E.M.W., v. Royal Caribbean Cruises LTD., Chukka Caribbean Adventures LTD.,

May 8, 2015

E.M.W., v. Royal Caribbean Cruises LTD., Chukka Caribbean Adventures LTD.,

Response in Opposition

This is a case involving a cruise ship passenger who was injured while participating in a shore excursion. The shore excursion operators moved to dismiss the passenger’s lawsuit, and this is the response filed by the maritime attorneys at Lipcon, Margulies & Winkleman, P.A.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14-23978-CV-KING

E.M.W.,
Plaintiff,

v.

ROYAL CARIBBEAN CRUISES LTD.,
CHUKKA CARIBBEAN ADVENTURES LTD.,
CHUKKA CARIBBEAN ADVENTURES (FALMOUTH) LIMITED; and
XYZ CORPORATION(S),
Defendants.

                                                                        /

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS, CHUKKA CARIBBEAN ADVENTURES LTD. AND CHUKKA CARIBBEAN  ADVENTURES (FALMOUTH) LIMITED’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

The Plaintiff, E.M.W., by and through undersigned counsel and pursuant to Federal Rules of Civil Procedure, hereby responds in opposition to Defendants, CHUKKA CARIBBEAN ADVENTURES LTD. and CHUKKA CARIBBEAN ADVENTURES (FALMOUTH) LIMITED (collectively referred to as the “Chukka Defendants[’]”) Motion to Dismiss Plaintiff’s Amended Complaint [D.E. 26] and, in furtherance thereof, relies on the following memorandum of law:

1. Introduction

The instant matter arises out of an incident that occurred while the Plaintiff was on a cruise with Defendant, ROYAL CARIBBEAN CRUISES LTD. (“Royal Caribbean”) and participating in a shore excursion. [D.E. 23, ¶23]. The shore excursion was owned and/or operated by the Chukka Defendants and offered, recommended, marketed, sold, co-operated and/or managed by Royal Caribbean. [Id. at ¶11].

The Plaintiff purchased the shore excursion from Royal Caribbean, and transportation to and from the cruise ship and the excursion location(s) was included in the shore excursion. [Id. at ¶¶16-17, 20]. The motor vehicle used for transporting passengers (including the Plaintiff) was an open-air pickup truck with benches on the bed of the truck. [Id. at ¶21]. Passengers (including the Plaintiff) were placed on the benches, exposed to the outdoor elements with minimal coverage provided by a type of canopy/pavilion. [Id.]

On or about January 15, 2014, while the Plaintiff was riding in the back of the truck, the driver negligently operated the vehicle at a high rate of speed and drove the vehicle in a manner so that it struck nearby trees that lined the side of the road. [Id. at ¶23]. A tree limb that the vehicle struck entered the open-air truck where the passengers were seated and struck the Plaintiff at a high rate of speed, thereby causing the Plaintiff to suffer severe injuries. [Id.] As a result, the Plaintiff initiated this lawsuit against the Chukka Defendants alleging general Negligence (Count II), Negligence based on Apparent Agency or Agency by Estoppel (Count III), Negligence based on Joint Venture (Count IV), and Third-Party Beneficiary (Count V). [D.E. 23].[1]

The Plaintiff filed his initial Complaint on October 24, 2014. [D.E. 1]. Following Defendants’ Motions to Dismiss for failure to state a claim [D.E. 9, 19], this Honorable Court entered an Order on March 31, 2015, granting the Motions to Dismiss and requiring the Plaintiff to plead additional facts to support his claims against Defendants. [D.E. 22]. The Plaintiff therefore filed his Amended Complaint (with additional facts) on April 14, 2015. [D.E. 23].

The Chukka Defendants filed an Answer directed at the Plaintiff’s general Negligence claim (Count II) on April 23, 2015 [D.E. 25]. Thereafter (but on the same day), the Chukka Defendants filed a Motion to Dismiss directed at the remaining claims against them (Counts III-V). [D.E. 26].[2] At issue herein is such Motion to Dismiss [D.E. 26], wherein the Chukka Defendants seek to dismiss the Plaintiff’s claims for Negligence based on Apparent Agency or Agency by Estoppel (Count III), Negligence based on Joint Venture (Count IV), and Third-Party Beneficiary (Count V) under Federal Rule of Civil Procedure 12(b)(6).

Specifically, the Chukka Defendants argue that 1) the Plaintiff’s Apparent Agency and Joint Venture claims (Counts III and IV) are theories of liability and not causes of action; and, 2) the Plaintiff’s Joint Venture and Third Party Beneficiary claims (Counts IV and V) are contradicted by the terms of the Tour Operator Agreement between Royal Caribbean and the Chukka Defendants.

As set forth in further detail below, however, all of their arguments fail because 1) the Plaintiff properly pled alternative theories of negligence under apparent agency and joint venture; and, 2) reviewing the Tour Operator Agreement would cause the Court to improperly consider documents beyond the four corners of the Complaint, and a resolution of the arguments raised involves issues of fact concerning the contracting parties’ intent.

Accordingly, the Chukka Defendants’ Motion to Dismiss should be denied its entirety.

1. Argument

A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). When considering such a motion, a court must accept the allegations in the plaintiff’s complaint as true and construe them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 887 (11th Cir. 2013).

“The threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low.” Bluegreen Corp. v. PC Consulting, Inc., 0780385CIV-RYSKAMP, 2007 WL 2225983 (S.D. Fla. July 31, 2007) (citing In re Southeast Banking Corp., 69 F.3d 1539, 1551 (11th Cir. 1995)) (emphasis added). As such, this Court has routinely stated that such motions are “viewed with disfavor and rarely granted.” Jackson v. BellSouth Telecommunications, Inc., 181 F. Supp. 2d 1345 (S.D. Fla. 2001), aff’d sub nom. Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir. 2004) (citation omitted).

In applying the aforementioned standards to the case at bar, it is clear that the Chukka Defendants’ Motion to Dismiss for failure to state a claim should be denied.

1. Count III: Plaintiff’s claim of Negligence based on Apparent Agency or Agency by Estoppel is properly pled as a negligence claim under an alternative agency theory of liability.

Count III of Plaintiff’s Amended Complaint alleges Negligence against Defendants based on Apparent Agency or Agency by Estoppel (Count III). The Chukka Defendants only argue that it should be dismissed because there is no independent cause of action for agency. [D.E. 26, pp 2, 6].

This Court has consistently denied defendants’ motions to dismiss on the same grounds. Specifically, in Gayou v. Celebrity Cruises, Inc., 11-23359-CIV, 2012 WL 2049431 (S.D. Fla. June 5, 2012) and Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514 (S.D. Fla. Nov. 25, 2014), the plaintiff alleged a direct negligence count, followed by a separate negligence count based on apparent agency. The defendants in both cases moved to dismiss, arguing (like the Chukka Defendants argue herein) that apparent agency is not an independent cause of action. The Court in both cases, however, disagreed with the defendants and considered them proper negligence counts grounded on an agency theory of liability. See Gayou, 2012 WL 2049431 at *8 n.4 (“A fair reading of the substance of the claims… makes plain that [plaintiff] is really pleading negligence causes of action that are grounded on an agency theory of liability. The Court so construes them”); see also Ash, 2014 WL 6682514 at *7 (agreeing with Gayou).

Furthermore, the elements to prove negligence are different than those required to prove apparent agency and/or agency by estoppel. On the one hand, to properly plead a negligence claim, a plaintiff must allege four elements: “(1) a legal duty on the defendant to protect the plaintiff from particular injuries; (2) the defendant’s breach of that duty; (3) the plaintiff’s injury being actually and proximately caused by the breach; and (4) the plaintiff suffering actual harm from the injury.” Belik v. Carlson Travel Grp., Inc., 864 F. Supp. 2d 1302, 1308 (S.D. Fla. 2011) (citations omitted).

On the other hand, to properly plead a claim of apparent agency and/or agency by estoppel,[3] a plaintiff must allege three completely different elements: “(1) the alleged principal made a manifestation which caused a third party to believe that an alleged agent had authority to act for the benefit of the principal; (2) such a belief was reasonable; and (3) the claimant reasonably relied upon that belief to his or her detriment.” Id. at 1311 (citations omitted).

Thus, whereas Count II is a direct negligence count against the Chukka Defendants, Count III is a negligence claim under the theory of apparent agency or agency by estoppel. The two counts are pled in the alternative and, thus, properly separated in accordance with Federal Rule of Civil Procedure 8. See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.”) (emphasis added).

Accordingly, this Honorable Court should deny the Chukka Defendants’ Motion to Dismiss Count III of the Plaintiff’s Amended Complaint.[4]

1. Count IV: Plaintiff’s claim of Negligence based on Joint Venture should not be dismissed based on the terms of the Tour Operator Agreement because the Court’s scope is limited to the four corners of the Complaint, and the Chukka Defendants’ argument involves questions of factual determinations that are improper at this juncture of the case.

Next, as to the Plaintiff’s claim of Negligence based on Joint Venture (Count IV), the Chukka Defendants argue that the Plaintiff’s allegations are contradicted by the terms of the Tour Operator Agreement between Royal Caribbean and the Chukka Defendants.[5] This argument, however, fails for two reasons: 1) it would require this Court to improperly review documents beyond the four corners of the complaint; and, 2) it involves questions of fact as to the parties’ intent which are improper to determine at this stage.

1. Determining whether or not the Plaintiff’s allegations are contradicted by the Tour Operator Agreement would require this Court to improperly review documents beyond the four corners of the complaint.

It is well settled that, at this stage, the scope of a court’s “review must be limited to the four corners of the complaint.” St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002) (citing Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)). In fact, pursuant to binding Eleventh Circuit precedent, the general rule is that a district court does “not consider anything beyond the face of the complaint… when analyzing a motion to dismiss.” Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (citation omitted). The only exception to this rule does not apply in this case.

Specifically, the Eleventh Circuit “recognizes an exception… in cases in which [1] a plaintiff refers to a document in its complaint, [2] the document is central to its claim, [3] its contents are not in dispute, and [4] the defendant attaches the document to its motion to dismiss.” Id. (emphasis added). The facts herein do not meet any of the four requirements, as necessary. See SIG, Inc. v. AT & T Digital Life, Inc., 971 F. Supp. 2d 1178, 1188 (S.D. Fla. 2013) (noting that “each of [the] requirements” must be met).

The first requirement is not met because the Plaintiff never specifically referred to the “Tour Operator Agreement” in his Amended Complaint. In fact, the Plaintiff’s Amended Complaint never refers to any “written” agreement or contract whatsoever. The Chukka Defendants refer to paragraphs 27 and 66 of the Amended Complaint[6] in an attempt to make their point. [D.E. 26, p. 2 at ¶2]. Those paragraphs, however, fall short for reasons tied into the second requirement.

Specifically, the alleged agreement is not central to the Plaintiff’s claims against Defendants, which is the second requirement. The Plaintiff is not relying on the agreement to prove his claims. Rather, the claims arise from the negligent conduct of the cruise line (Royal Caribbean) and the shore excursion providers (the Chukka Defendants). Addressing the same arguments as the Chukka Defendants raise herein, this Court refused to consider the cruise line’s agreement with the shore excursion operator, finding that: “[plaintiff] does not assert any breach of contract claims against [defendant]. Instead, she asserts claims based on tort theories. As such, the ticket contract is not essential or integral to [plaintiff’s] claims, rather, it is part of [defendant’s] defenses.” Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011). Thus, as in Gentry, because Count IV is not asserting a breach of contract claims, the alleged agreement between Royal Caribbean and the Chukka Defendants is not essential or integral to the Plaintiff’s Joint Venture claim.

In fact, a written agreement is not even necessary for the Plaintiff to prove a joint venture between the parties. “A joint venture, like a partnership, can be created by express or implied contract”, Williams v. Obstfeld, 314 F.3d 1270, 1275‐76 (11th Cir. 2002), and two parties could create a joint venture notwithstanding a prior written contract foreclosing such a possibility. Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514 (S.D. Fla. Nov. 25, 2014)

Moreover, the third requirement is not met because the contents of the document are in dispute. “A document is considered ‘undisputed’ when the ‘authenticity of the document is not challenged.’” Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 696 (11th Cir. 2014) (citation omitted). Herein, the Plaintiff does not know whether this is the actual agreement in effect at the time of the subject incident because the contract has not been authenticated. The Plaintiff therefore disputes the authenticity of the document.

Finally, the fourth requirement is not met either because the Tour Operator Agreement was not even attached to the Chukka Defendants’ Motion to Dismiss. [D.E. 26].

Furthermore, the Chukka Defendants’ reliance on Crenshaw v. Lister, 556 F. 3d 1283, 1292 (11th Cir. 2009) for the proposition that a district court may review exhibits, is misplaced. Pursuant to the explicit language of Crewshaw, the Court may review exhibits that contradict the allegations of the complaint only if such exhibits are attached to the complaint. See Crenshaw, 556 F. 3d at 1292 (“conflict between allegations in a pleading and exhibits thereto”; applied to officers’ police reports attached to the complaint) (emphasis added). Herein, the Plaintiff did not attach any documents to his Initial or Amended Complaint [D.E. 1, 23].

Accordingly, because the Chukka Defendants fail to demonstrate the applicability of the exception set forth in Stephens or the applicability of contradictory exhibits, this Honorable Court should not depart from the general rule that it does “not consider anything beyond the face of the complaint… when analyzing a motion to dismiss.” Stephens, 500 F.3d at 1284. Considering only the allegations in the Amended Complaint, which are taken as true and construed in the light most favorable to the Plaintiff, the Plaintiff’s Amended Complaint sets out a claim for joint venture sufficient to state a plausible entitlement to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Chukka Defendants’ grounds for dismissal are therefore without merit and improper at this juncture of the case.

2. Even if the Court reviews the Tour Operator Agreement, determining whether or not the Chukka Defendants were independent contractors or joint venturers is a factual determination that is improper at this juncture.

Even if this Honorable Court reviews the Tour Operator Agreement to decide whether it contradicts Plaintiff’s allegations (as the Chukka Defendants argue), it will still find that a determination as to the Chukka Defendants’ true role (i.e., independent contractors or joint venturers) is an issue of fact concerning the contractual parties’ intent.

In their motion, the Chukka Defendants point to the language in the contract which states that Chukka is considered an “Independent Contractor.” [D.E. 26, pp. 5-6]. However, the “ultimate determination” as to whether a joint venture exists between parties “turns upon evidence of intent of the parties.” Wachovia Bank, N.A. v. Tien, 534 F. Supp. 2d 1267, 1287 (S.D. Fla. 2007) (emphasis added). And pursuant to the Eleventh Circuit, “[t]he court must look at the contract as a whole, the parties, and the purpose of the agreement to best determine the intent of the parties in interpreting the agreement.” Slater v. Energy Servs. Grp. Int’l, Inc., 634 F.3d 1326, 1330 (11th Cir. 2011) (emphasis added).

Herein, even a cursory review of the contract as a whole demonstrates a clear intent of the parties to create a joint venture (notwithstanding the way they chose to define the relationship). (Without waiving the above argument that this Court’s review should be limited to the four corners of the Complaint, the Plaintiff attaches the Tour Operator Agreement as Exhibit 1.) For instance, Section 1 of the agreement provides that Chukka is responsible for operating/providing the shore excursion. Royal Caribbean, however, has “sole discretion” to determine whether a passenger is entitled to a full or partial reimbursement of the shore excursion ticket if such passenger is dissatisfied. Pursuant to Section 3, Royal Caribbean also has “sole discretion” to determine the price to charge passengers for Chukka’s excursion and is the “sole party” authorized to collect payments for Chukka’s excursion. Further, Section 6 requires Chukka to obtain approval from Royal Caribbean for any advertising, promotion, marketing, or publicity. Moreover, Section 11 requires Chukka to indemnify Royal Caribbean “from and against any and all losses, claims… legal fees, costs and expenses” arising from Chukka’s operations of the excursion.[7]

At the very least, the above contractual provisions create a question of fact for the jury to determine whether or not the parties intended to form a joint venture. See Misco-United Supply, Inc., v. The Petroleum Corporation et. al., 462 F.2d 75, 80 (5th Cir. 1972) (“Opposing inferences from contractual provisions as to the intentions of the parties regarding the creation of a joint venture will ordinarily give rise to a question of fact.”). Many courts – including binding precedent – agree that whether or not a group of persons constitute a joint venture is a question of fact to be resolved by the jury. See Rose v. M/V Gulf Stream Falcon, 186 F. 3d 1345 (11th Cir. 1999) (“[…] the district court’s finding with respect to the existence of (or lack thereof) a joint venture is a factual determination that is reviewed under the clearly erroneous standard”); USA Independence Mobilehome Sales, Inc., v. City of Lake City, 908 So.2d 1151, 1158 (Fla. 1st DCA 2005) (“The existence of a joint venture presents a question of fact.”); see also Navarro v. Espino, 316 So. 2d 646 (Fla. 3d DCA 1975) (same).

Further to this point, this Honorable Court (relying on the Eleventh Circuit) has previously held that the elements of joint venture could be inferred from the surrounding circumstances. See Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. 2011) (citing Fulcher’s Point Pride Seafood v. M/V “Theodora Maria”, 935 F.2d 208, 212–13 (11th Cir. 1991)).

Therefore, the Plaintiff has presented sufficient facts – both in the contract as well as in his Amended Complaint – to infer an intent between the parties such that the issue should be one for the jury to decide. Accordingly, the Chukka Defendants’ Motion to Dismiss Count IV of the Plaintiff’s Amended Complaint should be denied.

1. Count V: Plaintiff’s Third-Party Beneficiary claim should not be dismissed based on the terms of the Tour Operator Agreement because the Court’s scope is limited to the four corners of the Complaint, and the Chukka Defendants’ argument involves questions of factual determinations that improper at this juncture of the case.

Similar to the Joint Venture claim, the Chukka Defendants move to dismiss Plaintiff’s Third-Party Beneficiary claim on grounds that Plaintiff’s allegations are contradicted by the terms of the Tour Operator Agreement. Again, however, this argument fails for the same reasons: 1) it would require this Court to improperly review documents beyond the four corners of the complaint; and, 2) it involves questions of fact as to the parties’ intent which are improper to determine at this stage.

As to the first point, the Plaintiff refers to and incorporates by reference the argument set forth above establishing that the Court’s review should be limited to the four corners of the Complaint. Even if the Court does review the agreement, however, it will again find that determining whether the Defendants intended to benefit the Plaintiff (as a passenger) is an improper factual determination concerning the parties’ intent.

Specifically, although the Chukka Defendants attempt to simply point to the language of the contract, the intent of the parties is the key to determining whether a third party is recognized as an intended beneficiary (with rights to enforce the contract) as opposed to only an incidental beneficiary (with no enforceable rights under the contract).[8] Under Florida law, a third party is an intended beneficiary of a contract between two other parties only if a direct and primary object of the contracting parties was to confer a benefit on the third party. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005); see also Vencor Hosps. v. Blue Cross Blue Shield of R.I., 169 F.3d 677, 680 (11th Cir. 1999) (“A party has a cause of action as a third-party beneficiary to a contract if the contracting parties express an intent primarily and directly to benefit that third party (or a class of persons to which that third party belongs).”). If the contracting parties had no such purpose in mind, then any benefit from the contract reaped by the third party is merely “incidental,” and the third party has no legally enforceable right in the subject matter of the contract. Bochese, 405 F. 3d at 982.

Thus, the test is whether the parties to the contract intended that a third person should benefit from the contract. See Bochese, 405 F. 3d at 981-82; see also Marianna Lime Prods. Co. v. McKay, 109 Fla. 275, 147 So. 264, 265 (1933) (“[T]he test is[ ] not that the promisee is liable to the third person, or that there is some privity between them or that some consideration moved from the third person, but that the parties to the contract intended that a third person should be benefited by the contract.”).

To determine whether a contract was in fact intended for the benefit of a third person, the Eleventh Circuit stated:

The Florida Supreme Court has explained that “[t]he question whether a contract was intended for the benefit of a third person is generally regarded as one of construction of the contract. The intention of the parties in this respect is determined by the terms of the contract as a whole, construed in the light of the circumstances under which it was made and the apparent purpose that the parties are trying to accomplish.”

Bochese, 405 F.3d at 982 (emphasis added); see also Progress Rail Services Corp. v. Hillsborough Area Reg’l Transit Auth., 804CV200T23EAJ, 2006 WL 314507 at *1 (M.D. Fla. Feb. 9, 2006) (“For the purpose of determining whether a third-party is an intended beneficiary to a contract, basic contract interpretation rules apply.”) (citing 28 Richard A. Lord Williston on Contracts § 70:226 (4th ed. 2005) (“Ascertaining whether the contracting parties intend to benefit a putative third-party beneficiary is a question of ordinary contract interpretation.”)).

Therefore, because the intent of the parties is the key to determining whether a third party is an intended beneficiary under the contract, it is premature to rule on this issue at a motion to dismiss stage. See BGW Design Limited, Inc., 2010 WL 5014298, *5 (S.D. Fla. 2010) (The [contractual] intent of the parties is a factual matter and therefore should not be resolved on a motion to dismiss); American Honda Motor Co., Inc., v. Motorcycle Information Network, Inc., 390 F. Supp. 2d 1170, 1176 (S.D. Fla. 2005) (“The intent of the parties is a factual matter that cannot be resolved on a motion to dismiss); see also Barnett v. Carnival Corp., 06-22521CIVOSULLIVAN, 2007 WL 1746900 (S.D. Fla. 2007) (“To determine the parties’ intent as the defendant suggests necessarily would require the Court to look at matters outside of the complaint. As such, the issue of intent is not appropriate for resolution on a motion to dismiss.”) (citing Westinghouse Electric Supply Co. v. Wesley Construction Co., 414 F.2d 1280, 1281-82 (5th Cir. 1969) (reversing the district court’s order dismissing a third party beneficiary claim)).

Herein, even if this Honorable Court reviews the Tour Operator Agreement, the Plaintiff submits that the terms of the contract do in fact infer an intent that Royal Caribbean passengers (including the Plaintiff) were intended beneficiaries and, as such, the issue should be left for the jury to decide. Specifically, under Section 1, Chukka is to satisfy the “highest standards in the industry” when providing the excursion. Royal Caribbean forbids Chukka from allocating its best tour guides, buses, hotel facilities, time slots, etc. to other cruise lines.   Further, it is clear that the passengers’ satisfaction was of the utmost importance when drafting the contract based on the fact that, as mentioned above, Royal Caribbean maintains “sole discretion” to determine whether a passenger is entitled to a full or partial reimbursement of the shore excursion ticket if “any Passenger is dissatisfied”. The contract also requires the Chukka to maintain insurance and specifies the amounts of coverage required, which is clearly for the benefit of passengers (like the Plaintiff) who are the ones participating in the excursion.

Furthermore, the Amended Complaint succinctly provides that “[t]he contract between the parties clearly manifested the intent of the contracting parties that the contract primarily and directly benefits the Plaintiff third party by requiring [the Chukka Defendants] to exercise reasonable care in the operation of the subject excursion” and “requiring [the Chukka Defendants] to maintain insurance”. [D.E. 23, ¶67].

Thus, the Plaintiff has presented sufficient facts – both in the contract as well as in his Amended Complaint – to infer an intent between the parties such that the issue should be one for the jury to decide. As in Bridgewater v. Carnival Corp., No. 10-22241-CIV, 2011 WL 976467, at *2 (S.D. Fla. Mar. 2, 2011) (King, J.), this Honorable Court should therefore “decline to interpret the Agreement” between Royal Caribbean and the Chukka Defendants.

Accordingly, the Chukka Defendants’ Motion to Dismiss Count V of the Plaintiff’s Amended Complaint should be denied.

• Motion for Leave to Amend

Should this Honorable Court grant the Chukka Defendants’ motion or any portion thereof, Plaintiff respectfully requests leave to amend.

WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests this Honorable Court enter an Order denying the Chukka Defendants’ Motion to Dismiss in its entirety, and any other relief this Court deems just and proper.

Respectfully submitted,

LIPCON, MARGULIES,
ALSINA & WINKLEMAN, P.A.
Attorneys for Plaintiff
One Biscayne Tower, Suite 1776
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone No.: (305) 373-3016
Facsimile No.: (305) 373-6204

By: /s/ Jacqueline Garcell
JASON R. MARGULIES
Florida Bar No. 57916
JACQUELINE GARCELL
Florida Bar No. 104358

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 8, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to electronically receive Notices of Electronic Filing.

By:  /s/ Jacqueline Garcell                         

JACQUELINE GARCELL

[1] The Plaintiff also sued Royal Caribbean. [D.E. 28]. Royal Caribbean filed an Answer as to the general Negligence count (Count I) on April 24, 2015 [D.E. 27], and filed a Motion to Dismiss as to the remaining claims on May 1, 2015 [D.E. 28].

[2] Technically, a motion under Rule 12(b)(6) “must be made before pleading”. Fed. R. Civ. P. 12(b) (emphasis added). Once the answer is filed, the pleadings are closed, and a Rule 12(b)(6) motion to dismiss, which does not go to the jurisdiction of the court, is inappropriate. Rodriguez v. Myrmidones LLC, No. 8:14-CV-618-T-24-TBM, 2014 WL 1779296, at *3 (M.D. Fla. May 5, 2014). Herein, because the Chukka Defendants filed its Answer first [D.E. 25], the Motion to Dismiss [D.E. 26] should instead be considered a Motion for Judgment on the Pleadings. See Fed. R. Civ. P. 12(h)(2); see also Hallberg v. Pasco Cnty., Florida, No. 95-1354-CIV-T-17A, 1996 WL 153673, at *2 (M.D. Fla. Mar. 18, 1996). Nevertheless, the same standard applies. See Bryan Ashley Int’l, Inc. v. Shelby Williams Indus., Inc., 932 F. Supp. 290, 291-92 (S.D. Fla. 1996) (stating that when a motion filed pursuant to Rule 12(c) raises a Rule 12(b)(6) defense, “the court should apply the same standard used to evaluate a Fed. R. Civ. P. 12(b)(6) motion”).

[3] In Florida, agency by estoppel is nearly the same as apparent agency. The Eleventh Circuit does not even consider the two separately. Belik, 864 F. Supp. 2d at 1312.

[4] In introducing this argument in paragraph 3 of the motion, the Chukka Defendants include Plaintiff’s Joint Venture claim. [D.E. 26, p. 2] (“Plaintiff’s apparent agency and joint venture claims should be dismissed, as these are theories of liability and not causes of action.”). In their memorandum of law, however, the Chukka Defendants only direct the argument at Plaintiff’s apparent agency claim. In an abundance of caution, Plaintiff makes clear that this argument also applies to his Joint Venture claim (i.e., it is pled as a negligence claim under the alternative theory of joint venture). See Ash v. Royal Caribbean Cruises Ltd., No. 13-20619-CIV, 2014 WL 6682514 at *8 (S.D. Fla. Nov. 25, 2014) (considering it a proper negligence claim under the alternative theory of joint venture). Further, like apparent agency, the elements to plead joint venture are different than those required to plead negligence. See Belik, 864 F. Supp. 2d at 1313 (“To properly allege a joint venture, a plaintiff must set forth the following five elements: ‘(1) a community of interest in the performance of a common purpose; (2) joint control or right of control; (3) a joint proprietary interest in the subject matter; (4) a right to share in the profits; and (5) a duty to share in any losses which may be sustained.’”) (citations omitted).

[5] The Chukka Defendants, in passing, make a reference to the “conclusory manner” in which Plaintiff alleged “the elements necessary to create a joint venture.” [D.E. 26, p. 5]. The motion, however, only focuses on the allegations being contradicted by the terms of the contract. Nevertheless, in an abundance of caution, Plaintiff refers to the following paragraphs of his Amended Complaint which alleges all elements to create a joint venture with sufficient factual allegations: ¶¶27, 54-65 [D.E. 23]. Furthermore, binding Eleventh Circuit precedent makes clear that the elements of a joint venture “cannot be applied mechanically” and that “[n]o one aspect of the relationship is decisive.” Fulcher’s Point Pride Seafood, Inc. v. M/V “Lady Mary,” 935 F.2d 208, 211 (11th Cir. 1991) (citing Sasportes v. M/V Sol de Copacabana, 581 F.2d 1204, 1208 (5th Cir. 1978)). Pursuant to this case, the factors are not a checklist, “[t]hey are only signposts, likely indicia, but not prerequisites.” Id. (emphasis added); see also Gentry v. Carnival Corp., 11-21580-CIV, 2011 WL 4737062 (S.D. Fla. Oct. 5, 2011) (“failure to specifically allege that the parties intended to create a joint venture is not fatal so long as the other allegations provide enough factual material to make it plausible that the parties intended to create one”).

[6] Paragraph 27(a) states as follows: “RCCL and the Excursion Entities entered into an agreement whereby: RCCL made all arrangements for the Plaintiff, on behalf of the partnership with the Excursion Entities, for the subject shore excursion being run by the Excursion Entities; and/or….” Paragraph 66 states as follows: “RCCL and the Excursion Entities entered into a contract to provide excursions for passengers on board RCCL’s ship(s).” [D.E. 23, ¶¶27, 66].

[7] The Plaintiff’s Amended Complaint alleges this arrangement between the parties (i.e., that Chukka operated the excursion, that Royal Caribbean determined the prices for the excursion, that Royal Caribbean collected payment from passengers, etc. [D.E. 23, ¶¶27, 54-65]).

[8] Florida courts have recognized three types of third party beneficiaries to a contract: (1) donee beneficiaries; (2) creditor beneficiaries; and (3) incidental beneficiaries.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005) (citing Int’l Erectors, Inc. v. Wilhoit Steel Erectors & Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968) (citation and internal quotation marks omitted). The key distinction is that the first two categories are classes of “intended” beneficiaries, who have a right to sue for enforcement of the contract, whereas the third category, “third party beneficiaries recognized as incidental beneficiaries[,] have no enforceable rights under a contract.” Id. (emphasis added).