D.F., Plaintiff, v. CARNIVAL CORPORATION, IBEROSERVICE INCOMING SERVICES CORP., and XYZ CORPORATION(S),

Lipcon, Margulies, Alsina & Winkleman, P.A - Maritime Lawyer

April 3, 2015

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 14-24005-CV-UNGARO

D.F.,

Plaintiff,

v.

CARNIVAL CORPORATION,

IBEROSERVICE INCOMING SERVICES CORP.,

and XYZ CORPORATION(S),

Defendants.

                                                            /

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT,

IBEROSERVICE INCOMING SERVICES CORP.’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM[1]

The Plaintiff, D.F., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby responds in opposition to Defendant, IBEROSERVICE INCOMING SERVICES CORP.’S (“Iberoservice[’s]”) Motion to Dismiss Plaintiff’s Amended Complaint [D.E. 41] for failure to state a claim. In furtherance thereof, the Plaintiff states as follows:

  1. Introduction

The instant matter arises out of injuries sustained by the Plaintiff during a Carnival cruise. Specifically, on November 2, 2014, the Plaintiff was on his way to a shore excursion operated by Iberoservice. [D.E. 33, ¶¶4, 20]. While walking from the cruise ship, through the port terminal and toward the motor-coach pick-up area for the shore excursion participants, the Plaintiff tripped and fell over a low-lying receptacle and/or cigarette refuse container. [Id. at ¶20]. As a result, the Plaintiff suffered severe injuries and initiated this lawsuit against Carnival and Iberoservice. [Id. at ¶21].

On January 28, 2015, the Plaintiff filed an Amended Complaint, alleging Negligence against both Carnival (Count I) and Iberoservice (Count II), Apparent Agency (Count III); Joint Venture (Count IV); and Third-Party Beneficiary (Count V). [D.E. 33].

At issue herein is Iberoservice’s Motion to Dismiss Plaintiff’s Amended Complaint, filed on March 17, 2015. [D.E. 41]. In its motion, Iberoservice sets forth two bases for dismissal: lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). [D.E. 41]. With regard to Iberoservice’s jurisdictional argument, concurrent with this response, the Plaintiff filed a preliminary response and moved this Honorable Court to stay the case pending completion of limited jurisdictional discovery to allow the Plaintiff an opportunity to meaningfully respond to the factual arguments Iberoservice raises. [D.E. 50, 51].

Herein, the Plaintiff responds in opposition to Iberoservice’s remaining argument that Plaintiff’s negligence and third-party beneficiary claims should be dismissed for failure to state a claim. [D.E. 41, pp. 9-13]. As set forth in further detail below, however, all of its arguments fail because 1) the Amended Complaint properly and succinctly states a claim for negligence that sets forth the Plaintiff’s entitlement to relief with sufficient factual allegations in support of the claim; and, 2) reviewing the Tour Operator Agreement would cause the Court to improperly consider documents beyond the four corners of the Complaint, and a resolution of the arguments raised involves issues of fact concerning the contracting parties’ intent.

Accordingly, Iberoservice’s Motion to Dismiss should be denied its entirety.

  1. Argument

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, 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 Royal Caribbean’s Motion to Dismiss for failure to state a claim should be denied.

  1. Count I: Plaintiff’s negligence claims against Iberoservice is pled with sufficient facts to provide Iberoservice notice of what the claim is and the grounds upon which it is based.

Count II of Plaintiff’s Amended Complaint alleges negligence against Iberoservice. To prevail on a maritime 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).

Iberoservice’s main points of contention concerning Plaintiff’s negligence claim are that 1) the Plaintiff’s allegations extends the duty of care beyond what is required under Florida law; and, 2) the allegations do not contain specific factual support to establish that Iberoservice knew and/or should have known of the alleged dangerous condition. [D.E. 33, pp. 9-11]. Each argument is addressed separately.

  1. The applicable duty of care is established under general maritime law, which requires a duty to exercise reasonable care under the circumstances. This duty of care extends to incidents that occur at ports of call, such as the Plaintiff’s incident herein.

Contrary to Iberoservice’s argument, general maritime law – and not Florida law – is applicable to the Plaintiff’s claims herein. Specifically, in cases such as this (brought pursuant to the Court’s admiralty jurisdiction) the standard of care owed to passengers remains the same, regardless of whether the incident happens inside the ship or at a port of call.

In the seminal case of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959), the Supreme Court held that “the owner of a ship in navigable waters owes to all who are on board the duty of exercising reasonable care under the circumstances of each case.” Id. at 632. This duty of “reasonable care under the circumstances” is owed to passengers throughout their entire cruise, both onboard and off the vessel.[2] Therefore, it applies regardless of whether the passenger was injured in the vessel or in a port of call.

For instance, in Doe v. Celebrity Cruises, 394 F.3d 891 (11th Cir. 2004), the Eleventh Circuit explained that it is immaterial whether a tort occurred on the ship or in a scheduled port of call. Instead, the Court focused on circumstances of the case and relied on the U.S. Supreme Court’s expansive view of admiralty jurisdiction, stating that “the shore is now an artificial place to draw a line.” Doe, 394 F.3d at 901 (citing Norfolk Southern Railway Co. v. Kirby, 125 S.Ct. 385, 388 (2004)). Thus, despite the fact that the tort at issue in Doe did not occur aboard the cruise ship, the Eleventh Circuit held that admiralty jurisdiction and the above standard of care applied because scheduled ports-of-call are an “integral part of the on-going cruise or maritime activity.” Doe, 394 F.3d at 901. The Court further stated:

Ports-of-call not only add to the enjoyment of a cruise but form an essential function of the cruise experience. In fact, on this particular cruise, five of the seven nights were to be spent in Bermudian ports. Plainly, individuals choose cruise ship vacations because they want to visit unfamiliar places ashore. Cruises to Alaska, the New England States, Bermuda or the Carribean offer fundamentally different experiences, not generally because of any material difference between ships, but often because of where the ships elect to stop. See Isham v. Pacific Far East Line, Inc., 476 F.2d 835, 837 (9th Cir.1973) (“Where a passenger or cruise vessel puts into numerous ports in the course of a cruise, these stopovers are the sine qua non of the cruise.”). When a passenger selects a particular cruise, ports-of-call or stopovers provide those passengers with the “cruise experience” for which they are paying. Simply put, the destinations or ports-of-call are frequently the main attraction.

Id. (emphasis added).

Ultimately, the Eleventh Circuit found that “there was little practical difference between the port-of-call and other parts of the ship.” Id. Further, the court explained that the purpose behind the exercise of admiralty jurisdiction on torts committed on ports of call is to “provide for the uniform application of maritime law.” Id. at 902. Therefore, the standard of care for negligence does not vary whether the tort occurs on the ship or on the port of call:

Jane Doe was no less a crew passenger the moment she stepped of the ship at the port-of-call than she was the moment she stepped on the ship. We see no reason that a cruise line’s liability to their passengers while at a regularly-scheduled port of call … should vary from port to port … Indeed, a ruling that admiralty jurisdiction did not extend literally beyond the gangplank in this case would upset the very uniformity that the Supreme Court has determined so important for maritime activity.

Id. (emphasis added); see also Sullivan v. Ajax Navigation Corp., and Celebrity Cruises, Inc., 881 F. Supp. 906 (S.D. NY. 1995) (citing Isham v. Pacific Far East Line (9th Cir. 1973), Forrester v. Ocean Marine Indemnity Co., 11 F. 3d 1213 (5th Cir. 1993), and Tradewind Transportation Co. v. Taylor, 267 F. 2d 188 (9th Cir. 1959).

Herein, Iberoservice’s duty of reasonable care under the circumstances extended to Plaintiff’s visit at the scheduled port of call of Palma De Mallorca, Spain because it was a scheduled part of the cruise, and therefore, an integral part of the on-going cruise or maritime activity.

  1. The Plaintiff’s Amended Complaint contains sufficient allegations that Iberoservice knew or should have known of the danger presented by the cigarette refuse container and/or other low lying obstacles in Palma de Mallorca.

Iberoservice’s second argument is that the Plaintiff did not allege sufficient facts to show that it knew or reasonably should have known of the danger presented by the cigarette refuse container.

To this point, in the Amended Complaint, the Plaintiff alleges that Iberoservice “knew of the foregoing conditions causing the subject accident and did not correct them, or the conditions existed for a sufficient length of time so that [Iberoservice], in the exercise of reasonable care under the circumstances, should have learned of them and corrected them.” [D.E. 33, ¶42].

The Plaintiff recognizes that this Honorable Court previously found that this sentence was insufficient for purposes of pleading notice as to Carnival. [D.E. 28, p. 4.] Having said that, there are additional allegations in the Amended Complaint which go to the point regarding notice:

  1. On or about November 2, 2013, Defendants arranged for and provided Carnival passenger subject shore excursion participants with motor coach transportation to and from the port terminal in Palma De Mallorca, Spain.
  1. On or about November 2, 2013, as part of the subject excursion tour, Plaintiff and other passengers were instructed by Carnival crewmembers to disembark off the M/V Carnival Sunshine and proceed to the designated motor coach pick-up area immediately outside the port terminal building located at the port of Palma de Mallorca. As instructed by Carnival, Plaintiff proceeded to the motor coach pick-up area arranged for the subject excursion tour. As Plaintiff maneuvered through the congested crowd, Plaintiff tripped and fell over a low-lying object (believed to be a cigarette refuse container).

[D.E. 33, ¶¶ 19-20].

Construing all reasonable inferences in favor of the Plaintiff (the non-moving party), it is reasonable to infer that the shore excursion company, which is based in Spain, knew or should have known of the danger of a low lying / hidden receptacle in the very path taken by its shore excursion clients. These allegations certainly “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).

Accordingly, contrary to Iberoservice’s argument, the Plaintiff’s Amended Complaint includes sufficient factual allegations to support the notion that Iberoservice knew or reasonably should have known of the danger presented by the cigarette refuse container and/or other low lying objects at the port terminal building at Palma de Mallorca.

Nonetheless, as requested herein, to the extent this Honorable Court finds the allegations regarding notice insufficient Plaintiff respectfully requests one final opportunity to file a Second Amended Complaint.

  1. Count IV: Plaintiff’s Third Party Beneficiary claim should not be dismissed based on the terms of the Tour Operator Agreement because the Court’s scope is limited to the four corners of the Complaint, and Iberoservice’s argument involves questions of factual determinations that are improper at this juncture of the case.

Next, as to the Plaintiff’s Third Party Beneficiary claim (Count V), Iberoservice argues that the Plaintiff’s allegations are contradicted by the terms of the Tour Operator Agreement between Carnival and Iberoservice. This argument, however, fails for two reasons: 1) it would require this Court to improperly review documents beyond the four corners of the complaint; and, 2) it involves questions of fact as to the parties’ intent which are improper to determine at this stage.

  1. Determining whether or not the Plaintiff’s allegations are contradicted by the Tour Operator Agreement would require this Court to improperly review documents beyond the four corners of the complaint.

It is well settled that, at this stage, the scope of a court’s “review must be limited to the four corners of the complaint.” St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002) (citing Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)). In fact, pursuant to binding Eleventh Circuit precedent, the general rule is that a district court does “not consider anything beyond the face of the complaint… when analyzing a motion to dismiss.” Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (citation omitted). The only exception to this rule does not apply in this case.

Specifically, the Eleventh Circuit “recognizes an exception… in cases in which [1] a plaintiff refers to a document in its complaint, [2] the document is central to its claim, [3] its contents are not in dispute, and [4] the defendant attaches the document to its motion to dismiss.” Id. (emphasis added). The facts herein do not meet all four requirements, as necessary. See SIG, Inc. v. AT & T Digital Life, Inc., 971 F. Supp. 2d 1178, 1188 (S.D. Fla. 2013) (noting that “each of [the] requirements” must be met).

The first requirement is not met because the Plaintiff never specifically referred to the “Tour Operator Agreement” in his Complaint. In fact, the Plaintiff’s Complaint never refers to any “written” agreement or contract whatsoever – a fact that this Court recently found relevant in failing to consider a shore excursion operator’s agreement in Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514, at *8 (S.D. Fla. Nov. 25, 2014) (“Plaintiffs do refer to an ‘agreement’ that Royal Caribbean and Rendezvous entered into, but they do not specifically refer to the Tour Operator Agreement”). Furthermore, to be clear, contrary to Iberoservice’s claim that the agreement was attached to the Plaintiff’s Complaint, [D.E. 41, p. 12], there was no agreement attached to Plaintiff’s original or Amended Complaint [D.E. 1, 33].

Moreover, the third requirement to the exception is not met either because the contents of the document are in dispute. “A document is considered ‘undisputed’ when the ‘authenticity of the document is not challenged.’” Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 696 (11th Cir. 2014) (citation omitted). Herein, the contract has not been authenticated and, therefore, the Plaintiff disputes its authenticity.

Lastly, the fourth requirement is not met either because the agreement was not even attached to Iberoservice’s Motion to Dismiss.

Accordingly, because Iberoservice failed to demonstrate the applicability of the exception set forth in Stephens, this Honorable Court should not depart from the general rule that it does “not consider anything beyond the face of the complaint… when analyzing a motion to dismiss.” Stephens, 500 F.3d at 1284. Considering only the allegations in the Complaint, which are taken as true and construed in the light most favorable to the Plaintiff, the Plaintiff’s Complaint sets out a claim for third-party beneficiary to state a plausible entitlement to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Iberoservice’s grounds for dismissal are therefore without merit and improper at this juncture of the case.

  1. Even if the Court reviews the Tour Operator Agreement, determining whether or not the Plaintiff was a third-party beneficiary to the contract between Carnival and Iberoservice is a factual determination that is improper at this juncture.

Even if this Honorable Court reviews the Tour Operator Agreement, it will still find that a determination as to whether the Plaintiff is a third-party beneficiary is an issue of fact concerning the contractual parties’ intent.

Specifically, although Iberoservice attempts to simply point to the language of the contract, the intent of the parties is the key to determining whether a third party is recognized as an intended beneficiary (with rights to enforce the contract) as opposed to only an incidental beneficiary (with no enforceable rights under the contract).[3] Under Florida law, a third party is an intended beneficiary of a contract between two other parties only if a direct and primary object of the contracting parties was to confer a benefit on the third party. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005); see also Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F.3d 677, 680 (11th Cir. 1999) (“A party has a cause of action as a third-party beneficiary to a contract if the contracting parties express an intent primarily and directly to benefit that third party (or a class of persons to which that third party belongs).”). If the contracting parties had no such purpose in mind, then any benefit from the contract reaped by the third party is merely “incidental,” and the third party has no legally enforceable right in the subject matter of the contract. Bochese, 405 F. 3d at 982.

Thus, the test is whether the parties to the contract intended that a third person should benefit from the contract. Bochese, 405 F. 3d at 981-82; see also Marianna Lime Prods. Co. v. McKay, 109 Fla. 275, 147 So. 264, 265 (1933) (“[T]he test is[ ] not that the promisee is liable to the third person, or that there is some privity between them or that some consideration moved from the third person, but that the parties to the contract intended that a third person should be benefited by the contract.”).

To determine whether a contract was in fact intended for the benefit of a third person, the Eleventh Circuit stated:

The Florida Supreme Court has explained that “[t]he question whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.

Bochese, 405 F.3d at 982 (emphasis added); see also Progress Rail Services Corp. v. Hillsborough Area Reg’l Transit Auth., 804CV200T23EAJ, 2006 WL 314507 at *1 (M.D. Fla. Feb. 9, 2006) (“For the purpose of determining whether a third-party is an intended beneficiary to a contract, basic contract interpretation rules apply.”) (citing 28 Richard A. Lord Williston on Contracts § 70:226 (4th ed. 2005) (“Ascertaining whether the contracting parties intend to benefit a putative third-party beneficiary is a question of ordinary contract interpretation.”)).

Therefore, because the intent of the parties is the key to determining whether a third party is an intended beneficiary under the contract, it is premature to rule on this issue at a motion to dismiss stage. See BGW Design Limited, Inc., 2010 WL 5014298, *5 (S.D. Fla. 2010) (The [contractual] intent of the parties is a factual matter and therefore should not be resolved on a motion to dismiss); American Honda Motor Co., Inc., v. Motorcycle Information Network, Inc., 390 F. Supp. 2d 1170, 1176 (S.D. Fla. 2005) (“The intent of the parties is a factual matter that cannot be resolved on a motion to dismiss); see also Barnett v. Carnival Corp., 06-22521CIVOSULLIVAN, 2007 WL 1746900 (S.D. Fla. 2007) (“To determine the parties’ intent as the defendant suggests necessarily would require the Court to look at matters outside of the complaint. As such, the issue of intent is not appropriate for resolution on a motion to dismiss.”) (citing Westinghouse Electric Supply Co. v. Wesley Construction Co., 414 F.2d 1280, 1281-82 (5th Cir. 1969) (reversing the district court’s order dismissing a third party beneficiary claim)).

Herein, even if this Honorable Court reviews the Tour Operator Agreement, the Plaintiff submits that the terms of the contract do in fact infer an intent that Carnival passengers (including the Plaintiff) were intended beneficiaries and, as such, the issue should be left for the jury to decide. (Without waiving the above argument that this Court’s review should be limited to the four corners of the Complaint, the Plaintiff attaches the Tour Operator Agreement as Exhibit 1.) Specifically, under Section 5, Iberoservice is to satisfy the “highest standards of quality in the industry” when providing the excursion. Further, it is clear that the passengers’ satisfaction was of the utmost importance when drafting the contract based on the fact, under the same section (Section 5), Iberoservice is required to “exercise reasonable care for Excursion Guests’ safety at all times.” In addition, Carnival maintains “sole discretion” to determine whether a passenger is entitled to a full or partial reimbursement of the shore excursion ticket if any passenger is “dissatisfied”. Moreover, Section 10 of the contract also requires Iberoservice to maintain insurance and specifies the amounts of coverage required, which is clearly for the benefit of passengers (like the Plaintiff) who are the ones participating in the excursion.

Furthermore, the Amended Complaint succinctly provides that “[t]he contract between the parties clearly manifested the intent of the contracting parties that the contract primarily and directly benefits the third-party Plaintiff by requiring [Iberoservice] to exercise reasonable care in the operation of the subject shore excursion” and requiring it to “maintain insurance” [D.E. 33, ¶¶65-66].

Therefore, the Plaintiff has presented sufficient facts – both in the contract as well as in his Amended Complaint – to infer an intent between the parties such that the issue should be one for the jury to decide. Accordingly, Iberoservice’s Motion to Dismiss Count V of the Plaintiff’s Amended Complaint should be denied.

  • Motion for Leave to Amend

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

          WHEREFORE, for the foregoing reasons, the Plaintiff respectfully requests this Honorable Court enter an Order denying Iberoservice’s Motion to Dismiss for failure to state a claim, and any other 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/ David A. Villarreal                        

MICHAEL A. WINKLEMAN

Florida Bar No. 36719

DAVID A. VILLARREAL

Florida Bar No. 100069

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 3, 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/ David A. Villarreal                        

DAVID A. VILLARREAL

[1] Iberoservice also moved to dismiss for lack of personal jurisdiction. However, as discussed herein, contemporaneously with this response, Plaintiff filed a preliminary response and moved this Honorable Court to stay the case pending completion of limited jurisdictional discovery to allow the Plaintiff an opportunity to meaningfully respond to the factual arguments Iberoservice raised. [D.E. 50, 51].

[2] See Beard v. Norwegian Caribbean Lines, 900 F.2d 71 (6th Cir. 1990) (“The Kermarec rule of reasonable care under the circumstances is applicable in passenger cases. The extent to which the circumstances surrounding maritime [travel are different from those encountered in daily life and involve more danger to the passenger, will determine how high a degree of care is reasonable in each case.”)

[3] Florida courts have recognized three types of third party beneficiaries to a contract: (1) donee beneficiaries; (2) creditor beneficiaries; and (3) incidental beneficiaries.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005) (citing Int’l Erectors, Inc. v. Wilhoit Steel Erectors & Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968) (citation and internal quotation marks omitted). The key distinction is that the first two categories are classes of “intended” beneficiaries, who have a right to sue for enforcement of the contract, whereas the third category, “third party beneficiaries recognized as incidental beneficiaries[,] have no enforceable rights under a contract.” Id. (emphasis added).