United States District Court, S.D. Florida
VALENTINA AZZIA and STEFANO AGAZZI, individually and as parents and natural guardians of A A. and J. A., minors, Plaintiffs,
ROYAL CARIBBEAN CRUISES LTD., Defendant.
ORDER GRANTING IN-PART AND DENYING IN PART MOTION FOR
LAWTENCE KING UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court upon Royal Caribbean Cruises
Ltd.'s ("Defendant") Motion for Partial Summary
Judgment ("Motion") (DE 45), filed October 27,
2017. The Court is fully advised on the matter. Upon review of
the record and careful consideration, the Court finds that
the Motion should be granted in-part and denied in-part.
case arises from the near drowning of Plaintiffs' child
in a swimming pool aboard Defendant's cruise ship, the
Oasis of the Seas. Plaintiffs filed their Complaint
against Defendant, alleging two causes of action: (1)
negligence and (2) infliction of emotional distress. (DE 1).
now moves for summary judgment on the basis that Plaintiff
Azzia's "testimony completely undermines and renders
unreliable her lawyer-drafted affidavit on which the Court
previously relied on in its decisions denying
[Defendant's] motions to dismiss and motion to transfer
venue." (DE 45, at I). The Defendant argues that
there is no genuine issue of material fact in dispute as to
whether Defendant sent Plaintiffs the ticket contract
containing a forum selection clause, and as such, the Court
should grant summary judgment and dismiss the case on
forum non conveniens grounds.
judgment is appropriate where the pleadings and supporting
materials establish that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A fact is
"material" if it may determine the outcome under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Allen v.
Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).
If the record as a whole could not lead a rational
fact-finder to find for the nonmoving party, there is no
genuine issue of fact for trial. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
motion for summary judgment, the Court must view the evidence
and resolve all inferences in the light most favorable to the
nonmoving party. Anderson, 477 U.S. at 255;
Williamson Oil Co., Inc. v. Philip Morris USA, 346
F.3d 1287, 1298 (11th Cir. 2003). A mere scintilla of
evidence in support of the nonmoving party's position is
insufficient to defeat a motion for summary judgment.
Anderson, 477 U.S. at 252; Kesinger v.
Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004).
However, the Court may not undertake the jury's function
of weighing the evidence properly offered by the parties in
reviewing the record evidence. Latimer v. Roaring Toyz,
Inc., 601 F.3d 1224, 1237 (11th Cir. 2010)
("Neither we nor the district court are to undertake
credibility determinations or weigh the evidence.").
Forum Selection Clause
review of the record, the Court concludes that summary
judgment is not warranted. The Defendant has not established
that the Plaintiffs received the ticket contract. The cited
portions of Plaintiff Azzia's deposition transcript do
not contradict her affidavit. Rather, it appears from the
deposition transcript that Plaintiff Azzia remembers
receiving certain other emails from Defendant, but does not
remember receiving an email from Defendant containing the
ticket contract itself.
the lack of conclusive evidentiary support provided by
Defendant, the Court cannot determine, as a matter of law,
whether there was competent acceptance of the ticket
contract. To date, the issue of whether Defendant provided
the ticket contract to Plaintiffs to allow them the
opportunity to read and understand the terms and conditions
therein remains in dispute, resulting in a genuine issue of
material fact. As such, dismissal on forum non
conveniens grounds is not warranted and denied.
moves for summary judgment on Count II of Plaintiffs'
Complaint for intentional and negligent infliction of
emotional distress. Defendant contends that Plaintiffs'
allegations do not rise to the level of
"outrageousness" required to support a cause of
action for intentional infliction of emotional distress
("IIED") and Plaintiffs were not in the "zone
of danger" at the time of their child's near
drowning to support a cause ...