Michael Armando Cerda Yepez v. Regent Seven Seas Cruises

Lipcon, Margulies, Alsina & Winkleman, P.A

July 11, 2011

Michael Armando Cerda Yepez v. Regent Seven Seas Cruises

Motion to Stay

After the Defendant in this case moved for dismissal, asserting that the Southern District of Florida did not have jurisdiction over it, the Plaintiff moved the court for leave to take jurisdictional discovery. The present motion asks the court to stay the ruling on the Defendant’s motion to dismiss until such time as the Plaintiff has had the opportunity to take discovery into the Defendant’s ties with this forum. In support of this motion Plaintiff cited numerous cases demonstrating that discovery into personal jurisdiction is warranted in scenarious such as this.

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 10-23920 CIV-KING/BANDSTRA
MICHAEL ARMANDO CERDA YEPEZ,
Plaintiff,

vs.

REGENT SEVEN SEAS CRUISES a/k/a
SEVEN SEAS CRUISES S. DE R.L., LLC, and
CLASSIC CRUISES HOLDINGS S. DE R.L., LLC, and
RADISSON SEVEN SEAS FRANCE, and
PRESTIGE CRUISE SERVICES LLC;
XYZ SHIP OWNER; V. SHIPS LEISURE INC.;
V. SHIPS LEISURE; V. SHIPS USA LLC; and,
XYZ EMPLOYER,
Defendants.
________________________________________/

PLAINTIFFS’ MOTION TO STAY RULING ON DEFENDANT V. SHIPS LEISURE, INC.’s MOTION TO DISMISS [D.E. 20], PENDING COMPLETION OF LIMITED JURISDICTIONAL DISCOVERY

COMES NOW, Plaintiff, MICHAEL ARMANDO CERDA YEPEZ, by and through undersigned counsel, and hereby moves to stay ruling on Defendant V. Ships Leisure, Inc. Motion to Dismiss [D.E. 20], pending completion of 120 days of limited jurisdictional discovery. As grounds thereof, Plaintiff alleges as follows:

I. Background.

This is an action brought on behalf of a Seafarer arising from injuries suffered while working for Defendant(s) Employer(s), aboard the vessel controlled and/or operated by Defendant(s) Ship-owners.

On June 22, 2011, Defendant V. Ships Leisure, Inc., filed a Motion to Dismiss for Lack of Personal Jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2).

In support of its Motion to Dismiss for lack of personal jurisdiction, V. Ships Leisure, Inc., alleges, among other things that: 1) it is not registered to do business in Florida or the United States; 2) it does not have any offices or agents in Florida or the United States; 3) its does not own or lease any property in Florida or the United States; 4) it does not maintain any addresses in Florida or the United States; 5) has not transacted business or committed any act in Florida or the United States that would subject it to jurisdiction. See [D.E. 20 -1]

Defendants V. Ships Leisure Inc.’s Motion to Dismiss for lack of personal jurisdiction, thus, contains detailed factual assertions regarding its contacts with Florida, which Plaintiff cannot meaningfully respond to without the benefit of limited jurisdictional discovery. Put simply, Plaintiff is wholly unable to respond to these arguments, without conducting limited discovery to ascertain Defendants V. Ships Leisure Inc.’s contacts with Florida. Plaintiff has reason to believe that jurisdictional discovery will yield information that will further aid the Plaintiff in fully responding to Defendants V. Ships Leisure, Inc.’s Motion to Dismiss.

To this point, 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). Plaintiff is entitled to elicit material through discovery before a claim may be dismissed for lack of jurisdiction. 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).

Previously, in similar cases, this Honorable Court has stayed all litigation, pending completion of limited jurisdictional discovery. See Bridgewater v. Carnival Corporation, Rhapsody Tours, et. al., CASE NO. 10-22241-CIV-KING/Bandstra [D.E. 28] (Hon. Judge King):

THIS CAUSE, comes before the Court on Plaintiff’s Motion to Stay Determination of Personal Jurisdiction Pending Jurisdictional Discovery (D.E. #21), as well as Motions to dismiss filed by Defendant Carnival Corporation (D.E. #14) on August 14, 2010 and Defendant Rapsody Charters & Cruises Limited (DE #17) on August 23, 2010. Defendant Rapsody Charters & Cruises Limited does not object to Plaintiff‟s Motion to Stay.

After consideration of the arguments put forth by the parties and for the following reasons , the Court finds that it is in the best interests of justice to stay the above matter pending jurisdictional discovery. Accordingly, after a careful review of the record and the Court being otherwise fully advised, it is ORDERED and ADJUDGED and DECREED that:

Plaintiff’s Motion to Stay Determination of Personal Jurisdiction Pending Jurisdictional discovery (DE #21) is GRANTED. The parties shall complete necessary jurisdictional discovery within 90 days, at which time appropriate motions may be filed.

Defendants‟ Motions to Dismiss (DE #14, 17) are therefore DENIED without prejudice to refilling after 90 days have passed.

Id. (Emphasis added). See also Wong v. Carnival Corporation, et. al., 11-21076-CIV-HUCK/BANDSTRA (Hon. Judge Huck) (S.D. Fla. 2011):

This matter is before the Court on Plaintiff William Wong’s Unopposed Motion to Stay the Case Pending Jurisdictional Discovery [D.E. 24] … Plaintiff’s Motion Requests 120 days, so that the parties may conduct jurisdictional discovery. The Court has considered the pleadings and is duly advised on the premises. Accordingly, it is ORDERED that Plaintiff’s Unopposed Motion to Stay the Case is GRANTED. With the exception of limited jurisdictional discovery, described hereafter, the case is STAYED. For 120 days from the date of the order, the parties may engage in discovery limited to issues appropriate to a personal jurisdiction determination. The Court delays ruling in Defendant’s Motions to Dismiss [D.E. 16, 22] until the completion of the jurisdictional discovery period. Unless otherwise ordered, Plaintiff shall respond to the pending Motions to Dismiss on or by Monday October 10, 2011.

Id. See also Olson v. Carnival Corporation, et. al., 11- 21061-CIV-COOKE/TURNOFF (Hon. Judge Cooke) (S.D. Fla. 2011):

THIS MATTER is before me on Plaintiff Harry Olson’s (“Olson”), as Personal Representative of the Estate of Carol Olson, Unopposed Motion to Stay the Case Pending Completion of Jurisdictional Discovery. (ECF No. 26)… On May 11, 2011, Reef Tours, Ltd., filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction. (ECF No. 14). In response, Olson argues that jurisdictional discovery may be helpful in ascertaining whether Reef Tours, Ltd. does indeed have the requisite contacts with Florida to assert jurisdiction. Having reviewed the pleadings and the relevant legal authorities, I hereby ORDER and ADJUDGE that Olson’s Unopposed Motion to Stay the Case Pending Completion of Jurisdictional Discovery (ECF No. 26), is GRANTED. This case is STAYED, with the exception of limited jurisdictional discovery. The Parties may engage in discovery limited to the issues appropriate to a personal jurisdiction determination for 120 days following the date of this Order. The Court defers ruling on Reef Tours, Ltd.’s Motion to Dismiss (ECF No. 14), until the completion of the jurisdictional period. Unless otherwise ordered, Olson shall respond to the

Like in the Bridgewater, Olson, and Wong matters above, here Plaintiff also seeks to stay ruling on Defendant’s Motion to Dismiss, pending completion of jurisdictional discovery.

WHEREFORE, Plaintiff, moves this Honorable Court to stay ruling on Defendant V. Ships Leisure, Inc.’s Motion to Dismiss [D.E. 20], pending completion of 120 days of limited jurisdictional discovery

LOCAL RULE 7.1A (3) CERTIFICATE OF GOOD FAITH
The undersigned counsel certifies that he has conferred with counsel for V. Ships Leisure, Inc., who objects to the relief being sought.