December 18, 2014
E.M.W. v. Royal Caribbean Cruises Ltd., Chukka Caribbean Adventures Ltd., Chukka Caribbean Adventures (Falmouth) Limited; and XYZ Corporation(s)
ROYAL CARIBBEAN CRUISES LTD.,
CHUKKA CARIBBEAN ADVENTURES LTD.,
CHUKKA CARIBBEAN ADVENTURES (FALMOUTH) LIMITED; and
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT, ROYAL CARIBBEAN CRUISES LTD.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
The Plaintiff, E.M.W., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby responds in opposition to Defendant, ROYAL CARIBBEAN CRUISES LTD.’S (“Royal Caribbean[’s]”) Motion to Dismiss Plaintiff’s Complaint [D.E. 9] and, in furtherance thereof, relies on the following memorandum of law:
The instant matter arises out of an incident that occurred while the Plaintiff was on a cruise and participating in a shore excursion offered, recommended, marketed, sold, co-operated and/or managed by Royal Caribbean. [D.E. 1, 11]. Specifically, the Plaintiff alleges that he suffered severe injuries when he was hit by a tree branch on the way back to the vessel after the excursion due to, inter alia, the inadequate transportation and/or driver. [Id. at 19, 30(d)-(k)]. As a result, the Plaintiff initiated this lawsuit against Royal Caribbean alleging Negligence (Count I), Apparent Agency or Agency by Estoppel (Count III), Joint Venture (Count IV) and Third Party Beneficiary (Count V). [D.E. 1].
At issue herein is the Motion to Dismiss filed by Royal Caribbean on December 1, 2014 [D.E. 9], wherein it seeks to dismiss all of the Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6). Specifically, Royal Caribbean argues that 1) the Plaintiff’s Negligence claim (Count I) lacks sufficient factual allegations; 2) the Plaintiff’s Apparent Agency and Joint Venture claims (Counts III and IV) are theories of liability and not causes of action; and, 3) the Plaintiff’s Joint Venture and Third Party Beneficiary claims (Counts IV and V) are contradicted by the terms of the Tour Operator Agreement between Royal Caribbean and the Chukka Defendants
As set forth in further detail below, however, all of its arguments fail because 1) the 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; 2) the Plaintiff properly pled an alternative theories of negligence under apparent agency and joint venture; and, 3) 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, Royal Caribbean’s Motion to Dismiss should be denied its entirety.
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.
A. Count I: Plaintiff’s negligence claims against Royal Caribbean is pled with sufficient facts to provide Royal Caribbean notice of what the claim is and the grounds upon which it is based.
Count I of Plaintiff’s Complaint alleges negligence against Royal Caribbean. 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). It is well established that under federal maritime law, a cruise ship owes its passengers a duty of reasonable care under the circumstances. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989); see also Kemarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632 (1959). This standard requires that the cruise line have “actual or constructive notice of the risk‐creating condition” at issue, at least where “the menace is one commonly encountered on land and not clearly linked to nautical adventure.” Keefe, 867 F.2d 1318, 1322 (11th Cir. 1989).
In its Motion to Dismiss, Royal Caribbean argues that the Plaintiff’s negligence claim should be dismissed because the “[The Plaintiff] provides absolutely no facts identifying a dangerous condition or supporting allegations that RCCL was in any way at fault, let alone that RCCL knew or should have known of any purported condition.” [D.E. 9, p. 4]. Contrary to that argument, however, the Complaint alleges sufficient factual allegations to support the Plaintiff’s negligence claim. For instance, paragraph 19 states that “the Plaintiff suffered severe injuries when he was hit by a tree branch on the way back to the vessel after the excursion.” [D.E. 1, ¶19]. Paragraph 30 goes on to describe, in specific details, the ways in which Royal Caribbean breached its duty to provide reasonable care, including the following omissions:
- Failure to adequately inspect and/or monitor the subject shore excursion so as to ensure that the transportation used for the subject shore excursion was reasonably safe for Plaintiff and cruise passengers; and/or
- Failure to adequately inspect and/or monitor the transportation for the subject shore excursion so as to ensure that it was reasonably safe for cruise ship passengers; and/or
- Failure to promulgate and/or enforce adequate policies and procedures to ensure that the transportation used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or
- Failure to adequately inspect and/or monitor the policies and procedures of the Excursion Entities to ensure that the transportation used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or
- Failure to provide reasonably safe transportation for Plaintiff and other cruise passengers participating in the subject shore excursion; and/or
- Failure to require the Excursion Entities to provide reasonably safe transportation for cruise ship passengers; and/or
- Failure to provide a competent driver for the transportation used for the subject shore excursion; and/or
- Failure to require the Excursion Entities to provide a competent driver for the transportation used for the subject shore excursion;
- Failure to adequately warn the Plaintiff of the dangers involved with the transportation used for the subject shore excursion; and/or
- Failure to ensure that the route taken to the shore excursion was reasonably safe considering the transportation used….
[D.E. 1, 30].
In addition, the Complaint specifically alleges that Royal Caribbean “failed to properly warn the Plaintiff” and that it “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 RCCL, in the exercise of reasonable care under the circumstances, should have learned of them and corrected them.” [D.E. 1, 32-33].
The Plaintiff therefore properly pled that Royal Caribbean failed to warn him that 1) the transportation used for the excursion was dangerous; 2) the route taken for the excursion was dangerous (considering the transportation used); and 3) the driver was not competent. These allegations provide Royal Caribbean with notice of what the claim is about and, at the very least, are sufficient to draw a reasonable inference of negligence. See Prokopenko v. Royal Caribbean Cruise Ltd., No. 10‐20068, 2010 WL 1524546, at ** 1‐2 (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 Ashcroft). Further, the allegations nudge the negligence count “across the line from conceivable to plausible,” which is all that is required under Twombly.
The Plaintiff is not required to plead evidence, nor is he required to plead every single fact upon which his 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 (Twombly, 550 U.S. at 556, 570), and the above allegations meet such standard. In fact, this Court has previously considered the very arguments Royal Caribbean presents herein, and it has denied such arguments based on the above reasoning and case law. See, e.g., Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514 (S.D. Fla. Nov. 25, 2014); Caldwell v. Carnival Corp., 944 F. Supp. 2d 1219 (S.D. Fla. 2013).
Accordingly, this Honorable Court should similarly deny Royal Caribbean’s Motion to Dismiss Plaintiff’s negligence claim herein.
B. Count III: Plaintiff’s Apparent Agency or Agency by Estoppel claim is properly pled as a negligence claim under an alternative agency theory of liability.
As to Plaintiff’s Apparent Agency or Agency by Estoppel claim (Count III), Royal Caribbean only argues that it should be dismissed because there is no independent cause of action for agency. [D.E. 9, pp 2, 6]. However, regardless of the manner in which the claim is titled, in reality, Count III is a negligence claim under the theory of apparent agency or agency by estoppel. [D.E. 1, 48]. Federal Rule of Civil Procedure 8 permits alternative pleading. See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”). Thus, whereas Count I is a direct negligence count against Royal Caribbean, Count III is a negligence claim under the theory of apparent agency or agency by estoppel.
In fact, this Court has consistently denied defendants’ motions to dismiss on the same grounds. See Gayou v. Celebrity Cruises, Inc., 11-23359-CIV, 2012 WL 2049431 at *8 n.4 (S.D. Fla. June 5, 2012) (“A fair reading of the substance of the claims, however, makes plain that [plaintiff] is really pleading negligence causes of action that are grounded on an agency theory of liability. The Court so construes them, their respective labels notwithstanding.”); see also Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514 at *7 (S.D. Fla. Nov. 25, 2014) (agreeing with Gayou). Herein, like Gayou and Ash, this Honorable Court should also consider and construe Count III as a negligence cause of action grounded on an agency theory of liability.
C. Count IV: Plaintiff’s Joint Venture 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 Royal Caribbean’s argument involves questions of factual determinations that are improper at this juncture of the case.
Next, as to the Plaintiff’s Joint Venture claim (Count IV), Royal Caribbean argues that the Plaintiff’s allegations are contradicted by the terms of the Tour Operator Agreement between Royal Caribbean and Chukka. 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  a plaintiff refers to a document in its complaint,  the document is central to its claim,  its contents are not in dispute, and  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. While Royal Caribbean refers to paragraph 51 of the Complaint in an attempt to make its point, that paragraph falls short for reasons tied into the second requirement.
Specifically, the alleged agreement is not central to the Plaintiff’s claims against Defendants, which is the second requirement. The Plaintiff is not relying on the agreement to prove his claims. Rather, the claims arise from the negligent conduct of the cruise line (Royal Caribbean) and the shore excursion providers (the Chukka Defendants). Addressing the same arguments as Royal Caribbean raises herein, this Court refused to consider the cruise line’s agreement with the shore excursion operator, finding that: “[plaintiff] does not assert any breach of contract claims against [defendant]. Instead, she asserts claims based on tort theories. As such, the ticket contract is not essential or integral to [plaintiff’s] claims, rather, it is part of [defendant’s] defenses.” Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011). Thus, as in Gentry, because Count IV is not asserting a breach of contract claims, the alleged agreement between Royal Caribbean and Chukka is not essential or integral to the Plaintiff’s Joint Venture claim.
In fact, a written agreement is not even necessary for the Plaintiff to prove a joint venture between the parties. “A joint venture, like a partnership, can be created by express or implied contract”, Williams v. Obstfeld, 314 F.3d 1270, 1275‐76 (11th Cir. 2002), and two parties could create a joint venture notwithstanding a prior written contract foreclosing such a possibility. Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514 (S.D. Fla. Nov. 25, 2014)
Moreover, the third requirement 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 Plaintiff does not know whether this is the actual agreement in effect at the time of the subject incident because the contract has not been authenticated. The Plaintiff therefore disputes the authenticity of the document.
Furthermore, Royal Caribbean’s reliance on Crenshaw v. Lister, 556 F. 3d 1283, 1292 (11th Cir. 2009) for the proposition that a district court may review exhibits, is misplaced. Pursuant to the explicit language of Crewshaw, the Court may review exhibits that contradict the allegations of the complaint only if such exhibits are attached to the complaint. See Crenshaw, 556 F. 3d at 1292 (“conflict between allegations in a pleading and exhibits thereto”; applied to officers’ police reports attached to the complaint) (emphasis added). Herein, the Plaintiff did not attach any documents to his Complaint [D.E. 1].
Accordingly, because Royal Caribbean fails to demonstrate the applicability of the exception set forth in Stephens or the applicability of contradictory exhibits, 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 joint venture sufficient to state a plausible entitlement to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Royal Caribbean’s grounds for dismissal are therefore without merit and improper at this juncture of the case.
2. Even if the Court reviews the Tour Operator Agreement, determining whether or not the Chukka Defendants were independent contractors or joint venturers is a factual determination that is improper at this juncture.
Even if this Honorable Court reviews the Tour Operator Agreement to decide whether it contradicts Plaintiff’s allegations (as Royal Caribbean argues), it will still find that a determination as to the Chukka Defendants’ true role (i.e., independent contractors or joint venturers) is an issue of fact concerning the contractual parties’ intent.
In its motion, Royal Caribbean points to the language in the contract which states that Chukka is considered an “Independent Contractor.” [D.E. 9, pp. 7-8]. However, the “ultimate determination” as to whether a joint venture exists between parties “turns upon evidence of intent of the parties.” Wachovia Bank, N.A. v. Tien, 534 F. Supp. 2d 1267, 1287 (S.D. Fla. 2007) (emphasis added). And pursuant to the Eleventh Circuit, “[t]he court must look at the contract as a whole, the parties, and the purpose of the agreement to best determine the intent of the parties in interpreting the agreement.” Slater v. Energy Servs. Grp. Int’l, Inc., 634 F.3d 1326, 1330 (11th Cir. 2011) (emphasis added).
Herein, even a cursory review of the contract as a whole demonstrates a clear intent of the parties to create a joint venture (notwithstanding the way they chose to define the relationship). For instance, Section 1 of the agreement provides that Chukka is responsible for operating/providing the shore excursion. Royal Caribbean, however, has “sole discretion” to determine whether a passenger is entitled to a full or partial reimbursement of the shore excursion ticket if such passenger is dissatisfied. Pursuant to Section 3, Royal Caribbean also has “sole discretion” to determine the price to charge passengers for Chukka’s excursion and is the “sole party” authorized to collect payments for Chukka’s excursion. Further, Section 6 requires Chukka to obtain approval from Royal Caribbean for any advertising, promotion, marketing, or publicity. Moreover, Section 11 requires Chukka to indemnify Royal Caribbean “from and against any and all losses, claims… legal fees, costs and expenses” arising from Chukka’s operations of the excursion.
At the very least, the above contractual provisions create a question of fact for the jury to determine whether or not the parties intended to form a joint venture. See Misco-United Supply, Inc., v. The Petroleum Corporation et. al., 462 F.2d 75, 80 (5th Cir. 1972) (“Opposing inferences from contractual provisions as to the intentions of the parties regarding the creation of a joint venture will ordinarily give rise to a question of fact.”). Many courts – including binding precedent – agree that whether or not a group of persons constitute a joint venture is a question of fact to be resolved by the jury. See Rose v. M/V Gulf Stream Falcon, 186 F. 3d 1345 (11th Cir. 1999) (“[…] the district court’s finding with respect to the existence of (or lack thereof) a joint venture is a factual determination that is reviewed under the clearly erroneous standard”); USA Independence Mobilehome Sales, Inc., v. City of Lake City, 908 So.2d 1151, 1158 (Fla. 1st DCA 2005) (“The existence of a joint venture presents a question of fact.”); see also Navarro v. Espino, 316 So. 2d 646 (Fla. 3d DCA 1975) (same).
Further to this point, this Honorable Court (relying on the Eleventh Circuit) has previously held that the elements of joint venture could be inferred from the surrounding circumstances. See Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. 2011) (citing Fulcher’s Point Pride Seafood v. M/V “Theodora Maria”, 935 F.2d 208, 212–13 (11th Cir. 1991)).
Therefore, the Plaintiff has presented sufficient facts – both in the contract as well as in his Complaint – to infer an intent between the parties such that the issue should be one for the jury to decide. Accordingly, Royal Caribbean’s Motion to Dismiss Count IV of the Plaintiff’s Complaint should be denied.
D. Count V: 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 Royal Caribbean’s argument involves questions of factual determinations that improper at this juncture of the case.
Similar to the Joint Venture claim, Royal Caribbean moves to dismiss Plaintiff’s Third Party Beneficiary claim on grounds that Plaintiff’s allegations are contradicted by the terms of the Tour Operator Agreement. Again, however, this argument fails for the same 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.
As to the first point, the Plaintiff refers to and incorporates by reference the argument set forth above establishing that the Court’s review should be limited to the four corners of the Complaint. Even if the Court does review the agreement, however, it will again find that determining whether Royal Caribbean intended to benefit the Plaintiff (as a passenger) is an improper factual determination concerning the parties’ intent.
Specifically, although Royal Caribbean 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). 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. See 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 Royal Caribbean passengers (including the Plaintiff) were intended beneficiaries and, as such, the issue should be left for the jury to decide. Specifically, under Section 1, Chukka is to satisfy the “highest standards in the industry” when providing the excursion. Royal Caribbean forbids the Chukka from allocating its best tour guides, buses, hotel facilities, time slots, etc. to other cruise lines. Further, it is clear that the passengers’ satisfaction was of the utmost importance when drafting the contract based on the fact that, as mentioned above, Royal Caribbean 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”. The contract also requires the Chukka 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 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 Plaintiff third party by requiring [Chukka] to exercise reasonable care in the operation of the subject excursion” and “requiring the Excursion Entities to maintain insurance”. [D.E. 1, 63].
Thus, the Plaintiff has presented sufficient facts – both in the contract as well as in his Complaint – to infer an intent between the parties such that the issue should be one for the jury to decide. As in Bridgewater v. Carnival Corp., No. 10-22241-CIV, 2011 WL 976467, at *2 (S.D. Fla. Mar. 2, 2011) (King, J.), this Honorable Court should therefore “decline to interpret the Agreement” between Royal Caribbean and Chukka.
Accordingly, Royal Caribbean’s Motion to Dismiss Count V of the Plaintiff’s Complaint should be denied.
III. Motion for Leave to Amend
Should this Honorable Court grant Royal Caribbean’s motion or any portion thereof, Plaintiff respectfully requests leave to amend.
WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests this Honorable Court enter an Order denying Royal Caribbean’s Motion to Dismiss in its entirety, and any other relief this Court deems just and proper.
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
Florida Bar No. 104358
 The Plaintiff also sued the other shore excursion operators, CHUKKA CARIBBEAN ADVENTURES LTD. and CHUKKA CARIBBEAN ADVENTURES (FALMOUTH) LIMITED (hereinafter collectively referred to as “Chukka”). This Court granted Chukka Defendants’ requested extension to respond to the Plaintiff’s Complaint on or before December 25, 2014. [D.E. 11, 13].
 In introducing this argument in paragraph 3 of its motion, Royal Caribbean include Plaintiff’s Joint Venture claim. [D.E. 9, p. 2] (“Plaintiff’s apparent agency and joint venture claims should also be dismissed, as these are theories of liability and not causes of action.”). In its memorandum of law, however, Royal Caribbean only directs the argument at Plaintiff’s apparent agency claim. In an abundance of caution, Plaintiff makes clear that this argument also applies to their Joint Venture claim (i.e., it is pled as a negligence claim under the alternative theory of joint venture). See Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514 at *8 (S.D. Fla. Nov. 25, 2014) (considering it a negligence claim under the alternative theory of joint venture).
 Royal Caribbean, in passing, makes a reference to the “conclusory manner” in which Plaintiff alleged “the elements necessary to create a joint venture.” [D.E. 9, p. 7]. Its motion, however, only focuses on the allegations being contradicted by the terms of the contract. Nevertheless, in an abundance of caution, Plaintiff refers to the following paragraphs of his Complaint which alleges all elements to create a joint venture with sufficient factual allegations: ¶¶23, 50-61 [D.E. 1]. Furthermore, binding Eleventh Circuit precedent makes clear that the elements of a joint venture “cannot be applied mechanically” and that “[n]o one aspect of the relationship is decisive.” Fulcher’s Point Pride Seafood, Inc. v. M/V “Lady Mary,” 935 F.2d 208, 211 (11th Cir. 1991) (citing Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978)). Pursuant to this case, the factors are not a checklist, “[t]hey are only signposts, likely indicia, but not prerequisites.” Id. (emphasis added); see also Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011) (“failure to specifically allege that the parties intended to create a joint venture is not fatal so long as the other allegations provide enough factual material to make it plausible that the parties intended to create one”).
 “At all times material hereto, RCCL and the Excursion Entities entered into an agreement where RCCL would sell the subject shore excursion to its passengers and the Excursion Entities would operate the subject shore excursion.” [D.E. 1, ¶51].
 The Plaintiff’s Complaint alleges this arrangement between the parties (i.e., that Chukka operated the excursion, that Royal Caribbean determined the prices for the excursion, that Royal Caribbean collected payment from passengers, etc. [D.E. 1, ¶¶23, 50-61]).
 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).