United States District Court, S.D. Florida, Miami Division
JOSE R. PEREZ, as Personal Representative of the Estate of HORTENSIA SANTOS, Deceased; MARIANO SANTOS (son); and HORTENSIA SANTOS (daughter), Plaintiffs,
NCL (BAHAMAS) LTD. d/b/a NORWEGIAN CRUISE LINE, Defendant.
ORDER DENYING MOTION TO DISMISS
FEDERICO A . M ORENO UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court upon Defendant's Motion to
Dismiss Complaint (D.E. 8), filed on August 8,
COURT has considered the motion, the response in opposition,
the reply, pertinent portions of the record, and being
otherwise fully advised in the premises, it is
ADJUDGED that the motion is
tragic case arises out of the death Hortensia Santos, a
passenger onboard the Defendant's cruise ship, the
Getaway. This suit is brought by Jose R. Perez, as Personal
Representative of the Estate of Ms. Santos; Mariano Santos,
son of Ms. Santos; and Hortensia Santos, daughter of Ms.
Santos. Plaintiffs allege that on May 31, 2016, Ms. Santos
was injured while the ship was in U.S. territorial waters.
Specifically, Plaintiffs allege that Ms. Santos was seated in
the ship's dining area when another passenger, who was
being escorted in a wheelchair by a Norwegian employee,
slammed into Ms. Santos, pinning her torso against the table
she was seated at. Shortly thereafter, Ms. Santos was
escorted to her cabin where she subsequently began vomiting.
Ms. Santos was then taken to the ship's clinic where she
was intubated. Norwegian's onboard physician recommended
that Ms. Santos undergo hemoglobin testing every six hours
and that an endoscopy should be performed at the nearest
hospital when the ship docked at Costa Maya, Mexico, the next
port of call.
arrival in Costa Maya, Norwegian's medical staff and crew
directed Ms. Santos to a local hospital. The attending
physician at the hospital ordered a sonogram, but neither the
sonogram, nor the endoscopy urged by the onboard physician
were performed. Ms. Santos's relative informed the
attending physician that Ms. Santos would be flying back to
Miami immediately. Thereafter, Ms. Santos was discharged and
boarded a plane to Miami where her condition deteriorated
while on the flight. Upon arrival, Ms. Santos was taken to
the hospital where she was ultimately pronounced dead.
Complaint includes two counts. Count I is a wrongful death
claim under the Florida Wrongful Death Act, Fla. Stat. §
768.16-26, if the incident on the ship that led to Ms.
Santos's death took place in U.S. territorial waters.
Plaintiffs plead Count II, a wrongful death claim under the
Death on the High Seas Act, 46 U.S.C. §§ 30301-8,
in the alternative, in the event that the ship was outside of
U.S. territorial waters. Norwegian moves to dismiss Count I
because the Death on the High Seas Act, rather than Florida
law, should apply. Norwegian moves to dismiss Count II for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6). This
Court has maritime jurisdiction pursuant to 28 U.S.C. §
1333. II. Legal Standard "A pleading that
states a claim for relief must contain ... a short and plain
statement of the claim showing that the pleader is entitled
to relief." Fed.R.Civ.P. 8(a)(2). When ruling on a
motion to dismiss, a court must view the complaint in the
light most favorable to the plaintiff and accept the
plaintiffs well-pleaded facts as true. See St.
Joseph's Hosp., Inc. v. Hosp. Corp. of Am.,
795 F.2d 948, 954 (11th Cir. 1986). To survive a motion to
dismiss, a "complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face."7' Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell All
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Detailed
factual allegations are not required, but a pleading must
offer more than "labels and conclusions" or "a
formulaic recitation of the elements of the cause of
action." Twombly, 550 U.S. at 555; Jackson
v. BellSouth Telecomm., 372 F.3d 1250, 1263 (11th Cir.
2004) ("To survive a motion to dismiss, plaintiffs must
do more than merely state legal conclusions; they are
required to allege some specific factual bases for those
conclusions or face dismissal of their claims."). In
short, the complaint must not merely allege misconduct, but
must demonstrate that the pleader is "entitled to
relief." Iqbal, 556 U.S. at 677-78.
Death on the High Seas Act and Florida's Wrongful Death
parties quibble with whether Florida's Wrongful Death Act
or the Death on the High Seas Act applies. The Complaint
asserts Count I under Florida law, and alternatively, Count
II under federal law. The Death on the High Seas Act provides
a cause of action "whenever the death of an individual
is caused by wrongful act, neglect, or default occurring on
the high seas beyond 3 nautical miles from the shore of the
United States . . ." 46 U.S.C. § 30302. By its
terms, the Death on the High Seas Act does not cover deaths
resulting from incidents occurring within state territorial
waters - up to three miles off a State's shore. The
distinction is crucial because recovery under the Death on
the High Seas Act is limited to pecuniary loss, while claims
for non-pecuniary loss are barred. Smith v. Carnival
Corp., No. 07-23363-CIV, 2008 WL 2704459, at *1 (S.D.
Fla. June 24, 2008). In comparison, Florida law is more
generous as it permits recovery of pecuniary loss.
See Fla. Stat. 768.21(2) ("The surviving spouse
may also recover for loss of the decedent's companionship
and protection and for mental pain and suffering from the
date of injury.").
position is that Count I should be dismissed because the
death occurred in international waters and thus, Florida law
is inapplicable. In support, Norwegian relies on the
affidavit of Brett Berman, the Director of Passenger and Crew
Claims, which states that at the time of the incident that
resulted in Ms. Santos's death, the ship was in
international waters, thereby resulting in the application of
the Death on the High Seas Act. The general rule is that at
the motion to dismiss stage, the Court's review is
limited to the four corners of the complaint and may not
consider matters outside the pleadings without converting the
defendant's motion into one for summary judgment.
Crowell v. Morgan Stanley Dean Witter Servs., Co.,
Inc., 87 F.Supp.2d 1287, 1290 (S.D. Fla. 2000).
Norwegian cites Bickley v. Caremark RX, Inc., 461
F.3d 1325 (11th Cir. 2006), for the proposition that
"documents which are central to Plaintiffs' claim
may be considered when ruling on the motion to dismiss."
To that end, Norwegian urges the Court to rely on Mr.
Berman's affidavit to dismiss Count I. However, Norwegian
misconstrues Bickley's holding. In
Bickley, the Eleventh Circuit held that:
[W]here the plaintiff refers to certain documents in the
complaint and those documents are central to the plaintiffs
claim, then the Court may consider the documents part of the
pleading for purposes of Rule 12(b)(6) dismissal, and the
defendant's attaching such documents to the motion to
dismiss will not require conversion of the motion into a
motion for summary judgment.
461 F.3d at 1330 n.7 (citing Brooks v. Blue Cross &
Blue Shield, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997))
Court could rely on Mr. Berman's affidavit if Plaintiffs
had referenced it in their Complaint, but they did not.
See also Franza v. Royal Caribbean Cruises, Ltd.,772 F.3d 1225, 1237-38 (11th Cir. 2014) (refusing to consider
the passenger ticket contract the defendant attached to its
motion to dismiss because the plaintiff did not attach ...