N.M., by and through his Wife and guardian, K.M., vs RESORT SPORTS LIMITED a/k/a RESORT SPORTS LTD.,

Lipcon, Margulies, Alsina & Winkleman, P.A

July 31, 2015

N.M., by and through his Wife and guardian, K.M., vs RESORT SPORTS LIMITED a/k/a RESORT SPORTS LTD.,

Summary

This is a response to a Motion to Dismiss filed by the Defendant in a case involving the personal injury claims of a Jones Act seaman, who suffered severe burns to 87% of the total surface of his body, internal inhalation burns, and burns to the corneas of his eyes when the boat that he was working on exploded.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

 

CASE NO. 15-CV-22707-UNGARO

 

N.M., by and through his

Wife and guardian, K.M.,

Plaintiff,

RESORT SPORTS LIMITED a/k/a

RESORT SPORTS LTD.,

Defendant.

_______________________________________/

 

PLAINTIFF’S PRELIMINARY RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND PLAINTIFF’S AGREED MOTION FOR DISCOVERY RELATED TO JURISDICTION AND FORUM[1]

COMES NOW, Plaintiff, N.M., by and through his wife and guardian, K.M., who, pursuant to this Court’s July 21, 2015 Order Requiring Response [D.E. 6] and July 27, 2015 Order [D.E. 13], files a Preliminary Response In Opposition to Defendant’s Motion to Dismiss and further moves this Court for entry of an Order providing for a period of discovery related to jurisdiction and forum prior to requiring Plaintiff’s final response to Defendant’s Motion to Dismiss [D.E. 1-4]. In opposition to Defendant’s Motion to Dismiss and in support of Plaintiff’s Motion for Discovery Related to Jurisdiction and Forum, Plaintiff submits the following Memorandum of Law

MEMORANDUM OF LAW

  1. Background and Procedure

The present action arises from a February 28, 2015 incident. N.M. in connection with his employment as a boat operator for Resort Sports, Ltd. in Grand Cayman was injured when the boat upon which he was working (and which was owned and operated by Resort Sports, Ltd.) exploded, causing N.M. to suffer severe burns to 87% of the total surface of his body and further suffer internal inhalation burns and burns to the corneas of his eyes. N.M.’s status as a seaman, who was injured while in the service of Resort Sports vessel, created a non-delegable duty upon his employer, Resort Sports, Ltd., to furnish him with prompt, proper, and adequate medical treatment in connection with its maintenance and cure obligation under the General Maritime Law. Due to the severity of N.M.’s injuries and the lack of appropriate medical care for such injuries available in the Caribbean, Resort Sports, Ltd. made arrangements for N.M. to be transferred via air ambulance to the burn unit at Kendall Regional Medical Center in Miami, where he has undergone extensive medical care, surgeries, and treatment since March 1, 2015; generating a hospital bill exceeding Five Million Dollars, which Resort Sports, Ltd. has ignored – causing the hospital to file a lien for its medical expenses. Despite the odds against him, N.M. has survived the countless surgeries and procedures and is recovering – although he requires continuous medical care, including dialysis to continue to live. In addition, Resort Sports has deprived N.M. of his wages since the incident, which he needs to sustain his family in Bulgaria.[2]

Resort Sports, Ltd. is a company that provides shore excursion services to the mostly Miami-based cruise lines during Caribbean cruises which stop at Grand Cayman. Resort Sports’ entire business is spent almost exclusively servicing: Carnival Cruise Lines, Royal Caribbean Cruises, Celebrity Cruises, and Norwegian Cruise Lines – all based in Miami, Florida. N.M.’s job, in this regard, was to take passengers from these cruises on snorkeling and dive excursions and boat rides off the coast of Grand Cayman. It was in connection with one such excursion that the subject incident occurred.

Accordingly, on May 26, 2015, N.M. filed a three-count Complaint in the Miami-Dade Circuit Court against Resort Sports, alleging (1) Jones Act Negligence, (2) Unseaworthiness, and (3) Maintenance and Cure. All counts arise from the same incident and Resort Sports’ subsequent failure to pay Kendall Regional Medical Center’s bill. N.M. served his Complaint on Resort Sports pursuant to Florida Statute 48.181, by serving the Florida Secretary of State, which accepted service on June 3, 2015. That notice of service, a copy of the acceptance, and a copy of the Complaint were then mailed to Resort Sports on June 9, 2015. After learning that Resort Sports failed to pick-up the mailed Summons and Complaint from the Cayman post office, N.M. faxed the Summons and Complaint to Resort Sports on June 30, 2015.

On July 20, 2015, Resort Sports filed a Notice of Removal [D.E. 1] and a Motion to Dismiss [D.E. 1-4]. This Honorable Court entered an Order on July 21, 2015 requiring Plaintiff to file a response to the Motion to Dismiss by August 3, 2015 [D.E. 6]. The Plaintiff filed a Motion for Remand and for Attorneys’ Fees and Costs [D.E. 9] and Plaintiff’s Motion to Stay Consideration of Defendant’s Motion to Dismiss [D.E. 10] on July 24, 2015. This Court entered an Order on July 27, 2015 denying Plaintiff’s Motion to Stay Consideration of Defendant’s Motion to Dismiss [D.E. 13].

II. This Court should not consider the merits of Defendant’s Motion to Dismiss prior to ruling on Plaintiff’s Motion to Remand

Prior to ruling on Plaintiff’s Motion to Remand, this Court should not consider Defendant’s Motion to Dismiss. On July 24, 2015, Plaintiff filed his Motion to Remand [D.E. 9] which explains that this matter was improperly removed by Resort Sports because: (1) Plaintiff is a Jones Act Seaman and, thus, his claims may not be removed; and (2) regardless of whether Plaintiff is a Jones Act Seaman, Plaintiff’s claims are general maritime law claims which may not be removed to federal court under federal question jurisdiction. See, i.e. University of South Alabama v. American Tobacco Co., 168 F.3d 405 (11th Cir. 1999) (emphasis added):

A presumption in favor of remand is necessary because if a federal court reaches the merits of a pending motion in a removed case where subject matter jurisdiction may be lacking it deprives a state court of its right under the Constitution to resolve controversies in its own courts. For example, in Marathon Oil, the district court dismissed an action on removal from state court for want of personal jurisdiction before reaching the issue of subject matter jurisdiction. On rehearing en banc, the Fifth Circuit held that the district court erred in failing to first examine its subject matter jurisdiction and, because jurisdiction was in fact lacking, in failing to remand to state court. The court reasoned that such an approach ‘accords the proper respect to the state courts, as the residual courts of general jurisdiction, to make the personal jurisdiction inquiry when [federal court] lack either constitutional or statutory subject-matter jurisdiction over a removed case.

III. Plaintiff’s Preliminary Response to Defendant’s Motion to Dismiss

Resort Sports’ Motion to Dismiss is two and a half pages comprised of six paragraphs which summarily argue that Plaintiff’s Complaint should be dismissed: (1) for lack of personal jurisdiction; (2) for lack of subject matter jurisdiction; (3) for improper venue and forum non conveniens; (4) for insufficiency of process; (5) for insufficiency of service of process; and (6) for failure to state a claim. For the following reasons, Defendant’s Motion to Dismiss should be denied and/or Plaintiff should be afforded jurisdictional discovery to further address the issue raised.

A. The Complaint should not be dismissed for lack of personal jurisdiction.

A challenge to personal jurisdiction presents a two-step inquiry for the Court. A federal court may exercise personal jurisdiction over a non-resident defendant only if two requirements are satisfied: (1) the state long-arm statute; and (2) the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Posner, et al. v. Essex Ins. Co., Ltd., 178 F. 3d 1209, 1214 (11th Cir. 1999); Sculptchair, Inc. v. Century Arts, Ltd., 94 F. 3d 623, 626 (11th Cir. 1996). Thus, if the applicable statute governing personal jurisdiction is satisfied, the Court must then determine whether sufficient “minimum contacts” exist to satisfy the due process requirements of the Fourteenth Amendment, including “traditional notions of fair play and substantial justice.” Future Technology Today, Inc. v. OSF Healthcare Sys., 218 F. 3d 1247, 1249 (11th Cir. 2000). Notably, on the issue of jurisdiction, “the Court must construe all reasonable evidentiary conflicts in favor of Plaintiffs.” Pownall v. Cunard Line Limited, 06-cv-22836-CMA (S.D. Fla. 2007) (Exhibit “2”), pg. 8 (emphasis added), citing Meir ex rel. Meir v. Sun Intern. Hotels, Ltd., 288 F. 3d 1264, 1275 (11th Cir. 2002).

The applicable long-arm statute here is governed by Florida law. Sculptchair, 94 F. 3d at 631. The “General Jurisdiction” section of Florida’s long-arm statute provides that an individual engaged in the following acts will be subject to the jurisdiction of the courts of the state of Florida:

A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

Fla. Stat. §48.193(2).

Florida courts have interpreted the “substantial and not isolated activity” requirement of section 48.193(2) to mean “‘continuous and systematic general business contact’ with Florida.” Woods v. Nova Companies Belize, Ltd., 739 So. 2d 617, 620 (Fla. Dist. Ct. App. 1999).  Thus, Resort Sports’ activities must be considered collectively, and not in isolation, and must ‘“show a general course of business activity in the State for pecuniary benefit.’” Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F. 3d 1357, 1361 (11th Cir. 2006) (quotations omitted). Under Florida law, these contacts are commonly assessed over a period of years prior (and even after) the filing of the plaintiff’s complaint. Woods, 739 So. 2d 617, 621 (Fla. Dist. Ct. App. 1999).

If Resort Sports’ contacts with the state of Florida meet this standard, the constitutional requirements of minimum contacts are also deemed to be satisfied. Id; see also Pownall v. Cunard Line Limited Co., and Fun Water Tours, Inc., 06-22836-CMA (S.D. Fla. 2007) (“Florida courts have recognized that this language of the Florida long-arm statute is the functional equivalent of the continuous and systematic contact required under the Fourteen Amendment.

While Resort Sports may be a Caymanian entity, its business is almost exclusively to provide shore excursion services to the cruise lines, most of which are based in the United States and, particularly, in Miami Florida. These cruise lines include: Carnival Cruise Lines, Royal Caribbean Cruises, Celebrity Cruises, and Norwegian Cruise Lines. See Affidavit of N.M. [D.E. 9-1]. Hence, Resort Sports’ business in inextricably connected to Florida and the United States. See, for example, Resort Sports’ contract with Miami-based Carnival Corporation [D.E. 9-2] wherein (at paragraph 14(c)) Resort Sports consents to the personal jurisdiction over it in Miami, Florida; and (at paragraph 14(e)) agrees that its duties pursuant to its agreement with Carnival “shall be governed and construed in accordance with the General Maritime Law of the United States and/or the Laws of the State of Florida, U.S.A.”

In Meyer v. Carnival Corporation, et al., 938 F.Supp.2d 1251 (S.D. Fla. 2013), the court considered the identical activities of a Caribbean based business which provided shore excursion services to the cruise lines, many of which were based in Miami, Florida and found that the shore excursion company’s business involvement with the cruise lines amounted to substantial and not isolated activity with Florida under Fla. Stat. §48.193(2), the General Jurisdiction section of Florida’s long-arm statute. In so holding, the court found:

. . . the only way [the Caribbean shore excursion company] can attract [cruise passengers] to its shore excursions is by reaching out to Florida-based cruise lines and establishing partnerships with them. This is because Florida has been called ‘the Cruise Capital of the World,’ and approximately three-fourths of the cruise line market is controlled by two carriers, Carnival and Royal Caribbean Cruise Lines, Ltd. Both of these companies maintain their principal place of business in Miami, Florida.

Excursions on cruise ships are a major source of revenue for cruise lines, and in 2009, more passengers on cruise lines purchased shore excursions than any other goods or services. For Defendant Carnival, for example, shore excursions are a great source of profit, and as Carnival’s representative conceded, its annual shore excursion program could exceed one hundred million dollars.

. . . . One way that Carnival helps promote [the Caribbean shore excursion company’s] business is by recommending to guests that they not engage in excursions, tours, or activities outside of those specifically marketed and sold by Carnival, such as [the Caribbean shore excursion company’s tour]. Carnival also helps promote [the Caribbean shore excursion company’s] business by advertising [the company’s] excursions on its website, on board through a presentation made by the cruise director, through fliers aboard the vessel, and televised in the guests staterooms.

In order to sell tickets on its excursions, [the Caribbean shore excursion company] gives Defendant Carnival authority, by agreement, to market and sell tickets to its passengers. On the page of its website detailing said excursions, Carnival states ‘Carnival acts only as an agent for the independent tour operators supplying excursions or services.’

. . . . [The Caribbean shore excursion company] has also maintained a relationship with other Florida-based cruise lines. First, [the Company] has maintained a relationship with the other leading cruise line in Florida, Royal Caribbean, since 2001. Since 2005, the two have maintained formal written contracts by which [the Company] would provide shore excursions and tours to Royal Caribbean guests exclusively in Saint Lucia. As part of this agreement, Royal Caribbean marketed and sold tickets for [the Company’s] shore excursions on its website, over the phone, and aboard the Royal Caribbean vessels. Until two years ago, [the Company] had a business relationship with Florida-based Norwegian Cruise Lines, and has had an ongoing excursion agreement with Prestige Cruise Lines in Miami for the past six years.

. . . . First and foremost, the record evidence shows that [the Caribbean shore excursion company] has successfully procured, established, and maintained relationships with Florida-based entities such that those entities are the means by which [the Company] conducts its business activity in Florida. The reason why [the Company] must work with Florida companies, is of course, because Florida is the ‘Cruise Capital of the World.’ And indeed, like the foreign defendant in Woods, ninety-five percent of the participants in [the Company’s] excursions have come from the cruise lines.

Meyer at 1259 – 1261. As such, Resort Sports business of providing shore excursion services to the Miami-based cruise lines, subjects it to personal jurisdiction under the General Jurisdiction section of Florida’s long arm statute.

Furthermore, in connection with the subject incident, Resort Sports contracted with Kendall Regional Medical Center in Miami, Florida to have Mr. N.M. transported and treated at the Miami hospital’s burn unit.[3] See Affidavit of Kendall Regional Medical Center [D.E. 9-3]. And, in so doing, Resort Sports misrepresented the severity of Mr. N.M.’s injuries to the Miami hospital and then failed to pay the Miami hospital’s bill of over $5,000,000.00 incurred for the life saving care and treatment rendered to Mr. N.M. since March 1, 2015. Id. This has caused damages within Miami, Florida – namely, the Miami hospital had to file a hospital claim of lien against Mr. N.M. in Miami-Dade County, Florida. See Hospital Claim of Lien [D.E. 9-4].

Florida’s long-arm statute provides an alternative basis for personal jurisdiction of a non-resident under Fla. Stat. §48.193(1)(a)(2) which provides:

(1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

  1. Committing a tortious act within this state.

Resort Sports’ misrepresentation of the severity of Mr. N.M.’s injuries to Kendall Regional Medical Center for the purpose of detrimentally inducing the Miami hospital to accept Mr. N.M. (with Resort Sports’ comparatively small advance payment towards Mr. N.M.’s considerable medical care and treatment) amounts to Resort Sports’ commission of a tort within Florida and, thus, provides for an independent basis for personal jurisdiction over Resort Sports.

Additionally, Fla. Stat. §48.193(1)(a)(7) provides:

(1)(a) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

  1. Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

Resort Sports’ breach of its contract with Kendall Regional Medical Center, has left the Miami hospital footing the more than $5,000,000 bill for the medical care and treatment of Mr. N.M., for which Resort Sports’ is responsible. This amounts to an independent basis of personal jurisdiction against Resort Sports.

Further, Fla. Stat. §48.193(1)(a)(6) provides:

(1)(a) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

  1. Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury . . . (a) The defendant was engaged in solicitation or service activities within this state.

Here, Fla. Stat. §48.193(1)(a)(6), provides another independent basis for personal jurisdiction over Resort Sports because Resort Sports failure to pay the more than $5,000,000 hospital bill to Kendall Regional Medical Center caused the Miami hospital to file a hospital claim of lien against Mr. N.M. in Miami-Dade County, Florida, while Mr. N.M. was “a person within this state.” And, as previously discussed, this was at a time when Resort Sports’ was extensively engaged in the solicitation of cruise ship passengers within this state for its shore excursion business, through the Miami-based cruise lines.

Lastly, Fla. Stat. §48.193(1)(a)(4) provides:

(1)(a) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

  1. Contracting to insure a person, property, or risk located within this state at the time of contracting.

As Resort Sports’ contract with Miami-based, Carnival Corporation [D.E. 9-2] reveals at paragraphs 9 and 10, Resort Sports is (1) required to procure insurance which covers Carnival for its shore excursion activities and (2) Resort Sports is required to indemnify Carnival. Pursuant to Fla. Stat. §48.193(1)(a)(4), Resort Sports has agreed to insure a person[4] 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 Fla. Stat. §48.193(1)(a)(4).

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 hauled 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.”

Similarly to Athanassiadis, here Resort Sports has entered into (at least one such) agreement with a Florida company. Like Athanassiadis, Resort Sports also agreed to indemnify the Florida company. As such, Fla. Stat. §48.193(1)(a)(4) also provides an independent basis of personal jurisdiction over Resort Sports.

For the foregoing (preliminary) reasons, this Court should deny Resort Sports’ Motion to Dismiss for lack of personal jurisdiction.

B. The Complaint should not be dismissed for lack of subject matter jurisdiction.

Notwithstanding the arguments raised in Plaintiff’s Motion to Remand, Resort Sports’ argument that “among other things, the Court lacks [subject matter] jurisdiction, especially under the Jones Act, which is inapplicable as to a foreign seaman, employed by a foreign company, on a foreign vessel, injured in foreign waters,” should be denied. In fact, Resort Sports argument describes the scenario of nearly every cruise line worker’s Jones Act negligence case[5], which are readily litigated within the United States District Court for the Southern District of Florida daily.

In reality, there is nothing in the Jones Act which requires a seaman be working or injured while in the United States. The Supreme Court in Lauritzen v. Larsen, 345 US 571 (1953), noted that the Jones Act, by its express terms, applies to “any seaman,” and was written in language so broad that it applies to any seaman on any vessel of any nation at any location on the globe. Indeed, the court in Moncada v. Lemuria Shipping Corp., 491 F. 2d 470 (2d Cir. 1974) pointed out that the literal terms of the Jones Act do not require that either the parties nor the injury have any connection to the United States. Stating that one of the purposes of the Jones Act is to afford indirect protection to American passengers whose well-being is entrusted to crew members, the court in Mattes v. National Hellenic American Line, S.A., 427 F. Supp. 619 (S.D. N.Y. 1977), said that the United States has an interest in extending its law to protect a vessel’s foreign crewmembers from injuries which might in turn, affect the safety of American citizens. Again, Resort Sports’ business is to provide shore excursion services to U.S. and Miami-based cruise lines and, thus, its business is connected to Florida and the United States.

Furthermore, as Resort Sports correctly (in part) pointed out in its Notice of Removal [D.E. 1], “[This] action is nevertheless an action under admiralty and maritime law . . .” Pursuant to 28 U.S.C. §1333, “The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. . .” Thus, this Court has original subject matter jurisdiction over the instant matter and Defendant’s Motion to Dismiss for lack of subject matter jurisdiction should be denied.

C. The Complaint should not be dismissed for improper venue and forum non conveniens.

For the sake of brevity, the Plaintiff references his arguments in opposition to Resort Sports’ claim of lack of personal jurisdiction as equally applicable to Resort Sports’ arguments regarding venue and forum. In short, Resort Sports business in entwined with the U.S. and Miami-based cruise lines. Additionally, Resort Sports has previously agreed to the jurisdiction and forum of the United States District Court for the Southern District of Florida within its contract with Carnival Corporation [D.E. 9-2]; and had an expectation of litigating in this venue, making its arguments of forum non conveniens disingenuous. Further, Resort Sports had caused Mr. N.M. to be transported to Kendall Regional Medical Center in Miami, Florida where Mr. N.M. received his medical care and treatment, at a cost of over $5,000,000 – still unpaid to the Miami hospital. Mr. N.M. had virtually no medical care in Grand Cayman. All of the medical witnesses are located in Miami, Florida. There are at least 58 different doctors at Kendall Regional Medical Center[6] who have participated in the medical care and treatment of Mr. N.M., all of whom are located in Florida. Thus, the vast majority of witnesses in this case are located here. Accordingly, Defendant’s Motion to Dismiss for improper venue and forum non conveniens should be denied.

D. The Complaint should not be dismissed for insufficiency of process or insufficiency of service.

As this matter was filed in the Miami-Dade County Circuit Court, that court issued the summons. Service of process was accomplished in accordance with Fla. Stat. §48.181, which provides the process to serve process on a foreign corporation which engages in business within Florida. In short, Resort Sports business activities in Florida (which are explained above and incorporated by reference here), “constitutes an appointment by [Resort Sports] of the Secretary of State of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of [Resort Sports] that the process against them which is so served is of the same validity as if served personally on [Resort Sports].” It is undisputed that the subject incident arose out of Resort Sports’ operation of their business. See Affidavit of N.M. [D.E. 9-1], paragraph 10, which states, “[t]he incident was in connection with a cruise line excursion scheduled for that day.” See also Affidavit of Michael Alberga [D.E. 1-4 Ex. A], paragraph 15, which states “[a]t the time of the incident . . . Mr. N.M. . . . was serving as captain of the GALLEON DIVER.”

Specifically, N.M. served his Complaint on Resort Sports in compliance with Fla. Stat. §48.181, by serving the Florida Secretary of State, which accepted service on June 3, 2015. That notice of service, a copy of the acceptance, and a copy of the Complaint were then mailed to Resort Sports on June 9, 2015. After learning that Resort Sports failed to pick-up the mailed Summons and Complaint from the Cayman post office, N.M. faxed the Summons and Complaint to Resort Sports on June 30, 2015. That copy of the Summons and Complaint was admittedly received by Resort Sports on June 30, 2015. See Notice of Removal [D.E. 1, paragraph 2].

Florida law, particularly §48.181, permits the Florida Secretary of State to accept service of process on behalf of nonresidents who engage in or carry a business or business venture in the state. See Fla. Stat. §48.181. See also Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So. 2d 1001, 1003 (Fla. 5th DCA 1994); Cantley v. Ducharme, 2010 WL 2382912 (S.D. Fla. 2010) (“Under the Florida substitute service statute, §48.181, any resident of a foreign country operat[ing], conduct[ing], engag[ing] in, or carry[ing] on a business or business venture in Florida is deemed to appoint Florida’s Secretary of State to accept service of process on its behalf”). [7] The Florida Supreme Court has held that engaging in a single act for profit can amount to a business venture for purposes of the statute. Labbee v. Harrington, 913 So. 2d 679 (Fla. 3d DCA 2005) (citing Wm. E. Strasser Constr. Linn, 97 So. 2d 458, 459 (Fla. 1957)). See also Poston v. American President Lines, Ltd., 452 F. Supp. 568 (S.D. Fla. 1978):

The intent of the Florida legislature in enacting Florida Statute 48.181 (was) that any individual or corporation who has exercised the privilege of practicing a profession or otherwise dealing in goods, services or property, whether in a professional or nonprofessional capacity within the State in anticipation of economic gain, be regarded as operating a business or business venture for purposes of service of process under Florida statute 48.181

Furthermore, Plaintiff’s research suggests that the Affidavit of Michael Alberga [D.E. 1-4, Ex. A] contains incorrect information within paragraphs 10 and 11 regarding the accepted method of service of process on a Caymanian company. According to Plaintiff’s research, in the Cayman Islands, “[p]ersonal service on a company is effected by leaving the writ at, or sending it by registered post to, the registered office of the company.” See International Commercial Dispute Resolution, https://uk.practicallaw.com/books/9781847661340/chapter05, 5.09. See also, U.S. Government Accountability Office Review of Cayman Islands and U.S. Laws Applicable to U.S. Persons’ Financial Activity in the Cayman Islands, GAO-08-1028SP, https://www.gao.gov/assets/210/203399.pdf (“Proper service by another party, such as a creditor, of legal documents on a [Caymanian] corporation . . . can be accomplished by delivery of the documents to its registered address.”) This is exactly what Plaintiff did following acceptance of service by the Florida Secretary of State on June 3, 2015.

Ultimately, Plaintiff’s service complies with due process requirements. Long-standing jurisprudence, particularly United States Supreme Court decisions following Mullane v. Central Bank & Trust Co., 339 U.S. 306 (1950), establish that although the U.S. Constitution does not require any particular means of service of process, the method selected must be reasonably calculated to provide notice and an opportunity to respond. See Mullane, 339 U.S. at 314 (emphasis added):

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to appraise interested parties of the pendency of the action and afford them an opportunity to be heard to present their objections. The reasonableness and hence the constitutional validity of any chosen method may be defended on the grounds that it is in itself reasonably to inform those affected.

In proper circumstances, this broad constitutional principle unshackles the federal courts from anachronistic methods of service. Rio Props. v. Rio Int’l Interlink, 284 F. 3d 1007 (9th Cir. 2002).

Herein, Plaintiff’s service complies with due process requirements. First, Plaintiff’s service was reasonably calculated to provide notice: N.M. served his Complaint on Resort Sports in compliance with Fla. Stat. §48.181, by serving the Florida Secretary of State, which accepted service on June 3, 2015. That notice of service, a copy of the acceptance, and a copy of the Complaint were then mailed to Resort Sports on June 9, 2015. After learning that Resort Sports failed to pick-up the mailed Summons and Complaint from the Cayman post office, N.M. faxed the Summons and Complaint to Resort Sports on June 30, 2015. That copy of the Summons and Complaint was admittedly received by Resort Sports on June 30, 2015. See Notice of Removal [D.E. 1, paragraph 2]. The fact that Resort Sports hired lawyers to filed a Notice of Removal [D.E. 1] and a Motion to Dismiss [D.E. 1-4]; is clear evidence that Resort Sports has notice of the action pending against it and has been therefore been given an opportunity to be heard and present objections.

As such, Defendant’s Motion to Dismiss for insufficiency of process and insufficiency of service of process should be denied.

E. The Complaint should not be dismissed for failure to state a claim.

Defendant’s motion makes the conclusory statement that “[t]he Complaint should be dismissed in its entirety for the failure to state a valid cause of action based on the above grounds.” It then references the Affidavit of Michael Alberga [D.E. 1, Ex. A] by stating, “[s]ee attached Exhibit A attached hereto and by reference made a part hereof.” However, there is nothing within Defendant’s motion or Michael Alberga’s affidavit which specifically references any deficiency with the pleading of Plaintiff’s claims other than to generally argue that Defendant believes that the Jones Act is inapplicable to the Plaintiff. To that, Plaintiff relies upon his arguments already made within this Response and the sufficiency of the counts pled within Plaintiff’s Complaint.

Rule 12 (b)(6) of the Federal Rules of Civil Procedure provides that dismissal of a claim is appropriate “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994).   On a motion to dismiss, the Court must accept as true all facts alleged and draw all inferences therefrom in the light most favorable to the non-moving party. See Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994).   A complaint should not be dismissed for failure to state a cause of action unless it appears beyond a doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A trial court, in ruling on a motion to dismiss, is required to view that complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974). Plaintiff’s claims are properly pled; and Defendant has failed to reference a single pleading deficiency within its Motion to Dismiss.

Accordingly, Defendant’s Motion to Dismiss Plaintiff’s Complaint for failure to state a claim should be dismissed.

F. Plaintiff’s Motion for Discovery Related to Jurisdiction and Forum

The Plaintiff has responded to Defendant’s Motion to Dismiss, particularly, with regard to personal jurisdiction and forum non conveniens, without the benefit of any discovery. Plaintiff respecfully requests that should this Court deem any of the Plaintiff’s responses herein insufficient to support a denial of Defendant’s Motion to Dismiss regarding personal jurisdiction and/or forum non conveniens, that Plaintiff be permitted to conduct discovery related to jurisdiction and forum for a reasonable period of time (Plaintiff proposes 90 days) and thereafter submit a final response to Defendant’s Motion to Dismiss.

In order to contest personal jurisdiction, Defendant filed the affidavit of Michael Alberga. In the affidavit Mr. Alberga declares, in part:

  1. Resort Sports, Ltd. does not own or have an interest in any companies in Florida
  2. Resort Sports, Ltd. does not regularly conduct business in Florida
  3. Resort Sports, Ltd. does not maintain an office in Florida
  1. Resort Sports, Ltd. does not maintain any agents for business in Florida.

Plaintiff cannot respond to these jurisdictional allegations beyond what it has done thus far or test the veracity of Mr. Alberga’s statements, without the benefit of jurisdictional discovery. In its Motion, Defendant seems to be inviting this Court and Plaintiff to simply take Mr. Alberga’s word for granted that “Resort Sports, Ltd. does not regularly conduct business in Florida.” However, if that were the case, then any Defendant who regularly solicits and conducts business in Florida, could simply withhold information of its real contacts with the forum, and file an affidavit with boilerplate statements.

As is evidenced by N.M.’s Affidavit [D.E. 9-1] and Resort Sports contract with Miami-based Carnival Corporation [D.E. 9-2], Mr. Alberga’s affidavit is inaccurate. Precisely for this reason, under binding Eleventh Circuit precedent, Plaintiff has the right to test the veracity of the statements in Defendant’s affidavit, by conducting jurisdictional discovery.

Furthermore, Plaintiff is attempting to locate the Form I-134 which was presumably completed by Resort Sports and submitted to U.S. Citizenship and Immigration Services as is required when a foreign national is being brought into the United States for a temporary period of time due to a compelling emergency. It is believed that within Form I-134, Resort Sports has affirmed to the U.S. Government, for the purpose of assuring the U.S. Government, that Mr. N.M. would not become a public charge in the United States. The Plaintiff is in the process of conducting a search for this document and requires the requested discovery period to allow for additional time to locate it.

It is well accepted that a right to jurisdictional discovery exists. See, e.g., Eaton v. Dorchester Dev., Inc., 692 F. 2d 727, 729–31 (11th Cir. 1982). Under Federal Rule 26(b)(1), “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense […].” 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. v. Sanders, 437 U.S. 340, 351 n.13 (1978).

Specifically, “[i]f the jurisdictional question is genuinely in dispute and the court cannot resolve the issue in the early stages of the litigation, … then discovery will certainly be useful and may be essential to the revelation of facts necessary to decide the issue.” Eaton, at 692 F. 2d at 730 n. 7 (11th Cir. 1982); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367

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)) (emphasis added).

Furthermore, a “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).[8] See also Exhibit Icons, LLC, et. al., v. XP Companies, LLC, et. al., 2008 WL 616104 (S.D. Fla. 2008):

Eleventh Circuit precedent indicates that jurisdictional discovery is highly favored before resolving Federal Rule of Civil Procedure 12(b)(2) motions to dismiss for want of personal jurisdiction. See Eaton, 692 F. 2d at 731; see also Chudasma v. Mazda Motor Company, 123 F. 3d 1353, 1367 (11th Cir. 1997) (a motion to dismiss for lack of personal jurisdiction may require limited discovery so that a meaningful ruling can be made); Majd-Pour v. Georgiana Community Hosp., Inc., 724 F. 2d 901, 903 (11th Cir. 1984) (“[a]lthough the plaintiff bears the burden of proving the court’s jurisdiction, the plaintiff should be given the opportunity to discover facts that would support his allegations of jurisdiction”).

Id., at 2.

Previously, in similar cases, this Honorable Court has stayed all litigation, including resolution of all pending motions, pending completion of limited jurisdictional discovery. See Mainker v. Classic Cruises Holdings S. De R.L., LLC et al., CASE NO. 11-21400 [D.E. 59] (S.D. Fla. 2011) (Jordan, J.):

Vasant Mainker’s motion to stay the case pending jurisdictional discovery [D.E. 46] is GRANTED IN PART. Mr. Mainker may undertake limited jurisdiction discovery for 90 days, until December 16, 2011. By January 10, 2012, Mr. Mainker shall respond to the pending motions to dismiss. This case is STAYED until the end of jurisdictional discovery.

On June 13, 2011, V. Ships Inc. and V. Ships India Pvt. Ltd. moved to dismiss Mr. Mainker’s complaint for lack of personal jurisdiction. In response, Mr. Mainker requests 120 days of jurisdictional discovery and, with support of some but not all the defendants, seeks to stay this case pending that limited-discovery period.

The Eleventh Circuit has recognized that “[r]esolution of a pretrial motion that turns on findings of fact—for example, a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2)—may require some limited discovery before a meaningful ruling can be made.” Chudasama v. Mazda Motor Corp., 123 F. 3d 1353, 1367 (11th Cir. 1997). See also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978) (“[W]here issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues.”).

In their motion to dismiss, V. Ships Inc. and V. Ships India move to dismiss based on affidavits they provide, which, they argue, show a lack of personal jurisdiction. Understandably, Mr. Mainker wants discovery to refute this evidence. Since Mr. Mainker could not refute the evidence introduced by V. Ships Inc. or V. Ships India without discovery, I use my discretion to allow the jurisdictional discovery.

Seeking to prevent jurisdictional discovery, V. Ships Inc. and V. Ships India argue that the complaint’s allegations do not make a prima facie showing that I have personal jurisdiction over them. But the complaint alleges that V. Ships Inc. and V. Ships India have their principal places of business in Miami, Florida [D.E. 1 ¶ 7]. If true, this allegation would establish personal jurisdiction.

Hence, this argument fails. As a result, Mr. Mainker may undertake discovery limited to whether personal jurisdiction over V. Ships Inc. and V. Ships India exists.

Wherefore, Plaintiff respectfully requests this Court enter an Order providing for a 90 day period of time for Plaintiff to conduct discovery related to jurisdiction and forum and, thereafter, provide a final response to Defendant’s Motion to Dismiss.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(3)

Undersigned counsel hereby certifies that he has conferred in good faith with counsel for Defendant, Resort Sports, Ltd., regarding Plaintiff’s Motion for Discovery Related to Jurisdiction and Forum, and Resort Sports, Ltd. agrees with the relief sought herein.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on July 30, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to electronically receive Notices of Electronic Filing.

LIPCON, MARGULIES,

ALSINA & WINKLEMAN, P.A.

Attorneys for Plaintiff

One Biscayne Tower, Suite 1776

2 South Biscayne Boulevard

Miami, Florida 33131

Telephone No.: (305) 373-3016

Facsimile No.: (305) 373-6204

By: /s/ Jason R. Margulies                 

JASON R. MARGULIES

Florida Bar No. 57916

[1] Plaintiff’s Motion for Discovery Related to Jurisdiction and Forum is subject to Plaintiff’s arguments contained within Plaintiff’s Motion for Remand that this Court lacks subject matter jurisdiction of this matter and should remand prior to any consideration of Defendant’s Motion to Dismiss (and, thus Plaintiff’s Agreed Motion for Discovery Related to Jurisdiction and Forum).

[2] N.M. has a wife and twin 11-year old daughters.

[3] When a foreign national is brought into the United States for a temporary period of time due to a compelling emergency (humanitarian parole), the United States Department of Homeland Security and U.S. Citizenship and Immigration Services require that a Form I-134 (Affidavit of Support) be completed. In that form, the sponsoring party (Resort Sports) affirms, for the purpose of assuring the U.S. Government that the person who is being temporarily admitted into the U.S. will not become a public charge in the U.S. See, Form I-134, attached as Exhibit 1. Plaintiff is currently attempting to locate the Form I-134 which was completed by Resort Sports for Mr. N.M.

[4] A person is also defined as an entity (such as a corporation) that is recognized by law as having most of the rights and duties of a human being. See Black’s Law Dictionary, Eight Edition, pg. 960.

[5] The vast majority of U.S. based cruise lines are actually foreign corporations with their principal places of business located in the U.S. They employ mostly non-U.S. crewmembers who sail aboard foreign flagged vessels upon the high-seas.

[6] Plaintiff’s counsel maintains a list of these doctors.

[7] Fla. Stat. section 48.181 states, in relevant part:

(1) The acceptance by any person or persons, individually or associated together …, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his or her whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry out a business or business venture in the state constitutes an appointment by the persons and foreign corporations of the Secretary of State of the state as their agent on whom all process in any action or proceeding against them … arising out of any transaction or operation connected with or incidental or business venture may be served. Id. (emphasis added).

[8] The decisions of the United States Court of Appeals for the Fifth Circuit, as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts of the circuit. Boner v. Pritchard, 661 F. 2d 1206, 1207 (11th Cir. 1981) (en banc).