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Ruben v. Silversea Cruises, Ltd. (Inc.)

United States District Court, S.D. Florida

October 11, 2019

RONNA RUBEN, Plaintiff,
v.
SILVERSEA CRUISES, LTD. (INC.) and MEDIPORT SERVICES, Defendants.

          ORDER

          BETH BLOOM UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court upon Defendant Silversea Cruises, Ltd.'s (“Defendant”) Motion to Dismiss Plaintiff's Amended Complaint, ECF No. [10] (“Motion”), filed on July 31, 2019. Plaintiff Ronna Ruben (“Plaintiff”) filed a Response in Opposition to Defendant's Motion, ECF No. [17] (“Response”), to which Defendant replied, ECF No. [20] (“Reply”). The Court has reviewed the Motion, all opposing and supporting submissions, the record in this case, and is otherwise fully advised. As explained below, the Motion is granted in part and denied in part.

         I. BACKGROUND

         Plaintiff initiated the instant negligence action against Defendant on May 31, 2019. ECF No. [1] (“Complaint”). On June 28, 2019, Plaintiff amended her Complaint to add another Defendant, Mediport Services (“Mediport”). ECF No. [7] (“Amended Complaint”).

         In the Amended Complaint, Plaintiff alleges that she was a passenger on one of Defendant's cruise ships - the Silver Muse - during an eight-day voyage beginning on July 8, 2018. Id. ¶ 16. On July 10, 2018, Plaintiff and her husband participated in an electric bicycle excursion that consisted of a guided tour of Bastia, Corsica, France. Id. ¶ 19. Plaintiff booked this excursion through one of Defendant's representatives. In doing so, she relied on the fact that Defendant held the operator of the excursion out as its agent. Id. ¶ 20-21. Plaintiff alleges that Defendant was “responsible for supervising, vetting, screening, and selecting the [excursion] tour operator, ” and it exercised control over the tour guides, as well as the operation of the excursion itself. Id. ¶ 22. In booking the excursion, Plaintiff believed, based on Defendant's representations, that it consisted of “a leisurely bike tour on flat surfaces to view the scenery and natural preserve of the surrounding area.” Id. ¶ 24.

         Upon commencing the excursion, Plaintiff discovered that, rather than being a leisurely bicycle tour on a manual bike, the excursion involved operating electric bicycles, without prior instruction on the electric bicycles' operation, along high-traffic roads at speeds in excess of thirty miles per hour. Id. ¶ 25. During the excursion, Plaintiff was informed by one of Defendant's employees who accompanied them on the excursion that Defendant had not previously vetted the tour operator and that it was Defendant's first time conducting the excursion using this tour operator. Id. ¶ 26. Plaintiff alleges that numerous excursion participants expressed concerns about their safety and complained to Defendant's employee that they did not want to finish the tour because they were concerned they would be injured. Id. ¶ 27. Defendant's employee acknowledged to Plaintiff “that the tour was not being conducted in a safe manner and was sufficiently concerned that passengers would suffer injuries that she contacted the [Silver Muse] prior to the end of the tour” and requested that a bus come pick the passengers up. Id. After contacting the cruise ship, Defendant's employee indicated that Plaintiff would need to continue the excursion until the group reached a better location because the bus was unable meet them at their current location. Id. Shortly thereafter, Plaintiff was thrown from her electric bicycle and sustained injuries to her mouth, face, leg, elbow, and shoulder. Id. ¶ 28.

         Plaintiff's Amended Complaint asserts two counts against Defendant: Count I (Negligence) and Count II (Negligence - Apparent Agency). Id. at 5-8. Plaintiff also asserts a third count of negligence against Mediport, which is not at issue in the Motion before the Court today. Id. at 8-9. Defendant's Motion argues that this Court should dismiss Counts I and II because Plaintiff has misstated the relevant law and the applicable legal standards, and she has failed to sufficiently plead the elements necessary to establish her causes of action. ECF No. [10].

         II. LEGAL STANDARD

         A pleading in a civil action 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). While a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). “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.'” Id. (quoting Twombly, 550 U.S. at 570).

         When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's factual allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d 1076, 1084 (11th Cir. 2002). “A facially plausible claim must allege facts that are more than merely possible. . . . The plausibility standard ‘calls for enough fact to raise a reasonable expectation that discovery will reveal evidence' of the defendant's liability.” Chaparro, 693 F.3d at 1337 (citations omitted) (citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 556).

         Further, while the Court is required to accept all of the factual allegations contained in the complaint and exhibits attached to the pleadings as true, this tenet is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006) (“When considering a motion to dismiss . . . the court limits its consideration to the pleadings and all exhibits attached thereto.” (internal quotation marks omitted)). “Factual allegations that are merely consistent with a defendant's liability fall short of being facially plausible.” Chaparro, 693 F.3d at 1337. “Similarly, ‘unwarranted deductions of fact' in a complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff's allegations.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Auth., 566 U.S. 449 (2012) (quoting Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)); see also Iqbal, 556 U.S. at 681 (stating conclusory allegations are “not entitled to be assumed true”); Chaparro, 693 F.3d at 1337 (“if allegations are indeed more conclusory than factual, then the court does not have to assume their truth” (citing Mamani v. Berzain, 654 F.3d 1148, 1153-54 (11th Cir. 2011))).

         III. APPLICABLE LAW

         In cases involving alleged torts “committed aboard a ship sailing in navigable waters, ” the applicable substantive law is general maritime law, the rules of which are developed by the federal courts. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1320 (11th Cir. 1989) (citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628 (1959)). “In a claim based on an alleged tort occurring at an offshore location during the course of a cruise, federal maritime law applies, just as it would for torts occurring on ships sailing in navigable waters.” Aronson v. Celebrity Cruises, Inc., 30 F.Supp.3d 1379, 1392 (S.D. Fla. 2014) (citing Smolnikar v. Royal Caribbean Cruises Ltd., 787 F.Supp.2d 1308, 1315 (S.D. Fla. 2011)); see also Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 901 (11th Cir. 2004). In the absence of well-developed maritime law, courts may supplement the maritime law with general common law and state law principles. See Smolnikar, 787 F.Supp.2d at 1315. The parties in the instant action do not dispute that maritime law governs.

         IV. ...


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