Jone Doe, et al v. Dutch Tours, et al

Lipcon, Margulies, Alsina & Winkleman, P.A

Jone Doe, et al v. Dutch Tours, et al

Response to Motion to Dismiss

In this response in opposition to a motion to dismiss, our experienced cruise ship lawyers defend against a cruise line and shore excursion operators efforts to dismiss plaintiff’s claim for failing to state a cause of action. If you are involved in an accident that took place on a shore excursion, it is critical that you seek the help of a knowledgeable cruise ship lawyer. After successfully handling numerous shore excursion cases over the years, the attorneys at Lipcon, Margulies, Alsina & Winkleman, P.A. are ready to meet the challenges that our inherent in these cases.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
IN ADMIRALTY
CASE NO. 13-20619-CIV-GOODMAN
[CONSENT CASE]
JOHN DOE, Individually and as Parent and Natural
Guardian of LITTLE DOE and LITTLE DOE II (minors), et al.,
Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES LTD.,
RDVT SAR d/b/a RENDEZVOUS TOUR COMPANY, and
DUTCH TOURS ENTERPRISES N.V.,
Defendants. /

JOHN DOE, Individually and as Parent and Natural
Guardian of LITTLE DOE and LITTLE DOE II (minors), et al.,
Garnishors,

v.

ROYAL CARIBBEAN CRUISES LTD., CELEBRITY CRUISES INC.,
CARNIVAL CORPORATION and SILVERSEA CRUISES LTD. (INC.),
Garnishees. /

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS, ROYAL
CARIBBEAN CRUISES LTD. AND RDVT SAR d/b/a RENDEZVOUS TOUR COMPANY’S MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

The Plaintiffs, JOHN DOE, et al. (“Plaintiffs”), by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby file their response in opposition to the Motion to Dismiss filed by Defendants, ROYAL CARIBBEAN CRUISES LTD. (“Royal Caribbean”) and RDVT SAR d/b/a RENDEZVOUS TOUR COMPANY (“RDVT”) [D.E. 141] and, in furtherance thereof, rely in good faith on the following memorandum of law:

1. Introduction

As a result of the bus accident that occurred during the Plaintiffs’ shore excursion, the Plaintiffs herein have sued Royal Caribbean and RDVT for Negligence (Counts I and II), Apparent Agency or Agency by Estoppel (Count III), Joint Venture (Count IV) and Third Party Beneficiary (Count V) in their Amended Complaint (“Complaint”) [D.E. 99].[1]

At issue herein is the Motion to Dismiss filed by Royal Caribbean and RDVT [D.E. 141], wherein they seek to dismiss all of the Plaintiffs’ claims under Federal Rule of Civil Procedure 12. Specifically, Royal Caribbean and RDVT argue that 1) the Plaintiffs’ Negligence claims (Counts I and II) lack sufficient factual allegations; 2) the Plaintiffs’ Apparent Agency claim (Count III) is a theory of liability and not a cause of action; and, 3) the Plaintiffs’ Joint Venture and Third Party Beneficiary claims (Counts IV and V) are contradicted by the terms of their Tour Operator Agreement with each other.

As set forth in further detail below, all of their arguments fail because 1) the Complaint properly and succinctly states a claim for negligence that sets forth the Plaintiffs’ entitlement to relief with sufficient factual allegations in support of the claim; 2) the Plaintiffs properly pled an alternative theory of negligence under apparent agency; and, 3) reviewing the Tour Operator Agreement would cause the Court to improperly consider documents beyond the four corners of the Complaint, and a resolution of the arguments raised involves issues of fact concerning the contracting parties’ intent.
Accordingly, Royal Caribbean and RDVT’s Motion to Dismiss should be denied its entirety.

2. Plaintiffs’ Complaint should not be dismissed for failure to state a claim because it properly and succinctly states claims for Negligence, Apparent Agency or Agency by Estoppel, Joint Venture and Third Party Beneficiary, setting forth the Plaintiffs’ entitlement to relief for each count and factual allegations in support of each claim.

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 Royal Caribbean and RDVT’s Motion to Dismiss for failure to state a claim should be denied.

A. Counts I and II: Plaintiffs’ negligence claims against both Royal Caribbean and RDVT are pled with sufficient facts to provide Royal Caribbean and RDVT notice of what the claims are and the grounds upon which they are based.

Counts I and II of Plaintiffs’ Complaint allege negligence against Royal Caribbean and RDVT.

In order to satisfy the burden of proof in a negligence action, a plaintiff must show that: 1) the defendant owed plaintiff a duty; 2) the defendant breached that duty; 3) the breach was the proximate cause of the plaintiff’s injury; and 4) the plaintiff suffered damages. See Hasenfus v. Secord, 962 F. 2d 1556, 1559-60 (11th Cir. 1992).

In support of their Motion to Dismiss these claims, Defendants state that the Plaintiffs’ allegations of breach are not plead with sufficient facts. Each count is addressed separately.

Count I: Negligence against Royal Caribbean

In its Motion to Dismiss, Royal Caribbean only raises an issue regarding the second element. Specifically, Royal Caribbean argues that Plaintiffs provided no factual basis to support a breach. Contrary to their argument, however, the Complaint alleges with sufficient factual matter the ways in which Royal Caribbean breached their duty to provide reasonable care. The Plaintiffs’ allegations clearly show that Plaintiffs allege the accident was caused due to, inter alia, an unsafe bus that was not adequately inspected and/or maintained; an incompetent driver; and/or a steep, narrow road that was unsafe for a bus. [D.E. 99, 35(a)-(y)]. These are all “risk creating” or “dangerous” conditions. The allegations therefore set forth enough factual matter (taken as true) to suggest that Royal Caribbean was negligent in accordance with Federal Rule of Civil Procedure 8(a) and the U.S. Supreme Court’s cases in Erickson and Twombly.

Thus, the allegations provide Royal Caribbean with notice of what the claim is about and, at the very least, are sufficient to draw a reasonable inference of negligence. See Propenko v. Royal Caribbean Cruise Ltd., 10-20068, 2010 U.S. Dist. Lexis 37618 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff “was caused to fall on water on deck of the ship at or near the swimming pool, causing her serious injury” was “sufficient to draw a reasonable inference of negligence” under Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). Moreover, the Plaintiffs are not required to plead evidence, nor are they required to plead every single fact upon which their claim is based. See Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. 2011) (“[plaintiff] is not required to plead evidence, nor even all the facts upon which her claim is based”).

Count II: Negligence against RDVT

RDVT also only raises an issue regarding the second element. Specifically, RDVT argues that Plaintiffs provided no factual basis to support a breach. Contrary to their argument, however, the Complaint alleges with sufficient factual matter the ways in which RDVT breached their duty to provide reasonable care, including, but not limited to, the following omissions:
a. Failure to adequately inspect and/or monitor the bus for the subject shore excursion so as to ensure that it was reasonably safe for cruise ship passengers; and/or
b. Failure to promulgate and/or enforce adequate policies and procedures to ensure that the transportation used for the subject shore excursion was reasonably safe for cruise ship passengers; and/or ….
c. Failure to promulgate and/or enforce adequate policies and procedures to ensure that the transportation used for the subject shore excursion was regularly and adequately inspected and/or maintained; and/or ….
d. Failure to provide reasonably safe transportation for Plaintiffs and other cruise passengers participating in the subject shore excursion; and/or ….
e. Failure to provide a competent driver for the transportation used for the subject shore excursion; and/or ….
f. Failure to adequately warn Plaintiffs of the dangers involved in driving a bus through such a steep and narrow road; and/or
g. Failure to ensure that the route taken to the shore excursion was reasonably safe considering the transportation used…

[D.E. 99, 43(a)-(x)].

The above allegations set forth with enough factual matter (taken as true) to suggest that RDVT was negligent in accordance with Federal Rule of Civil Procedure 8(a) and the Supreme Court’s cases in Erickson and Twombly. The allegations therefore provide RDVT with notice of what the claim is about and, at the very least, are sufficient to draw a reasonable inference of negligence. See Propenko v. Royal Caribbean Cruise Ltd., 10-20068, 2010 U.S. Dist. Lexis 37618 (S.D. Fla. Apr. 15, 2010) (allegation that plaintiff “was caused to fall on water on deck of the ship at or near the swimming pool, causing her serious injury” was “sufficient to draw a reasonable inference of negligence” under Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). Moreover, the Plaintiffs are not required to plead evidence, nor are they required to plead every single fact upon which their claim is based. See Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. 2011) (“[plaintiff] is not required to plead evidence, nor even all the facts upon which her claim is based”).

Accordingly, RDVT’s Motion to Dismiss Count II of Plaintiffs’ Complaint should be denied.

B. Count III: Plaintiffs’ Apparent Agency or Agency by Estoppel claim is properly pled as a negligence claim under an alternative agency theory of liability.

As to Plaintiffs’ Apparent Agency or Agency by Estoppel claim (Count III), Royal Caribbean and RDVT argue that there is no cause of action for “agency”. [D.E. 141, ¶9]. However, regardless of the manner in which the claim is titled, in reality, Count III is a negligence claim under the theory of apparent agency or agency by estoppel. [D.E. 99, ¶55]. 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, whereas Counts I and II are direct negligence counts against Royal Caribbean and RDVT, Count III is a negligence claim under the theory of apparent agency or agency by estoppel.

In fact, the case that Defendants rely on, 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 III as a negligence cause of action grounded on an agency theory of liability.[2]

Royal Caribbean and RDVT also argue that this claim fails for the same reasons that Plaintiffs’ negligence claims fail. [D.E. 141, 9]. Plaintiffs therefore refer to and incorporate by reference the arguments set forth above. For the same reasons discussed therein, Royal Caribbean and RDVT’s Motion to Dismiss Count III of the Plaintiffs’ Complaint should be denied.

C. Count IV: Plaintiffs’ Joint Venture claim should not be dismissed based on the terms of the Tour Operator Agreement because the Court’s scope is limited to the four corners of the Complaint, and Defendants’ argument involves questions of factual determinations that are improper at this juncture of the case.

Next, as to the Plaintiffs’ Joint Venture claim (Count IV), Defendants argue that the Plaintiffs’ allegations are contradicted by the terms of the Tour Operator Agreement between Royal Caribbean and RDVT.[3] This argument, however, fails for two reasons: 1) it would require this Court to improperly review documents beyond the four corners of the complaint; and, 2) it involves questions of fact as to the parties’ intent which are improper to determine at this stage.

1. Determining whether or not the Plaintiffs’ allegations are contradicted by the Tour Operator Agreement would require this Court to improperly review documents beyond the four corners of the complaint.

It is well settled that, at this stage, the scope of a court’s “review must be limited to the four corners of the complaint.” St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002)(citing Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)). In fact, pursuant to binding Eleventh Circuit precedent, the general rule is that a district court does “not consider anything beyond the face of the complaint… when analyzing a motion to dismiss.” Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (citation omitted). The only exception to this rule does not apply in this case.

Specifically, the Eleventh Circuit “recognizes an exception… in cases in which [1] a plaintiff refers to a document in its complaint, [2] the document is central to its claim, [3] its contents are not in dispute, and [4] the defendant attaches the document to its motion to dismiss.” Id. (emphasis added). The facts herein do not meet all four requirements, as necessary. See SIG, Inc. v. AT & T Digital Life, Inc., 971 F. Supp. 2d 1178, 1188 (S.D. Fla. 2013) (noting that “each of [the] requirements” must be met).

The second requirement is not met because the alleged agreement is not central to the Plaintiffs’ claims against Defendants. Plaintiffs are not relying on the agreement to prove their claims. Rather, the claims arise from the negligent conduct of the cruise line (Royal Caribbean) and the shore excursion providers (RDVT and Dutch Tours). Addressing the same arguments as Defendants raise herein, this Court refused to consider the cruise line’s agreement with the shore excursion operator, finding that: “[plaintiff] does not assert any breach of contract claims against [defendant]. Instead, she asserts claims based on tort theories. As such, the ticket contract is not essential or integral to her claims, rather, it is part of [defendant’s] defenses.” Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011). Thus, as in Gentry, because the Plaintiffs are not asserting any breach of contract claims, the alleged agreement between Royal Caribbean and RDVT is not essential or integral to the Plaintiffs’ claims.

Further, the third requirement is not met because the contents of the document are in dispute. “A document is considered ‘undisputed’ when the ‘authenticity of the document is not challenged.’” Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 696 (11th Cir. 2014) (citation omitted). Herein, Plaintiffs do not know whether this is the actual agreement in effect at the time of the subject incident because the contract has not been authenticated. Plaintiffs therefore dispute the authenticity of the document.

Lastly, the fourth requirement is not met either because the agreement was not even attached to Defendants’ Motion to Dismiss.

Furthermore, Royal Caribbean and RDVT’s reliance on Crenshaw v. Lister, 556 F. 3d 1283, 1292 (11th Cir. 2009) for the proposition that a district court may review exhibits, is misplaced. Pursuant to the explicit language of Crewshaw, the Court may review exhibits that contradict the allegations of the complaint only if such exhibits are attached to the complaint. See Crenshaw, 556 F. 3d at 1292 (“conflict between allegations in a pleading and exhibits thereto”; applied to officers’ police reports attached to the complaint) (emphasis added). Herein, the Plaintiffs did not attach any documents to their Complaint [D.E. 99] and, again, Defendants did not even attach it to their Motion to Dismiss [D.E. 141].

Accordingly, because Royal Caribbean and RDVT failed to demonstrate the applicability of the exception set forth in Stephens or the applicability of contradictory exhibits, this Honorable Court should not depart from the general rule that it does “not consider anything beyond the face of the complaint… when analyzing a motion to dismiss.” Stephens, 500 F.3d at 1284. Considering only the allegations in the Complaint, which are taken as true and construed in the light most favorable to the Plaintiffs, the Plaintiffs’ Complaint sets out a claim for joint venture sufficient to state a plausible entitlement to relief against both Royal Caribbean and RDVT. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Defendants’ grounds for dismissal are therefore without merit and improper at this juncture of the case.

2. Even if the Court reviews the Tour Operator Agreement, determining whether or not RDVT was an independent contractor or a joint venturer is a factual determination that is improper at this juncture.
Even if this Honorable Court reviews the Tour Operator Agreement to decide whether it contradicts Plaintiffs’ allegations (as Defendants argue), it will still find that a determination as to RDVT’s true role (i.e., independent contractor or joint venturer) is an issue of fact concerning the contractual parties’ intent.

In their motion, Royal Caribbean and RDVT point to the language in the contract which states that RDVT is considered an “Independent Contractor.” [D.E. 141, pp. 9-10]. However, the “ultimate determination” as to whether a joint venture exists between parties “turns upon evidence of intent of the parties.” Wachovia Bank, N.A. v. Tien, 534 F. Supp. 2d 1267, 1287 (S.D. Fla. 2007) (emphasis added). And pursuant to the Eleventh Circuit, “[t]he court must look at the contract as a whole, the parties, and the purpose of the agreement to best determine the intent of the parties in interpreting the agreement.” Slater v. Energy Servs. Grp. Int’l, Inc., 634 F.3d 1326, 1330 (11th Cir. 2011) (emphasis added).

Herein, even a cursory review of the contract as a whole demonstrates a clear intent of the parties to create a joint venture (notwithstanding the way they chose to define the relationship). (Without waiving the above argument that this Court’s review should be limited to the four corners of the Complaint, the Plaintiffs attach the Tour Operator Agreement as Exhibit 1.) For instance, Section 1 of the agreement provides that RDVT is responsible for operating/providing the shore excursion. Royal Caribbean, however, has “sole discretion” to determine whether a passenger is entitled to a full or partial reimbursement of the shore excursion ticket if such passenger is dissatisfied. Pursuant to Section 3, Royal Caribbean also has “sole discretion” to determine the price to charge passengers for RDVT’s excursion and is the “sole party” authorized to collect payments for RDVT’s excursion. Further, Section 6 requires RDVT to obtain approval from Royal Caribbean for any advertising, promotion, marketing, or publicity. Moreover, Section 11 requires RDVT to indemnify Royal Caribbean “from and against any and all losses, claims… legal fees, costs and expenses” arising from RDVT’s operations of the excursion.[4]

At the very least, the above contractual provisions create a question of fact for the jury to determine whether or not the parties intended to form a joint venture. See Misco-United Supply, Inc., v. The Petroleum Corporation et. al., 462 F.2d 75, 80 (5th Cir. 1972) (“Opposing inferences from contractual provisions as to the intentions of the parties regarding the creation of a joint venture will ordinarily give rise to a question of fact.”). Many courts – including binding precedent – agree that whether or not a group of persons constitute a joint venture is a question of fact to be resolved by the jury. See Rose v. M/V Gulf Stream Falcon, 186 F. 3d 1345 (11th Cir. 1999) (“[…] the district court’s finding with respect to the existence of (or lack thereof) a joint venture is a factual determination that is reviewed under the clearly erroneous standard”); USA Independence Mobilehome Sales, Inc., v. City of Lake City, 908 So.2d 1151, 1158 (Fla. 1st DCA 2005) (“The existence of a joint venture presents a question of fact.”); see also Navarro v. Espino, 316 So. 2d 646 (Fla. 3d DCA 1975) (same).

Further to this point, this Honorable Court (relying on the Eleventh Circuit) has previously held that the elements of joint could be inferred from the surrounding circumstances. See Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. 2011) (citing Fulcher’s Point Pride Seafood v. M/V “Theodora Maria”, 935 F.2d 208, 212–13 (11th Cir. 1991)).

Therefore, the Plaintiffs have presented sufficient facts – both in the contract as well as in their Complaint – to infer an intent between the parties such that the issue should be one for the jury to decide. Accordingly, Royal Caribbean and RDVT’s Motion to Dismiss Count IV of the Plaintiffs’ Complaint should be denied.

D. Count V: Plaintiffs’ Third Party Beneficiary claim should not be dismissed based on the terms of the Tour Operator Agreement because the Court’s scope is limited to the four corners of the Complaint, and Defendants’ argument involves questions of factual determinations that improper at this juncture of the case.

Similar to the Joint Venture claim, Royal Caribbean and RDVT move to dismiss Plaintiffs’ Third Party Beneficiary claim on grounds that Plaintiffs’ allegations are contradicted by the terms of the Tour Operator Agreement. Again, however, this argument fails for the same reasons: 1) it would require this Court to improperly review documents beyond the four corners of the complaint; and, 2) it involves questions of fact as to the parties’ intent which are improper to determine at this stage.

As to the first point, the Plaintiffs refer to and incorporate by reference the argument set forth above establishing that the Court’s review should be limited to the four corners of the Complaint. Even if the Court does review the agreement, however, it will again find that determining whether Royal Caribbean and RDVT intended to benefit the Plaintiffs (as passengers) is an improper factual determination concerning the parties’ intent.

Specifically, although Defendants attempt to simply point to the language of the contract, the intent of the parties is the key to determining whether a third party is recognized as an intended beneficiary (with rights to enforce the contract) as opposed to only an incidental beneficiary (with no enforceable rights under the contract).[5] Under Florida law, a third party is an intended beneficiary of a contract between two other parties only if a direct and primary object of the contracting parties was to confer a benefit on the third party. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005); see also Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F.3d 677, 680 (11th Cir. 1999) (“A party has a cause of action as a third-party beneficiary to a contract if the contracting parties express an intent primarily and directly to benefit that third party (or a class of persons to which that third party belongs).”). If the contracting parties had no such purpose in mind, then any benefit from the contract reaped by the third party is merely “incidental,” and the third party has no legally enforceable right in the subject matter of the contract. Bochese, 405 F. 3d at 982.

Thus, the test is whether the parties to the contract intended that a third person should benefit from the contract. Bochese, 405 F. 3d at 981-82; see also Marianna Lime Prods. Co. v. McKay, 109 Fla. 275, 147 So. 264, 265 (1933) (“[T]he test is[ ] not that the promisee is liable to the third person, or that there is some privity between them or that some consideration moved from the third person, but that the parties to the contract intended that a third person should be benefited by the contract.”).

To determine whether a contract was in fact intended for the benefit of a third person, the Eleventh Circuit stated:

The Florida Supreme Court has explained that “[t]he question whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.

Bochese, 405 F.3d at 982 (emphasis added); see also Progress Rail Services Corp. v. Hillsborough Area Reg’l Transit Auth., 804CV200T23EAJ, 2006 WL 314507 at *1 (M.D. Fla. Feb. 9, 2006) (“For the purpose of determining whether a third-party is an intended beneficiary to a contract, basic contract interpretation rules apply.”) (citing 28 Richard A. Lord Williston on Contracts § 70:226 (4th ed. 2005) (“Ascertaining whether the contracting parties intend to benefit a putative third-party beneficiary is a question of ordinary contract interpretation.”)).

Therefore, because the intent of the parties is the key to determining whether a third party is an intended beneficiary under the contract, it is premature to rule on this issue at a motion to dismiss stage. See BGW Design Limited, Inc., 2010 WL 5014298, *5 (S.D. Fla. 2010) (The [contractual] intent of the parties is a factual matter and therefore should not be resolved on a motion to dismiss); American Honda Motor Co., Inc., v. Motorcycle Information Network, Inc., 390 F. Supp. 2d 1170, 1176 (S.D. Fla. 2005) (“The intent of the parties is a factual matter that cannot be resolved on a motion to dismiss); see also Barnett v. Carnival Corp., 06-22521CIVOSULLIVAN, 2007 WL 1746900 (S.D. Fla. 2007) (“To determine the parties’ intent as the defendant suggests necessarily would require the Court to look at matters outside of the complaint. As such, the issue of intent is not appropriate for resolution on a motion to dismiss.”) (citing Westinghouse Electric Supply Co. v. Wesley Construction Co., 414 F.2d 1280, 1281-82 (5th Cir. 1969) (reversing the district court’s order dismissing a third party beneficiary claim)).

Herein, even if this Honorable Court reviews the Tour Operator Agreement, the Plaintiffs submit that the terms of the contract do in fact infer an intent that Royal Caribbean passengers (including the Plaintiffs) were intended beneficiaries and, as such, the issue should be left for the jury to decide. Specifically, under Section 1, RDVT is to satisfy the “highest standards in the industry” when providing the excursion. Royal Caribbean forbids RDVT from allocating its best tour guides, buses, hotel facilities, time slots, etc. to other cruise lines. Further, it is clear that the passengers’ satisfaction was of the utmost importance when drafting the contract based on the fact that, as mentioned above, Royal Caribbean maintains “sole discretion” to determine whether a passenger is entitled to a full or partial reimbursement of the shore excursion ticket if “any Passenger is dissatisfied”. The contract also requires RDVT to maintain insurance and specifies the amounts of coverage required, which is clearly for the benefit of passengers (like the Plaintiffs) who are the ones participating in the excursion.

Furthermore, the Complaint succinctly provides that “[t]he contract between the parties clearly manifested the intent of the contracting parties that the contract primarily and directly benefits the Plaintiff third party by requiring [RDVT] to exercise reasonable care in the operation of the subject excursion” and “requiring the Excursion Entities to maintain insurance”. [D.E. 99, ¶¶67-68].

Therefore, the Plaintiffs have presented sufficient facts – both in the contract as well as in their Complaint – to infer an intent between the parties such that the issue should be one for the jury to decide. Accordingly, RDVT’s Motion to Dismiss Count V of the Plaintiffs’ Complaint should be denied.

III. Motion for Leave to Amend

Should this Honorable Court grant Defendants’ motion or any portion thereof, Plaintiffs respectfully request leave to amend.

WHEREFORE, for the foregoing reasons, Plaintiffs respectfully request this Honorable Court enter an Order denying Royal Caribbean and RDVT’s Motion to Dismiss 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/ Jacqueline Garcell
MICHAEL A. WINKLEMAN
Florida Bar No. 36719
JACQUELINE GARCELL
Florida Bar No. 104358

 


[1] The Plaintiffs also sued the other shore excursion operator, DUTCH TOURS ENTERPRISES N.V. (“Dutch Tours”) under Rule B for Negligence (Count II), Joint Venture (Count IV), and Third Party Beneficiary (Count V). [D.E. 99]. In addition to the instant Motion to Dismiss for failure to state a claim, RDVT also moved to dismiss the Complaint on grounds of forum non conveniens [D.E. 142]. The Plaintiffs are in the process of responding to that motion; their response is presently due by July 29, 2014. [D.E. 145]. Dutch Tours has filed its Amended Answer to Plaintiffs’ Complaint. [D.E. 143].

[2] In introducing this argument in paragraph 5 of their motion, Royal Caribbean and RDVT include Plaintiffs’ Joint Venture claim. [D.E. 141, pp. 5-6] (“Plaintiffs’ Apparent Agency (Count III) and Joint Venture (Count IV) claims should be dismissed as these are theories of liability and not causes of action.”). In their memorandum of law, however, Defendants only direct the argument at Plaintiffs’ apparent agency claim. In an abundance of caution, Plaintiffs make clear that this argument also applies to their Joint Venture claim (i.e., it is plead as a negligence claim under the alternative theory of joint venture).

[3] The Defendants, in passing, make a reference to the “conclusory manner” in which Plaintiffs alleged “the elements necessary to create a joint venture.” [D.E. 141, 9]. Their motion, however, only focuses on the allegations being contradicted by the terms of the contract. Nevertheless, in an abundance of caution, Plaintiffs refer to the following paragraphs of their Complaint which alleges all elements to create a joint venture with sufficient factual allegations: 28, 55-66 [D.E. 99]. Furthermore, binding Eleventh Circuit precedent makes clear that the elements of a joint venture “cannot be applied mechanically” and that “[n]o one aspect of the relationship is decisive.” Fulcher’s Point Pride Seafood, Inc. v. M/V “Lady Mary,” 935 F.2d 208, 211 (11th Cir. 1991) (citing Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978)). Pursuant to this case, the factors are not a checklist, “[t]hey are only signposts, likely indicia, but not prerequisites.” Id. (emphasis added); see also Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011) (“failure to specifically allege that the parties intended to create a joint venture is not fatal so long as the other allegations provide enough factual material to make it plausible that the parties intended to create one”). Plaintiffs also refer to their previous response to Dutch Tours’ same argument in D.E. 25, pp. 11-14.

[4] The Plaintiffs’ Complaint alleges this arrangement between the parties (i.e., that RDVT operated the excursion, that Royal Caribbean determined the prices for the excursion, that Royal Caribbean collected payment from passengers, etc. [D.E. 99, ¶¶28, 55-66]).