Plaintiff v. Carnival Corp., Dickson Productions, and Jeremy Watkins

Lipcon, Margulies, Alsina & Winkleman, P.A

December 30, 2010

Plaintiff v. Carnival Corp., Dickson Productions, and Jeremy Watkins

After being sexually assaulted on a themed music cruise, the Plaintiff in this action sued in Miami, Florida. Defendant Dickson Productions attempted to have the case against them dismissed, arguing that the court did not have personal jurisdiction.  The Plaintiff filed this supplemental response in opposition to that motion to demonstrate Dickson Productions connections to Miami, Florida.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 10-21879-CIV-Altonaga/Brown
XXXXXXXXX XXXXXXXXX,
Plaintiff,

Vs.

CARNIVAL CORPORATION,
DICKSON PRODUCTIONS, INC.,
and JEREMY WATKINS
Defendants.
___________________________/

PLAINTIFFS’ SUPPLEMENTAL RESPONSE IN OPPOSITION TO DEFENDANT DICKSON PRODUCTIONS INC. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

COMES NOW, PLAINTIFF, XXXXXXXXX XXXXXXXXX, by and through undersigned counsel and hereby files her supplemental response in opposition to Defendant Dickson Productions Inc. (hereinafter “Dickson”) Motion to Dismiss for Lack of Personal Jurisdiction. In support thereof, Plaintiff alleges as follows:

I. BY HAVING AT ALL TIMES MATERIAL CONSENTED TO MIAMI, FLORIDA AS THE FORUM FOR ANY AND ALL DISPUTES – DICKSON PURPOSEFULLY AVAILED ITSELF OF THIS FORUM AND WAIVED ITS PERSONAL JURISDICTION ARGUMENT. ALTERNATIVELY, DEFENDANT DICKSON PRODUCTIONS IS SUBJECT TO PERSONAL JURISDICTION PURSUANT TO THE GENERAL AND SPECIFIC JURISDICTION PROVISIONS OF THE FLORIDA LONG-ARM STATUTE. DICKSON PRODUCTIONS’ BUSINESS RELATIONSHIP WITH FLORIDA BASED CARNIVAL CORPORATION, EVIDENCES THAT, AT ALL TIMES MATERIAL DICKSON: 1) ENGAGED IN SUBSTANTIAL AND NOT ISOLATED ACTIVITIES WITHIN THE STATE AND 2) SHOW A GENERAL COURSE OF BUSINESS ACTIVITY WITH THE STATUTE FOR PECUNIARY BENEFIT.

A. Introduction

XXXXXXXXXX was a passenger on Carnival Cruise Lines (“Carnival”) vessel, Ecstasy, on July 24, 2009. The subject cruise aboard the Ecstasy included a theme cruise, called “The Big Music Cruise”, which was organized and advertised to the public by Defendant Dickson. & The Big Music Cruise is advertised by Dickson to be a private series of music concerts, parties and events, aboard the Carnival Ecstasy for the subject cruise. People who wish to take “The Big Music Cruise” purchase their tickets for the cruise through Dickson. It is believed that Dickson effectively engages in a time charter with Carnival for part of the Ecstasy for the subject cruise. The Plaintiff did not book her cruise through Dickson; rather, the Plaintiff was a “regular” passenger aboard the Ecstasy. On July 24, 2009, while on the subject cruise, the Plaintiff was invited to see a concert event which was part of “The Big Music Cruise”. At that concert, the Plaintiff saw Defendant Jeremy Watkins performing on stage with a band. Later that evening, the Plaintiff was in the casino on the Ecstasy where she met Defendant Jeremy Watkins. Watkins represented to the Plaintiff that he was a musician performing aboard the cruise. Later that evening Watkins drugged and sexually assaulted the Plaintiff.

B. Dickson waived its argument for lack of personal jurisdiction by virtue of 1) the agreement governing their own customers and 2) the agreements it entered into with Carnival Corporation. Each of these agreements included forum selection clauses designating Miami, Florida as the forum for all litigation. Because pursuant to binding Supreme Court precedent, forum selection clauses are strictly enforced and gave Dickson fair notice that he might be subject to suit in Florida, Defendant’s motion to dismiss should be denied.

In Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), the Supreme Court held that forum selection clauses are prima facie valid and should be enforced by Federal District Courts unless the resisting party shows enforcement to be “unreasonable:”

It is settled … that parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether.

Although the Bremen decision – announcing the rule favoring enforcement of forum-selection clauses – involved a case brought under admiralty jurisdiction; the federal circuit courts of appeal have extended the rule to diversity and nonadmiralty cases. See Jones v. Weibrecht, 901 F. 2d 17 (2d Cir. 1990) citing, e.g.  Karl Koch Erecting Co. v. New York Convention Center Dev. Corp., 838 F. 2d 656, 659 (2d Cir. 1988) (diversity); Pelleport Investors Inc. v. Budco Quality Theatres Inc., 741 F. 2d 273, 279 (9th Cir. 1984) (diversity); AVC Nederland B.V. v. Atrium Inv. Partnership, 740 F. 2d 148, 156 (2d Cir. 1984) (federal securities fraud); Mercury Coal & Coke, Inc. v. Mannesmann Pipe and Steel Corp., 696 F. 2d 315, 317-18 (4th Cir. 1982) (diversity).

Subsequently in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991), following the rationale in Bremen the Supreme Court held that forum selection clauses in cruise line passenger ticket contracts must be strictly enforced.

i. The Terms and Conditions in Dickson Productions Website.

Dickson has waived its argument for lack of Personal Jurisdiction in Florida by virtue of its own terms and conditions provided to all of its customers directly on “The Big Music Cruise” website. These Terms and Conditions state that, “Dickson Productions Incorporated agrees to provide the services specified in the accompanying advertising subject to the terms, conditions, and limitations contained in this agreement and Carnival Cruise Lines terms, conditions, and limitations.” See [D.E. 35-1] (emphasis added). The Terms and Conditions on Dickson’s website go on to state that “Exclusive jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement or the breach thereof shall be brought only in the Federal or State court with competent jurisdiction located in Miami-Dade County, FL. Id.

ii. Carnival Cruise Lines Ticket Contract.

The Dickson Productions website (D.E. 35 – 1) also expressly adopts the terms and Carnival Cruise Line Ticket Contract (Exhibit “1”), which states in Section 12(c):

[A]ll disputes and matters whatsoever arising under, in connection with or incident to this contract or the guest’s cruise, including travel to and from the vessel, shall be litigated, if at all, before the United States District Court for the Southern District of Florida in Miami, or as to those lawsuits to which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Miami-Dade County, Florida, U.S.A. to the exclusion of the Courts of any other county, state or country.

To board and travel on a Carnival ship, every passenger has to agree to the terms and conditions of the passenger ticket contract. [Deposition of Carnival’s Corporate Representative (hereinafter abbreviated as “Carnival Corp. Rep.,”) at pp. 21 and 35]. Further, the agreement itself sets forth that it is a binding contract issued by Carnival to, and accepted by guest subject to the important terms and conditions – including the forum selection clause above. (Exhibit “1”). Because guest is defined as “all persons or entities booking or purchasing passage and/or traveling under the ticket contract;” anyone that books, purchases passage or travels on a Carnival ship is subject to the ticket’s terms and conditions – including the forum selection clause above. [Carnival Corp. Rep. at pg. 22]. Between the years 2004 and 2010 Dickson productions contracted with Florida based Carnival to setup the “Big Music Cruise.” In each of these years, John Dickson purchased passage and traveled on a Carnival ship exclusively on behalf of Dickson Productions, Inc. to setup the “Big Music Cruise.” [Deposition of Dickson Productions Corporate Representative (hereinafter abbreviated as “Dickson Corp. Rep.”) at pg. 46]. Therefore, by purchasing the Carnival ticket and traveling on Carnival ships, in each of the aforementioned six years, John Dickson, on behalf of Defendant Dickson Productions Inc., accepted to and agreed to all of the terms and conditions of the Carnival passenger ticket contract – including its forum selection clause.

iii. The Forum Selection Clauses in other Carnival Contracts.

In order to setup the “Big Music Cruise” between the years 2005 – 2010, Dickson productions signed and entered into various contracts with Carnival referred to as “ The Sail and Sign Open Bar and Wine Program.” [Carnival Corp. Rep. at pp. 45-46]. Each of these agreements included the following provision:

This agreement shall be governed by and construed in accordance with the laws of Florida, without giving effect to choice of law principles. Exclusive jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement or the breach therefore shall be brought in the Federal or State court with competent jurisdiction located in Miami-Dade County.

These contracts were all written and sent out of a department located in Carnival’s Miami Corporate office, for Dickson Productions to sign and return. Every time John Dickson signed this agreement on behalf of Dickson Productions, it was Carnival’s intent that Dickson Production’s be bound by all of the agreements terms and conditions – including the forum selection clause above. [Carnival Corp. Rep. at pp. 97-98, 102-103]. See also copies of the various Sail & Sign Contracts signed by John Dickson on behalf of Dickson Productions, attached hereto as Exhibit “2.”

Therefore, pursuant to binding precedent in Bremen and Shute, these forum selection clauses must be strictly enforced. This is the fair result, as Dickson not only expressly stated – through their website – that the expected to be hailed into court in Miami-Dade County, Florida, but also actively chose to be (by signing multiple contracts between the years 2005 – 2010 containing these clauses).

B. Construing all reasonable inferences in favor of the Plaintiff, Dickson Productions is subject to personal jurisdiction pursuant to the general jurisdiction provision of the Florida long-arm statute. At all material times, Dickson Productions engaged “in substantial and not isolated” activity within this state. Further, Defendant Dickson productions is also subject to personal jurisdiction pursuant to specific jurisdiction requirements of the Florida long arm statute. At all times material, Dickson productions operated, conducted, engaged in and/or carried on a business venture in Florida, since Defendants activities with Florida based Carnival Corporation show a general course of business activity in the state for pecuniary benefit.

i. Standard of Review.

Plaintiff’s burden in alleging personal jurisdiction is to plead sufficient material facts to establish the basis for exercise of such jurisdiction. Future Technology Today, Inc. v. OSF Healthcare Systems, 218 F. 3d 1247 (11th Cir. 2000). First, the plaintiff must allege sufficient jurisdictional facts in his complaint to initially support long arm jurisdiction before the burden shifts to the defendant to make a prima facia showing of the inapplicability of the statute. If the defendant sustains this burden, the plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof. Id., at 1249.

On a challenge pursuant to Federal Rule of Civil Procedure 12(b)(2), a Court must conduct a two-part inquiry when deciding the issue of personal jurisdiction. Sculptchair, Inc. v. Century Arts, Ltd., 94 F. 3d 623 (11th Cir. 1996). First, the court must determine whether the applicable state statute governing personal jurisdiction is satisfied. Sculptchair, 94 F. 3d. at 626. If the requirements of the long arm statute are satisfied, then the court must inquire as to, (1) whether defendant has satisfied sufficient “minimum contacts” with the state of Florida; and (2) whether the exercise of this jurisdiction over defendant would offend “traditional notions of fair play and substantial injustice.” Id., at 630-31 quoting, International Shoe v. Washington, 326 U.S. 310 (1945). Where the evidence conflicts, all reasonable inferences must be construed in favor of the Plaintiff. Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F. 3d 1357, 1360 (11th Cir. 2006).

ii. General Jurisdiction.

Plaintiffs Amended Complaint succinctly alleges that, at all material times, Dickson personally or through an agent, committed one of the acts stated in Florida Statutes, Section 48.193.[1] [Am. Compl., ¶ 7]. Section 48.193 provides, in part:

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).

If Defendant’s contacts meets the requirements of 48.193 (general jurisdiction), this Honorable Court’s exercise of personal jurisdiction will comport with Due Process. By the terms of the long-arm statute, general jurisdiction under 48.193(2) does not require a connection between a defendant’s activities and the cause of action. Bernardele v. Bonorino, 608 F. Supp. 2d 1313 (S.D. Fla. 2009) citing Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 (1984). Florida Courts have interpreted ‘substantial and not isolated activities’ to mean continuous and systematic general business contact with Florida. Kilma v. Carnival Corporation, 2008 WL 4559231 (S.D. Fla. 2008) The “substantial and not isolated activity requirement” for general jurisdiction under the Florida long-arm statute, therefore, is the functional equivalent of the “continuous and systematic contact” requirement under the Due Process Clause of the Fourteenth Amendment. Ahern v. Pacific Gulf Marine, Inc., et. al., 2008 U.S. Dist. LEXIS 20078 (M.D. Fla. 2008) citing Meir v. Sun Int’l Hotels, Ltd., 288 F. 3d 1264 (11th Cir. 2002). Therefore, the analyses of jurisdiction under 48.193(2) and the Due Process Clause merge. Bernardele, 608 F. Supp. 2d at 1327 (S.D. Fla. 2009).

For purposes of general jurisdiction, Courts have stated that a defendant’s contacts collectively over the relevant period of years prior to filing the complaint should be considered. KVAR Energy Sav., Inc. v. Tri-State Energy Solutions, LLP, 2009 WL 103645, *4 (M.D. Fla. 2009) citing Autonation, Inc. v. Whitlock, 276 F. Supp. 2d 1258, 1263 (S.D. Fla. 2003) and Woods v. Nova Cos. Belize Ltd., 739 So. 2d 617, 621 (Fla. Dist. Ct. App. 1999).

ii. Specific Jurisdiction.

Florida statute 48.193(1)(a) Operating a Business, states in relevant part:

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 … to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts: (a) operating, conducting, engaging in or carrying on a business venture in this state or having an office or agency in this state.

In order to establish that a defendant is “carrying on business” for purposes of the long arm statute, the activities of the defendant must be considered collectively and show a general course of business activity in the state for pecuniary benefit. Sculptchair, Inc. v. Century Arts, Ltd., 94 F. 3d 623, 627 (11th Cir. 1996), citing, Dinsmore v. Martin Blumenthal Associates, Inc., 314 So. 2d 561, 564 (Fla. 1975).[2]

iii. Dickson’s Contacts with Florida.

Dickson promotes, sells and advertises Carnival Cruises. Between the years 2004 and 2010 Dickson productions contracted with Florida based Carnival to setup the “Big Music Cruise” aboard various Carnival vessels. [Dickson Corp. Rep., at pg. 40].[3] For each of those years, Dickson has marketed, advertised and sold Carnival Cruise packages through its website. [Dickson Corp. Rep., at pg. 42]. Dickson is therefore is in the business of advertising and selling Carnival cruises. [Carnival Corp. Rep., at pp. 29-31, 48]. At all times material, through its website, Dickson advertised the Carnival cruise package it sold as a “7-day big music cruise adventure on land and sea which includes: an intimate music experience for 7 days and 6 nights … aboard a floating resort across the crystal blue waters of the Caribbean on the most popular cruise line in the world. [Dickson Corp. Rep., at pg. 43].

Dickson must reach out to Carnival in Florida to obtain their approval to sell, promote, market and advertise. First, in order for third party, such as Dickson Productions, to advertise, market, sell, and book Carnival cruises, it must first obtaining prior approval from Carnival Corporation officers. (“Exhibit 3”)[4]. This includes obtaining prior approval to post, market, and sell Carnival products through a website – from Carnival officers located in Miami, Florida. [Carnival Corp. Rep., at pg. 37]. Second, Carnival officers, located in Miami, Florida provide third parties, such as Dickson Productions, the set rates to price and advertise Carnival cruise packages. [Carnival Corp. Rep., at pp. 41 – 42]. Further, all of the cruise itineraries advertised and promoted by Dickson, are pre-approved and established by Carnival out of a department located in Miami, Florida (including ports and times).

Dickson’s website also uses Carnival Corporation’s Intellectual property. [Carnival Corp. Rep., at pg. 54]. Carnival’s intellectual property used by Dickson includes images of Carnival ships and use of phrases such as “ the World’s Most Popular Cruise Line.” [Carnival Corp. Rep., at pg. 55]. In order for Dickson to use Carnival’s intellectual property in their website, they are required to obtain the approval of Carnival’s marketing department, located in Miami, Florida. [Carnival Corp. Rep., at pg. 56].[5]

At all times material, Dickson’s Website was accessible by Florida residents. Dickson’s website promoting, selling and advertising these Carnival cruise packages is accessible to audiences all over the country – including Florida. In fact, in 2009, a Florida resident booked and purchased a Carnival cruise through Dickson productions. (See Exhibit “5,” Response to Interrogatory No. 13). This evidences that Dickson productions website, at all times material, constituted an electronic communication into Florida. See, e.g.: Smith v. Trans-Siberian Orchestra, 2010 WL 2949290 (M.D. Fla. 2010) (For purposes of the long arm statute, a website constitutes an electronic communication into Florida if is accessible, in contrast to actually being accessed by Florida residents).

Between the years 2005 – 2010, Dickson engaged in a general course of business activity with Carnival in Florida for pecuniary benefit. During these years, Dickson accumulated gross revenues in the amount of $637,414.86 – for selling Carnival cruise packages to a total of 1,746 people. See Exhibit “6.” In its responses to Plaintiffs interrogatories (Exhibit “6”), Dickson summarizes the substantial gross revenues and net income it derived from its operations with Florida based Carnival corporation as follows:

YEAR GROSS REVENUE NET INCOME
2005 87,869.76 16,279.48
2006 113,530.00 18,256.01
2007 118,760.00 18, 602.75
2008 136,805.10 21,323.39
2009 141,818.00  
23,392.02
2010 38,632.00 (- 6,828). 

The payment transfer process between Dickson Productions and Carnival involved movement of money to and from Florida. The process was simple. All 1,746 people booking Carnival Cruises through Dickson Productions Inc., paid Dickson the price of the cruise package. Dickson, in turn, reached out to Carnival Corporation, in Florida, with payments received in order to book cabins, and various areas for the ship for the big music cruise. See [Dickson Corp. Rep., at pp. 52-53].[6] Each cabin was booked online using Carnival’s website, which at all times material was administered out of Carnival’s office, in Miami, Florida.[Carnival Corp. Rep., at pg. 84]. The money that Carnival received from each booking was processed by Carnival Corporation’s Service or Sales department – located in Miami, Florida. [Carnival Corp. Rep., at pg. 64]. Once the booking was made, a package with various contracts, agreements, rules and regulations was system generated and sent to Dickson Productions from Carnival headquarters in Miami, Florida.[Carnival Corp. Rep., at pg. 66-67].

During the booking process, for each of the various years that Dickson reached out to Carnival in Florida to set up the “Big Music Cruise,” both Dickson (and/or its agents), exchanged correspondence (E-mails, Memoranda) with Carnival officers and employees – sent out of and/or received in Miami, Florida. See Exhibit 4. Further, for each of these various years, Carnival entered into numerous contracts with Dickson Productions, Inc. and/or John Dickson. See Exhibit 5.

In Sum, at all times material during the past five years, Dickson Productions deliberately reached to Florida, to engage in a systematic and continuous business relationship with a Florida based Corporation, in order to promote, sell and advertise the Florida Corporation’s cruises. In the process, Dickson Production signed various agreements specifically consenting to Miami, Florida as the forum of any litigation, and ultimately derived hundreds of thousands of dollars in pecuniary benefits.

See Future Tech Int’l., Inc. v. Tae II Media, Ltd., 944 F. Supp. 1538 (S.D. Fla. 1996) (holding apparent that Defendants engaged in substantial and not isolated activity within this state .. [where] defendant had existing business relationship with resident Plaintiff corporation to manufacture goods for it, extensive correspondence and communication with Plaintiff corporation to manufacture goods for it, extensive correspondence and communication with Plaintiff, attendance at three meetings in Miami, and solicitation of business from Florida customers). See also Kilma v. Carnival Corp., 2008 WL 4559231, *2 (S.D. Fla. 2008) (to satisfy the long-arm statute, showing that Defendants conduct constituted doing business in Florida, Plaintiffs have to demonstrate that non-resident defendant had sufficient contractual arrangements in place with resident defendant to generate revenue from defendant’s customers. See also Baker Electronics, Inc. v. Pentar Systems, Inc. 219 F. Supp. 2d 1260, 1263 (M.D. Fla. 2002) (traveling to Florida to meet with Plaintiff a Florida corporation, about possibility of joint venture, numerous e-mail and other communications with Florida corporation, execution of MOU via e-mail and telephone … sufficient to constitute doing business).

On these grounds, Dickson Productions Motion to Dismiss for Lack of Personal Jurisdiction should be denied.

 


[1] The jurisdictional allegations in Plaintiffs Amended Complaint apply to all Defendants in this case. Therefore, by asserting that “Defendant” personally or through an agent, committed one of the acts stated in Florida Statutes, Section 48.193, the allegations were also directed at Dickson Productions Inc.

[2] See Dinsmore v. Martin Blumenthal Associates, Inc., 314 So. 2d 561, 564 (Fla. 1975): A nonresident defendant, which engages the services of brokers, jobbers, wholesalers or distributors, can be doing business in this State pursuant to Fla.Stat. § 48.181(1) if the nonresident defendant, through brokers, jobbers, wholesalers or distributors was engaged in a course of conduct in Florida for the purpose of realizing a pecuniary benefit. If Fla.Stat. § 48.181(3) is complied with, even a single sale, consignment or lease raises a conclusive presumption that the defendant is operating, conducting, engaging in or carrying on a business venture in this State. Thus, a defendant may be carrying on