March 11, 2013
Jane Doe v. Carnival Corp., et al
Response to Motion to Dismiss for Insufficient Service of Process
Cruise ship passengers can encounter dangerous situations both on and off the ship. In this case, a passenger was injured while on a shore excursion in Cozumel Mexico. Plaintiff filed suit in the Southern District of Florida pursuant to Carnival’s passenger ticket contract and included Carnival’s co-owner/operator/manager of the shore excursion, Lisandra, S.A., in the lawsuit. Lisandra S.A. is a Mexican Corporation and it moved to dismiss the lawsuit for insufficient service of process. In this document, the Plaintiff outlines the various methods used to serve Lisandra and her compliance with the Federal Rules of Civil Procedure and Lisandra’s right to due process.
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-CV-23770
LISANDRA S.A.- OPERATED BY FURY DE MEXICO S.A.
De C.V./ FURY CATAMARANS COZUMEL, and
RESPONSE IN OPPOSITION TO DEFENDANT LISANDRA S.A.’S MOTION TO DISMISS FOR INSUFFICIENT SERVICE OF PROCESS
Plaintiff, JANE DOE, by and through her undersigned counsel, hereby files this Response in opposition to Defendant, LISANDRA S.A. – OPERATED BY FURY DE MEXICO S.A. De C.V. / FURY CATAMARANS COZUMEL’s, (hereinafter “FURY”), Motion to Dismiss for Insufficient Service of Process pursuant to Rule 12(b)(5), and as good cause therefore relies on the following memorandum of law.
MEMORANDUM OF LAW
This matter arises out of serious injuries suffered by Plaintiff, JANE DOE, while on a cruise vacation aboard Defendant, CARNIVAL CORP.’s, vessel, Liberty. On November 21, 2011, the Liberty was in port in Cozumel, Mexico and Plaintiff participated in the “Deluxe Sail, Snorkel, and Beach Party” shore excursion. [D.E. 1 18]. Plaintiff alleges that this shore excursion was jointly owned/operated/managed by CARNIVAL and Defendant FURY. Id at 10.
As part of this shore excursion, Plaintiff boarded a FURY catamaran for a ride to a snorkeling destination and then to a beach for a party. Id at 19. As the catamaran was still underway and approaching the beach, the passengers including the Plaintiff were instructed by FURY to get up and walk towards the front of the vessel. Id at 20. As Plaintiff walked towards the front of the vessel, she walked by an open stairwell leading to the vessel’s restrooms on a lower deck. While standing in front of the stairwell, the FURY catamaran stopped abruptly and Plaintiff was thrown off her feet and down the stairwell. Id. As a result, Plaintiff suffered serious permanent injuries, including several broken vertebrae and ribs.
Plaintiff filed her complaint on October 16, 2012 in the Southern District of Florida pursuant to CARNIVAL’s passenger ticket contract. [D.E. 1]. Thereafter, Plaintiff served FURY with a copy of the complaint and summons in three separate manners as noted in FURY’s Motion to Dismiss for Insufficient Service of Process. [D.E. 19 pg. 2]. First, Plaintiff served FURY through the Florida Secretary of State. Next, Plaintiff served FURY via-registered mail and filed the signed acknowledgement of receipt. [D.E. 20-1]. Lastly, Plaintiff served FURY via the Southern District Clerk of the Court through the Clerk’s International Service, which was sent to FURY by Federal Express and also received on December 11, 2012. [D.E. 20-2].
As a result of these three separate forms of service, FURY received notice of this lawsuit and on February 21, 2013, moved to dismiss Plaintiff’s case for insufficient service of process pursuant to Fed. R. Civ. Pro. 12(b)(5). [D.E. 19].
II. FURY has been served in three separate and acceptable ways to serve process in accordance with Fed. R. Civ. Pro. 4. The service effected by Plaintiff was reasonably calculated to provide notice and an opportunity to respond. Accordingly, Plaintiff’s service satisfies due process requirements because at all times material, FURY has had notice of this action and through its attorney, has had an opportunity to defend the claims brought against it.
The starting point for an analysis of amenability of service of process in federal court is Federal Rule of Civil Procedure 4. Rule 4 allows for two types of service: personal and substituted. Personal service has not in all circumstances been regarded as indispensable to the process due to residents, and has more often been held unnecessary as to nonresidents. See Silvious v. Pharaon, 54 F. 3d 697 (11th Cir. 1995) (citing Mulane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)).
a. First Method of Service: By mailing a copy of the Complaint and summons to the Defendant via certified mail and through the Clerk of the Court via Federal Express, service was proper pursuant to Federal Rule of Civil Procedure 4(f).
Federal Rule of Civil Procedure 4(f) provides that an individual in a foreign country may be served by, “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Fed. R. Civ. P. 4(f)(2)(C)(ii). Article 10 subparagraph (a) of the Hague Convention states in relevant part that “[p]rovided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad…” 20 U.S.T. 361, T.I.A.S. No. 6638.
Based on Article 10(a), this Honorable Court recently observed that “this district, along with several district courts within the Eleventh Circuit and many other federal circuit courts and district courts, have held that ‘Article 10(a) permits service by mail unless the country has objected to this method.’” TracFone Wireless, Inc. v. Pak China Group Co. Ltd., 843 F. Supp. 2d 1284, 1293 (S.D. Fla. 2012) (citing TracFone Wireless, Inc. v. Bequator Corp., Ltd., 717 F.Supp.2d 1307, 1309 (S.D. Fla. 2010); Curcuruto v. Cheshire, 864 F.Supp. 1410, 1411 (S.D. Ga. 1994); Conax Fla. Corp. v. Astrium Ltd., 499 F.Supp.2d 1287, 1293 (M.D. Fla. 2007) (authorizing service by mail upon finding that “Article 10(a) is applicable to service of process.”); Lestrade v. United States, 945 F.Supp. 1557 (S.D. Fla. 1996) (holding that service of IRS petition by mail satisfied Hague Service Convention); see also Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004) (holding that Article 10(a) does include service of process by mail, reasoning that “send judicial documents” encompasses “service of process,” and that such method is “consistent with the purpose of the Convention to facilitate international service of judicial documents.”); Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir. 2002), cert. denied, 537 U.S. 878, (2002); Ackermann v. Levine, 788 F.2d 830, 838–40 (2d Cir. 1986).
Further, despite FURY’s assumption that Mexico objects to service by mail, this is incorrect. In fact, the state department maintains a list of countries who have formally objected to service by mail under Article 10(a). A formal objection is required if a Country wishes to exempt itself from service by mail and the State Department webpage makes clear that Mexico has not formally objected. See U.S. Department of State Webpage, Service of Legal Documents Abroad, attached hereto as Exhibit A.
On November 20, 2012, Plaintiff sent FURY, via registered certified mail, a copy of the Complaint and Summons to FURY’s address in Mexico [D.E. 13]. FURY received and signed for this package. [D.E. 20-1]. This Honorable Court has held that this form of service is proper under the Federal Rules of Civil Procedure. See Balachader v. NCL (Bahamas), Ltd., 11-21064 [D.E. 25] (S.D. Fla. 2011) (King, J.):
The docket sheet reflects that a summon for service abroad was returned executed on May 11, 2011. The Affidavit of service states that the summons and complaint were mailed directly to Defendant Ponteras at his last known address in the Philippines by Plaintiff’s counsel on May 11, 2011. In addition, Plaintiff filed a copy of the stamped and addressed registered mail sent to Defendant Ponteras. The filing reflects that a signature is required by the recipient. Defendant Ponteras does not dispute that the materials were mailed or that the mailing address is correct. This is a valid method of service under the Federal Rules of Civil Procedure. Rule 4(f) provides that an individual in a foreign country may be served by, “using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Fed. R. Civ. P. 4[f](2)(C)(2).
Id., at pg. 3.
Here, like in Balachader: a) the docket sheet reflects that a summons for service abroad was returned executed [D.E. 13-2]; b) the affidavit of service states that the summons and complaint were mailed directly to FURY [D.E. 13]; c) Plaintiff filed a copy of the stamped and addressed registered mail sent to FURY [D.E. 13-2]; d) the filing reflects that a signature is required by the recipient [D.E. 13-2]; and e) the signature on the return receipt indicates that the Complaint and Summons were delivered, accepted, and signed for. [D.E. 20-1].
It is clear that the service over FURY is virtually identical to service over the foreign Defendant in Balanchader. Therefore, as Judge King held in Balanchander, sending the Complaint and summons directly to Defendant’s place of business via certified mail, is valid service pursuant to Fed. R. Civ. P. 4(f)(2)(C)(ii).
Further, pursuant to Fed. R. Civ. P. 4(f)(2)(C)(ii), Plaintiff also directed the clerk to serve a summons and complaint directly to FURY via Federal Express. The docket also reflects that FURY received and signed for this Complaint and Summons as well. [D.E. 20-2].
b. Second Method of Service: Alternatively, Plaintiff’s substituted service through the Florida Secretary of State satisfied the elements of Federal Rule 4(e)(2)(C).
Federal Rule of Civil Procedure 4(e) provides, in part:
(e) Serving an individual within a Judicial District of the United States … an individual […] may be served in a judicial district of the United States by:
(1)following state law for serving summons in an action brought in courts of general jurisdiction in the state where the district court is located or where the service is made; or
(2)doing any of the following:
(C) delivering a copy to an agent authorized by appointment or by law to receive service of process.
Id. (Emphasis added). As shown above, “Rule 4(e) permits personal service upon a Defendant to be made by delivering a copy of the summons and complaint to a person deemed by the general law, federal and state, to be authorized to accept service of process on behalf of the defendant.” Silvious v. Pharaon, 54 F. 3d 697, 701 (11th Cir. 1995), citing 2 James W. Moore et. al., Moore’s Federal Practice §4.10., at 4-183..
Florida law, particularly statute § 48.181, permits the Florida Secretary of State to accept service on behalf of nonresidents who engage in or carry a business or business venture in the state. See Fla. Stat. section 48.181. See also Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So. 2d 1001, 1003 (Fla. 5th DCA 1994). Therefore, the Florida substitute service statute, 48.181 constitutes an exception to the general rule that a defendant must be personally served by providing that any resident of a foreign country operat[ing], conduct[ing], engag[ing] in, or carry[ing] on a business or business venture in Florida is deemed to appoint Florida’s Secretary of State to accept service of process on its behalf. See Cantley v. Ducharme, 2010 WL 2382912 (S.D. Fla. 2010) (citing Monaco v. Nealon, 810 So. 2d 1084, 1085 (Fla. 4th DCA 2002)).
The Florida Supreme Court has held that engaging in a single act for profit can amount to a business venture. Labbee v. Harrington, 913 So. 2d 679 (Fla. 3d DCA 2005) (citing Wm. E. Strasser Contra. Linn, 97 So. 2d 458, 459 (Fla. 1957)). Doing business could be as simple sa “doing a series of similar acts for the purpose of thereby realizing a pecuniary benefit, or otherwise accomplishing an object, or doing a single act for such purpose with the intention of thereby initiating a series of such acts.” Labbee, at 682 (citing Webber v. Register, 67 So. 2d 619, 623 (Fla. 1953). See also Poston v. American President Lines, Ltd., 452 F. Supp. 568 (S.D. Fla. 1978):
The intent of the Florida legislature in enacting Florida Statute 48.181 (was) that any individual or corporation who has exercised the privilege of practicing a profession or otherwise dealing in goods, services or property, whether in a professional or nonprofessional capacity within the State in anticipation of economic gain, be regarded as operating a business or business venture for purposes of service of process under Florida statute 48.181 … Id.
Herein, as alleged in the Complaint at all times material, FURY, was engaged in substantial activity within this state [D.E. 1 6] and had an ongoing business relationship with CARNIVAL in Florida in anticipation of economic gain. Plaintiff anticipates discovery will reveal that at all times material, FURY: 1) signed multiple contracts with CARNIVAL, located in Miami, Florida, 2) agreed to indemnify CARNIVAL for foreseeable risks in Florida, arising from the provision of shore excursions, and 3) actively sold, advertised, and marketed shore excursions in Florida.
These allegations must be accepted as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957) (“… when ruling on a motion to dismiss, a judge must accept as true all of the factual allegations in the Complaint”).
Moreover, these allegations are sufficient to establish proper substituted service through the secretary of state for purposes of §48.181. See Labbee v. Harrington, 913 So. 2d 679 (Fla. 3d DCA 2005); Venetian Salami Co. v. Parthenais, 554 So. 2d 573, 574 (Fla. 1st DCA 2003) (to determine whether long-arm jurisdiction is appropriate for substitute service, the complaint must either plead a basis for jurisdiction pursuant to the language of section 48.181 or allege sufficient jurisdictional facts to satisfy the statute).
Therefore, Plaintiff’s service on the Florida Secretary of State, as Defendant’s agent to accept service of process by operation of law, was proper.
c. Plaintiff’s Service Complies with Due Process Requirements.
Long-standing jurisprudence, particularly United States Supreme Court decisions following Mullane v. Central Bank & Trust Co, 339 U.S. 306 (1950), establish that although the U.S. Constitution does not require any particular means of service of process, the method selected must be reasonably calculated to provide notice and an opportunity to respond. See Mullane, 339 U.S. at 314:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to be heard to present their objections. The reasonableness and hence the constitutional validity of any chosen method may be defended on the grounds that it is in itself reasonably to inform those affected. Id.
In proper circumstances, this broad constitutional principle unshackles the federal courts from anachronistic methods of service. See Rio Props. v. Rio Int’l Interlink, 284 F. 3d 1007 (9th Cir. 2002). Herein, Plaintiff’s 1) service via registered mail to FURY at its corporate address, 2) service through the Florida Secretary of State, and 3) Service via The Clerk of the Court Notice of International Service sent federal Express should be deemed proper, because these three forms of service have done exactly what they were reasonably calculated to do and exactly what the Constitution requires, i.e. give FURY notice of this lawsuit and provide an opportunity to respond.
Plaintiff’s service conforms with procedural due process in accordance with the parameters set DOE by the United States Supreme Court. Indeed, the fact that FURY has retained counsel and filed a motion to dismiss for insufficient service of process shows that it has been notified and has not only had an opportunity to respond, but indeed has responded. No further service is or should be required.
WHEREFORE, Plaintiff respectfully request that this Honorable Court Deny FURY’s motion to dismiss for insufficient service of process. In the alternative, if the Court is inclined to grant FURY’s Motion to Dismiss, Plaintiff respectfully requests this Honorable Court grant her additional time to effect service on FURY.
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
Suite 1776, One Biscayne Tower
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
By: /s/ Eric C. Morales
ERIC CHARLES MORALES
FLORIDA BAR # 91875
 Discussing whether or not Article 10(a) permits service by mail, the Middle District of Florida provided an in depth review of the law and stated: “In particular, the United States Government, through the State Department, wrote a letter to the Administrative Office of the United States Courts on this issue, stating, in pertinent part (Letter from Alan J. Kreczko, U.S. Dep’t. of State Deputy Legal Advisor to the Admin. Office of the U.S. Courts (March 14, 1991)):
We … believe that the decision of the Court of Appeals in Bankston is incorrect to the extent that it suggests that the Hague Convention does not permit as a method of service of process the sending of a copy of a summons and complaint by registered mail to a defendant in a foreign country.
In addition, this position is shared by several other member countries of the Hague Convention. Brockmeyer v. May, supra, 383 F.3d at 802. I find more persuasive those decisions, particularly Brockmeyer, that hold that Article 10(a) is applicable to service of process. Therefore, consistent with those decisions construing Article 10(a) of the Hague Convention to permit service of process by mail if the state law provides such an option, and the receiving country does not object, I find that the plaintiff’s service of process upon the defendant in accordance with §§ 48.161 and 48.181, Fla. Stat., does not violate the Hague Convention. Notably, the defendant does not contend that the plaintiff failed to comply with those provisions of Florida law. Accordingly, the plaintiff has properly effected service of process upon the defendant.”
 See also In Re Royal Caribbean Cruises, Ltd. CASE NO. 1 1-24327-CV-COOKE/TURNOFF So. Dist. Fla. 2011 [D.E. 51]. (“Rule 4 provides, in part, that an individual in a foreign country may be served by any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” Fed. R. Civ. P. 4( c)(2)(9(ii); see also Balachader v. NCL. Ltd., Case No: 1 1-21064-cv-JLK. The spirit and purpose of the Rules are geared towards ensuring that service be reasonably calculated to provide notice and an opportunity to respond. In this court’s view, that has already occurred.”)
 Fla. Stat. section 48.181 states, in relevant part:
(1) The acceptance by any person or persons, individually or associated together …, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his or her whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry out a business or business venture in the state … constitutes an appointment by the persons and foreign corporations of the Secretary of State of the state as their agent on whom all process in any action or proceeding against them … arising out of any transaction or operation connected with or incidental or business venture may be served. Id. (Emphasis Added).
 To determine whether long-arm jurisdiction is appropriate for substitute service, the complaint must either plead a basis for jurisdiction pursuant to the language of section 48.181 or allege sufficient jurisdictional facts to satisfy the statute. See Venetian Salami Co. v. Parthenais, 554 So. 2d 573, 574 (Fla. 1st DCA 2003).