the allegation regarding the Passenger Bill of Rights. See Ure, 14-cv-21340-DPG [D.E. 66].  As a brief form of background, the International Cruise Line Passenger Bill of Rights is a requirement imposed on all Cruise Lines International Association (CLIA) members, which includes NCL.  Adoption is a condition of members.  For that reason, every single cruise line (including NCL) adopted it.  Article 3 of the Passenger Bill of Rights requires cruise lines to have onboard a full-time, emergency medical professional

[6] “For example, Plaintiff fails to allege what medical equipment should have been available onboard the vessel or how a failure to have that particular piece of medical equipment caused the Decedent’s death and/or Plaintiff’s damages.” [D.E. 8, p. 10].

[7] For example, many business dealings other than joint ventures might involve joint property holdings; and although a joint right of control is one of the elements, it is commonplace for one joint venturer to delegate control of operations entirely to the other, creating the appearance that there is no shared control. See, e.g.  Shell Oil Co.  v. Prestidge, 249 F.2d 413, 416 (9th Cir. 1957).