UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:20-cv-20692-KMM
NICOLE WOODLEY, et al.,
Plaintiffs,
v.
ROYAL CARIBBEAN CRUISES, LTD., et al.,
Defendants.
/
OMNIBUS ORDER
THIS CAUSE came before the Court upon Defendant Out Island Charters, NV’s (“OIC”)
Motion to Dismiss Plaintiffs’ Amended Complaint for Lack of Personal Jurisdiction and to Enforce
Forum Selection Agreement Between OIC and Plaintiffs. (“Mot.”) (ECF No. 55). Plaintiffs filed
a response. (“Resp.”) (ECF No. 69). OIC did not file a reply and the time to do so has passed.
The Motion is now ripe for review. The Parties also filed an Agreed Motion to Strike Portions of
the Amended Complaint (ECF No. 58), which the Court addresses here.
I. BACKGROUND1
This is a wrongful death action arising under 28 U.S.C. § 1333 brought by Nicole Woodley
(“Woodley”), Clarice Lee (“Lee”), minors K.W., M.W., and C.W., Jr. (the “Minors”), and
Barrington L. Sibblis, as personal representative of the Estate of Barbara Sibblis (the “Decedent”)
(collectively, “Plaintiffs”) against Royal Caribbean Cruises LTD (“RCCL”) and OIC (collectively
1 The following background facts are taken from the Amended Complaint for Maritime Wrongful
Death and Personal Injury Damages with Demand for Jury Trial (“Am. Compl.”) (ECF No. 51)
and are accepted as true for purposes of ruling on this Motion to Dismiss. Fernandez v. Tricam
Indus., Inc., No. 09-22089-CIV-MOORE/SIMONTON, 2009 WL 10668267, at *1 (S.D. Fla. Oct.
21, 2009).
Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 1 of 8
2
with RCCL, “Defendants”). See generally Am. Compl. (ECF No. 51). Woodley, Lee, the Minors,
and the Decedent (collectively, “Passenger Plaintiffs”) were passengers on RCCL’s cruise ship,
the Adventure of the Seas (the “Vessel”) during a Caribbean cruise between February 16, 2019
and February 24, 2019. Id. ¶¶ 1, 72.
On February 20, 2019, while on the Vessel, Passenger Plaintiffs purchased from RCCL
admission to the Golden Eagle Shore Excursion (“Excursion”) operated by OIC. Id. ¶¶ 1–3.
Passenger Plaintiffs disembarked the Vessel and boarded a catamaran as part of the Excursion. Id.
¶ 88. After sailing around the island, the catamaran anchored in deep water offshore from the
beach. Id. ¶¶ 89–90. Passenger Plaintiffs were provided “foam noodles” to help them swim from
the catamaran to the beach. Id. ¶ 90. While attempting to swim from the catamaran to the beach,
Decedent was found floating face down, non-responsive, in the ocean. Id. ¶ 101. After
unsuccessful attempts to revive the Decedent, she was pronounced dead on the beach. Id. ¶¶ 102–
03.
The Excursion is the subject of a contract between RCCL and OIC. Id. ¶ 37. Cruise
passengers can book and pay for OIC excursions online prior to their cruise and during the cruise
at designated OIC outposts on RCCL’s ships. Id. ¶¶ 42–43. RCCL “maintains a department” at
its headquarters to promote and manage the OIC charters it sells to cruise passengers. Id. ¶ 44.
OIC and RCCL are parties to a written contract entitled Tour Operator Manual and Agreement
and/or a business enterprise and/or course of dealing (the “Agreement”) “to co-venture the
marketing, selling and provision of recreational shore excursions, for the benefit of [RCCL’s]
cruise passengers.” Id. ¶ 48.
On August 3, 2020, Plaintiffs filed an Amended Complaint alleging claims against RCCL
and OIC; as to OIC, the claims include (1) Negligence (Count V); (2) Negligent Selection and
Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 2 of 8
3
Retention (Count VI); (3) Vicarious Liability (Count VII); and (4) Negligent Infliction of
Emotional Distress (Counts VIII and IX). See generally id. OIC now moves to dismiss Plaintiffs’
claims against OIC for lack of personal jurisdiction. See generally Mot.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(2) provides that a court may dismiss a complaint for
lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). “A plaintiff seeking the exercise of personal
jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint
sufficient facts to make out a prima facie case of jurisdiction.” United Techs. Corp. v. Mazer, 556
F.3d 1260, 1274 (11th Cir. 2009). In assessing whether a nonresident is subject to exercise of
personal jurisdiction, federal courts must determine “whether the exercise of jurisdiction (1)
comports with the long-arm statute of the forum state; and (2) does not violate the Due Process
Clause of the Fourteenth Amendment.” Virgin Health Corp. v. Virgin Enters. Ltd., 393 F. App’x
623, 626 (11th Cir. 2010).
Federal courts engage in a three-part burden-shifting analysis when a defendant asserts lack
of personal jurisdiction. See Diulus v. Am. Express Travel Related Servs. Co., Inc., 823 F. App’x
843, 848 (11th Cir. 2020). “First, the plaintiff ‘bears the initial burden of alleging in the complaint
sufficient facts to make out a prima facie case of jurisdiction.’” Id. (quoting Mazer, 556 F.3d at
1274). “Second, if the complaint alleged sufficient facts, and ‘the defendant challenges
jurisdiction by submitting affidavit evidence in support of its position, the burden traditionally
shifts back to the plaintiff to produce evidence supporting its jurisdiction.’” Id. (quoting Mazer,
556 F.3d at 1274). “Third, ‘where the plaintiff’s complaint and supporting evidence conflict with
the defendant’s affidavits, the court must construe all reasonable inferences in favor of the
Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 3 of 8
4
plaintiff.’” Id. (quoting Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,
1257 (11th Cir. 2010)).
III. DISCUSSION
OIC moves to dismiss Plaintiffs’ claims against it, arguing that (1) OIC is not subject to
personal jurisdiction in Florida, (2) OIC is not subject to jurisdiction before this Court under the
national long-arm statute, and (3) Plaintiffs accepted a binding forum selection agreement
requiring any claims to be brought exclusively in Saint Martin. See generally Mot. Plaintiffs
filed a brief response, wherein Plaintiffs state that they will not be filing a substantive response
“[i]n light of the Magistrate Judge’s Order denying Plaintiffs’ Motion for Leave to Propound
Jurisdictional Discovery.” Resp. at 1; see also (ECF No. 64). For the reasons set forth below, the
Court finds that dismissal of the claims against OIC is warranted because OIC is not subject to
personal jurisdiction in Florida or jurisdiction before this Court under the national long-arm statute.
Accordingly, the Court does not reach the merits of the binding forum selection agreement.
A. OIC is Not Subject to Personal Jurisdiction in Florida
OIC argues that it is not subject to general or personal jurisdiction in Florida. See Mot. at
6–13. Specifically, OIC argues that it is not “at home” in Florida, which “forecloses a finding of
general jurisdiction.” Id. at 10. OIC further argues that it is not subject to specific jurisdiction
under Florida’s long-arm statute because (1) Plaintiffs do not allege that OIC committed a tortious
act in Florida; (2) OIC’s indemnity agreement with RCCL is an insufficient basis upon which to
confer jurisdiction as Plaintiffs’ claims do not arise out of that indemnity agreement; and (3) OIC’s
contract with RCCL, which contains a Florida forum selection provision, is an insufficient basis
upon which to confer jurisdiction under a third-party beneficiary theory. Id. at 6–9.
“Florida’s long-arm statute provides for both general and specific personal jurisdiction.”
Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir. 2013) (citing
Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 4 of 8
5
§ 48.193(1)–(2)). “General personal jurisdiction exists when a defendant ‘is engaged in substantial
and not isolated activity within this state . . . whether or not the claim arises from that activity.’”
Id. (quoting § 48.193(2)). “General personal jurisdiction is based on a defendant’s substantial
activity in Florida without regard to where the cause of action arose.” Id. (citation omitted).
“[S]pecific personal jurisdiction authorizes jurisdiction over causes of action arising from or
related to the defendant’s actions within Florida and concerns a nonresident defendant’s contacts
with Florida only as those contacts related to plaintiff’s cause of action.” Id. (citation omitted).
This Court has previously dismissed with prejudice claims against excursion operators for
lack of personal jurisdiction, finding both general and specific jurisdiction lacking under similar
circumstances. See, e.g., Hickey v. Celebrity Cruises, Inc., No. 13-20587-CIV-SCOLA/OTAZO-
REYES, 2015 WL 13776760, at *5–6 (S.D. Fla. Feb. 2, 2015) (finding that (1) an indemnity
agreement between OIC and Celebrity Cruises, Inc. did not provide a basis for the exercise of
specific personal jurisdiction over OIC; and (2) because OIC, “a corporation that operates
exclusively in the Caribbean Island of Saint Martin, is not ‘at home’ in Florida[,] . . . the exercise
of personal jurisdiction over [OIC] would not satisfy the minimum contacts requirement of the
Due Process Clause of the Fourteenth Amendment”); Serra-Cruz v. Carnival Corp., 400 F. Supp.
3d 1354, 1363 (S.D. Fla. 2019) (“[T]his Court will not allow Plaintiff to enter through the ‘back
door’ and use the [consent to jurisdiction clause in an agreement between a cruise line and an
excursion operator] via a meritless third-party beneficiary claim to find jurisdiction over a foreign
defendant in a personal injury case.”
As in Hickey and Serra-Cruz, the indemnity agreement between OIC and Carnival does
not provide a basis for the exercise of personal jurisdiction over OIC because Plaintiffs’ claims do
not arise out of it, and OIC operates exclusively in Saint Martin, and is thus not “at-home” in
Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 5 of 8
6
Florida. See Hickey, 2015 WL 13776760, at *5–6; Serra-Cruz, 400 F. Supp. 3d at 1363. Plaintiffs
did not file a substantive response citing to any authority or setting forth any factual circumstances
to differentiate the circumstances here from those present in Hickey and Serra-Cruz that warrants
a different result. Accordingly, the Court finds that OIC is not subject to personal jurisdiction in
Florida.
B. OIC is Not Subject to Jurisdiction Before This Court Under the National
Long-Arm Statute
OIC argues that “courts rarely invoke jurisdiction under Rule 4(k)(2)” and “[f]ollowing
Daimler [AG v. Bauman], jurisdiction under Rule 4(k)(2) has become even harder to establish.”
Mot. at 13–14 (citing Daimler AG v. Bauman, 571 U.S. 117 (2014)).
Rule 4(k)(2) of the Federal Rules of Civil Procedure “permits a federal court to aggregate
a foreign defendant’s nationwide contacts to allow for personal jurisdiction provided that two
essential conditions are met: (1) plaintiff’s claims must arise under federal law; and (2) the exercise
of jurisdiction must be consistent with the Constitution and laws of the United States.” Thompson
v. Carnival Corp., 174 F. Supp. 3d 1327, 1337 (S.D. Fla. 2016) (quoting Fraser v. Smith, 594 F.3d
842, 848–49 (11th Cir. 2010)) (internal quotation marks omitted). “[I]t is a rare occurrence when
a court invokes jurisdiction under the rule.” Id. The rule was invoked, for example, as to Osama
bin Laden and al-Qaeda, where the court found that they “engaged in unabashedly malignant
actions directed at and felt in this forum.” Mwani v. bin Laden, 417 F.3d 1, 13 (D.C. Cir. 2005).
Similar to this Court’s previous findings in cases involving excursion operators, the Court
finds that OIC’s contacts with the United States are too tenuous to support jurisdiction under the
national long-arm statute. See, e.g., Thompson, 174 F. Supp. 3d at 1338. Accordingly, the Court
finds that OIC is not subject to this Court’s jurisdiction under the national long-arm statute.
Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 6 of 8
7
C. The Parties’ Agreed Motion to Strike Portions of the Amended Complaint
In a separate Motion, Plaintiffs and Defendant RCCL jointly move the Court to strike
allegations that inadvertently remained in Plaintiffs’ Amended Complaint after the Court
dismissed certain counts from the original Complaint. See generally (ECF No. 58). The Parties
specifically request that the Court strike “(1) the term ‘joint venturer’ from paragraph 134; (2)
paragraph 136 in its entirety, including all sub-sections; and (3) sub-sections (a)–(c) and (f)–(aa)
from paragraph 163.” Id. at 3.
Federal Rule of Civil Procedure 12(f) provides that a “court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f). “The purpose of a motion to strike is to clean up the pleadings, remove irrelevant or
otherwise confusing materials, and avoid unnecessary forays into immaterial materials.” Blake
Batmasian, 318 F.R.D. 698, 700 (S.D. Fla. 2017). Motions to strike are usually only granted when
“the matter sought to be omitted has no possible relationship to the controversy, may confuse the
issues, or otherwise prejudice a party.” Id. at 700–01 (citation omitted).
Here, Plaintiffs and Defendant RCCL request that the Court strike the terms “joint
venture/joint venturer” from paragraph 134 and paragraph 163 in its entirety because those
allegations implicate joint venture and are immaterial since the Amended Complaint does not bring
a cause of action for joint venture. (ECF No. 58) at 3. Plaintiffs and Defendant RCCL further
argue that sub-sections (a)–(c) and (f)–(aa) should be stricken from paragraph 163 because they
are immaterial to Plaintiffs’ claim for Negligent Selection and/or Retention. Id.
The Court finds good cause to strike the aforementioned portions of Plaintiffs’ Amended
Complaint.
Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 7 of 8
8
IV. CONCLUSION
UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being
otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that OIC’s
Motion to Dismiss Plaintiffs’ Amended Complaint for Lack of Personal Jurisdiction (ECF No. 55)
is GRANTED, and Plaintiffs claims against OIC are hereby DISMISSED WITH PREJUDICE.
The Clerk of Court is INSTRUCTED to terminate OIC as a party to this case.
It is FURTHER ORDERED that Plaintiffs shall file an Amended Complaint on or before
February 5, 2021 omitting claims against OIC and the portions that Plaintiffs and Defendant RCCL
have agreed to strike, which shall serve as the final operative complaint in this matter.
Accordingly, the Parties’ Agreed Motion to Strike Portions of the Amended Complaint (ECF No.
58) is DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of January, 2021.
K. MICHAEL MOORE
CHIEF UNITED STATES DISTRICT JUDGE
c: All counsel of record
23rd
Case 1:20-cv-20692-KMM Document 70 Entered on FLSD Docket 01/25/2021 Page 8 of 8
Delivering a high-quality product at a reasonable price is not enough anymore.
That’s why we have developed 5 beneficial guarantees that will make your experience with our service enjoyable, easy, and safe.
You have to be 100% sure of the quality of your product to give a money-back guarantee. This describes us perfectly. Make sure that this guarantee is totally transparent.
Read moreEach paper is composed from scratch, according to your instructions. It is then checked by our plagiarism-detection software. There is no gap where plagiarism could squeeze in.
Read moreThanks to our free revisions, there is no way for you to be unsatisfied. We will work on your paper until you are completely happy with the result.
Read moreYour email is safe, as we store it according to international data protection rules. Your bank details are secure, as we use only reliable payment systems.
Read moreBy sending us your money, you buy the service we provide. Check out our terms and conditions if you prefer business talks to be laid out in official language.
Read more