United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY, UNITED STATES DISTRICT JUDGE.
September 25, 2017, the plaintiff sued (Doc. 1) the
defendants for negligence, for intentional infliction of
emotional distress, and for breach of contract. Asserting the
same claims, the plaintiff amended (Doc. 15) her complaint on
October 25, 2017. On November 8, 2017, the defendants moved
(Doc. 19) to dismiss the amended complaint,  and on April 28,
2018, the plaintiff moved (Doc. 39) - for the first time -
for an order determining that Honduran law governs the claims
in this action.
failing to timely assert the claim, a party waives the
application of foreign law. Daewoo Motor Am., Inc. v.
Gen. Motors Corp., 459 F.3d 1249, 1257 (11th Cir. 2006);
Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009)
(holding that the plaintiff “explicitly submitted to
Illinois [not Virginia] law and relied solely on it, and
having done so, the district court was right to apply it to
the dispute. . . . The principle of waiver is designed to
prohibit this very type of gamesmanship - [the plaintiff] is
not entitled to get a free peek at how his dispute will shake
out under Illinois law and, when things don't go his way,
ask for a mulligan under the laws of a different
jurisdiction.”); Vukadinovich v. McCarthy, 59
F.3d 58, 62 (7th Cir. 1995) (holding that choice of law is
“normally waivable”); Anderson v. McAllister
Towing and Transp. Co., 17 F.Supp.2d 1280, 1286 n.6
(S.D. Ala. 1998) (Volmer, J.) (holding that the defendant
waived the right to have Saudi Arabian law applied to a
contractual dispute because the defendant failed to give
reasonable notice of its intent to assert that foreign law
applied). “The failure to give proper notice of the
applicability of foreign law does not warrant dismissal . . .
. It is more likely that a failure to give reasonable notice
will result in a waiver of the applicability of foreign law
to the case.” Moore's Federal Practice,
Vol. 9, § 44.1.03 (3d ed. 2016).
the complaint and the amended complaint, the plaintiff
asserts emphatically (and highlights in bold) that each claim
is brought under Florida common law. The plaintiff's
response to the motion to dismiss is based entirely on
Florida law. Seven months elapsed between the day the
plaintiff sued and the day the plaintiff moved for
“choice of law.” Because the plaintiff failed to
give timely notice of the claimed applicability of foreign
law, she has waived her right to assert that Honduran law
governs her claims.
with Intergro in October 2014, the plaintiff, a Honduran
national, agreed to provide accounting services at
Intergro's “Shared Services Center” in
Honduras. (Doc. 15 at 4) The plaintiff reported to Felix
Renta, CFO of the group of companies owned by Timothy Dolan.
(Doc. 15 at 4) The plaintiff alleges that both Intergro and
Seproma “conducted” in Honduras a
joint training session for employees. The activities included
a white-water rafting event in which the employees were
purportedly “supplied with a life jacket and a helmet,
but with no other protective equipment, including no eye
protection gear.” (Doc. 15 at 5)
the rafting event, the plaintiff noticed a burning sensation
in her right eye. Later she required eye surgery to remove a
small stone. After the surgery, the plaintiff began
experiencing “significant” difficulty with her
vision. (Doc. 15 at 6) Following a diagnosis of “post
traumatic cataract disorder, ” the plaintiff required
two further surgeries. In June 2016, a doctor diagnosed her
with a 75% loss of vision in the injured eye. (Doc. 15 at 6)
state a claim for negligence, a plaintiff must allege that
the defendant owed the plaintiff a duty of care, that the
defendant breached that duty, and that the breach caused the
plaintiff damage. Lewis v. City of St. Petersburg,
260 F.3d 1260, 1262 (11th Cir. 2001). The plaintiff alleges
that Integro owed her a duty “not to select” the
rafting event in which she was injured and a duty to provide
effective personal protective gear instead of “solely
allowing the operator of the rafting event to make the
decision as to what protective equipment to provide.”
(Doc. 15 at 8) The defendants argue (1) that the plaintiff
fails to allege sufficiently that the defendants knew that
the rafting event posed an unreasonable risk of harm and (2)
that, even if the plaintiff had alleged a duty of care owed
by Intergro to the plaintiff, she fails to allege any
individual duty owed by Dolan or Renta.
plaintiff alleges that the defendants, who purportedly
authorized, sponsored, and paid for the work event, owed her
a duty of care; that the defendants breached that duty by
failing to ensure that employees were adequately protected;
that the breach caused her injury; and that she has suffered
actual damages as a result of the defendants' negligence.
The plaintiff states a claim for negligence.
infliction of emotional distress
state a claim for intentional infliction of emotional
distress, a plaintiff must allege that the defendant
intentionally or recklessly committed outrageous conduct and
that the conduct caused severe emotional distress.
Stewart v. Walker, 5 So.3d 746, 749 (Fla. 4th DCA
2009) The standard for outrageous conduct is distinctly high.
Metropolitan Life Ins. Co. v. McCarson, 467 So.2d
277, 278 (Fla. 1985) (“Liability has been found only
where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”). Whether a
person's alleged conduct is sufficiently outrageous or
intolerable is a matter of law. De La Campa v. Grifols
America, Inc., 819 So.2d 940 (Fla. 3d DCA 2002).
plaintiff alleges (1) that the “[d]efendants understood
that their collective refusal to compensate Plaintiff for
work related injurious activities, including lost wages and
medical care, would cause emotional anxiety and distress to a
single working mother of three children” (Doc. 15 at
7) and (2) that the defendants' “intentional
refusal to pay Plaintiff's lost wages, medical expenses,
and other benefits as required by Honduran law . . . caused
Plaintiff emotional distress” (Doc. 15 at 9). The
plaintiff fails to allege a single ...