Summers v. NCL, et al.

Lipcon, Margulies, Alsina & Winkleman, P.A

May 17, 2012

Summers v. NCL, et al.

Response in Opposition

In this response in Opposition to a Defendant’s Motion, our experienced maritime attorneys argue that the Defendant cruise line should be sanctioned for conduct that has delayed the case and been prejudicial to the Plaintiff who passed away aboard a cruise ship.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 11-cv-23904-MGC

VALERIE SUMMERS, as personal representative
Of the estate of STEVEN SUMMERS, deceased,
Plaintiff,
vs.
NCL (Bahamas) LTD., d/b/a NCL,
JOHN DOES (ship’s doctor(s)),
JANES DOES (ship’s nurse(s)),
Defendants.
___________________________/

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO LIFT STAY OF CASE; AND MOTION FOR SANCTIONS

COMES NOW, the Plaintiff, Valerie Summers, as personal representative of the estate of Steven Summers, deceased, and hereby files her Response in Opposition to Defendant’s Motion to Lift Stay of Case [D.E. 30], and for good cause relies on the following memorandum of law.

MEMORANDUM OF LAW

THIS MATTER WAS FILED SEVEN MONTHS AGO AND THE CLAIM HAS GONE NOWHERE DUE TO THE DILATORY CONDUCT AND GAMESMANSHIP OF DEFENDANT. THIS HONORABLE COURT ORDERED THE PARTIES TO CONDUCT JURISDICTIONAL DISCOVERY UNTIL MAY 25, 2012, AND THE DEFENDANTS HAVE DONE NOTHING. DEFENDANTS SHOULD BE SANCTIONED FOR THEIR CONDUCT INCLUDING THE PAYMENT OF REASONABLE ATTORNEY’S FEES AND COSTS.

The Plaintiff brought this case on behalf of her husband, decedent Steven Summers, who
suffered a severe anaphylactic shock and died from consuming a cookie that contained nuts at the buffet-style dining room aboard Defendant’s vessel, the Norwegian Spirit. There were no warning labels; and the decedent was told by NCL that the cookies did not contain nuts.

On October 28, 2011, Plaintiff filed her Complaint against NCL, JOHN DOES (ship’s doctor(s)) and JANE DOES (ship’s nurse(s)) (hereinafter “the Medical Defendants”). [D.E. 1].

On November 22, 2011, defense counsel filed a Notice of Appearance on behalf of the Medical Defendants and NCL. [D.E. 7]. Thereafter, three separate Unopposed Motions for Extension of Time to file a Response to the Complaint were filed and granted. D.E. 8, 10, & 13. Each motion expressly stated that the Medical defendants were represented by the law firm of Mase, Lara & Eversole. These extensions extended the deadline to respond to the Complaint to December 16, 2011. [D.E. 14].

On December 16, 2011, defense counsel filed Defendants’ Motion to Dismiss on behalf of the Medical Defendants and NCL. [D.E. 15]. On January 10, 2012, Plaintiff filed a Response in Opposition to Defendant’s Motion. [D.E. 22]. That same day, Plaintiff also filed an Unopposed Motion to Stay Ruling on the Medical Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction Pending Completion of Limited Jurisdictional Discovery as to the Medical Defendants. [D.E. 23]. On January 23, 2012, this Honorable Court entered an Order allowing limited jurisdictional discovery until May 25, 2012. [D.E. 26].

On January 30, 2012, Plaintiff served her Jurisdictional Interrogatories, Request for Production, and Requests for Admissions to both NCL and the Medical Defendants. Copies attached as Exhibit 1-3.

On February 8, 2012, defense counsel filed another Notice of Attorney Appearance. [D.E. 29]. Nothing on that notice of appearance explains any type of mistake or issue regarding representation of the Medical Defendants. And no one ever called the undersigned to make it known that there was any issue. Instead, on February 16, 2012, NCL served its Rule 26 Disclosures, copy attached as Exhibit 4, which expressly list as witnesses:

2. Dr. Maryke Loubser
c/o NCL (BAHAMAS) LTD.
7665 Corporate Center Drive
Miami, FL 33126
Knowledge of Incident and Medical Treatment.
3. Martha Botha
c/o NCL (BAHAMAS) LTD.
7665 Corporate Center Drive
Miami, FL 33126
Knowledge of Incident and Medical Treatment.[1]

Then, on March 15, 2012, defense counsel requested an extension to provide responses to the jurisdictional discovery until March 30, 2012. See email chain, attached as Exhibit 5.Again, on March 29, 2012, defense counsel contacted counsel for Plaintiff via email to request another extension to comply with jurisdictional discovery until April 6, 2012. Then, on April 5, 2012, another extension was requested until April 13, 2012. At no time during any of these exchanges did defense counsel raise any issue regarding representation of the Medical Defendants.

Then, on April 20, 2012, Defendant finally served its response to the Jurisdictional Discovery on behalf of NCL. Shockingly, every single discovery response was as follows:

Objection. This is not reasonably calculated to lead to the admissible of discoverable evidence, nor is it relevant, as jurisdictional defenses have not been raised in this matter. See NORWEGIAN’s Motion to Lift Stay dated April 20, 2012.

In addition, Defendant filed its motion seeking to lift the stay of the case and to enlarge time for non-jurisdictional discovery (served in December 2011). [D.E. 30].

No real Local Rule 7.1 conference was (or has ever been) undertaken by Defense counsel, as such, the undersigned does not even fully understand what relief is being requested by NCL. It appears as though defense counsel argues they do not represent the Medical Defendants and the Plaintiff should be forced to start from scratch and serve the Medical Defendants. NCL’s baseless argument is sanctionable as they have wasted the parties’ and this Honorable Court’s resources, violated this Honorable Court’s January 23, 2012, Order, and forced the plaintiff to suffer needless delay.

First and foremost, Plaintiff had every reason to believe that the Medical Defendants were represented by Mase, Lara & Eversole (“MLE”). MLE filed a Notice of Appearance, three Motions for Extension of Time, and a Motion to Dismiss on behalf of the Medical Defendants. And more importantly, the matter had been pending for nearly six months without a single peep from MLE regarding any issue with the Medical Defendants.

MLE points to the Amended Notice of Appearance filed, but that notice says nothing about any issue with the Medical Defendants. No phone call was made, no letter was sent; nothing was done to indicate as much. In fact, the Rule 26 disclosures filed by NCL, finally name the Medical Defendants and list as their address: c/o NCL (BAHAMAS) LTD. 7665 Corporate Center Drive, Miami, FL 33126. This, of course, wholly indicates that NCL was acting as the Agent for the Medical Defendants.

Further to this point, the undersigned’s entire practice is predicated on cruise ship injury claims. As such, upon information, belief and experience, it is common practice for Cruise Lines to have contracts with the Doctors and Nurses on their ships. In these contracts, the cruise line agrees to indemnify and provide a defense to the Doctors and Nurses if sued. As such, at all times material, NCL likely has and had the contractual right to defend the Medical Defendants. If such a contract, in fact, exists, then NCL should be harshly punished for their fraudulent misrepresentations.[2]

NCL attempts to excuse its negligent conduct under the guide of excusable neglect, but no such showing has been made. In determining whether neglect is “excusable,” the court must take into account equitable considerations such as the “danger of prejudice to the parties, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).

Herein, Defense counsel’s actions do not amount to excusable neglect. Plaintiff has been unfairly prejudiced by the length of delay in the proceedings from defense counsel’s five Motions for Extensions of Time coupled with three additional requests made via email to Plaintiff’s counsel and it being six months since the filing of the Complaint with no progress made. And there has been no good faith by the Defendant, nor defense counsel, as no one has ever picked up the phone to explain the situation per Local Rule 7.1.

Simply put, Defense counsel’s 11th hour “mistake” cannot fly. For six months defense counsel represented to the Court and the parties that they represented the Medical Defendants. And once they filed the amended Notice of appearance, they waited another two months to say anything. This dilatory conduct should not be accepted. As such, the undersigned respectfully requests sanctions for having to respond to this frivolous motion.

More importantly, NCL and the Medical Defendants have intentionally violated this Honorable Court’s January 23, 2012, order regarding Jurisdictional discovery. NCL and the Medical Defendants failure to cooperate or participate in any discovery as required by this Honorable Court’s January 23, 2012 Order, should not be taken lightly by this Court. As such, for the unnecessary delay and needless litigation, Plaintiff requests that the Medical Defendants Motion to Dismiss for lack of Personal Jurisdiction be denied in its entirety.

Further to this point, NCL’s Rule 26 disclosures listing the Medical Defendants name with a C/O of NCL’s Miami Headquarters shows that there is an agency relationship between them and there is nothing unfair or unreasonable about maintaining personal jurisdiction over the Medical Defendants in Miami, Florida. Failure to do anything other than harshly sanction NCL and the Medical Defendants for its dilatory, improper conduct is to reward its conduct.

Simply put, we are at the end of the jurisdictional discovery period set by this Honorable Court’s Order. Defendants failed to participate in any way. Nonetheless, we have discovered a significant relationship between NCL and the Medical Defendants, such that NCL disclosed their address as being NCL’s Miami Headquarters.

As to the service argument, the Medical Defendants undeniably waived any argument regarding service. The Medical Defendants were not served and thereby waived service of process by Moving to Dismiss for lack of Personal Jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(6).

WHEREFORE, Plaintiff, Valerie Summers, respectfully requests that this Court deny Defendant NCL’s Motion to Lift Stay, and harshly sanction Defendants’ dilatory conduct and gamesmanship, including an award of attorney’s fees related to the issues contained herein, and denying the Medical Defendants Motion to Dismiss for lack of Personal Jurisdiction.

LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorney for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 373-3016
Facsimile: (305) 373-6204
By: s/ Michael Winkleman

MICHAEL A. WINKLEMAN
FL BAR NO. 36719


[1] Plaintiff intends to Amend the Complaint to add in the names of these doctors once the stay is lifted.

[2] To this point, Plaintiff requests an Order to Show Cause be entered requiring NCL to produce any and all agreements between NCL and the Medical Defendants.