January 22, 2014
John Doe v. Carnival Corp.
Response in Opposition to Carnival’s Motion to Dismiss
The Plaintiff in this case was injured aboard the Carnival Triumph after it lost power in the gulf of mexico. In this response in opposition to Carnival’s Motion to Dismiss, our experienced maritime lawyers explain how Carnival’s arguments fall short and how the Plaintiff sufficiently plead his claim.
UNITED STATES DISCTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 13-24306 – LENARD/O’SULLIVAN
PLAINTIFF’S RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS
Plaintiff, JOHN DOE, by and through his undersigned counsel and pursuant to the Federal rules of Civil Procedure, hereby files this Response in Opposition to Defendant’s Motion to Dismiss [D.E. 10], and as grounds therefore states as follows:
This matter arises out of injuries sustained by passenger, JOHN DOE, while aboard the Carnival cruise ship, Triumph. [D.E. 1, 7, 8]. On or about, February 13, 2013, Plaintiff slipped and fell while walking aboard the vessel. Id at 11. Plaintiff alleged that his slip and fall was caused by Carnival’s failure to provide reasonable care under the circumstances, id at 10, and that as a result of Carnival’s negligence, Plaintiff sustained severe and permanent injuries. Id at 17.
II. Plaintiff’s complaint meets all standards prescribed by the Federal Rules of Civil Procedure and the Supreme Court’s interpretation of those rules. Accordingly, Carnival’s motion to dismiss should be denied.
Carnival argues that Plaintiff’s complaint is “wholly conclusory” and lacks “a sufficient factual basis.” D.E. 10, pg. 1. On the contrary, it is Carnival’s Motion to Dismiss that is conclusory and lacking in support.
The well-known standard for a motion to dismiss is based on Federal Rule of Civil Procedure 8(a)(2) which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “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) citing Conley v. Gibson, 355 U.S. 41, 47 (1957). Three weeks after issuing the Twombly decision, the Supreme Court put it in context with its ruling in Erickson v. Pardus, 551 U.S. 89 (2007). Quoting Twombly and Conley v. Gibson, 355 U.S. 41 (1957), the Supreme Court in Erickson held:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that a pleader is entitled to relief.” Specific facts are not necessary; the statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957)). In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations in the complaint. Bell Atlantic Corp. Supra., at 555-556.
Id., at 93-94. (Emphasis added) (Other internal citations omitted).
As this Honorable Court recently explained in the matter of Rocha v. Carnival Corporation, Case No: 10-22799-CV-LENARD/TURNOFF (S.D. Fla. 2011) [D.E. 26], even after Twombly, “it remains black-letter law today that in the ordinary case a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny.” “Twombly neither eliminated nor marginalized the liberal pleading rules.” Id., at 3-4, citing Caytrans BBC, LLC v. Equipment Rental & Contractors Corp., 2009 WL857554, at *2 (S.D. Ala. Mar. 25, 2009) and Wilchombe v. TeeVee Toons, Inc., 555 F. 3d 949, 958 (11th Cir. 2009).
Herein, Plaintiff has provided the Defendant with far more than an “unadorned, the Defendant-unlawfully-harmed-me accusation.” Ashscroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009). In fact, paragraph eleven subparts “a” through “p” detail the myriad of facts that Plaintiff has included to inform Carnival of Plaintiff’s theory of liability. [D.E. 1 11(a)-(p). For example, Plaintiff included that Carnival was negligent for: “failure to provide passengers, including Plaintiff, with a walking area free of debris and/or slipping hazards,” “failure to close off access to the area where Plaintiff suffered his accident”, “failure to test floor area to ascertain co-efficiency of friction to determine whether flooring surface was reasonably safe for its intended use”, and “failure to ensure that the area of Plaintiff’s fall was adequately lit, so that any hazards on the flooring surface would be reasonably visible to passengers.” [D.E. 1 11 (a), (l), (m), and (o)].
As set forth in Plaintiff’s introduction to this response, Plaintiff also pled the existence of Carnival’s duty, the breach of that duty, and the existence and causative link between Plaintiff’s damages and that breach. Supra. Carnival alleges that Plaintiff did not plead that Carnival had notice, however that is exactly what Plaintiff pled in paragraph sixteen of his complaint. Simply put, Plaintiff has properly pled the requisite elements of a negligence claim against Carnival. Further, as set forth above this negligence claim contains sufficient factual detail to put the Defendant on notice of the Plaintiff’s claim and the grounds upon which it rests. That is all that is required under the Federal Rules of Civil Procedure and Carnival’s motion should thus be denied.
III. Carnival’s argument that Plaintiff cannot seek to be reimbursed for the lost value of his vacation cruise and associated transportation costs is unfounded. These are classic damages available to a tort victim.
Carnival next argues that Plaintiff is not entitled to recover damages for the value of his vacation, which was ruined by his injuries, including the costs of his cruise ticket and the associated transportation. In support of this contention, Carnival cites a lone District Court Case from the Northern District of California, Missud v. Oakland Coliseum Joint Venture, 12-02967 JCS, 2013 WL 812428 (N.D. Cal. Mar. 5, 2013). This case is cited without explanation or argument, and the simple fact is that it does not support Carnival’s contention.
The Missud case involved causes of action for “(1) violations of the Clean Water Act (“CWA”); (2) violations of the Resource Conservation and Reclamation Act (“RCRA”); (3) violations of the Americans with Disabilities Act (“ADA”); (4) violations of the National Highway Safety and Traffic Act (“NHSTA”); (5) violations of the requirements established by Cal-trans (“Caltrans”);2 (6) negligence; (7) breach of contract; (8) fraudulent inducement; and (9) unfair business practices in violation of California Business and Professions Code section 17200 (“UCL”).” Id. The case arose out of a concert attendees’ displeasure with the conditions at a sold out concert at the Oakland Coliseum and cites the economic loss rule, which as this Honorable Court knows, was abolished in Florida. See Tiara Condo. Ass’n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399 (Fla. 2013).
Plaintiff claims for the lost value of his concert ticket in Missud were pled as a breach of contract action. This is wholly different from the present case where Plaintiff has pled the lost value of his cruise and associated transportation cost as an actual monetary loss occasioned by his injury. These are damages traditionally available under common law principles in tort which are designed to provide “compensation for the injury caused to plaintiff by defendant’s breach of duty.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306-07 (1986) (internal citations omitted). Compensatory damages can include “out-of-pocket loss and other monetary harms” and should be “grounded in determinations of plaintiffs’ actual losses.” Id. Even if the Defendant argues the damages claimed by Plaintiff are just thinly veiled contractual claims, this does not matter as the economic loss rule does not apply in Florida. See Tiara Condo supra.
IV. Leave to amend.
Alternatively, in the event this Honorable Court grants Defendant’s Motion to Dismiss, or any part thereof, Plaintiff respectfully moves for leave to file an Amended Complaint to correct any technical defects raised by Carnival. See Bryant v. Dupree, 252 F.3d 1161 (11th Cir. 2001) (Where more carefully drafted complaint might state claim, plaintiff should be given at least one chance to amend complaint before district court dismisses action). Allowing leave to amend is in accord with Fed. R. Civ. P 15 which states that leave to amend shall be freely given when justice so requires. Herein, justice requires Plaintiff be given an opportunity to amend should this Honorable Court find any merit in Defendant’s motion to dismiss.
WHEREFORE, Plaintiff respectfully requests this Honorable Court deny Carnival’s Motion to Dismiss [D.E. 10] in its entirety or in the alternative, should this Honorable Court grant Defendant’s motion to dismiss in any part, Plaintiff requests this Honorable Court grant Plaintiff leave to amend his complaint to correct any defects.
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 Charles Morales ERIC C. MORALES
FL BAR NO. 91875
 Plaintiff’s injuries include, but are not limited to, torn ligaments and meniscus in his left knee.
 “Carnival knew of the foregoing conditions causing Plaintiff’s accident and did not correct them, or the conditions existed for a sufficient length of time so that Carnival, in the exercise of reasonable care under the circumstances, should have learned of the conditions and corrected them.” [D.E. 1 16].
 Carnival also makes various claims that Plaintiff attempted to “expand the duties Carnival owes to its passengers”, but this is simply untrue. This is best exemplified by Plaintiff’s reference to the ISM code. The ISM Code, drafted by the International Maritime Organization (a United Nations body), provides an international standard for the safe management and operation of ships to ensure safety at sea and prevent human injury or loss of life. Plaintiff maintains that any evidence that Carnival failed to follow the ISM is evidence that they failed to act reasonably under the circumstances. Plaintiff thus refers to the ISM Code within the negligence count to further explain how Carnival breached the duty of reasonable care owed to the Plaintiff, not to create a wholly new duty or to expand Carnival’s existing one.
 Along with the well-known disaster that befell the Carnival Triumph.
 Not only has this rule been abolished in Florida, but the case cited by Defendant is also not maritime in nature and is thus inapplicable to the present matter which Defendant acknowledges is governed by maritime law.