J.P., v. Carnival Corporation

Lipcon, Margulies, Alsina & Winkleman, P.A

April 27, 2015

J.P., v. Carnival Corporation

Response in Opposition

This is a response to a Motion to Dismiss filed by the cruise line Defendant in a case involving the death of a passenger for the alleged inadequate and/or delayed medical treatment by the shipboard medical personnel.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 15-20309-CV-GAYLES

B.P., Individually
and as Personal Representative for the
Estate of J.P., deceased,

Plaintiff,

v.

CARNIVAL CORPORATION, DR. JOSE
FRANCISCO FERNANDEZ, GIRIJA PILLAY,
and DOCTOR DOE(S), and NURSE DOE(S),

Defendants.

________________________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT CARNIVAL CORPORATION’S MOTION TO DIMISS PLAINTIFF’S COMPLAINT AND INCORPORATED MEMORANDUM OF LAW OR, IN THE ALTERNATIVE, MOTION TO STRIKE IMPERMISSIBLE CLAIMS FOR DAMAGES AND INDIVIDUAL CLAIM OF B.P.

COMES NOW, the Plaintiff, B.P., by and through undersigned counsel, and hereby files her Response in Opposition to Defendant, CARNIVAL CORPORATION’S (hereinafter “Carnival[’s]”), Motion to Dismiss Plaintiff’s Complaint and Incorporated Memorandum of Law or, in the Alternative, Motion to Strike Impermissible Claims for Damages and Individual Claim of B.P. [D.E. 6]. In support thereof, the Plaintiff states:

  1. Introduction

The instant matter arises out of the death of J.P. which occurred while he was a paying passenger aboard Defendant’s cruise ship, Carnival Elation. [D.E. 1, ¶ 26]. Specifically, the Plaintiff alleges that J.P.’s death is due to, inter alia, improper, inadequate and/or unreasonably delayed treatment and diagnosis. [Id. at ¶¶28(a)-(m)]. As a result, B.P., individually, and as personal representative of the Estate of the deceased, J.P., brought this action on behalf of the Estate and on behalf of all survivors alleging Negligence and Death on the High Seas Act. [D.E. 1].

At issue herein is the Motion to Dismiss Plaintiff’s Complaint and Incorporated Memorandum of Law or, in the Alternative, Motion to Strike Impermissible Claims for Damages and Individual Claim of B.P. filed by Carnival on April 3, 2015 [D.E. 6], wherein it seeks to dismiss the Plaintiff’s claims under Federal Rule of Civil Procedure 12(b)(6) and (f) and S.D. Fla. L. R. 7.1.

Specifically, Carnival’s arguments are as follows:

  1. Count VI should be dismissed with prejudice because there is no cause of action for Death on the High Seas Act (hereinafter “DOHSA”). This argument fails because plaintiff properly pled negligence under DOHSA.
  2. Count VII should be dismissed with prejudice because Plaintiff’s causes of action arise under General Maritime Law of the United States, not Panama law, and a claim brought under Section 30306 is not a valid cause of action. This argument fails for two reasons. The issue of whether General Maritime Law of the United States or Panama law applies is a choice of law issue, not properly decided at the motion to dismiss stage. Additionally, Section 4 of DOHSA expressly permits liability to be based upon any applicable foreign law.
  3. Each of the claims in Counts I, II, III, VI, VII should be dismissed for failure to state ultimate facts supporting liability and because they improperly incorporate by reference all of the general factual allegations contained in the Complaint. This argument fails because Plaintiff’s Complaint includes sufficient factual allegations which give the defendant fair notice of what the claim is and the grounds upon which it rests. Additionally, Plaintiff properly incorporated by reference all the general factual allegations contained in the Complaint.
  4. The Court should strike Plaintiff’s claims for non-pecuniary damages and damages brought for the benefit of J.P. and his estate asserted in any remaining count. Furthermore, the Court should strike the individual claim of B.P., as only a personal representative has standing to bring an action under DOHSA. These arguments fail because the issues of whether non-pecuniary and pecuniary damages are recoverable or whether B.P. can properly bring an individual claim are ultimately choice of law issues not properly decided at the motion to dismiss stage. Additionally, Plaintiff’s claim for damages as well as her individual claim are proper because Plaintiff has additionally pled that Panama law applies, which expands the limited recovery under DOHSA.

Accordingly, Carnival’s Motion to Dismiss Plaintiff’s Complaint and Incorporated Memorandum of Law or, in the Alternative, Motion to Strike Impermissible Claims for Damages and Individual Claim of B.P. should be denied in its entirety.

  1. Argument

At issue herein is Carnival’s Motion to Dismiss brought under Federal Rule of Civil Procedure 12(b)(6) for failure to state claim upon which relief can be granted. Alternatively, Carnival has moved under Federal Rule of Civil Procedure 12(f) to strike impermissible claims.

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 Carnival’s Motion to Dismiss for failure to state a claim should be denied in its entirety.

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

  1. Plaintiff properly pled negligence under DOHSA.

As to Plaintiff’s Negligence Claim under DOHSA (Count VI), Carnival argues that there is no cause of action for “Death on the High Seas Act”. [D.E. 6, p.4]. However, regardless of the manner in which the claim is labeled, Count VI is a negligence claim brought under DOHSA. [D.E. 1, p.28].

The case, Gayou v. Celebrity Cruises, Inc., 11-23359-CIV, 2012 WL 2049431 (S.D. Fla. June 5, 2012), supports this notion. See 2012 WL 2049431 at *8 n.4 (“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.”). Herein, like Gayou, this Honorable Court should also consider and construe Count VI as a negligence cause of action brought under DOHSA, regardless of how the count is labeled.

Furthermore, Carnival argues that Plaintiff alleged that Defended owed decedent a duty of reasonable care under DOHSA, “without citing any provision of the statute which would impose any duty or otherwise create a separate cause of action.” [D.E. 6, p.4]. Again, this argument comes down to substance over form. Plaintiff does allege that “Defendants owed decedent a duty of reasonable care under the Death on the High Seas Act, 46 U.S.C. Sections 30301-30308.” [D.E. 1, ¶75]. However, Plaintiff also incorporates by reference the allegations in paragraphs one through twenty-nine, including paragraph thirteen which states, “The causes of action asserted in this Complaint arise under the General Maritime Law of the United States.” [D.E. 1]. General Maritime Law of the United States applies the standard of reasonable care under the circumstances (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)), and has been incorporated into Count VI. After a fair reading of the substance of the claim, this Court should find that Count VI was properly pled and deny Carnival’s motion to dismiss Count VI.

  1. The issue of whether General Maritime Law of the United States or Panama law applies is a choice of law issue, not properly decided in a motion to dismiss. Additionally, Section 4 of DOHSA expressly permits liability to be based upon any applicable foreign law.

Carnival seeks to limit Plaintiff to the recovery and damages supplied under DOHSA in what appears to be an attempt to preclude Plaintiff from any other available remedy (i.e. application of Panamanian Law). A similar effort by Carnival to limit a plaintiff’s recovery and damages at the Motion to Dismiss stage was rejected as premature in Smith v. Carnival Corp., 584 F. Supp. 2d 1343, 1349 (S.D. Fla. 2008), as follows:

Perhaps because the Parties agree that U.S. law is at least partially applicable to this case, they have not discussed the applicable choice of law analysis. While the Parties agree that DOHSA applies, Plaintiffs argue that they may supplement DOHSA with additional claims brought under U.S. general maritime law and Cayman Islands law. Defendants argue that DOHSA is an exclusive remedy and precludes the other claims.

Without the benefit of discovery or briefing on the issue by the Parties, it is premature to rule on the controlling law of the case. See Wai v. Rainbow Holdings, 315 F.Supp.2d 1261 (S.D.Fla. 2004) (concluding that, due to an undeveloped record at the motion to dismiss stage, conducting the Lauritzen-Rhoditis choice of law analysis “would certainly be premature”) see also EEOC v. Kloster Cruise, Ltd., 939 F.2d 920, 923-24 (11th Cir. 1991); [other citations omitted] (emphasis added).”

… At the pleading stage, however, courts have allowed plaintiffs to allege the applicability of multiple bodies of law in the alternative. This practice has been held to satisfy Federal Rule of Civil Procedure 44.1, which requires that a party provide reasonable notice of the application of foreign law. See Rationis Enters., Inc. of Panama v. Hyundai Mipo Dockyard Co., 426 F.3d 580, 585 (2d Cir.2005) (“We now clarify that alternative theories may well suffice as reasonable notice when, as here, relevant events occurred in multiple foreign locations and legitimately point to several different applicable bodies of law.”).

Id. at 1349 (emphasis added).

Here, as in Smith, the Plaintiff alleged the applicability of two bodies of law with respect to damages: damages under DOSHA, and alternatively, Panamanian Law. Like Smith, without the benefit of discovery, it is premature to rule on the controlling law of the case at the motion to dismiss stage.

Additionally, Carnival argues that Count VII of Plaintiff’s Complaint [D.E. 1] should be dismissed because Panama law does not apply. However, Carnival concedes that 46 U.S.C. Section 30306 provides that “a civil action in admiralty may be brought in a court of the United States based on the foreign cause action…” [D.E. 6, p.7]. Carnival then argues that “Section 30306 and foreign law ‘play no role once a court determines that U.S. law governs an action’” Id. However, as argued above, a choice-of-law analysis would be needed in order to determine whether U.S. or Panamanian law govern, and that analysis would be premature at the motion to dismiss stage.

Moreover, case law supports the view that, to the extent foreign law grants plaintiffs any rights of action, DOHSA does not preempt.  See Heath v. American Sail Training Ass’n, 644 F.Supp. 1459, 1467 (D.R.I.,1986);  Noel v. Linea Aeropostal Venezolana, 260 F.Supp. 1002, 1004–06 (S.D.N.Y.1966); Fernandez v. Linea Aeropostal Venezolana, 156 F.Supp. 94, 96 (S.D.N.Y.1957); see also Iafrate v. Compagnie Generale Transatlantique, 106 F.Supp. 619, 622 (S.D.N.Y.1952). Therefore, Carnival’s motion to dismiss Count VII should be denied.

  1. Plaintiff’s Complaint includes sufficient factual allegations which give the defendant fair notice of what the claim is and the grounds upon which it rests. Additionally, Plaintiff properly incorporated by reference all the general factual allegations contained in the Complaint.

Carnival argues that “Plaintiff merely alleges that Mr. P. was taken to the ship’s medical center with certain complaints and that the ship’s doctors and nurses examined and treated Mr. P., without describing the chronology of the events which followed or the specific management and treatment of the patient.” [D.E. 6, p.9]. To the contrary, Plaintiff does list the specific ways in which the management and treatment of Mr. P. fell below the standard of care and was improper, inadequate and unreasonably delayed. [D.E. 1, ¶28(a)-(m)]. Furthermore, the treatment and management of Mr. P. was listed in chronological order. Specifically, paragraph 28 of the Complaint [D.E. 1] allege as follows:

  1. Upon arrival at the ship’s medical center, it was determined that Mr. P.’s oxygen was low, yet there was a delay in providing Mr. P. oxygen; and/or
  2. The equipment used to measure blood pressure was not working properly; and/or
  3. There was a delay in measuring Mr. P.’s blood pressure; and/or
  4. P.’s temperature was never taken; and/or
  5. The Medical Defendant(s) checked Mr. P.’s lungs and determined the lower left lung was unclear but failed to adequately follow-up that determination; and/or
  6. The Medical Defendant(s) were unable to take x-rays of Mr. P.’s lungs; and/or
  7. The Medical Defendant(s) decided to wait until the next port of call to determine the extent of Mr. P.’s injuries, yet Mr. P. never made it to the next port of call because he died; and/or
  8. There were no alarms or alerts from the medical equipment that would indicate something was wrong when Mr. P. became unresponsive; and/or
  9. The Medical Defendant(s) did not properly monitor Mr. P.’s vital signs; and/or
  10. There was a delay in intubating Mr. P.; and/or
  11. The Medical Defendant(s) failed to properly intubate Mr. P.; and/or
  12. The Medical Defendant(s) failed to administer chest compressions properly; and/or
  13. The Medical Defendant(s) used the incorrect gauge of needle in attempting to check if there was any air around the decedent’s heart.

Accordingly, contrary to Carnival’s argument, the Plaintiff’s Complaint includes sufficient factual allegations which give the defendant fair notice of what the claim is and the grounds upon which it rests.

Carnival further argues that “each of Plaintiff’s claims against Carnival should be dismissed because they improperly incorporate by reference all of the preliminary allegations set forth in paragraphs 1 through 29 of the Complaint” [D.E. 6, p.10], thus making it a “shotgun” pleading. The cases Carnival relies on for this proposition, however, are entirely distinguishable to facts and pleading herein. For instance, in Popham v. The Cobb County, the plaintiff filed a 145-page pro se complaint against more than fifteen defendants. Popham, 392 Fed. App’x 677 (11th Cir. 2010). The Court said the complaint was “impossible to determine which facts pertained to which claims or defendant, and they could not reasonably respond to Pophma’s vague and ambiguous claims.” Id. At 680; see also Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364 (11th Cir 1996) (“it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief”); Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001) (plaintiff’s “original complaint contained 78 pages, 299 paragraphs, 139 subparagraphs, and nine counts….the allegations of the complaint were vague and ambiguous- leaving the reader to guess at precisely what the plaintiff was claiming….[the defendants][could] not reasonably be required to frame a responsive pleading”).

Herein, the complaint is not vague or ambiguous and is drafted in a manner that Carnival is able to respond to all allegations. Further, Carnival fails to realize that in a situation of respondeat superior (which Plaintiff alleges), Carnival is responsible for the negligence of all other Defendants as well. In this case, Carnival is the owner of the vessel, hired and supervised all of their employees including the Medical Defendants. More importantly, in addressing this particular allegation, is the fact that “[w]hat makes a pleading a ‘shotgun’ pleading is the inclusion of irrelevant and unrelated facts not tied to specific causes of action such that the claims made are indeterminate and the defendant’s task in defending against them is significantly impaired. Bates v. Laminack, 938 F.Supp.2d 649, 667 (S.D. Tex. 2013). This is not the case here, the Plaintiff provided specifics, stating which one of the Defendants it refers to in the complaint in paragraphs one (1) through twenty-nine (29).

  1. The issues of whether non-pecuniary and pecuniary damages are recoverable or whether B.P. can properly bring an individual claim are ultimately choice of law issues not properly decided at the motion to dismiss stage. Additionally, Plaintiff’s claim for damages as well as her individual claim are proper because Plaintiff has additionally pled that Panama law governs, which preempts the limited recovery under DOHSA.

Carnival argues that Plaintiff’s claims for non-pecuniary damages and damages brought for the benefit of J.P. and his estate should be stricken. [D.E. 6, p.11]. Furthermore, Carnival argues that B.P.’s individual claims should be stricken. [Id. at 15]. The type of damages recoverable and the ability to bring an individual claim turns on the law that governs. Plaintiff therefore refers to and incorporates by reference the arguments set forth above in section 2. Stated simply, without the benefit of discovery, it is premature to rule on the controlling law of the case at the motion to dismiss stage. For the same reasons discussed therein, Count IV and Count V of Carnival’s Motion should be denied.

Moreover, Rule 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, Plaintiff has asked for pecuniary damages in the event that U.S. General Maritime law governs and non-pecuniary damages in the event Panama law governs. Plaintiff has also brought an individual claim in the event Panama law applies. For the reasons discussed herein, Carnival’s motion to strike Plaintiff’s claims for non-pecuniary and pecuniary damages, as well as B.P.’s individual claims, should be denied in its entirety.

III. Motion for Leave to Amend

Should this Honorable Court grant Defendant’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 Carnival’s Motion to Dismiss and Motion to Strike in its entirety, and any other relief this Court deems just and proper.

Respectfully submitted,

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

By: /s/ Michael A. Winkleman
MICHAEL A. WINKLEMAN
Florida Bar No. 36719
PETER J. RIDGE
Florida Bar No. 114263

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 27, 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/ Michael A. Winkleman                 

MICHAEL A. WINKLEMAN