Jane Doe v. Royal Caribbean Cruises, Ltd, and Cruise Ship Excursions, Inc. – Part 4

Lipcon, Margulies, Alsina & Winkleman, P.A

March 08, 2013

Jane Doe v. Royal Caribbean Cruises, Ltd, and Cruise Ship Excursions, Inc. – Part 4

Unopposed Motion to Take Jurisdictional Discovery
One commonly used defense amongst shore excursion operators is a lack of personal jurisdiction. These operators work closely with the major cruise lines, but when their negligence causes an accident, they often claim that a court in Florida, the Courts which injured passengers are required to file suit in, does not have power over them. When shore excursion operators make this claim, the Plaintiff should be entitled to take discovery into the operator’s ties with Florida. Herein, the parties conferred and agreed that jurisdictional discovery was appropriate and this motion was filed, unopposed, for the Court’s consideration.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
IN ADMIRALTY
CASE NO.: 13-cv-20019 – MORENO/OTAZO-REYES
JANE DOE,
Plaintiff,

v.

ROYAL CARIBBEAN CRUISES, LTD.,
CRUISE SHIP EXCURSIONS, INC., and
XYZ CORPORATION(S).,
Defendants.
_________________________________________________

PLAINTIFF’S UNOPPOSED MOTION TO TAKE LIMITED JURISDICTIONAL DISCOVERY[1]

Plaintiff, JANE DOE, by and through her undersigned counsel, hereby files this Unopposed Motion to take jurisdictional discovery in response to Defendant, CRUISE SHIP EXCURSIONS, INC.’S, (hereinafter “CSE”), Motion to Dismiss for Lack of Personal Jursidiction [D.E. 16] and for good cause relies on the following memorandum of law:

MEMORANDUM OF LAW

CSE’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION CONTAINS DETAILED FACTUAL ALLEGATIONS REGARDING ITS CONTACTS WITH FLORIDA. PLAINTIFF HAS NO MEANINGFUL WAY TO RESPOND TO THESE ALLEGATIONS WITHOUT LIMITED JURISDICTIONAL DISCOVERY. THEREFORE, PLAINTIFF, RESPECTFULLY REQUESTS AN ORDER ALLOWING PLAINTIFF TO CONDUCT SUCH DISCOVERY FOR A PERIOD OF NINETY DAYS.

I.Background.

This case arises out of disabling injuries sustained by Plaintiff, JANE DOE, while on a cruise vacation aboard Defendant, ROYAL CARIBBEAN CRUISES, LTD.’s, vessel, the Serenade of the Seas. [D.E. 1 19 and 22]. Plaintiff alleges that on or about January 27, 2012 while the Serenade of the Seas was in port in St. Thomas, U.S.V.I., Plaintiff participated in The Best of St. Thomas & Shopping Tour, operated jointly by Royal Caribbean and Defendant CRUISE SHIP EXCURSIONS, INC. (“CSE”). [D.E. 1 19]. Plaintiff alleges that during that tour, CSE’s vehicle lost control, veered off the road and crashed. [D.E. 1 22]. Plaintiff further alleges that this crash resulted due to the negligence of CSE. [D.E. 1 41].

The Plaintiff suffered serious injuries requiring surgery. On February 19, 2013, CSE filed a motion to dismiss for lack of personal jurisdiction. In this motion, CSE makes numerous factual allegations and attaches an affidavit to support these allegations.
II. Because Plaintiff cannot meaningfully respond to CSE’s jurisdictional assertions – and/or to test the veracity of CSE’s affidavit; long-standing jurisprudence gives Plaintiff the opportunity to conduct jurisdictional discovery to ascertain CSE’s contacts with Florida.

It is well settled that issues of jurisdiction are proper for discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13 (1978). Controlling precedent establishes that a plaintiff is entitled to elicit material through discovery before a claim may be dismissed for lack of jurisdiction. See Eaton v. Dorchester Dev., Inc., 692 F. 2d 727, 731 (11th Cir. 1982). Furthermore, “Plaintiff is not required to rely exclusively upon a defendant’s affidavit for resolution of the jurisdictional issue where that defendant has failed to answer plaintiff’s interrogatories specifically directed to that issue. To hold otherwise would permit an advantage to a defendant who fails to comply with the rules of discovery.” Blanco v. Carigulf Lines, 632 F. 2d 656, 658 (5th Cir. 1980).

Under Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, ….” Discovery is not limited to the merits of a case, as it is available to ascertain the facts bearing on issues such as jurisdiction or venue. See Oppenheimer Fund, Inc., 437 U.S. 340, 351 n. 13 (1978). Thus, “ ‘[a] plaintiff faced with a motion to dismiss for lack of personal jurisdiction is entitled to reasonable discovery, lest the defendant defeat the jurisdiction of a federal court by withholding information on its contacts with the forum.’” Diamond Chem. Co. v. Atofina Chems., Inc., 268 F.Supp.2d 1, 15 (D.C.Cir.2003) (quoting El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 676 (D.C.Cir.1996)).

Courts in the Southern District routinely grant the requested relief and stay litigation, pending completion of limited jurisdictional discovery. [2] See Bridgewater v. Carnival Corporation, Rhapsody Tours, et. al., CASE NO. 10-22241-CIV-KING/Bandstra [D.E. 28] (Hon. Judge King), attached hereto as Exhibit “A.” See also Wong v. Carnival Corporation, et. al., CASE NO. 11-21076-CIV-HUCK/BANDSTRA (Hon. Judge Huck) (S.D. Fla. 2011) attached hereto as Exhibit “B.” See Olson v. Carnival Corporation, et. al., CASE NO. 11- 21061-CIV-COOKE/TURNOFF (Hon. Judge Cooke) (S.D. Fla. 2011) attached hereto as Exhibit “C.” Theron Williams v. Signature Pools & Spas, Inc., et al, CASE NO. 08-22388-CIV-UNGARO (Hon. Judge Ungaro) (S.D. Fla. 2008) D.E. 17 (“the district court, ‘must give the Plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss’” quoting Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981))

Indeed your honor has allowed jurisdictional discovery in a case where a Defendant sought dismissal for lack of personal jurisdiction. See Roblor Marketing Group, Inc. v. GPS Industries, Inc., CASE NO. 08-21496 Moreno/Torres (Hon. Judge Moreno) (S.D. Fla. 2009) D.E. 185.

Plaintiff anticipates that discovery will show that CSE is engaged in business or a business venture with a company based in the United States and specifically in Florida (i.e. Royal Caribbean). There are likely contracts as well as correspondence between Royal Caribbean and CSE that will further shed light on the relationship between the two Defendants. This and other information is necessary to affirmatively support Plaintiff’s allegations of personal jurisdiction. As such, the Plaintiff asks the Court to allow the Plaintiff to conduct jurisdictional discovery for a period of 90 days, including both written discovery and depositions of CSE during that period.

III. Conclusion

Simply put, the Plaintiff satisfied his burden to make out a prima facie case for personal jurisdiction over CSE by pleading the language of Florida’s Long Arm Statute § 48.193. See Biloki v. Majestic Greeting Card. Co., Inc., 33 So. 3d 815, 819 (Fla. 4th DCA 2010).

CSE countered Plaintiff’s sufficiently pled allegations by submitting an affidavit making a number of its own factual allegations. The Plaintiff should not be forced to rely on the minimal amount of information provided in those affidavits, nor should the Plaintiff be forced to accept the assertions therein as true. According to Eleventh Circuit Court of Appeals precedent, the Plaintiff has a qualified right to jurisdictional discovery.

WHEREFORE, Plaintiff requests this Honorable Court Stay a ruling on Cruise Ship Excurions, Inc.’s Motions to Dismiss for Lack of Personal Jurisdiction [D.E. 16], and permit the Plaintiff to take 90 days of jurisdictional discovery. At the completion of jurisdictional discovery, Plaintiff request 14 days to respond to CSE’s Motions to Dismiss.

LOCAL RULE 7.1A (3) CERTIFICATE OF GOOD FAITH

In compliance with Local Rule 7.1. Counsel for Plaintiff and counsel for CSE have conferred regarding the proposed jurisdictional discovery. CSE does not oppose the relief sought herein, so long as the Court extends all deadlines by 120 days. If the deadlines are not extended, then CSE does oppose the extension. CSE also reserves the right to object any discovery for any reason, including that it is beyond the scope of jurisdictional discovery.

RESPECTFULLY SUBMITTED,
LIPCON, MARGULIES,
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

 


[1] Plaintiff is simultaneously filing an unopposed motion to continue the Court’s deadlines 120 days to allow for a period of 90 days of jurisdictional discovery.

[2] Plaintiff anticipates that the Court may look to the decision of the Hon. Judge King in Yepez v. Regent Seven Seas Cruises, 10-23920-CIV, 2011 WL 3439943 (S.D. Fla. Aug. 5, 2011). Therein, Judge King held that jurisdictional discovery should not be allowed in cases where the Plaintiff has been remiss in his duty to collect necessary facts supporting personal jurisdiction prior to filing suit. With all due respect to Judge King, however, many of the facts necessary to support personal jurisdiction are not available to the Plaintiff without the benefit of limited discovery. Cruise Ship Excursions Inc., will not willingly turn over property records, tax records, banking records, contracts or any other records reflecting contacts with this forum unless compelled to do so by the formal process of discovery. Without this information, Plaintiff can do nothing but plead good faith allegations based on available information and prior experience. This is exactly what the Plaintiff did herein.