February 05, 2013
John Doe v. Carnival Corp., et al – Part 4
Response to Motion to Dismiss for Lack of Personal Jurisdiction
Passengers or crewmembers who are injured onboard a cruise ship often have difficulty getting quick, competent, and adequate medical care. Sometimes, their injuries can be made worse by negligent medical care administered by cruise ship medical personnel or substandard medical equipment in shipboard medical facilities. If you or someone you know were injured an a cruise and received negligent medical care, it is important to contact an experienced maritime lawyer like those at Lipcon, Margulies & Winkleman, P.A. The law regarding negligent medical care onboard cruise ships is complicated and challenging. Our knowledgeable maritime attorneys are on the cutting edge of this field and work to ensure recovery despite the legal obstacles that stand in the way. One of those obstacles includes the jurisdictional challenges posed by shipboard doctors and nurses. Although many regular personal injury lawyers may claim that they can handle your cruise ship injury case, in order to ensure that your rights are protected and that you receive the maximum recovery possible for your case, it is critical to seek the help of an experienced maritime lawyer.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-CV-23345 – UNGARO
WILLIAM PRETORIUS (Ship’s Doctor),
JACQUELINE GOBEIL, (Ship’s Nurse),
BRYAN PATIU, (Ship’s Nurse),
PLAINTIFF’S RESPONSE IN OPPOSITION TO WILLIAM PRETORIUS’ MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Plaintiff, JOHN DOE, by and through his undersigned counsel, hereby files his response to Defendant, WILLIAM PRETORIUS’, Motion to dismiss for lack of personal jurisdiction. [D.E. 21].
I.Introduction and background facts.
Plaintiff, JOHN DOE ( hereinafter “DOE”) is a seventy-five year old former passenger aboard the Carnival Miracle. On or about September 30, 2011 while the Miracle was in port in King’s Wharf, Bermuda, DOE slipped and fell in his cabin shower due to an unsafe flooring surface and other defects. [D.E. 1 18 (a)-(n)]. Plaintiff broke his neck in multiple places and suffered epidural hematomas along with lacerations to his head. [D.E. 1, 15].
Carnival employees brought DOE to the ship’s medical facility where he was treated by Dr. Pretorius and the other Medical Defendants. Id. In the course of their treatment, the Medical Defendants failed to diagnose DOE’s multiple spinal fractures and epidural hematomas. Id. Instead, the Medical Defendants diagnosed DOE as having only a cut on his head and a sprained neck. Id. Despite Plaintiff’s protests, the Medical Defendants gave him pain medications and sent him back to his cabin without any way to stabilize, immobilize, and/or support his broken neck, thus causing DOE further injury. Id.
The Miracle stayed in King’s Wharf, Bermuda that evening while DOE spent the night in agonizing pain propped up in his bed by Carnival’s Medical Staff. Exhibit 1. Early the next morning, he again summoned the medical staff for help. At that time, Carnival and the Medical Defendants ordered his evacuation from the Miracle. [D.E. 1, 15]. Once off the Miracle, doctors in Bermuda immediately recognized the severity of DOE’s injury and arranged for an air ambulance to bring him to New York for emergency surgery.
Almost a year and a half later and after multiple surgeries, the Plaintiff is still healing. Due to the severity of his injury and the negligence of Carnival’s Medical staff, DOE may never fully recover.
DOE filed suit against Carnival and the Medical Defendants on September 13, 2012, [D.E. 1], alleging negligence against Carnival for the dangerous condition in his cabin shower, vicarious liability against Carnival for the negligence of the Medical Defendants, negligence against the Medical Defendants individually, a joint venture as between Carnival and the Medical Defendants, and for damages as a third-party beneficiary of the contract between Carnival and the Medical Defendants. Id. Carnival filed a motion to dismiss Plaintiff’s Complaint on October 19, 2012. [D.E. 12]. In its order of December 17, 2012, this Honorable Court dismissed all of Plaintiff’s claims against Carnival except for regular negligence. [D.E. 29].
The Court found that the general maritime law of the United States, particularly the case of Barbetta v. Bermuda Star, 848 F. 2d 1364, 1372 (5th Cir. 1988), prevented the Plaintiff from holding Carnival Corporation accountable for the allegedly negligent medical care administered to DOE onboard its ship. [D.E. 29]. Further, this Honorable Court dismissed Plaintiff’s claims that Carnival and the Medical Defendants were Joint Venturers, and that Plaintiff was a third-party beneficiary to the contracts between Carnival and the Medical Defendants. Accordingly, the only remaining way for Plaintiff to seek compensation for the allegedly deplorable medical care he received onboard the Carnival Miracle is by holding the Medical Defendants personally responsible.
However, the Medical Defendants also seek to Dismiss Plaintiff’s claims against them. On November 19, 2012, the Medical Defendants filed motions to dismiss Plaintiff’s Complaint for lack of personal jurisdiction. [D.E. 20, 21, 22]. On December 6, 2012, Plaintiff filed a motion to take limited jurisdictional discovery and stay a ruling on the Medical Defendants’ Motions to Dismiss until the completion of that discovery. [D.E. 28]. This Honorable Court permitted Plaintiff to conduct limited jurisdictional discovery and granted an extension of time to respond to the Medical Defendants’ motions to dismiss until January 25, 2013. [D.E. 31]. The time period was extended until February 5th, 2013, bringing the Court to the instant filing.
II.Overview of the law on personal jurisdiction under Florida’s long arm statute.
Contrary to the Medical Defendants’ argument, Plaintiff’s burden in alleging personal jurisdiction is only to plead sufficient material facts to establish the basis for exercise of such jurisdiction. Future Technology Today, Inc. v. OSF Healthcare Systems, 218 F. 3d 1247 (11th Cir. 2000). The Plaintiff satisfied his burden to make out a prima facie case for personal jurisdiction over the Medical Defendants 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). The burden thus shifted to the defendant to make a prima facia showing of the inapplicability of the statute. Dr. Pretorius filed an affidavit in support of his motion to dismiss proclaiming zero ties to Florida and thus the plaintiff is now required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof. Id., at 1249.
Generally, when performing a jurisdictional analysis pursuant to a long-arm statute, Florida courts must engage in a two-part analysis. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). The Court must first determine whether the party has alleged facts sufficient to fall within the scope of Florida’s long arm statute, § 48.193. If the requirements of the long arm statute are satisfied, then the court must inquire as to, (1) whether defendant has satisfied sufficient “minimum contacts” with the state of Florida; and (2) whether the exercise of this jurisdiction over defendant would offend “traditional notions of fair play and substantial injustice.” Id., at 630-31 quoting, International Shoe v. Washington, 326 U.S. 310 (1945). Where the evidence conflicts, all reasonable inferences must be construed in favor of the Plaintiff. Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F. 3d 1357, 1360 (11th Cir. 2006).
Florida’s long arm-statute contains two provisions that confer personal jurisdiction over a non-resident defendant. The first, Florida § 48.193(1), also known as the specific jurisdiction statute, confers jurisdiction if a party’s activities in the forum are related to the cause of action alleged in the complaint. Consolidated Development Corporation v. Sherrit, Inc., 216 F. 3d 1286 (11th Cir. 2000). Although the term ‘arising from’ is somewhat broader than the concept of proximate cause, under Florida law there must be some direct affiliation, nexus or substantial connection between the cause of action and the activities within the state.” Sun Trust Bank v. Sun Intl’ Hotels, Ltd., 184 F. Supp. 2d 1246, 1269 (S.D. Fla. 2001).
The second, Florida § 48.193 (2), is the general jurisdiction statute. Where specific jurisdiction cannot be exercised, a court in Florida may exercise jurisdiction over a non-resident defendant only where general jurisdiction can be established. American Overseas, 632 So. 2d, at 1127. “General jurisdiction, as distinguished from specific jurisdiction, does not require that the plaintiff’s cause of action arise out of the non-resident defendants business contacts with [Florida].” Id., at 1127. See also Woods v. Nova Companies Belize, Ltd., 739 So. 2d 617 (Fla. 4th DCA). In other words, when exercising general personal jurisdiction, there does not need to be any connection between the defendant’s contacts and the litigation. Consolidated Development Corporation v. Sherrit, Inc., 216 F. 3d 1286 (11th Cir. 2000).
Section 48.193(2), provides in part:
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly intrastate, or otherwise, is subject to the jurisdiction of the Courts of this state, whether or not the claim arises from that activity.
In order to obtain jurisdiction under the general jurisdiction statute, therefore, the defendant must be found to have maintained “continuous and systematic general business contacts” with the forum, so it can properly be considered to be present in the forum. American Overseas Marine Corp., 632 So. 2d 1124, 1127 (Fla. 3d DCA 1994). In construing the requirement of “substantial and not isolated activity”, Courts have harmonized this language with the constitutional due process requirements annunciated by the United States Supreme Court. Nichols v. Paulucci, 652 So. 2d 389 (Fla. 5th DCA 1995), citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984):
In Helicópteros, the Supreme Court held that “continuous and systematic general business contacts” were required before a forum could exercise general jurisdiction over a nonresident defendant. Helicopteros, 466 U.S. at 416. The Court explained that a state exercises “general,” as opposed to “specific,” jurisdiction over a defendant when the cause of action does not arise out of, and is not related to, the defendant’s contacts with the state. Helicopteros, 466 U.S. at 414 n. 9. The due process standard of Helicopteros applies in this case because section 48.193 (2) requires no causal connection between a plaintiff’s claim and the defendant’s contacts with the state.
Id., at 391. Contacts are commonly assessed over a period of years prior to the plaintiff’s filing of the plaintiff’s filing of the complaint. Woods v. Nova Companies Belize, Ltd., 739 So. 2d 617 (Fla. 4th DCA). See also Helicopteros, 466 U.S. at 409 – 411 (examining contacts over a seven-year-period, up to the time the lawsuit was filed).
Finally, this “continuous and systematic” contacts requirement [of the general jurisdiction statute is [also] sufficient to fulfill the constitutional requirements of “minimum contacts.” Autonation, Inc. v. Whitlock, 276 F. Supp. 2d 1258, 1262 (S.D. Fla. 2003). See also Woods v. Nova Companies Belize, Ltd., 739 So. 2d 617 (Fla. 4th DCA) (“if the Defendant’s activities meet the requirements of section 48.193(2), minimum contacts is also satisfied”).
In sum, this Court can exercise personal jurisdiction over the Medical Defendants under the Florida general jurisdiction statute, §48.193(2), by a showing that they maintained “continuous and systematic general business contacts” with Florida. These contacts can be assessed over a period of years. Further, while any of these activities alone, may not be deemed sufficient, considered collectively they can establish personal jurisdiction.
For purposes of this analysis, it is irrelevant that the Defendants’ contacts with Florida are unrelated to the cause of action (i.e. the medical malpractice) alleged in the complaint. Therefore, contrary to Defendant Pretorius’ assertions, this Court can have general personal jurisdiction over him – even if the alleged medical malpractice took place in Bermuda.
a.This Honorable court has personal jurisdiction over Dr. Pretorius under the specific jurisdiction provision of Florida’s long arm statute. Dr. Pretorius agreed to insure a risk in Florida and engaged in a business venture in Florida. There is a connexity between these activities and the present lawsuit, because this lawsuit is the very risk Dr. Pretorius agreed to insure and it arises out of his business venture of providing shipboard medical care. Further, Dr. Pretorius’ continued contact with Florida through his employment with Carnival satisfies minimum contacts and traditional notions of fair play and substantial justice.
Dr. Pretorius’ agreement to insure a risk in Florida.
The concept of insurance is defined consistently within the Florida Statutes pursuant to Florida Statute §624.02, which is entitled “‘Insurance’ defined” and provides: “‘Insurance’ is a contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies.” Accordingly, one who contractually indemnifies another, is “insuring” another for purposes of the application of Florida Statute §48.193(1)(d).
Between 2010 to the present, Defendant Pretorius and Carnival Corporation entered into four contracts for the provision of medical services aboard Carnival’s ships – including the Miracle. See Deposition of Dr. Pretorius, pg. 11, attached hereto as Exhibit 3. See also “Independent Contractor Agreement Shipboard Physician Services Senior Physician” of Dr. Pretorius attached hereto as Exhibit 4. In fact, Dr. Pretorius is tentatively scheduled to work another contract with Carnival in the immediate future. Exhibit 3, pg. 44. Within these contracts, Dr. Pretorius was referred to as the “CONTRACTOR”. Pursuant to the express terms of each of these contracts, paragraph 11 provides:
Subject to the conditions of the indemnity agreement given by CARNIVAL to CONTRACTOR, CONTRACTOR agrees to indemnify and hold CARNIVAL harmless from and against any liability, loss, damage or claim, including attorney’s fees caused by or arising out of the performance of CONTRACTOR’S services hereunder.
According to Carnival’s testimony, this agreement is basically an insurance policy. See Deposition of Carnival Corp. Rep., pg. 31, attached hereto as Exhibit 5. Further, Nurse Patiu was given an opportunity to review this contract prior to signing it. Exhibit 5, pg. 27. Thus, Dr. Pretorius understood and contractually agreed to indemnify Carnival (an entity located in Miami, Florida) for any harm resulting from his services onboard the Miracle. Those harms include the medical malpractice in the present lawsuit. Accordingly, pursuant to 48.193(1)(d), Defendant Pretorius agreed to insure a person in Florida and this Honorable Court has specific personal jurisdiction under the Florida long arm statute.
The case of Athanassiadis v. National Car Rental System, Inc., 699 So. 2d 330 (Fla. 5th DCA 1997) is instructive in this instance. In Athanassiadis, the Court denied a non-resident’s (Italian citizen) Motion to Dismiss for Lack of Personal Jurisdiction. In the case, the non-resident entered into a rental agreement with a car rental company in Florida. As part of that agreement, which allowed him to rent a car and travel within Florida, the non-resident Italian agreed to indemnify the rental car company if his use of the rental car caused bodily injury or bodily damage. In denying his motion to dismiss for lack of personal jurisdiction, the Court held:
He agreed to indemnify NCR if his use of the rental car resulted in bodily injury or property damage. He was then involved in an auto accident in which, NCR alleges, he negligently caused injury to the other driver. Had Athanassiadis been sued by the injured driver, the “minimum contacts test would be satisfied. Venetian Salami Co. If Athanasis could reasonably anticipate being haled into a Florida court in that instance, the same may be said of this indemnification action, which arose from the same set of circumstances. We find that maintaining this action in Florida would not offend “traditional notions of fair play and substantial justice.”
Id at 332.
Similarly to Athanasis, Dr. Pretorius entered into an agreement with a Florida company and agreed to indemnify the Florida company if his use of the medical facility on Carnival ships and his rendering of medical treatment to Carnival passengers caused injury. Accordingly, this Court should also find that personal jurisdiction exists over Pretorius.
Alternatively, at the very least, Defendant Pretorius’ agreements to insure Florida based Carnival Corporation should be considered collectively with all of his other contacts to establish jurisdiction under Florida’s general jurisdiction provision of the long-arm statute, §48.193(2). See Kilma v. Carnival Corporation, 2008 WL 4559231 (S.D. Fla. 2008)
Dr. Pretorius’ business venture in Florida
The contractual insurance agreement described above is a part of the ongoing business venture between Dr. Pretorius and Miami based Carnival Corporation. That business venture was to provide medical services for a profit onboard Carnival ships to passengers like the Plaintiff. Exhibit 3, pg 64. As a direct result of this business venture, JOHN DOE was injured and the instant lawsuit was filed, thus specific personal jurisdiction exists under Florida’s long-arm § 48.193(1)(a).
Dr. Pretorius’ testimony demonstrates that he applied to Carnival on his own initiative. Exhibit 3, pg. 63-64. He did so with the purpose of working onboard a Carnival cruise ship to provide medical services to passengers like the Plaintiff, and he was doing so for a salary. Id. This is a business venture as defined by Merriam-Webster. The contracts signed by Dr. Pretorius clearly indicate that Carnival Corporation is based in Miami, FL. Further, the medical department which Dr. Pretorius worked for is based in Miami, FL. The logistical support for the care provided to the Plaintiff would have been directed from Florida and the continuing education and skills used to treat the Plaintiff on the ship were taught to the doctor in Doral, Florida at a week long seminar sponsored by Carnival for cruise line medical personnel. Exhibit 3, pg. 37-38. Dr. Pretorius chose to attend this seminar of his own free will for this business venture. Id. Further, according to Carnival’s testimony, the contracts between itself and the Medical Defendants are intended to “govern a business relationship”. Exhibit 5, pg. 40.
b.This Honorable Court also has personal jurisdiction over Dr. Pretorius under the general jurisdiction provision of Florida’s long arm statute because Dr. Pretorius has engaged in substantial and not isolated activity within this state while working for Carnival Corp.
Of the five vessels that Doctor Pretorius has worked on during his roughly three year career as a physician aboard Carnival cruise ships, three of those vessels spent time in Florida. Exhibit 3, pg. 14-16. Further, Dr. Pretorius flew into and out of Florida to begin and end contracts with Carnival Corp. See airline tickets, attached hereto as Exhibit 6. During Dr. Pretorius’ time working as a ships physician he engaged in substantial contact with the state of Florida by treating patients in Florida waters, opening and actively using a bank account in Ft. Lauderdale, Florida, attending a week long medical conference in Florida, using a Florida address as his mailing address, using a Florida phone number as his telephone number, and having another U.S. based telephone number.
Dr. Pretorius’ TD bank account uncovers the nature and extent of his contact with Florida. Firstly, this TD Bank account was opened while Dr. Pretorius worked onboard a Carnival Cruise ship based in Ft. Lauderdale and the account is based at a TD Bank branch in Ft. Lauderdale. See TD Bank Wire Transfer, attached hereto as Exhibit 7 and noting Dr. Pretorius’ account as located in Ft. Lauderdale, FL. Bank records reflect that Dr. Pretorius used Carnival’s address in Miami, FL as his mailing address and used a Fort Lauderdale phone number as his primary telephone number. See Account Sign up, attached hereto as Exhibit 8. Although Dr. Pretorius testified that this account was opened solely to obtain insurance and thereafter went unused, this testimony is untrue. Exhibit 3, pg. 41-42. Bank records reflect that Dr. Pretorius received a wire transfer of wages directly from Carnival and into this account. Supra. Records also indicate that Dr. Pretorius made multiple deposits into this account himself and then actively used this account to purchase airfare as well as other goods and services, for example telephone service through a United States based telephone service provider. Further, bank records reflect that Dr. Pretorius made multiple ATM withdrawls from ATM’s based in Florida. This record activity continued for well over a year and ceased suddenly and abruptly when Dr. Pretorius closed his account on August 1, 2012. See excerpts of bank records, attached hereto as Exhibit 9.
Coincidentally, the closure of Dr. Pretorius’ account happened less a month before suit was filed in this case and two months before Dr. Pretorius filed his first motion to dismiss with an affidavit attached, proclaiming his complete lack of ties to Florida. This timing makes it abundantly clear that Dr. Pretorius actively and continuously remained in contact with Florida and then in an effort to cover his tracks, closed his Florida bank account. This Honorable Court should not allow Dr. Pretorius to get away with this slight of hand and thus should find that it has personal jurisdiction over Dr. Pretorius due to his continuous systematic contact with Florida as part of his employment with Carnival Corp.
Besides the TD Bank account, Dr. Pretorius is also subject to general jurisdiction due to the time he has spent in Tampa, Ft. Lauderdale, and Miami while working for Carnival. Dr. Pretorius was based in Ft. Lauderale for approximately 6 months. Additionally, Dr. Pretorius signed off another contract in Ft. Lauderdale, FL, and spent time working on a ship in Tampa. During his time spent in Florida, Dr. Pretorius treated an untold amount of patients in Florida waters.
As part of his employment and relating to the provisioning of shipboard medical care, Dr. Pretorius also attended a week long seminar sponsored by Carnival and put on by the Institute of Cruise Ship medicine. Dr. Pretorius readily admits that he purposefully availed himself of Miami, FL for this work related medical conference. Exhibit 3, pg. 33-34.
III.If this Honorable Court finds that it does not have personal jurisdiction, either general or specific, under Florida’s long arm statute, it should then find that it has personal jurisdiction pursuant to the Federal long arm statute.
If Dr. Pretorius is not found to be subject to the jurisdiction of Florida Court’s, he most likely cannot be found to be subject to the jurisdiction of any one state. Such a case is the prototypical scenario for the exercise of this Honorable Court’s power under the federal long-arm provision embodied in Federal Rule of Civil Procedure 4(k)(2). Dr. Pretorius filed a waiver of service in this action. According to Rule 4(k)(1), “serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant.” This rule permits a court to aggregate a foreign defendant’s nationwide contacts to allow for service of process provided that two conditions are met: (1) plaintiff’s claims must ‘arise under federal law;’ and, (2) the exercise of jurisdiction must be ‘consistent with the Constitution and laws of the United States.’ ” See Barrocos of Florida, Inc. v. Elmassian, 2012 WL 1622988 (S.D. Fla. 2012) citing Consol. Dev. Corp., 216 F.3d at 1291 (11th Cir. 2007).
As the Eleventh Circuit has explained, “[a] district court is not required to analyze the laws of all fifty states to ascertain whether any state court of general jurisdiction has jurisdiction over the defendant; rather, if the defendant contends that he cannot be sued in the forum state and refuses to identify any other where suit is possible, then the federal court is entitled to use Rule 4(k)(2).” Id citing Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1218 (11th Cir.2009). Herein, Dr. Pretorius has filed a waiver of service and claims he cannot be sued anywhere in the United States. Accordingly, this honorable Court has personal jurisdiction over him pursuant to the federal long arm statute.
IV.Carnival’s ticket contract requires that the Plaintiff file suit in Miami, FL. Pursuant to Carnival Cruise Lines, Inc. v. Shute, this forum selection clause must be enforced. Further, this contract purports to limit the rights of the Plaintiff in his claims against Dr. Pretorius. If this contract deals the Plaintiff’s rights with regard to injuries inflicted by Dr. Pretorius, then it must also govern with regard to the forum selection clause. Simply put, Carnival and Dr. Pretorius cannot have it both ways. Under the ticket contract, Dr. Pretorius must litigate in Miami, Fla.
Carnival’s passenger ticket contract governs, in part, the rights of the Plaintiff herein. That passenger ticket contract specified that when the Plaintiff filed suit against Carnival Corp., he had to do so in Miami, FL. According to the United States Supreme Court case of Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), this forum selection clause must be enforced. Part of the Supreme Court’s reasoning for enforcing this provision, was the prospect that without enforcement, Carnival would be forced to litigate lawsuits all over the world, an expensive and exhausting endeavor:
a cruise line has a special interest in limiting the fora in which it potentially could be subject to suit. Because a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several different fora. See The Bremen, 407 U.S., at 13, and n. 15, 92 S.Ct., at 1915, and n. 15; Hodes, 858 F.2d, at 913. Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions.
Besides limiting the fora in which a lawsuit against Carnival can be filed, the passenger ticket contract also seeks to limit the rights of that passenger when they file suit. Although Carnival claims no responsibility for the negligence of Dr. Pretorius, and Dr. Pretorius claims no ties to Florida, both Carnival and Dr. Pretorius seek to limit the Plaintiff’s lawsuit through his passenger ticket contract. Specifically that contract states that:
(f) All rights, exemptions from liability, defenses and immunities of Carnival under this contract shall also inure to the benefit of Carnival’s facilities, whether at sea or ashore, servants, agents, managers, affiliated or related companies, suppliers, shipbuilders and manufacturers of component parts and independent contractors, including, but not limited to, shore excursion or tour operators, ship’s physician, ship’s nurse, retail shop personnel, health and beauty staff, fitness staff, video diary staff, and other concessionaires, who shall have no liability to the Guest, either in contract or in tort, which is greater than or different from that of Carnival.
Carnival passenger ticket contract, attached hereto as Exhibit 10 (emphasis added). This ticket specifically covers the ship’s physicians.
Again, this is a situation where both Carnival and Dr. Pretorius would seek to have all benefit and no burden. Carnival inserts a forum selection clause in its passenger ticket contract requiring passengers to file suit in Miami, FL. Carnival does so, in part, because it is expensive and impractical to defend lawsuits all over the world. Yet when the Plaintiff files suit pursuant to the passenger ticket contract in Miami, FL, Carnival and the Medical Defendants move to dismiss and argue that the Plaintiff should have filed four separate lawsuits, one in Miami, Canada, South Africa, and the Philippines. The same reasoning in Shute that applies to the plaintiff with respect to the location of the lawsuit, applies equally to the filing of suit against the ship’s physician who is covered, in part, by the very same ticket.
Dr. Pretorius claims limitations, defenses, and exemptions pursuant to the passenger ticket contract, but does not want to abide by the forum selection clause in that same contract. In short, again this is a situation of all benefit and no burden. Essentially, Dr. Pretorius would like to avail himself of the limitations in the passenger ticket contract, but not abide by the forum selection clause there in. Dr. Pretorius should be estopped from arguing a lack of personal jurisdiction since the passenger ticket contract, from which he derives rights, specifically calls for venue in Miami, FL. Dr. Pretorius should be bound by the very same ticket that binds the Plaintiff into filing suit in Miami, Florida.
V.As demonstrated above, this Honorable Court has personal jurisdiction over Dr. Pretorius and it is critical that it exercises that jurisdiction in this case. Carnival and other U.S. based cruise lines have developed the perfect scheme to pile additional profits onto the billions of dollars they make annually off of U.S. passengers. That scheme is Carnival’s system of providing medical care onboard ships like the Miracle. Without this Honorable Court’s power to hold cruise ship medical personnel responsible for their acts, injured passengers will be left with no way to make themselves whole.
Jurisdictional discovery has uncovered evidence demonstrating that Dr. Pretorius is subject to the personal jurisdiction of this court through specific jurisdiction and/or general jurisdiction. After reviewing the evidence above, it is important for the Court to understand the purposeful scheme that has brought about the Medical Defendants’ pending Motions to Dismiss and this response. That scheme is as follows:
Firstly, Carnival owes a duty to its passengers to provide reasonable medical care under the circumstances, even if that means changing course and putting in at the nearest port. This ‘duty to divert’ could potentially cost Carnival millions of dollars in lost time and changes in itinerary. In order to avoid this cost, Carnival chooses to carry medical personnel onboard its vessels, in this case the Medical Defendants.. By having the Medical Defendants onboard, Carnival provides itself with an alternative to the duty to divert by pacifying passengers with shipboard medical care. Without this shipboard medical care, these passengers could potentially ask to be treated at a shoreside facility, forcing the vessel to divert.
Secondly, Carnival charges passengers for the “convenience” of receiving this medical care; again this is medical care that is already potentially saving Carnival millions of dollars. In order to encourage passengers to use the ship’s medical facility, Carnival cloaks its medical personnel in the appearance of professionalism and reliability by branding both the Medical Defendants and ships medical facility as being administered by Carnival. [D.E. 1, Count III, ¶ 29]. Passengers use the medical services provided on Carnival ships, creating large annual profits for Carnival Corporation.
Thirdly, Carnival hires foreign doctors and nurses strategically picked to have no ties to the United States. Conveniently, these doctors often work for lower wages than their U.S. counterparts would demand, further increasing the profits from Carnival’s provision of shipboard medical care. Additionally, neither Carnival or the foreign medical defendants pay any income tax on the wages they do earn working for Carnival. Exhibit 5, pg. 47-48. Again this situation is all benefit and no burden for Carnival and its medical personnel. When a person is injured as a result of medical negligence onboard a Carnival ship, that person is forced to sue the Medical Defendants individually. Often times the medical negligence was occasioned by the ordinary negligence of Carnival. As a result, the injured passenger will bring their interrelated claims in Miami, FL pursuant to Carnival’s passenger ticket contract. When a passenger files suit in Miami, Carnival moves to dismiss the medical negligence claims against it pursuant to U.S. law, and the Medical Defendants move to dismiss the claims against them for lack of personal jurisdiction.
Finally, if the Southern District of Florida finds it does not have personal jurisdiction over the Medical Defendants, all of the Plaintiff’s claims based on medical negligence die with that ruling. Carnival cannot be sued in another Court due to the passenger ticket contract and more than likely the Medical Defendants cannot be sued in another court for their medical negligence. This inability to bring suit against the medical defendants elsewhere is based both in law and in practicality. For one, foreign courts may lack subject matter jurisdiction for an incident that occurred onboard a U.S. based cruise ship in U.S. or foreign waters. Further, even if those foreign courts do not lack subject matter jurisdiction, using this case as an example, the Plaintiff would be required to file four separate lawsuits in four separate countries, all for one incident onboard a Carnival Cruise ship based in the United States. Logistically and financially speaking, this is nearly impossible for the average passenger, let alone one who is catastrophically injured.
The end result is a full proof scheme to make and/or save millions of dollars by providing medical care to sick and injured passengers without ever facing the possibility of being held accountable for any negligence in the provision of that care. Inevitably, this leads to the provision of substandard medical care onboard cruise ships and horrific injuries to passengers. See footnote 2 supra.
There is more than enough evidence to support the Plaintiff’s allegations that Dr. Pretorius has both agreed to insure a risk located in Miami, Florida and that he has engaged in an ongoing business venture based in Florida and/or with a Florida based corporation. Further, Dr. Pretorius has continuously and systematically kept in touch with Florida, both through his bank account and through his repeated visits to Florida for training and work as evidenced above. Dr. Pretorius easily satisfies the minimum contacts tests and accordingly, this Honorable Court has both specific and general personal jurisdiction over Dr. Pretorius through Florida’s long-arm statute. Further, if this Honorable Court finds that personal jurisdiction does not exist under Florida’s long arm statute, it most certainly does exist under the federal long arm statute and accordingly, Dr. Pretorius’ motion to dismiss should be denied. Lastly, public policy and Carnival’s passenger ticket contract require that Dr. Pretorius submit to the jurisdiction of this court.
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 Charles Morales
ERIC C. MORALES
FLORIDA BAR # 91875
 At the outset, Plaintiff notes that despite this Honorable Court granting limited time to conduct jurisdictional discovery, he has not had adequate time to complete same and thus files this response without the aid of fully complete jurisdictional discovery.