Barham v. Royal Caribbean Cruises Ltd.

556 F.Supp.3d 1318

Lauren BARHAM and Matthew Urey, Plaintiff,

v.ROYAL CARIBBEAN CRUISES LTD., ID Tours New Zealand Limited, and White Island Tours Limited, Defendant.

Case Number: 20-22627-CIV-MORENO

United States District Court, S.D. Florida, Miami Division.

Signed August 23, 2021

Jacqueline Garcell, Jason Robert Margulies, Luis Alexander Perez, Michael A. Winkleman, Lipcon, Margulies, Alsina, Winkleman, P.A., Miami, FL, for Plaintiff.

Garrett Peter Keane, Mase Mebane & Briggs, P.A., Jerry Dean Hamilton, Carlos Javier Chardon, Spencer Burgess Price, Hamilton, Miller & Birthisel, LLP., Miami, FL, for Defendant Royal Caribbean Cruises Ltd.

Darren Wayne Friedman, Marian Laida Rivera, Foreman Friedman, PA, Miami, FL, for Defendant ID Tours New Zealand Limited.

Christopher John Mueller, Kenneth Allen Tomchin, Taylor, Day, Grimm, Boyd, Thomas Albert Boyd, Jr., Boyd Law, P.A., Jacksonville, FL, for Defendant White Island Tours Limited.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS

FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court upon Defendants’ Motions to Dismiss (D.E. 25, 37, 46) .

THE COURT has considered the motion, the responses, the replies, pertinent portions of the record, and being otherwise fully advised in the premises, it is ADJUDGED that the motions are GRANTED IN PART AND DENIED IN PART.

The facts are sad. The Plaintiffs were honeymooners on a Royal Caribbean Cruise in New Zealand. Through RCL's advertising, Plaintiffs learned of the opportunity to go on a "shore excursion" to White Island—an active volcano. Because this case is in federal court, you can guess what happens next. The volcano erupted while the Plaintiffs were on the island and they were severely burned (and, in some respects, permanently disabled). 22 people died in the eruption and New Zealand authorities investigated and ultimately charged some of the entities involved.

Plaintiffs now sue RCL, ID Tours, and White Island Tours (they refer to the latter as "Excursion Entities") in a 9-count complaint alleging various theories of negligence and a couple contract claims. Both of the New Zealand-based Excursion Entities move to dismiss for lack of personal jurisdiction while RCL moves to dismiss all counts for failure to state a claim. Ultimately, the two foreign defendants should be dismissed entirely for lack of personal jurisdiction, while some claims against RCL fail to state a claim and some should survive.

Factual Background

Plaintiffs are cruise passengers that were severely injured when their shore excursion ended with a volcanic eruption. They first purchased a cruise ticket through Royal Caribbean and then saw RCL's advertising of a day trip to White Island—which is an active volcano and popular tourist attraction. RCL advertised this trip as led by "our destination experts" and touted that they "team up with the top tour operators." On its general shore excursion page, RCL entices customers by promising "they're certified for quality" and that "Royal Caribbean thoroughly reviews its tour operators." These promises become relevant both for negligence analysis and because Plaintiffs argue that the relationship among the Defendants is not one of independent contractor, but rather agent or employee.

Both RCL and the Excursion Entities told passengers White Island is "one of the most active volcanoes in the world," but Plaintiffs allege this did not go nearly far enough toward warning of serious injury and death. Critically, Plaintiffs allege, environmental and geological readings in the weeks and days leading up to the trip revealed that the volcano was more likely than usual to erupt during the excursion, and the Defendants failed to either warn of this fact or cancel the excursion. The nitty-gritty is probably best saved for summary judgment, but suffice to say that less than one week before the excursion, New Zealand's volcano monitoring service set White Island at a "2" on the 0-5 scale. 2 is the highest level the service can issue where the volcano is not literally mid-eruption. Notably, 2 is the highest level White Island had reached since 2016—the last time it erupted.

Legal Standard

To state a claim, Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." While the Court must consider the allegations contained in the plaintiff's complaint as true, this rule "is inapplicable to legal conclusions." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In addition, the complaint's allegations must include "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

In practice, to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim of relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. The plausibility standard requires more than a sheer possibility that a defendant has acted unlawfully. Id. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. Determining whether a complaint states a plausible claim for relief is a context-specific undertaking that requires the court to draw upon its judicial experience and common sense. Id. at 679, 129 S.Ct. 1937. A court may dismiss a case with prejudice if the allegations of a complaint, even when taken as true, afford no basis for relief or when amendment would be futile. E.g. , Burger King Corp. v. Weaver , 169 F.3d 1310, 1320 (11th Cir. 1999) ; Chiron Recovery Ctr., LLC v. United Healthcare Servs., Inc. , 438 F. Supp. 3d 1346, 1356 (S.D. Fla. 2020).

Count I—Negligent Misrepresentation

First, Plaintiffs charge RCL with negligent misrepresentation. There are six alleged misrepresentations: 1) misrepresenting the activity level so as not to include risk of death, 2) misrepresenting that RCL "thoroughly reviews" excursion partners, 3) misrepresenting that the Excursion Entities were "reputable," 4) misrepresenting that RCL was in charge of the excursion when, in reality, it was an independent contractor, 5) misrepresenting that the Excursion Entities are insured, 6) misrepresenting that Excursion Entities would be subject to personal jurisdiction in the United States. 2 and 3—that RCL vets the reputable excursion entities—are Plaintiffs’ strongest arguments.

To prevail on a negligent misrepresentation claim, Plaintiffs must plausibly allege (1) misrepresentation of a material fact; (2) that the representor made the misrepresentation without knowledge as to its truth or falsity or under circumstances in which he ought to have known of its falsity; (3) that the representor intended that the misrepresentation induce another to act on it; and (4) that injury resulted to the party acting in justifiable reliance on the misrepresentation. Serra-Cruz v. Carnival Corp. , 400 F. Supp. 3d 1364 (S.D. Fla. 2019), appeal dismissed, No. 19-13725-DD, 2019 WL 7167484 (11th Cir. Nov. 25, 2019). Reliance on advertisement must also be "reasonable and justified under the circumstances," Smith v. Mellon Bank , 957 F.2d 856, 858 (11th Cir. 1992), and must show a "causal connection," namely "that the wrong [committed by the defendant] was the proximate cause of [the plaintiff's] injury or damage." Vance v. Indian Hammock Hunt & Riding Club , 403 So. 2d 1367 (Fla. 4th DCA 1981). Additionally, as an allegation of fraud, negligent misrepresentation is subject to the heightened pleading standard of Rule 9(b), which requires a plaintiff to establish the "who, what, when, where, and how" of the fraud. Garfield v. NDC Health Corp. , 466 F. 3d 1255, 1262 (11th Cir. 2006).

Defendant RCL counters that Plaintiffs "allege no facts supporting that ID Tours had a bad reputation, was unreliable, or was unsafe, let alone that these purported traits proximately caused Plaintiffs’ injuries." Frankly, even though Plaintiffs do not plead that the Excursion Entities had a bad reputation or were unsafe prior to this incident, assuming the facts in the Complaint are true, it is plain that taking tourists to the rim of a volcano that was flashing warning signs in the weeks prior to the trip is per se evidence of unreliability. See Adams v. Carnival Corp. , 482 F. Supp. 3d 1256, 1266 (S.D. Fla. 2020) ("[T]he Court can infer that the zip-lining excursion was not ‘easy’ as a brief orientation did not prepare Plaintiff for maneuvering an alleged brake failure."). Thus, on this allegation alone, the Court believes the Plaintiffs have plausibly alleged misrepresentation of a material fact and that RCL knew/should have known that the Excursion Entities were not reliable or reputable because RCL knew that the volcanic activity levels were high and the excursion was not cancelled.

RCL maintains, however, that even if these facts were plausibly alleged, its representations are not actionable because they are puffery. Plaintiffs do not respond to the puffery argument in their briefing. Judge Scola dealt with similar facts where a Plaintiff alleged he was injured on an excursion from a Royal Caribbean cruise. Finding the representations were puffery, Judge Scola wrote:

Lastly, many of the misrepresentations that Zhang points to are not actionable. That is, "the general promise of a ‘safe, reliable, licensed, excursion’ is not actionable." Gibson v. NCL (Bahamas) Ltd. ,

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