June 20, 2011
Vidhaya Balachander as personal representative of the estate of Sripathi Balachander vs. NCL Bahamas ltd. and Rey Ponteras – Part 2
Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss
This case resulted from a Plaintiff who suffered injuries that later caused his death when he visited an island resort in the Bahamas as part of his NCL cruise vacation. Plaintiff alleged that the injuries were the fault of NCL and sued NCL both in their capacity as a ship operator and a resort owner by utilizing the federal court’s pendent jurisdiction to hear both the maritime claims and the claims arising under Florida state law. NCL sought to dismiss several of Plaintiff’s causes of action. In this response the Plaintiff asserts the important distinctions that result from suing NCL in two different capacities. Plaintiff also argued that she met the pleading standards necessary to maintain a cause of action and that NCL’s other grounds for dismissal were really questions of fact for a jury to decide.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1:11-CIV-21064-JLK
VIDHYA BALACHANDER as personal
Representative of the estate
of SRIPATHI BALACHANDER, deceased,
NCL (Bahamas) LTD. d/b/a NCL XYZ
Corporation, and REY PONTERAS,
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT NCL’S (BAHAMAS) LTD.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT WITH INCORPORATED MEMORANDUM OF LAW
COMES NOW, Plaintiff Vidhya Balachander, as personal Representative of the estate of Sripathi Balachander, and pursuant to Fed. R. Civ. P. and Local Rules of the Southern District of Florida, hereby files her Response in Opposition to NCL’s Motion to Dismiss the Plaintiff’s Complaint and provides an Incorporated Memorandum of Law in support thereof.
Plaintiff brought this case on behalf of decedent Sripathi Balachander, who died from complications arising from a near drowning occurrence at the beach resort of Great Stirrup Cay, Bahamas. [D.E. 1, 15-16].
Great Stirrup Cay, a tropical island resort, has been exclusively owned, operated and controlled by Florida based NCL (Bahamas), Inc. (hereinafter “NCL”), since 1977. See Exhibit A. On or about April 25, 2010, Defendant NCL transported Plaintiff to Great Stirrup Cay on its vessel, Norwegian Sky. On said date, while swimming in the resort’s waters, Plaintiff nearly drowned, suffering extensive injuries. As a result of complications from his submersion in the resort’s waters, eleven days later (on April 6, 2010), Plaintiff was pronounced dead. [Id. at 16]
On March 29, 2011, Plaintiff filed her Complaint against NCL. [D.E. 1]. Counts I, VI, VIII and IX, allege, under Florida law, land-based (non-maritime) causes of action against NCL in its capacity as owner/operator of the beach resort, for acts occurring at the resort’s beaches. Counts II and VII, allege maritime causes of action against NCL in its capacity as owner/operator of the vessel Norwegian Sky, for acts occurring on the vessel.
On May 11, 2011, NCL filed its Motion to Dismiss. [D.E. 17]. At issue before this Court, is NCL’s Motion to Dismiss Counts I, II, VI, VII, and IX. As succinctly shown below, NCL’s Motion to Dismiss should be denied.
II. Standard of Review.
When ruling on a motion to dismiss, the Court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89 (2007). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court merely reaffirmed the “notice pleading” principle codified in Federal Rule of Civil Procedure 8, asserting that a complaint must offer more than a formulaic recitation of the elements of a cause of action. Three weeks after issuing Twombly, the Supreme Court put its decision in context with its ruling in Erickson v. Pardus, 551 U.S. 89 (2007). Quoting Twombly and Conley v. Gibson, 355 U.S. 41 (1957), the Supreme Court in Erickson held:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that a pleader is entitled to relief.” Specific facts are not necessary; the statement need only “give the defendant fair notice of what the… claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957)). In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations in the complaint. Bell Atlantic Corp. Supra., at 555-556.
Id., at 93-94. (Emphasis added) (Other internal citations omitted).
All in all, as this Honorable Court recently explained in the matter of Rocha v. Carnival Corporation, Case No: 10-22799-CV-LENARD/TURNOFF (S.D. Fla. 2011) [D.E. 26] even after Twombly, “it remains black-letter law today that in the ordinary case a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny.” “Twombly neither eliminated nor marginalized the liberal pleading rules:”
On a motion to dismiss, the Court must accept the factual allegations as true and construe them broadly – in light most favorable to the plaintiff. See Watts v. Fla. Int’l Univ., 495 F. 3d 1289,1295 (11th Cir. 2007). The threshold of sufficiency for a complaint to withstand a motion to dismiss is that it must contain a short and plain statement of the claim showing that the pleader is entitled to relief. The Court may only examine the four corners of the complain. Matters outside the complaint are not to be considered without converting the motion to dismiss to a motion for summary judgment. St. George Pinellas County, 285 F. 3d 1334, 1337 (11th Cir. 2002).
A few years ago, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme Court expanded on the liberal pleading requirements and explained that a complaint must offer more than a “formulaic recitation of the elements of a cause of action.” However, “it remains black-letter law today that in the ordinary case, a complaint need not provide detailed factual allegations in order to withstand 12(b)(6) scrutiny.” Caytrans BBC, LLC v. Equipment Rental & Contractors Corp., 2009 WL857554, at *2 (S.D. Ala. Mar. 25, 2009) (citing Wilchombe v. TeeVee Toons, Inc., 555 F. 3d 949, 958 (11th Cir. 2009). In other words, Twombly neither eliminated nor marginalized the liberal pleading rules. Caytans, 2009 WL857554 at *2.
Id., at 3-4. (Emphasis added) (Other internal citations omitted).
III. Contrary to NCL’s assertions, it is premature to rule on controlling damages law at a motion to dismiss stage.
NCL seeks to invoke the Death on the High Seas Act (DOHSA) in what appears to be an attempt to preclude Mrs. Balachander from any other available remedy. [D.E. 17, pg. 4]. A similar “right-out-of-the-chute” effort by Carnival to invoke the Death on the High Seas Act (“DOHSA”), and to have the court summarily apply it to land-based incidents at a Motion to Dismiss Stage, was rejected as premature by District Judge Moore in Smith v. Carnival Corp., 584 F.Supp. 2d 1343, 1349 (S.D. Fl. 2008), as follows:
“Without the benefit of discovery or briefing on the issue by the Parties, it is premature to rule on the controlling law of the of the case. See Wai v. Rainbow Holdings, 315 F.Supp.2d 1261 (S.D.Fla. 2004) (concluding that, due to an undeveloped record at the motion to dismiss stage, conducting the Lauritzen-Rhoditis choice of law analysis “would certainly be premature”) see also EEOC v. Kloster Cruise, Ltd., 939 F.2d 920, 923-24 (11th Cir. 1991); [other citations omitted] (emphasis added).”584 F.Supp.2d at 1349.
Here, as in Smith, NCL’s petition to have this Court establish the controlling law of the case is likewise premature.
IV. Pursuant to this Honorable Court’s pendent jurisdiction powers, Plaintiff has properly pled both non-maritime causes of action under Florida law (Counts I, VI, VIII, and IX) and, in the alternative, maritime causes of action under the General Maritime Law of the United States (Counts II and VII) against NCL.
Pendent claim jurisdiction refers to the ability of a plaintiff to support a state-law claim as pendent to a claim arising under federal law. United Mine Workers of America v. Gibbs, 383 U.S. 715, (1966). Pendent jurisdiction exists so long as the state and federal claims derive from a common nucleus of operative fact and are so related that the plaintiff would ordinarily be expected to try them together. Id.
Here, pursuant to this Honorable Court’s pendent jurisdiction, Plaintiff has pled claims against NCL under both state and federal law. As succinctly shown below, in Counts I, VI, VIII and IX of the Complaint, Plaintiff is suing NCL solely in its capacity as owner/operator of the beach resort – for acts occurring in the resort’s premises. Since these are not maritime, but rather land-based causes of action, DOSHA is inapplicable. Conversely, in Counts II and VII, Plaintiff is suing NCL in its capacity as owner/operator of the vessel Norwegian Sky, for acts occurring on the High Seas. Since these are maritime claims, DOSHA applies in Counts II and VII. 
Thus, all in all, this is a lawsuit involving two entities. The first entity is NCL, the owner/operator of the Stirrup Cay Beach resort – for acts occurring on the resort’s beaches. The second entity is NCL, the owner operator of the vessel, the Norwegian Sky, for acts on occurring on the High Seas. As succinctly explained below, this distinction is critical, as the claims against one are separate and distinct from the claims against the other.
A. In Count I of the Complaint, Plaintiff is suing NCL solely in its capacity as owner/operator of the beach resort. Thus, Count I is not a maritime cause of action. Rather, it is a standard premises liability negligence claim under Florida law for acts occurring on land. Therefore, contrary to Defendant’s assertions, DOSHA is inapplicable to Count I.
Great Stirrup Cay, a tropical island resort, has been exclusively owned, operated and controlled by Florida based NCL (Bahamas), Inc. (hereinafter “NCL”), since 1977. See Exhibit “A.” Like other Bahamian beach resorts, Great Stirrup Cay’s patrons have access to private beaches, bars, restaurants, cabanas, and water activities. See Exhibit “A.” In Count I of the Complaint, Plaintiff is therefore specifically suing NCL in its capacity as a land resort owner/operator. Count I is not a maritime cause of action. Rather, it is a standard premises liability negligence claim under Florida law, against NCL, the operator of the premises.
Defendant’s cases do not bar a claim under Florida law against a land resort operator. DOSHA does not apply to suits against land resort operators for land-based incidents. In support of the proposition in its Motion to Dismiss [D.E. 17, pg. 4-7], that “the Death on the High Seas Act is the Plaintiff’s exclusive remedy,” Defendant cites four cases: Sanchez v. Loffland, 626 F. 2d 1228, 1230 n. 4 (5th Cir. 1980), Moyer v. Rederi, 645 F. Supp. 620, 623 (S.D. Fla. 1986), and Howard v. Crystal Cruises, Inc., 41 F. 3d 527, 531 (9th Cir. 1994). Each of these cases stand for the proposition that “maritime incidents occurring in the territorial waters of foreign states fall within the ambit of DOSHA” (emphasis on the phrase “maritime incidents).
As established in Sanchez, Moyer, and Howard, Plaintiff does not dispute that when maritime claims (under the General Maritime law) are made against a vessel operator, for incidents occurring on the vessel – DOSHA applies. In fact, in her Complaint, Plaintiff pled two maritime causes of action (Counts II and VII) against the owner/operator of the vessel under the General Maritime Law. Plaintiff further specifically alleged in these two counts that DOSHA applied.
Having said this, it is critical to acknowledge that Sanchez, Moyer and Howard involved maritime claims under the General Maritime Law against the vessel owners/operators (cruise ships, cargo vessels) for incidents occurring entirely in the vessel or arising from the vessel operator’s negligence. See, i.e.: Sanchez (claim against ship-owner for death occurring in the vessel), Howard (claim against ship-owner for passenger’s death while disembarking from the vessel in Mexico). Therefore, in striking contrast to the situation in this matter, none of Defendant’s cases involved claims against the operators/owners of a land resort, for acts occurring in the resort’s premises (rather than vessel). In fact, it is undisputed that nothing in Sanchez, Moyer, or Howard, requires the application of DOSHA in non-maritime suits against land resort owners operators, for tort’s occurring in the resort’s premises.
B. Federal Courts in Florida have upheld suits against U.S. based companies operating beach resorts in the Bahamas. These Courts have held that claims for Negligence and Vicarious Liability are proper under Florida law, even if the incident occurred in Bahamian waters.
In Lanita Walker, v. Paradise Grand Hotel, Ltd., a Bahamian Company, d/b/a The Sheraton Grand Hotel, Case No. 01-3564 (S.D. Fla. 2001) (Hon. Judge Gold), Plaintiff brought a wrongful death lawsuit on behalf of the decedent who died after suffering from injuries in Bahamian waters, while parasailing off the beach of Paradise Island. The facts in Walker are virtually indistinguishable from the facts of this case. Like in this case, the Plaintiffs were passengers of a cruise ship (the Carnival Ecstasy) which docked at Nassau, Bahamas. Walker and her friends took a ferry from the ship to Paradise Island, Bahamas, to enjoy the beaches of the Paradise Grand Hotel resort.
Further, like in this case, Plaintiff filed a four count Complaint against the owner/operator of the resort alleging 1) negligence and 2) vicarious liability under Florida law. The Court upheld the applicability of Florida law, denied Defendant’s Motion for Summary Judgment, and ultimately entered a judgment in favor of Plaintiff and against the resort operator. See Walker Order Denying Defendant’s Motion for Summary Judgment and upholding the applicability of Florida law, attached hereto as Exhibit “B.” See also Final Judgment, attached hereto as Exhibit “C.”
The fact that Plaintiff was injured in Bahamian waters did not preclude the Walker Court from finding that Florida law applied in Plaintiffs’ lawsuit against the resort operator. Visibly absent from the Walker holding is also any assertion that because the incident occurred in Bahamian waters, DOSHA applied in the lawsuit against the resort operator.p>
Therefore, like the Plaintiffs in Walker, Counts I (Negligence), VI, VIII and IX (Vicarious Liability), have been properly asserted against NCL, in its capacity as resort operator/owner – under Florida law- for acts occurring in the resort’s beaches. All in all, because these claims were not asserted against NCL, in its capacity as ship owner under the General Maritime Law; Sanchez, Moyer, and Howard are inapplicable, and DOSHA does not apply
V. Contrary to NCL’s assertions, whether 1) NCL had actual or constructive notice of the danger and 2) whether the danger was open and obvious are questions of fact, not ripe for adjudication at a motion to dismiss stage. Plaintiff should be given the opportunity to conduct discovery and develop the record regarding these factual questions. All of the cases NCL cites in its Motion to Dismiss were decided on summary judgment, and as such are inapposite.
In the Complaint Plaintiff succinctly alleges that Defendant Carnival had the duty to provide Plaintiff with reasonable care under the circumstances. Plaintiff further alleges that NCL breached that duty by failing to warn Plaintiff, i.e., of the dangers of swimming in the waters adjacent to the beach of Great Stirrup Cay, of the inaccessibility to adequate emergency medical care from Great Stirrup Cay, etc.
It is well settled law that to be liable for failing to warn passengers of dangers, the cruise line must have had actual or constructive notice of the risk creating condition. Keefe v. Bahama Cruise Line, Inc., 867 F. 2d 1318, 1322 (11th Cir. 1989). Constructive notice may be established through evidence which shows that 1) the dangerous condition existed for such a length of time that in the exercise of ordinary care, the Defendant should have known of the condition, or 2) the condition occurred with regularity and was therefore foreseeable. Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 522 (Fla. 3d DCA 2000). Additionally, the duty to warn only extends to those dangers which are not apparent and obvious to the passengers. Luby v. Carnival Cruise Lines, Inc., 633 F. Supp. 40 (S.D. Fla. 1986).
In its Motion to Dismiss, NCL argues it had no notice of the dangerous condition and that the dangerous condition was “open and obvious to the Plaintiff.” Because these are not proper grounds for dismissal at this stage, NCL’s arguments fail.
All questions regarding NCL’s “notice” are issues of fact improperly determined at a motion to dismiss stage. To the extent that NCL argues that it did not have actual or constructive notice of the dangerous condition; this question presents an issue of fact improper for determination at a motion to dismiss stage. See Goldbach v. NCL (Bahamas) Ltd., 2006 U.S. Dist. LEXIS 92026 (S.D. Fla. 2006) (Hon. Judge Huck) (A cruise line “owes a duty to its passengers of reasonable care under all circumstances. This duty includes a duty to warn passengers of dangers the cruise line knows or reasonably should know … The question of whether Defendant knew or should have known of the danger posed is a genuine issue of fact precluding summary judgment.”) Id. (Emphasis Added).
Similarly, all questions regarding the “open or obvious” nature of the dangerous condition are questions of fact which cannot be properly determined at a motion to dismiss stage. At pages 10 – 12 of its Motion to dismiss, NCL argues that it did not have a duty to warn because the dangerous condition was an open and obvious. Contrary to NCL’s assertions, however, questions as to the “open or obvious nature” of the dangerous condition are issues of fact which cannot properly be decided at a motion to dismiss stage. See Propenko v. Royal Caribbean Cruises Ltd., 2010 U.S. Dist. LEXIS 37618 (S.D. Fla. 2010) (Hon. Judge Huck):
Royal Caribbean argues that it had no duty to warn … [and] cites two cases which granted summary judgment to the defendant cruise ship companies… Propenko distinguishes these cases because they were decided on summary judgment … The Court also agrees with Propenko that the “open and obvious” question requires a context specific inquiry and necessitates development of the factual record before the Court can decide whether, as matter of law, the danger was open and obvious.
Id. (Emphasis Added). See also Rocha v. Carnival Corporation, Case No.: 10-22799-CV-LENARD/TURNOFF (S.D. Fla. 2011) [D.E. 26, pg. 4]. In Rocha, like in this case, Carnival filed a Motion to Dismiss alleging that the dangerous condition that occurred off the ship in a port of call was “open and obvious.” Citing Propenko, this Honorable Court denied Carnival’s Motion to Dismiss and held:
… many of the allegations in the Complaint require a “context specific inquiry” and “necessitate the development of the factual record before the Court can decided whether, as a matter of law, [Defendant was negligent]. Defendant’s arguments, which are certainly colorable, are best addressed by way of a motion for summary judgment.
Id. (emphasis added)
Like the Defendant in Propenko and Rocha, NCL alleges here that it had no duty to warn Plaintiff of the dangerous condition. Like in Propenko and Rocha this assertion is a question of fact not ripe for adjudication at a motion to dismiss stage, requiring context specific inquiry and necessitating development of the factual record.
VI. Plaintiff Properly Pled a Claim of Apparent Agency.
NCL next argues that the Plaintiff failed to assert a prima facie claim for apparent agency. A claim for apparent agency exists when: “1) the alleged principal makes some sort of manifestation causing a third party to believe that the alleged agent had authority to act for the benefit of the principal, 2) that such belief was reasonable, and 3) that the claimant reasonably acted on such belief to his detriment.” Doonan v. Carnival Corp., 404 F. Supp. 3d 1378, 1371 (S.D. Fla. 2005).
NCL argues that it would be unreasonable for the Plaintiff to believe that the ship’s doctor was NCL’s agent due to language within NCL’s exemplar Ticket Contract stating that the doctors are independent contractors. The disclaimer in NCL’s exemplar ticket contract, however, raises factual questions regarding Plaintiff’s knowledge of the disclaimers and the reasonableness of Plaintiff’s beliefs which is not capable of resolution on a motion to dismiss. See Mika v. Celebrity Cruise, Inc., 2010 U.S. Dist. Lexis 49846 (S.D. Fla. 2010) (declining to consider the disclaimers in Celebrity’s marketing materials because they raise factual questions regarding Plaintiff’s knowledge of the disclaimers and the reasonableness of Plaintiff’s beliefs) (emphasis added). Consequently, NCL’s Motion to Dismiss should be denied.
F. Plaintiff properly stated a claim of Joint Venture and the existence of a joint venture is a question of material fact.
NCL argues that the Plaintiff has failed to allege a cause of action for joint venture. The elements of joint venture are “(1) intention of the parties to create a joint venture; (2) joint control or right of control; (3) joint proprietary interest in the subject matter of the venture; (4) right of both venturers to share in the profits; and (5) duty of both to share in the losses.” Skeen v. Carnival Corp., 2009 U.S. Dist. Lexis 39355 (S.D. Fla. 2009).
First, a joint venture is nothing complicated. As the Florida Supreme Court in Kislack v. Kreedian, 95 So. 2d 510, 515 (Fla. 1957) (emphasis added) stated: “the relationship of joint adventurers is created when two or more persons combine their property or time or a combination thereof in conducting some particular line of trade or for some particular business deal.”
NCL argues that Plaintiff’s Complaint fails to allege that there was an intention by NCL and the doctor to enter into a joint venture. In support of its argument, NCL refers to Skeen v. Carnival Corp., where it was held that the failure to allege an agreement between the parties amounted to a failure to assert that the parties intended to enter into a joint venture. Here, however, Plaintiff has alleged the existence of an agreement and, therefore, the requisite intention by the parties. See D.E. 1, Paragraph 68-70 . Accordingly, the Complaint meets the first element of a claim for joint venture.
Furthermore, to the extent this Honorable Court finds any element lacking, 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). And further, the factors are not a checklist, “[t]hey are only signposts, likely indicia, but not prerequisites.” Id. (emphasis added). Accordingly, even if this Honorable Court finds a required element is missing, this Court can still find that Plaintiff’s cause of action for Joint Venture is plausible, and should therefore survive the present Motion to Dismiss.
Finally, it is well settled that questions of an agency relationship, including the existence of a joint venture present a question of fact for the jury. See USA Independence Mobilehome Sales, Inc. v. City of Lake City , 908 So.2d 1151, 1158 (Fla. 1st DCA 2005). Accordingly, this Honorable Court should deny Carnival’s Motion to Dismiss Plaintiff’s Joint Venture Count.
WHEREFORE, Plaintiff respectfully request that this Honorable Court enter an Order denying NCL’s Motion to Dismiss. Alternatively, in the event this Honorable Court grants NCL’s Motion to Dismiss, or any part thereof, Plaintiff respectfully moves this court for leave to file an Amended Complaint.
 Notably, the orders NCL cites in support of its Motion to Dismiss [D.E. 17] were decided at the Summary Judgment stage, after allowing for discovery and development of the record. See, i.e.,: Moyer v. Klosters Rederi, 1987 A.M.C. 1404 (1986) (decided on summary judgment); Sanchez v. Loffland, 626 F. 2d 1228 (5th Cir. 1980) (also decided on summary judgment).
 Pendent jurisdiction is available in admiralty cases. See Loeber v. Bay Tankers, Inc., 924 F. 2d 1340 (5th Cir. 1991) (“In conclusion, we agree with the second circuit, that in light of the broadly worded jurisdiction over admiralty cases and ‘the strong policy in favor of providing efficient procedures for resolving maritime disputes, we see no reason at this juncture to depart from the established rule of this Circuit that pendent party jurisdiction is available in the unique area of admiralty.”); Antilles Ins. Co. v. M/V Abitibi Concord, 755 F. Supp. 42 (D.P.R. 1991); Roco Carriers, Ltd. v. M/V Nurnberg Exp., 899 F. 2d 1292 (2d Cir. 1990).
 Pendent Jurisdiction over Plaintiffs’ state law claims (Counts I, VI, VIII, and IX) is proper since these claims derive from a common nucleolus of operative fact and are so related to Plaintiff’s federal claims (Counts II and VIII), that the Plaintiff would be ordinarily expected to try them together. Here, the common nucleolus of operative fact is that Plaintiff’s drowning and subsequent death occurred as a result of NCL’s negligence in Great Stirrup Cay (in its capacity as owner/operator of the result) and NCL’s Negligence while Plaintiff was aboard the vessel Sky (in its capacity as the vessel’s owner/operator).
 Like in these case, these counts were non-maritime counts specifically asserted against the resort operator for injuries occurring at the resort’s beaches.
 Plaintiff reiterates her arguments that the appropriate scope of a court’s review on a motion to dismiss is limited to the four corners of the complaint. St. George v. Pinellas County, 285 F. 3d 1334, 1337 (11th Cir. 2002).